* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata and coll ateral estoppel. The court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3. 

## F I L E D United States Court of Appeals Tenth Circuit 

### JAN 8 2001 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.JUAN MOISES TORRESGONZALEZ,

Defendant-Appellant. No. 00-3068 (District of Kansas) (D.C. No. 99-CR-20026-KHV)

ORDER AND JUDGMENT *

Before BRORBY , KELLY , and MURPHY , Circuit Judges.

After examining the briefs and appellate record, th is court has determined unanimously that oral argument would not materiallyassist the determination of this appeal. **See** Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). T he case is therefore ordered submitted without oral argument.-2-

Appellant, Juan Moises Torres-Gonzalez (“Torres”), pleaded guilty to one count of illegal reentry after deportation for an a ggravated felony, in violation of 8 U.S.C. § 1326(a) and (b)(2). The district court concluded that Torres had previously been deported after conviction for an ag gravated felony and, consequently, increased Torres’ offense level by si xteen levels pursuant to § 2L1.2(b)(1)(A) of the United States Sentencing Guid elines (“U.S.S.G.”). Torres was sentenced to a term of seventy-seven months’ in carceration. Torres appeals the sentence imposed by the district court. Exerci sing jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a), this court affirms

. On December 3, 1996, in the Superior Court of San B ernardino County, California, Torres pleaded guilty to one count of c ommercial burglary and was sentenced to sixteen months’ imprisonment. Torres was deported on November 26, 1997. On May 17, 1999, Torres pleaded guilty t o one count of illegal reentry after deportation for an aggravated felony in violation of 8 U.S.C. § 1326(a) and (b)(2). Pursuant to U.S.S.G. § 2L1.2, Torres’ base offense level was calculated at eight. Torres’ offense level was then increasedby sixteen levels pursuant to U.S.S.G. § 2L1.2(b)(1)(A) which provides: (1) If the defendant previously was deported after a criminal conviction, or if the defendant unlawfully remainedin the United States following a removal order issued after a cri minal conviction, increase as follows (if more than one applies, use the greater):-3- (A) If the conviction was for an aggravated felony, in crease by 16 levels. The term “aggravated felony” is defined by referenc e to 8 U.S.C. § 1101(a)(43).
See U.S.S.G. § 2L1.2, cmt. n.1. An aggravated felony is defined, inter alia , as “a theft offense . . . or burglary offense for which t he term of imprisonment [is] at least one year.” 8 U.S.C. § 1101(a)(43)(G). The d istrict court concluded that Torres’ California burglary conviction fell within the definition of aggravated felony and, thus, imposed the sixteen-level increas e. The sole issue raised by Torres in this appeal is that the district court erred in increasing his offense level pursuant to U.S.S.G . § 2L1.2(b)(1)(A). Torres contends that the prior crime upon which the increa se was based was not a burglary offense under 8 U.S.C. § 1101(a)(43)(G) an d, thus, is not an aggravated felony for purposes of § 2L1.2(b)(1)(A). This court reviews questions of law related to the application of the Sentencing Guidelines de novo

. See United States v. Gomez-Arrellano , 5 F.3d 464, 465 (10th Cir. 1993). Torres contends that the California statutory defin ition of burglary is significantly broader than the generic definition o f burglary adopted by the Supreme Court in Taylor v. United States , 495 U.S. 575, 599 (1990). Accordingly, Torres argues that the California burg lary conviction is not a “burglary offense” under 8 U.S.C. § 1101(a)(43)(G) and, thus, is not an “aggravated felony” under U.S.S.G. § 2L1.2(b)(1)(A) . The government first-4-

argues that Taylor is inapplicable because the generic definition of burglary was adopted by the Court solely for the purpose of dete rmining whether a defendant’s prior conviction constitutes a crime of violence th ereby justifying a sentencing enhancement pursuant to 18 U.S.C. § 924(e). But see Ye v. INS , 214 F.3d 1128, 1131 (9th Cir. 2000) (applying the Taylor definition of burglary for purposes of § 1101(a)(43)(G)); Lopez-Elias v. Reno , 209 F.3d 788, 791-92 (5th Cir. 2000) (same); Solorzano-Patlan v. INS , 207 F.3d 869, 874-75 (7th Cir. 2000) (same). In the alternative, the government argues that this court should apply the narrow exception to the categorical approach adopted in Taylor

. See Taylor , 495 U.S. at 599-602 (holding that under narrow circumstances a sentencing court can look beyond the state statutory definition of burglary and examine the charging instrument and jury instructions to determine wheth er the defendant was actually convicted of generic burglary). Because we conclud e that Torres’ California burglary conviction qualifies as an aggravated felony under the Taylor approach, it is unnecessary to address the government’s firstargument.
In Taylor , the Court defined generic burglary as a crime hav ing “the basic elements of unlawful or unprivileged entry into, orremaining in, a building or structure, with intent to commit a crime.” Id . at 599. Under the categorical approach adopted in Taylor , the sentencing court must first determine whether “the state statute corresponds in substance to the generic meaning of burglary.”-5-

Id . California Penal Code section 459, the statute u nder which Torres was convicted, defines burglary as follows: Every person who enters any house, room, apartment, tenement, shop, warehouse, store, mill, barn, stable, outhous e or other building, tent, vessel, . . . floating home, . . . railroad car, locked or sealed cargo container, whether or not mounted on avehicle, trailer coach, . . . any house car, . . . inhabited camper, . . . vehicle as defined by the Vehicle Code, when the doors are loc ked, aircraft . . . , or mine or any underground portion thereof, with intent to commit grand or petit larceny or any felony is guilty of b urglary. The Ninth Circuit Court of Appeals has held that th is statutory definition of burglary “is far too sweeping to satisfy the Taylordefinition of generic burglary.” United States v. Franklin , No. 99-10515, 2000 WL 1854832, at * 3 (9th Cir. D ec. 20, 2000). We will assume, without deciding, that the California statutory definition of burglary does not correspond in subst ance with the generic definition of burglary set forth in Taylor . Consequently, Torres’ California burglary conviction does not automatically constitu te a burglary offense under 8 U.S.C. § 1101(a)(43)(G). See id . at 599. When the state’s statutory definition of burglary i s broader than the generic definition set forth in Taylor , “the sentencing court may look to the underlying indictment or information and the text of the guilty plea to determine whether the defendant was charged with and admitted conduct whi ch falls without question within the ambit of Taylor ’s generic definition.” United States v. Barney , 9551 Torres argued at the sentencing hearing that the Ca lifornia conviction did

not meet the generic definition of burglary because the building which he entered was open to the public and therefore his entry was not unlawful or unprivileged. We do not address this argument both because Torres does not raise it in this appeal, and also because it would require this court to look beyond the fact of conviction to Torres’ underlying conduct. -6- F.2d 635, 639 (10th Cir. 1992). The court, however , may not consider the particular facts underlying the conviction. See Taylor , 495 U.S. at 600-02. In this case, Torres attached a copy of the felony complaint filed in the California burglary case to the Memorandum in Suppo rt of Defendant’s Motion for Departure that he filed with the district court . In the complaint, Torres was charged with, “willfully and unlawfully enter[ing] a commercial building . . . with the intent to commit larceny and any felony.” The government read from the complaint at the sentencing hearing, and the di strict court relied on it to reach the conclusion that Torres had pleaded guilty to co nduct that fell within the generic definition of burglary adopted in Taylor

. It is clear from our review of the California felony complaint 1 that Torres was convicted of a crime containing all the element s of generic burglary as set forth in Taylor . Thus, the district court properly used Torres’ C alifornia burglary conviction to increase his offense level by sixteen levels pursuant to U.S.S.G. § 2L1.2(b)(1)(A). Accordingly, the sentence imposed by the district court is hereby
affirmed

.-7- ENTERED FOR THE COURT

Michael R. Murphy Circuit Judge