FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, 

Plaintiff-Appellant, No. 03-50146

v.  D.C. No.

JORGE RODRIGUEZ-RODRIGUEZ, CR-02-02456-MJL

Defendant-Appellee. 

UNITED STATES OF AMERICA,  No. 03-50147

Plaintiff-Appellee, D.C. No.

v. CR-02-02456-MJL 

JORGE RODRIGUEZ-RODRIGUEZ, ORDER AND

Defendant-Appellant. AMENDED

OPINION 

Appeal from the United States District Court

for the Southern District of California

M. James Lorenz, District Judge, Presiding

Argued and Submitted

March 30, 2004—Pasadena, California

Filed April 20, 2004

Amended January 5, 2005

Before: Cynthia Holcomb Hall, Stephen S. Trott, and

Consuelo M. Callahan, Circuit Judges.

Opinion by Judge Trott

73
COUNSEL

Carol C. Lam, United States Attorney, Deborah J. Rhodes,

Assistant U.S. Attorney (on the brief), Lawrence E. Spong,

Assistant U.S. Attorney (at oral argument), United States

Attorney’s Office, San Diego, California, for the plaintiffappellant/cross-appellee. 

Steven F. Hubacheck and Vincent J. Brunkow, Federal

Defenders of San Diego, Inc., San Diego, California, for the

defendant-appellee/cross-appellant. 

ORDER

The Opinion filed April 20, 2004, and appearing at 364

F.3d 1142 (9th Cir. 2004) is amended as follows. Replace

Section D with the following: 

D. Sentencing 

The sentencing judge’s application of the Sentencing Guidelines, including whether a prior conviction

is a “crime of violence” or an “aggravated felony”

for the purposes of U.S.S.G. § 2L1.2, is reviewed de

novo. United States v. Bonilla-Montenegro, 331 F.3d

1047, 1049 (9th Cir. 2003). 

UNITED STATES v. RODRIGUEZ-RODRIGUEZ 77
The Guidelines provide that a sentence is

enhanced by sixteen levels if an alien “previously

was deported, or unlawfully remained in the United

States, after . . . a conviction for a felony that is . . .

a crime of violence.” U.S.S.G. § 2L1.2(b)(1)(A). For

an aggravated felony, the enhancement is only eight

levels. U.S.S.G. § 2L1.2(b)(1)(C). The application

notes specifically provide that “burglary of a dwelling” is a “crime of violence.” See U.S.S.G. § 2L1.2,

cmt. n. 1(B)(iii).

The sentencing judge enhanced Rodriguez’s sentence by eight levels, characterizing his prior burglary conviction as an “aggravated felony,” rather

than a “crime of violence.” At the sentencing hearing, the defense argued that, under Taylor v. United

States, California’s generic burglary definition was

too broad to apply the “crime of violence” guideline,

and that Rodriguez’s role as a lookout warranted

application of the lesser “aggravated felony”

enhancement. See 495 U.S. 575 (1990). 

Although the application note specifically

includes “burglary of a dwelling” in the definition of

“crime of violence,” see U.S.S.G. § 2L1.2, cmt. n.

1(B)(iii), a conviction for burglary of a dwelling

must meet the generic, uniform definition of burglary to fall under the definition of “burglary of a

dwelling.” United States v. Wenner, 351 F.3d 969,

972 (9th Cir. 2003). Under Taylor, a state conviction

meets the generic definition of burglary if the burglary statute “contains at least the following elements: an unlawful or unprivileged entry into, or

remaining in, a building or other structure, with

intent to commit a crime.” Taylor, 495 U.S. at 598.

The definition of “burglary of a dwelling” is the

same as the “Taylor definition of burglary, with the

78 UNITED STATES v. RODRIGUEZ-RODRIGUEZ
narrowing qualification that the burglary occur in a

dwelling.” Wenner, 351 F.3d at 973. 

Taylor sets forth a categorical approach, which

“generally requires the trial court to look only to the

fact of conviction and the statutory definition of the

prior offense.” 495 U.S. at 602. Using that approach,

Rodriguez’s California first degree burglary conviction does not constitute generic burglary because

California Penal Code Sections 459 and 460 do not

require “unlawful or unprivileged entry” for a burglary conviction. See Taylor, 495 U.S. at 599 (“A

few States’ burglary statutes, however, define burglary more broadly, e.g., by eliminating the requirement that the entry be unlawful.”); see also People

v. Frye, 959 P.2d 183, 18 Cal. 4th 894, 954 (Cal.

1998) (holding that in California “one may be convicted of burglary even if he enters with consent”).

Where, as here, the state burglary statute is

broader than the Taylor definition of burglary, we

employ a modified categorical approach, under

which we consider whether the documentation or

judicially noticeable facts show that the defendant

was convicted of all elements of generic burglary

under Taylor. See Wenner, 351 F.3d at 972. 

Applying the modified categorical approach, we

conclude that Rodriguez was convicted of a “burglary of a dwelling,” triggering the sixteen level

enhancement. Rodriguez pled guilty to “willfully

and unlawfully enter[ing] a building with the intent

to commit theft” where the building was an “inhabited dwelling house [or other residential building]

. . . within the meaning of Penal Code section 460.”

By pleading guilty, Rodriguez admitted the factual

allegations in the indictment. See United States v.

Velasco-Medina, 305 F.3d 839, 852 (9th Cir. 2002);

UNITED STATES v. RODRIGUEZ-RODRIGUEZ 79
United States v. Williams, 47 F.3d 993, 995 (9th Cir.

1995). Because Rodriguez’s conviction included the

unlawful entry requirement absent in California’s

statutory definition of burglary, his conviction meets

the definition of “burglary of a dwelling” under Taylor and is, therefore, a “crime of violence” under the

Sentencing Guidelines. See U.S.S.G. § 2L1.2, cmt. n.

1(B)(iii); see also Velasco-Medina, 305 F.3d at 852-

52 (holding that a California burglary conviction was

burglary under a modified-categorical approach

because Velasco-Medina pled guilty where the

indictment alleged “unlawful” entry). 

Rodriguez’s alternate argument, that his limited

role as a lookout warrants application of the lesser

enhancement, also fails. The application notes specifically include convictions for aiding and abetting,

conspiring, and attempting to commit the listed

offenses in U.S.S.G. § 2L1.2(b)(1). U.S.S.G.

§ 2L1.2, cmt. n.5. Under Taylor, we look to the statutory definitions of the prior offenses and avoid “inquiries into the underlying facts that would

essentially turn the sentencing hearings into minitrials on the issue of whether the prior crimes were

committed.” United States v. Bonat, 106 F.3d 1472,

1476 (9th Cir. 1997) (citing Taylor, 495 U.S. at 601).

Because the sentencing judge misapplied U.S.S.G.

§ 2L1.2(b)(1) in determining that Rodriguez’s sentence should only be enhanced eight levels for an

aggravated felony instead of sixteen levels for a

crime of violence, we vacate Rodriguez’s sentence

and remand to the district court for resentencing in

accordance with this opinion. 

With these amendments, the panel as constituted above has

voted to deny the petition for rehearing. Judges Trott and Cal80 UNITED STATES v. RODRIGUEZ-RODRIGUEZ
lahan have voted to deny the petition for rehearing en banc,

and Judge Hall so recommends. 

The full court has been advised of the suggestion for

rehearing en banc and no judge of the court has requested a

vote on it. Fed. R. App. P. 35(b). 

The petition for rehearing and the petition for rehearing en

banc are DENIED.

OPINION

TROTT, Circuit Judge:

Jorge Rodriguez-Rodriguez (“Rodriguez”) was convicted

of one count of illegal entry under 8 U.S.C. § 1326 and sentenced to twenty-one months in custody. The United States

(“government”) appeals the sentencing judge’s application of

United States Sentencing Guideline (U.S.S.G.) § 2L1.2(b)

(1)(A), arguing that Rodriguez’s prior burglary constitutes a

“crime of violence.” Rodriguez cross-appeals, arguing that (1)

the government’s failure to allege voluntary entry in the

indictment renders it insufficient, (2) the government used

statements that were taken in violation of Miranda v. Arizona,

384 U.S. 436 (1966), and (3) Rodriguez was denied his rights

under the Confrontation Clause when the court denied his

request to cross examine a witness regarding INS recordkeeping. 

We have jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C.

§ 3742(b). We affirm Rodriguez’s conviction. We vacate

Rodriguez’s sentence and remand to the district court for

resentencing consistent with this opinion. 

BACKGROUND

On June 21, 2002, Rodriguez was apprehended by border

patrol. After admitting that he was a citizen and national of

UNITED STATES v. RODRIGUEZ-RODRIGUEZ 81
Mexico illegally in the United States, he was arrested and

transported to the Imperial Beach Border Patrol station. He

was detained at the station, where he was fingerprinted and

his photo and fingerprints were run against the INS records,

which revealed that he had previously been deported. 

At the station, Border Patrol Agent Overton read Rodriguez

his Miranda rights in English and Spanish. After Rodriguez

signed a Miranda waiver, witnessed by another agent, he

responded to a number of questions. The agents noted that he

had “needle tracks” on his arms, but observed that he was

coherent, interactive, and normal. After he was questioned,

Rodriguez underwent a routine health examination. The medical record indicates that Rodriguez was alert and oriented, but

it did go on to diagnose him with “acute heroin withdrawal.”

Miguel Ahuage, the author of the report, testified that “acute”

does not mean “severe,” and that only patients undergoing

mild or moderate withdrawal are permitted in the clinic where

he works, while the more serious cases must be treated elsewhere. 

Rodriguez was charged with being a previously deported

alien found in the United States without the consent of the

Attorney General under 8 U.S.C. § 1326. 

Prior to trial, Rodriguez unsuccessfully moved to dismiss

the action, claiming the indictment was insufficient because it

failed to allege voluntary entry. Rodriguez also unsuccessfully

moved to suppress the statements he made at the border patrol

station, claiming that he could not have voluntarily waived his

right to counsel under Miranda, because he was suffering

from heroin withdrawal during the course of questioning.

During the Miranda hearing, Rodriguez attempted to call an

expert witness to testify to the implications of Rodriguez’s

suffering from heroin withdrawal and its effects on his ability

to make a voluntary and intelligent waiver. The district court

excluded the testimony as irrelevant. During trial, the government elicited testimony that INS records searches revealed no

82 UNITED STATES v. RODRIGUEZ-RODRIGUEZ
applications for Rodriguez’s entry. Rodriguez sought to crossexamine the witness regarding the deficiencies of INS recordkeeping, but the trial court denied his request. 

Rodriguez was convicted by a jury, and sentenced to

twenty-one months custody followed by three years supervised release. The sentence imposed was based in part on a

prior conviction. In 1991, Rodriguez had pleaded guilty to

one count of first degree burglary of a residence, a felony. 

DISCUSSION

A. Failure to Allege Voluntary Entry 

The sufficiency of an indictment is reviewed de novo.

United States v. Fleming, 215 F.3d 930, 935 (9th Cir. 2000).

Rodriguez argues that the government’s failure to allege voluntary entry in his indictment renders it insufficient.1

[1] Rodriguez’s argument is foreclosed by our holding in

United States v. Parga-Rosas, 238 F.3d 1209 (9th Cir. 2001),

cert. denied, 534 U.S. 942 (2001). In that case, we held that

a “found in” indictment, like that in the instant case, is sufficient to allege unlawful conduct under § 1326. Id. at 1211

(“[T]here is no basis for reversing Parga-Rosas’s conviction

on the ground that the government failed to allege or prove a

voluntary entry.”)

[2] Rodriguez argues that Parga-Rosas was implicitly overruled by this Court’s en banc decision in United States v.

1The indictment reads: 

JORGE RODRIGUEZ-RODRIGUEZ, an alien, who had previously been excluded, deported and removed from the United

States to Mexico, was found in the United States, without the

Attorney General of the United States having expressly consented

to the defendant’s reapplication for admission into the United

States; in violation of Title 8, United States Code, Section 1326.

UNITED STATES v. RODRIGUEZ-RODRIGUEZ 83
Buckland, 289 F.3d 558 (9th Cir. 2002) (en banc). In Buckland, this Court held that under Apprendi v. New Jersey, 530

U.S. 466 (2000), drug type and quantity are material facts in

a prosecution that must be “charged in the indictment, submitted to the jury, subject to the rules of evidence, and proved

beyond a reasonable doubt.” Id. at 568. Rodriguez argues that

like drug type and quantity, voluntary entry is a material fact

and must be charged in a § 1326 indictment. The Buckland

decision directs us that the relevant inquiry in determining

whether a fact or element must be charged in an indictment

is whether it “may increase a defendant’s exposure to penalties,” regardless of its label. Id. at 566. Here, voluntary entry

and being found in the United States are two alternative

unlawful acts that are chargeable under § 1326. Voluntary

entry need not even be proved in most cases. See United

States v. Pina-Jaime, 332 F.3d 609, 612 (9th Cir. 2003)

(“Today, we make clear that an alien does not have to enter

the United States illegally to violate the ‘found in’ clause of

8 U.S.C. §1326 (a)(2).”). Because it is not necessary to prove

or allege voluntary or unlawful entry in a “found in” conviction, and because voluntary entry makes no difference in a

defendant’s exposure to penalties, Buckland in no way overrules Parga-Rosas. 

[3] The district court correctly determined that PargaRosas controls this question and denied Rodriguez’s motion

to dismiss for insufficiency of the indictment. 

B. Miranda Violation 

1. Denial of Rodriguez’s Motion to Suppress

We review de novo the district court’s decision to admit or

suppress statements that may have been obtained in violation

of Miranda. United States v. Nelson, 137 F.3d 1094, 1110

(9th Cir. 1998). Underlying factual findings, including a district court’s finding that a defendant knowingly and intelligently waived his Miranda rights, are reviewed for clear

84 UNITED STATES v. RODRIGUEZ-RODRIGUEZ
error. Id.; United States v. Garibay, 143 F.3d 534, 536 (9th

Cir. 1998). The district court denied Rodriguez’s motion to

suppress statements he alleged were taken in violation of

Miranda because “there [was] no evidence whatsoever that

[Rodriguez’s waiver] was other than voluntary.” Rodriguez

argues that he could not voluntarily and intelligently waive

his rights under Miranda because he was going through heroin withdrawal. The facts do not support his claim. 

[4] The border agents read Rodriguez his Miranda rights in

both English and Spanish. Rodriguez then signed a waiver

and agreed to answer questions. Agent Overton, who read

Rodriguez his rights, testified: “[Rodriguez] was coherent, sitting up facing me. He spoke and interacted. He seemed normal.” Rodriguez’s own witness, the physician assistant who

examined him just after he spoke with the border agents, testified that his withdrawal could only have been “mild or moderate” and that the Rodriguez was “alert [and] oriented” at the

time of the exam. Further, our case law supports the finding

that individuals going through heroin withdrawal can voluntarily and intelligently waive their Miranda rights. See, e.g.,

United States v. Coleman, 208 F.3d 786, 791 (9th Cir. 2000)

(“Nor did Defendant’s symptoms of heroin withdrawal render

his statements involuntary.”); United States v. Kelley, 953

F.2d 562, 565 (9th Cir. 1992) (holding that even though

defendant “began to display physical signs of withdrawal,”

his waiver was voluntary because he “remained coherent and

responsive, was aware of what was going on, and told the . . .

agents that he was able to continue with questioning”). 

[5] On this record, the district court’s determination that

Rodriguez’s waiver was voluntary is not clearly erroneous.

Thus, the district court properly denied Rodriguez’s motion to

suppress the statements.

2. Exclusion of Rodriguez’s Expert Testimony 

Rodriguez argues also that the trial court improperly

excluded his expert witness, who would have testified that the

UNITED STATES v. RODRIGUEZ-RODRIGUEZ 85
symptoms of heroin withdrawal could have precluded his

ability to voluntarily waive his rights under Miranda. The

standard of review for a district court’s decision to preclude

expert testimony is abuse of discretion. United States v. Castaneda, 94 F.3d 592, 595 (9th Cir. 1996). 

[6] The trial court excluded Rodriguez’s expert because

“his testimony would be irrelevant.” The border agents and

the physician assistant all testified as to Rodriguez’s actual

behavior and responsiveness at the relevant time. Because

“the expert’s testimony was general and did not relate to any

conduct that was observed on the date of [Rodriguez’s]

arrest,” it was not an abuse of discretion for the judge to find

that it was irrelevant and would not aid the trier of fact. Castaneda, 94 F.3d at 595. The trial court’s decision to exclude

Rodriguez’s expert testimony lay squarely within its discretion and will not be disturbed on appeal. 

C. Confrontation Claims 

Rodriguez argues that the district court’s decision to curtail

his cross-examination regarding INS recordkeeping procedures violated his confrontation rights guaranteed under the

Sixth Amendment. 

[7] This circuit has analyzed the issue of whether crossexamination infringes upon a defendant’s confrontation rights

under both abuse of discretion and de novo standards. United

States v. Bensimon, 172 F.3d 1121, 1128 (1999) (“This court

reviews de novo whether the limitation on cross-examination

violated [a defendant’s] right of confrontation. The district

court, however, has considerable discretion in restricting

cross-examination, and this court will find error only when

that discretion has been abused.” (internal citations omitted));

United States v. Shabani, 48 F.3d 401, 403 (9th Cir. 1995)

(“We review judicial limits on cross-examination for abuse of

discretion.”). Both lines of cases provide that a limitation on

cross-examination does not violate the Confrontation Clause

86 UNITED STATES v. RODRIGUEZ-RODRIGUEZ
unless it limits relevant testimony and prejudices the defendant. Bensimon, 172 F.3d at 1128; Shabani, 48 F.3d at 403.

Here, under either standard, Rodriguez’s claim fails.

[8] Rodriguez asserts that the excluded testimony would

have shown that (1) INS computers are not fully interactive

with other federal agencies’ computers, (2) over 2 million

documents filed by immigrants have been lost or forgotten,

(3) other federal agencies have the ability and authority to

apply for an immigrant to come into the United States, and (4)

the custodian never checked with the other federal agencies to

inquire about documents relating to Rodriguez. None of that

information is relevant on the facts of this case, because it is

uncontested that Rodriguez never made any application to the

INS or any other federal agency. 

[9] Because Rodriguez’s line of inquiry was not relevant to

the facts of his case, the district court’s restricting crossexamination did not violate the Confrontation Clause. 

D. Sentencing 

The sentencing judge’s application of the Sentencing

Guidelines, including whether a prior conviction is a “crime

of violence” or an “aggravated felony” for the purposes of

U.S.S.G. § 2L1.2, is reviewed de novo. United States v.

Bonilla-Montenegro, 331 F.3d 1047, 1049 (9th Cir. 2003). 

[10] The Guidelines provide that a sentence is enhanced by

sixteen levels if an alien “previously was deported, or unlawfully remained in the United States, after . . . a conviction for

a felony that is . . . a crime of violence.” U.S.S.G.

§ 2L1.2(b)(1)(A). For an aggravated felony, the enhancement

is only eight levels. U.S.S.G. § 2L1.2(b)(1)(C). The application notes specifically provide that “burglary of a dwelling”

is a “crime of violence.” See U.S.S.G. § 2L1.2, cmt. n.

1(B)(iii).

UNITED STATES v. RODRIGUEZ-RODRIGUEZ 87
The sentencing judge enhanced Rodriguez’s sentence by

eight levels, characterizing his prior burglary conviction as an

“aggravated felony,” rather than a “crime of violence.” At the

sentencing hearing, the defense argued that, under Taylor v.

United States, California’s generic burglary definition was too

broad to apply the “crime of violence” guideline, and that

Rodriguez’s role as a lookout warranted application of the

lesser “aggravated felony” enhancement. See 495 U.S. 575

(1990). 

[11] Although the application note specifically includes

“burglary of a dwelling” in the definition of “crime of violence,” see U.S.S.G. § 2L1.2, cmt. n. 1(B)(iii), a conviction

for burglary of a dwelling must meet the generic, uniform definition of burglary to fall under the definition of “burglary of

a dwelling.” United States v. Wenner, 351 F.3d 969, 972 (9th

Cir. 2003). Under Taylor, a state conviction meets the generic

definition of burglary if the burglary statute “contains at least

the following elements: an unlawful or unprivileged entry

into, or remaining in, a building or other structure, with intent

to commit a crime.” Taylor, 495 U.S. at 598. The definition

of “burglary of a dwelling” is the same as the “Taylor definition of burglary, with the narrowing qualification that the burglary occur in a dwelling.” Wenner, 351 F.3d at 973. 

[12] Taylor sets forth a categorical approach, which “generally requires the trial court to look only to the fact of conviction and the statutory definition of the prior offense.” 495

U.S. at 602. Using that approach, Rodriguez’s California first

degree burglary conviction does not constitute generic burglary because California Penal Code Sections 459 and 460 do

not require “unlawful or unprivileged entry” for a burglary

conviction. See Taylor, 495 U.S. at 599 (“A few States’ burglary statutes, however, define burglary more broadly, e.g., by

eliminating the requirement that the entry be unlawful.”); see

also People v. Frye, 959 P.2d 183, 18 Cal. 4th 894, 954 (Cal.

1998) (holding that in California “one may be convicted of

burglary even if he enters with consent”). 

88 UNITED STATES v. RODRIGUEZ-RODRIGUEZ
Where, as here, the state burglary statute is broader than the

Taylor definition of burglary, we employ a modified categorical approach, under which we consider whether the documentation or judicially noticeable facts show that the defendant

was convicted of all elements of generic burglary under Taylor. See Wenner, 351 F.3d at 972. 

[13] Applying the modified categorical approach, we conclude that Rodriguez was convicted of a “burglary of a dwelling,” triggering the sixteen level enhancement. Rodriguez

pled guilty to “willfully and unlawfully enter[ing] a building

with the intent to commit theft” where the building was an

“inhabited dwelling house [or other residential building] . . .

within the meaning of Penal Code section 460.” By pleading

guilty, Rodriguez admitted the factual allegations in the

indictment. See United States v. Velasco-Medina, 305 F.3d

839, 852 (9th Cir. 2002); United States v. Williams, 47 F.3d

993, 995 (9th Cir. 1995). Because Rodriguez’s conviction

included the unlawful entry requirement absent in California’s

statutory definition of burglary, his conviction meets the definition of “burglary of a dwelling” under Taylor and is, therefore, a “crime of violence” under the Sentencing Guidelines.

See U.S.S.G. § 2L1.2, cmt. n. 1(B)(iii); see also VelascoMedina, 305 F.3d at 852-52 (holding that a California burglary conviction was burglary under a modified-categorical

approach because Velasco-Medina pled guilty where the

indictment alleged “unlawful” entry). 

Rodriguez’s alternate argument, that his limited role as a

lookout warrants application of the lesser enhancement, also

fails. The application notes specifically include convictions

for aiding and abetting, conspiring, and attempting to commit

the listed offenses in U.S.S.G. § 2L1.2(b)(1). U.S.S.G.

§ 2L1.2, cmt. n.5. Under Taylor, we look to the statutory definitions of the prior offenses and avoid “inquiries into the

underlying facts that would essentially turn the sentencing

hearings into mini-trials on the issue of whether the prior

UNITED STATES v. RODRIGUEZ-RODRIGUEZ 89
crimes were committed.” United States v. Bonat, 106 F.3d

1472, 1476 (9th Cir. 1997) (citing Taylor, 495 U.S. at 601).

[14] Because the sentencing judge misapplied U.S.S.G.

§ 2L1.2(b)(1) in determining that Rodriguez’s sentence

should only be enhanced eight levels for an aggravated felony

instead of sixteen levels for a crime of violence, we vacate

Rodriguez’s sentence and remand to the district court for

resentencing in accordance with this opinion. 

AFFIRMED in part, VACATED and REMANDED in

part. 

90 UNITED STATES v. RODRIGUEZ-RODRIGUEZ