IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

12-40802

UNITED STATES OF AMERICA,

Plaintiff-Appellee

v.

REY DAVID GUERRERO-NAVARRO,

Defendant-Appellant

Appeal from the United States District Court 

for the Southern District of Texas

Before KING, BENAVIDES, and DENNIS, Circuit Judges.

FORTUNATO P. BENAVIDES, Circuit Judge:

Rey David Guerrero-Navarro challenges the district court’s classification 

of his 2009 conviction of Residential Burglary, WASH. REV. CODE ANN. 

§ 9A.52.025, as a crime of violence for the purposes of United States Sentencing 

Guidelines Manual (“USSG”) § 2L1.2(b)(1)(A). We affirm.

Guerrero-Navarro recently pled guilty to (1) knowing unlawful presence 

in the United States, in violation of 6 U.S.C. §§ 202(3) & 202(4); and 

(2) knowing possession of a firearm, in violation of 18 U.S.C. §§ 922(g)(5)(A) & 

924(a)(2). The district court concluded that the aforementioned Washington 

state offense qualifies as a crime of violence under USSG § 4B1.2(a). After 

overruling Guerrero-Navarro’s objection to this classification, the court 

enhanced his sentence accordingly. Guerrero-Navarro appeals, arguing that 

United States Court of Appeals

Fifth Circuit

FILED

December 16, 2013

Lyle W. Cayce

Clerk

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No. 12-40802

the offense cannot constitute the enumerated generic offense of burglary of a 

dwelling, because the statute defines “dwelling” more liberally than permitted 

by Taylor v. United States, 495 U.S. 575 (1990). He does not contest any other 

aspect of the sentence calculation. Because Guerrero-Navarro raised timely 

objection, we review de novo. United States v. Murillo-Lopez, 444 F.3d 337, 

339 (5th Cir. 2006). 

The Sentencing Guidelines allow enhancement when a previously 

deported alien unlawfully returns to the United States and has a prior 

conviction of a felony crime of violence. § 2L1.2(b)(1)(A). Crime of violence is

defined, inter alia, as “burglary of a dwelling, arson, or extortion . . . .” USSG 

§ 4B1.2(a). To determine whether a state offense constitutes one of these 

enumerated generic crimes, courts must examine the statutory definition of 

the offense to determine whether an associated conviction necessarily satisfies 

the elements of the generic crime, as that crime is understood in its ordinary, 

contemporary meaning. Taylor, 495 U.S. at 599. This Court employs a 

“common sense” approach in making this determination. Murillo-Lopez, 444 

F.3d at 339. Where the state statute criminalizes conduct that falls both 

within and without the scope of the generic crime, the offense is overbroad and 

any associated conviction cannot categorically be classified as a crime of 

violence. Id. at 600–01. Before determining that a statute is overbroad, courts 

“must find a realistic probability, and not merely a theoretical possibility, that 

the state would apply its statute to conduct that falls outside the generic 

definition of the crime.” Gonzales v. Duenas-Alvarez, 549 U.S. 183, 193 (2007)

(emphasis added). To establish a realistic probability that a state would apply 

its statute in an overly broad manner, a defendant “must at least point to his 

own case or [to] other cases” in which a state court has done so. Id. 

“The generic offense of burglary contains at least the following elements: 

an unlawful or unprivileged entry into, or remaining in, a building or other 

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

of a dwelling, then, is the unlawful entry into or remaining within, with the 

intent to commit a crime, a “structure, tent, or vessel where someone lives.” 

United States v. Castillo-Morales, 507 F.3d 873, 875 (5th Cir. 2007). A review 

of the statutory language and judicial interpretation indicates that 

Washington’s Residential Burglary offense is consistent with these standards 

and is not overbroad.

The state of Washington defines Residential Burglary as “enter[ing] or 

remain[ing] unlawfully in a dwelling other than a vehicle” with an “intent to 

commit a crime against a person or property therein.” WASH. REV. CODE ANN. 

§ 9A.52.025(1). A dwelling is “any building or structure . . . which is used or 

ordinarily used by a person for lodging.” Id. § 9A.04.110(7). “Building, in 

addition to its ordinary meaning, includes any dwelling, fenced area, vehicle, 

railway car, cargo container, or any other structure used for lodging of persons 

or for carrying on business therein . . . .” Id. § 9A.04.110(5). Guerrero-Navarro 

contends that these statutory definitions result in an impermissibly broad 

rendering of the “dwelling” element of the generic offense. The other elements 

are not in dispute.

Guerrero-Navarro argues that Washington’s statutory definitions 

suggest that dwelling may refer to fenced areas, cargo containers, or other

structures impermissible under Taylor, 495 U.S. at 599. We note, however, 

that the generic crime at issue here is not the one discussed in Taylor.1 The 

Taylor Court described overbreadth with respect to the generic crime of 

1 See United States v. Ortega-Gonzaga, 490 F.3d 393, 395 (5th Cir. 2007) (emphasizing

the distinction between dwellings and the structures permitted under Taylor); Murillo-Lopez, 

444 F.3d at 342 (expressly rejecting the suggestion that Taylor’s discussion of buildings 

constrains our interpretation of dwelling); United States v. Garcia-Mendez, 420 F.3d 454, 

456–57 (5th Cir. 2005) (finding that a Texas offense constitutes burglary of a dwelling, even 

though the statutory language reaches vehicles and other structures excluded by Taylor). 

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burglary, and explained that a state’s statutory language must not reach

places “other than buildings.” Id. Yet the question before us is not whether 

Washington’s offense constitutes general burglary, but whether it constitutes 

burglary of a dwelling. Common sense dictates that a statutory rendering of 

burglary of a dwelling must convey the characteristics that distinguish a 

dwelling from other buildings and structures. That is precisely what 

Washington’s lawmakers have done in the statute before us, by recognizing 

that a dwelling need not be a traditional structure, but must be some kind of 

venue “used for lodging.” WASH. REV. CODE ANN. § 9A.04.110(7). Consider, for 

example, camping tents or travel trailers. These are not buildings, but they 

may nevertheless be dwellings in the ordinary sense. See Castillo-Morales, 507 

F.3d at 877 (defining a dwelling as “a structure, tent, or vessel where someone 

lives”); MERRIAM-WEBSTER, www.m-w.org (defining dwelling as “a shelter in 

which people live”). So although a certain venue may not qualify as a Taylorapproved building or structure, it may still serve as a residence and thus 

constitute a dwelling. Washington’s statutory language reflects this fact.

Even assuming that the Taylor discussion of buildings has some 

relevance here, it seems that the proffered non-generic interpretation is not 

consistent with the natural, common-sense reading of the statute in context. 

As a preliminary matter, we recognize that the definitions of building and 

dwelling established by the Washington legislature are not listed for the 

purpose of a single offense or a single statutory chapter, but for the purposes

of the state’s entire criminal code. WASH. REV. CODE ANN. § 9A.04.090. 

Consequently, the definitions must be broad enough to allow for appropriate 

interpretation in context. It makes sense, then, that the general definition of 

building would include storage containers and fences. Consider prohibitions 

on arson or vandalism: clearly legislators must protect many kinds of 

structures from these crimes. But this broad, general-purpose definition need 

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not imply that a fence is a dwelling for the purpose of residential burglary. In 

fact, the modifying clause “ordinarily used for lodging” suggests that a dwelling 

will rarely—if ever—consist of a fenced area (or other unusual structure)

alone.2 Our review of Washington case law confirms that, when interpreting 

dwelling, the state’s courts have focused on this limiting language, and have 

only affirmed convictions involving the very structures we would expect to see 

in an “ordinary, contemporary” statute proscribing burglary of a dwelling. 

Taylor, 495 U.S. at 599. In fact, Guerrero-Navarro points to no instance in 

which the statute has been interpreted in the manner proposed, as is necessary 

for this Court to find the offense overbroad. Duenas-Alvarez, 549 U.S. at 193.

Before deliberating a Residential Burglary case, Washington jurors are 

simply instructed that “[d]welling means any building or structure, though 

movable or temporary, or a portion thereof, that is used or ordinarily used by 

a person for lodging.” 11A WASHINGTON PRACTICE: WASHINGTON PATTERN 

JURY INSTRUCTIONS: CRIMINAL 2.08, at 50 (3d ed. 2008). There is no further 

definition of building, and there is no mention of the fenced areas or cargo 

containers that appear in the broader statutory definition. Id. When

reviewing these cases, Washington’s appellate courts have affirmed 

convictions involving vacant houses, vacation houses, “trailer” houses, 

attached garages, attached sheds, and apartment work rooms.3 In over two 

2 WASH. REV. CODE ANN. § 9A.04.090. Washington case law suggests that—

hypothetically speaking—the fenced area itself would have to constitute the dwelling. That 

is to say, burglary of a backyard or fenced curtilage does not appear to constitute Residential 

Burglary. See State v. Motuliki, 175 Wash. App. 1075 (2013) (finding evidence sufficient to 

sustain conviction—not because eyewitnesses saw the defendant break into a fenced 

backyard—but because fingerprints suggested that the defendant actually entered the 

house). State authorities consistently prosecute burglary of fenced areas as crimes other 

than Residential Burglary. E.g., State v. Runchey, 169 Wash. App. 1024 (2012); State v. 

Engel, 210 P.3d 1007 (Wash. 2009); State v. Wentz, 68 P.3d 282 (Wash. 2003). 3 State v. Langford, 173 Wash. App. 1029 (2013); State v. Hall, 163 Wash. App. 1013 

(2011); State v. Neal, 249 P.3d 211 (Wash. Ct. App. 2011); State v. Albrecht, 131 Wash. App. 

1024 (2006); State v. Busev, 131 Wash. App. 1041 (2006); State v. Cobb, 136 Wash. App. 1031 

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decades of interpretation on point, these are the most extreme interpretations 

of dwelling. And yet none of these is inconsistent with the “building or 

structure” element established by Taylor, to whatever extent Taylor’s elements 

are relevant here. Nor are these interpretations analogous to the examples—

like vending machines and curtilage—that the Supreme Court has used in 

illustrating overbreadth. James, 550 U.S. at 212; Taylor, 495 U.S. at 591. 

Thus, there is little or no “realistic probability” that a Washington court would 

apply the statute to anything other than the structures permitted by both

Castillo-Morales and Taylor. See Duenas-Alvarez, 549 U.S. at 193. As a 

consequence, and because the other elements are not in dispute, the offense is 

no broader than the generic crime of burglary of a dwelling.

We realize that a sister circuit examined the same offense and arrived at

the opposite conclusion. See generally United States v. Wenner, 351 F.3d 969 

(9th Cir. 2003). Ten years ago, that court concluded that Washington’s

statutory definitions combine to create an overly inclusive depiction of

dwelling. Id. at 972. We disagree, and have the benefit of an additional decade

of jurisprudence in which Washington’s courts have consistently interpreted

the term such that it denotes and connotes traditional structures, and only

those used for human habitation. As already explained, this interpretation 

renders the definition consistent with the relevant legal standards. We 

conclude, therefore, that Washington’s Residential Burglary offense, WASH.

REV. CODE ANN. § 9A.52.025, constitutes the enumerated generic crime of 

burglary of a dwelling, and thus that the district court correctly classified 

Guerrero-Navarro’s prior conviction as a crime of violence for the purposes of 

(2006); State v. McDonald, 96 P.3d 468 (Wash. Ct. App. 2004); State v. Culler, 116 Wash. App. 

1024 (2003); State v. Murbach, 843 P.2d 551 (Wash. Ct. App. 1993).

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USSG § 2L1.2(b)(1)(A). Accordingly, we AFFIRM the interpretation and

associated sentence enhancement.

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