United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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No. 05-1987

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United States of America, *

*

Appellee, *

* Appeal from the United States

v. * District Court for the

* District of Minnesota.

Horacio Parra-Moraza, also known as *

Shady, * [UNPUBLISHED]

*

Appellant. *

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Submitted: May 5, 2006

Filed: May 11, 2006

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Before WOLLMAN, MURPHY, and COLLOTON, Circuit Judges.

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PER CURIAM.

Horacio Parra-Moraza pleaded guilty to conspiring to distribute and possess

with intent to distribute more than 50 grams of actual methamphetamine, aiding and

abetting the distribution of more than 50 grams of actual methamphetamine, and

aiding and abetting the distribution of more than 5 grams of actual methamphetamine,

in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(A) & (B), 846, and 18 U.S.C. § 2.

Parra-Moraza appeals his sentence arguing that (1) it was error for the district court

to treat his California second-degree burglary convictions as crimes of violence which

triggered the career-offender enhancement; (2) the district court violated the principles

in United States v. Booker, 543 U.S. 220 (2005), by holding him responsible for a
1

Under 18 U.S.C. § 924(e)(2)(B)(ii) the definition of “violent felony” includes

any felony that is “burglary, arson, or extortion, involves use of explosives, or

otherwise involves conduct that presents a serious potential risk of physical injury to

another.” Under the career-offender Guideline, a “crime of violence” similarly

includes any crime that is “burglary of a dwelling, arson, or extortion, involves use of

explosives, or otherwise involves conduct that presents a serious potential risk of

physical injury to another.” See U.S.S.G. § 4B1.2(a)(2). The parties agree that ParraMoraza’s offense does not constitute generic burglary. 

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drug quantity larger than that to which he had pleaded guilty; and (3) his sentence is

unreasonable. 

Because the district court treated the Guidelines as advisory, it did not commit

Booker error by making a drug-quantity finding, see Booker, 543 U.S. at 233, 244-46,

258-60, and the court’s finding was amply supported by evidence presented at the

sentencing hearing, see United States v. Allen, 440 F.3d 449, 452 (8th Cir. 2006)

(standard of review). 

We find, however, that the district court erred in concluding that ParraMoraza’s two second-degree burglary convictions were crimes of violence for

purposes of the career-offender Guideline. See U.S.S.G. §§ 4B1.1, 4B1.2; United

States v. Lindquist, 421 F.3d 751, 753 (8th Cir. 2005) (standard of review). ParraMoraza was convicted under Cal. Penal Code §§ 459 (defining burglary) and 460(b)

(defining second-degree burglary) (2006), which criminalize the breaking into and

entering of such things as sealed cargo containers and vehicles. We therefore look to

the charging papers introduced at sentencing. These papers alleged that Parra-Moraza

had entered another person’s locked vehicle to commit theft, which we have held does

not involve a substantial risk of physical injury to another. See United States v.

Livingston, 442 F.3d 1082, 1084-87 (8th Cir. 2006) (where burglary statute

criminalizes various types of conduct, court looks at charging papers to decide

whether burglary was violent felony within meaning of “otherwise involves”

provision of Armed Career Criminal Act (ACCA)1

; breaking and entering vehicle
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charged in indictment is not violent felony); United States v. Abernathy, 277 F.3d

1048, 1051 (8th Cir.) (noting ACCA and Guidelines define crime of violence and

violent felony in identical terms), cert. denied, 535 U.S. 1089 (2002); cf. Sareang Ye

v. INS, 214 F.3d 1128, 1133-34 (9th Cir. 2000) (California conviction for entering

locked vehicle with intent to steal was not “crime of violence” under 18 U.S.C. § 16,

because it was not offense that by its nature, involved substantial risk that physical

force against person or property of another might be used in committing offense). 

Accordingly, we remand for resentencing consistent with this opinion, and thus

we do not address Parra-Moraza’s final argument that his sentence was unreasonable.

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