United States Court of Appeals

Fifth Circuit

FILED

April 23, 2007

Charles R. Fulbruge III

Clerk

UNITED STATES COURT OF APPEALS

FIFTH CIRCUIT

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No. 05-41789

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UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

BENITO GOMEZ-GUERRA,

Defendant - Appellant.

Appeal from the United States District Court

For the Southern District of Texas

Before JONES, Chief Judge, GARWOOD and GARZA, Circuit Judges.

PER CURIAM:

On August 18, 2005, Benito Gomez-Guerra (“Gomez”) pleaded guilty to illegal re-entry in

violation of 8 U.S.C. § 1326(b) (2000). The district court sentenced Gomez to 72 months

imprisonment after calculating a sentencing guideline range of 70-87 months. To reach that guideline

range, the district court applied, among other adjustments, a 16-level enhancement, pursuant to

United StatesSentencingGuidelinesManual (“USSG”) § 2L1.2(b)(1)(A)(ii) (2005), after determining

that Gomez’s 1997 Florida conviction for burglary, Florida Statute § 810.02(3) (1995), constituted
1 The recent Supreme Court opinion in James v. United States, No. 05-9264, 550 US ___

(2007), which held that a Florida conviction for attempted burglary of a dwelling qualifies as a violent

felony for the purposes of the Armed Career Criminal Act, 18 U.S.C § 924(2)(B)(ii), is not

dispositive of this case. The analysis in James expressly does not concern enumerated offenses and

pertains only to a residual provision in § 924(2)(B)(ii); USSG § 2L1.2 cmt. n.1(B)(iii) does not

contain a similar residual provision.

2 The Florida statute defining the terms of Fla. Stat. § 810.02(3) states that “dwelling” is “a

building or conveyance of any kind, including any attached porch, whether such building or

conveyance istemporary or permanent, mobile or immobile, which has a roof over it and is designed

to be occupied by people lodging therein at night, together with the curtilage thereof.” Fla. Stat.

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a crime of violence. Gomez objected to the district court’s treatment of his 1997 burglary conviction

as a crime of violence and argued the unconstitutionality of the illegal re-entry provisions. The

district court overruled these objections and Gomez filed a timely notice of appeal.

Gomez argues that the district court erred in finding that his Florida conviction for burglary

was a “crime of violence” for the purposes of imposing the 16-level enhancement under USSG

§ 2L1.2(b)(1)(A)(ii). A “crime of violence” is defined in the application notes of § 2L1.2 as being

one of two things: “(1) it has the use, attempted use, or threatened use of physical force against the

person of another as an element of the offense, or (2) it qualifies as one of several specifically

enumerated offenses.” United States v. Murillo-Lopez, 444 F.3d 337, 339 (5th Cir. 2006) (citing

USSG § 2L1.2 cmt. n.1(B)(iii)). The government argues only that Gomez’s prior offense qualifies

as one of the enumerated offenses, namely “burglary of a dwelling.” USSG § 2L1.2 cmt. n.1(B)(iii).1

To decide whether Gomez’s prior conviction qualifies as an enumerated offense we must

determine the scope of the prior conviction, looking to the statute or certain adjudicative records.

Murillo-Lopez, 444 F.3d at 339-40. The Florida statute under which Gomez was convicted and the

criminal information to which Gomez pleaded nolo contendere both include entry into a dwelling’s

curtilage.2 The Florida courts have held “that the common law definition of curtilage, ‘the ground
§ 810.011(2) (1995) (emphasis added); see also Baker v. State, 636 So.2d 1342, 1344 (Fla. 1994)

(“Entry onto the curtilage is, for the purposes of the burglary statute, entry into the structure or

dwelling.”)

The criminal information stated that Gomez, “without being authorized, licensed or invited

did enter or remain in a structure, to-wit, a dwelling or the curtilage thereof, the property of [the

victim] with the intent to commit therein an offense, to-wit theft . . . .” (emphasis added).

3 Texas defines “habitation” as “a structure or vehicle that is adapted for the overnight

accommodation of persons, and includes: (A) each separately secured or occupied portion of the

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and buildings immediately surrounding a dwelling and customarily used in connection with it,’ must

be applied to the burglary statute.” Anderson v. State, 831 So. 2d 702, 703 (Fla. Dist. Ct. App.

2002) (citing State v. Hamilton, 660 So. 2d 1038, 1039 (Fla. 1995));see also Chambers v. State, 700

So. 2d 441 (Fla. Dist. Ct. App. 1997) (affirming a conviction for “burglary of a dwelling as a result

of taking a bicycle from behind the victim’s house”); Greer v. State, 354 So.2d 952, 953 (Fla. Dist.

Ct. App. 1978) (“[T]he unlawful entry of appellant into the parking lot (curtilage) surrounding the

business structure with intent to commit an offense (larceny) was a burglary.”). Therefore, Gomez

could have been convicted of merely entering a dwelling’s curtilage.

The government argues that this conviction should still qualify as the enumerated offense of

“burglary of a dwelling,” as used in USSG § 2L1.2 cmt. n.1(B)(iii). We determine the meaning of

the guidelines’ reference to “burglary of a dwelling” by using a “common sense approach” and look

to the “ordinary, contemporary, common meaning” of the phrase. Murillo-Lopez, 444 F.3d at 339.

We find that the “ordinary, contemporary, common meaning” of “burglary of a dwelling” does not

extend to the grounds around the dwelling, but actually requires unlawful or unprivileged entry into,

or remaining in, the dwelling itself. See United States v. Garcia-Mendez, 420 F.3d 454, 457 (5thCir.

2005) (establishing that the Texas crime of burglary of a habitation, Texas Penal Code § 30.02, “is

equivalent to the enumerated [crime of violence] offense of ‘burglary of a dwelling’”).3 Because the
structure or vehicle; and (B) each structure appurtenant to or connected with the structure or

vehicle.” Tex. Penal Code § 30.01(1); see also St. Julian v. State, 874 S.W.2d 669, 671 (Tex. Crim.

App. 1994) (“The legal purpose of article 30.02(a)(1) is to protect against intrusion into a building

or a portion of a building where people expect to be free of intrusion because of the special nature

of the place.”).

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curtilage isthe grounds around the dwelling and is not the dwelling itself, we cannot hold that Gomez

was convicted ofthe enumerated offense of “burglary of a dwelling.” Cf. James v. United States, No.

05-9264, 550 U.S. ___ (2007),slip op. at 18 (“We agree that the inclusion of curtilage takes Florida’s

underlying offense of burglary outside the definition of ‘generic burglary’ set forth in Taylor, which

requires an unlawful entry into, or remaining in, ‘a building or other structure.’”) (emphasis in

original) (citing Taylor v. United States, 495 U.S. 575, 598 (1990)). Therefore, the 16-level

enhancement made under USSG § 2L1.2(b)(1)(A)(ii) wasimproper. See United States v. IzaguirreFlores, 405 F.3d 270, 276-77 (5th Cir. 2005) (“[W]e have held that when the enumerated offense

under the Guidelines encompasses a narrower range of conduct than that prohibited by the state

statute, we cannot hold as a matter of law that the sentencing enhancement is proper.”).

In addition, Gomez also argues that the “felony” and “aggravated felony” provisions found

of 8 U.S.C. § 1326(b)(1) and (2) are unconstitutional. This claim is denied. Gomez concedes that

this argument is foreclosed by precedent and raises it here only to preserve it for Supreme Court

review. See Almendarez-Torres v. United States, 523 U.S. 224 (1998); United States v. Dabeit, 231

F.3d 979, 984 (5th Cir. 2000). 

Because the district court improperlycalculated the sentencing guideline range, we VACATE

and REMAND for resentencing.