United States Court of Appeals Fifth Circuit 

## FILED April 23, 2007 Charles R. Fulbruge III Clerk UNITED STATES COURT OF APPEALS

FIFTH CIRCUIT

____________ No. 05-41789

____________ UNITED STATES OF AMERICA,
Pl aint iff - 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 vio lat io n of 8 U.S.C. § 1326(b) (2000). The district court sentenced Gomez to 72 mo nt hs imprisonment aft er calculating a sentencing guideline range of 70-87 mo nt hs. To reach that guideline range, the district court applied, amo ng other adjustments, a 16-level enhancement, pursuant to Unit ed States Sentencing Guidelines Manual (“USSG”) § 2L1.2(b)(1)(A)(ii) (2005), after determining th at Gom ez’s 1997 Flo rida conviction fo r burglary, Flo rida Statute § 810.02(3) (1995), constituted1 The recent Supreme Court opinio n in James v. U nited States , No. 05-9264, 550 US ___ (2007), which held th at a Flo rida conviction fo r attem pted burglary of a dwelling qualifies as a vio lent felo ny fo r the p urposes of the Arm ed Career Criminal Act, 18 U.S.C § 924(2)(B)(ii), is not dispositive of this case. The analysis in J ames expressly does not concern enumerated of fenses and pertains only to a residual provision in § 924(2)( B)(i i); 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 th at “dwelling” is “a building or conveyance of any kind, including any attached porch, whether such building or conveyance is tem

porary or permanent, mo bile or immo bile, which has a roof over it and is designed to be occupied by people lo dging therein at night , together wi th the curtilage thereof .” Fl a. Stat. -2- a crime of vio lence. Gom

ez objected to the district court’s treatment of his 1997 burglary conviction
as a crime of vio lence and argued the unconstitutionality of the illegal re-ent ry provisions. The district court overruled these objections and Gomez filed a timely notice of appeal. Gom ez argues th at the district court erred in finding th at his Flo rida conviction fo r burglary
was a “crime of vio lence” fo r the purpo ses of impo sing 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, attem pted use, or th

reatened use of physical fo rce against the per s on of another as an element of the of fense, or (2) it qualifies as one of several specifically enumerated of

fenses.” U

nited States v. Murillo-Lopez , 444 F.3d 337, 339 (5th Ci r. 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 of fenses, namely “burglary of a dwelling.” USSG § 2L1.2 cmt. n.1(B)(iii). 1 To decide whether Gom

ez’s prior conviction qualifies as an enumerated of fen se we m

ust determ ine the scope of the prior conviction, lo oking 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 info rmation to which Gom ez pleaded nolo contendere both include entry into a dwelling’s curtilage. 2 The Flo rida courts have held “t hat the com mo n law definit io n 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, fo r the purposes of the burglary statute, entry int o th e structure or dwelling.”) The criminal info rmation stated that Gom ez, “without being authorized, licensed or invited did enter or remain in a structure, to-wit, a dwelling o r the curtilage thereof , the property of [the vict im] wit h t he int ent to com mit therein an offense, to-wit theft . . . .” (emphasis added).
3 Tex as defines “habitation” as “a structure or vehicle that is adapted for the overnight accommodation of persons, and includes: (A) each separately secured or occupied porti on of the -3- and buildings immediat ely surrounding a dwelling and customarily used in connection wit h it ,’ must be applied to the burglary statute.” A nderson v. State , 831 So. 2d 702, 703 (Fla. Dis t. 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 vict im’s house”); Greer v. State , 354 So.2d 952, 953 (Fla. Dist. Ct. App. 1978) (“[T]he unlawful entry of appellant int o the parking lot (curtilage) surrounding the business structure wit h int ent to com mit an offense (larceny) was a burglary.”). Therefore, Gomez could have been convicted of merely entering a dwelling’s curtilage. The government argues th at this conviction should still qualify as the enumerated of fense 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 lo ok to the “o rdinary, contem

porary , com

mo n meaning” of the phrase. Murillo-Lopez , 444 F.3d at 339. We find t hat the “ordinary, contemporary, com mo n meaning” of “burglary of a dwelling” does not extend to the grounds around the dwelling, but actually requires unlawful or unprivileged entry int o,
or remaining in, the dwelling it self. S ee United States v. Garcia-Mendez , 420 F.3d 454, 457 (5th Cir. 2005) (establishing that the Texas crime of burglary of a habitation, Texas Penal Code § 30.02, “is equivalent to the enumerated [crime of vio lence] of fense of ‘burglary of a dwelling’”). 3 Because thestructure or vehicle; and (B) each structure appurtenant to or connected wi th the structure or vehicle.” Tex. Penal Code § 30.01(1); s ee 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 int rusion because of the special nature of the place.”). -4- curtilage is the grounds around the dwelling and is not the dwelling it self, we cannot hold th at Gom ez
was convicted of the enumerated of fense of “burglary of a dwelling.” C f. James v. United States , No. 05-9264, 550 U.S.

___ (2007), slip op. at 18 (“We agree th at the inclusio n of curtilage takes Flo rida’s underlying of

fense of burglary outside the definit io n of ‘generic burglary’ set fo rth in Taylor , which requires an unlawful entry int o, 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) was improper. S ee United States v. IzaguirreFlores , 405 F.3d 270, 276-77 (5th Cir. 2005) (“[W]e have held th at when the enumerated of fense under the Guidelines encompasses a narrower range of conduct than that prohibited by the st ate 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 fo reclose d by precedent and rai ses it here only to preserve it for Supreme Court review. S ee 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 improperly calculated the sentencing guideline range, we VACATE and REMAND for resentencing.