IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 09-50261

UNITED STATES OF AMERICA,

Plaintiff-Appellee

v.

JOSE JULIO ECHEVERRIA-GOMEZ,

Defendant-Appellant

Appeal from the United States District Court

for the Western District of Texas

Before JOLLY, HIGGINBOTHAM, and SMITH, Circuit Judges

PER CURIAM:

Jose Julio Echeverria-Gomez appeals the forty-eight-month sentence he

received after pleading guilty to a charge of illegally reentering the United

States following deportation in violation of 8 U.S.C. § 1326. Echeverria-Gomez

argues that the district court committed plain error by treating his prior

conviction for first-degree burglary under California Penal Code §§ 459 & 460(a)

as a conviction for an aggravated felony within the meaning of § 2L1.2(b)(1)(C)

of the United States Sentencing Guidelines. We conclude that the district court

was correct to apply the § 2L1.2(b)(1)(C) sentence enhancement, so we affirm

Echeverria-Gomez’s sentence.

United States Court of Appeals

Fifth Circuit

F I L E D

December 8, 2010

Lyle W. Cayce

Clerk

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I.

Echeverria-Gomez waded across the Rio Grande River and entered the

United States in El Paso, Texas, on December 3, 2008. A United States Customs

and Border Protection Agent stopped him for questioning. Echeverria-Gomez

admitted to being a citizen and national of Mexico without immigration

documents allowing him to legally enter or remain in the United States. The

agent arrested him and subsequently discovered that Echeverria-Gomez had

been removed from the United States less than two months earlier. The

government charged him with illegally reentering the United States following

deportation in violation of 8 U.S.C. § 1326(a). Under the statute’s corresponding

1

Sentencing Guidelines provision, § 2L1.2, the offense of illegal reentry carries

a base offense level of eight. Because Echeverria-Gomez’s removal followed his

2

conviction by the state of California for committing the crime of first-degree

burglary, the government sought an enhanced penalty.

3

The district court concluded that Echeverria-Gomez’s first-degree-burglary

conviction was a conviction for an “aggravated felony” within the meaning of

§ 2L1.2(b)(1)(C) and increased his base offense level by eight levels. This

enhanced base offense level combined with Echeverria-Gomez’s acceptance of

responsibility and criminal-history score to yield an advisory sentencing range

under the Guidelines of thirty-three to forty-one months. Echeverria-Gomez did

not object to the district court’s calculation of his Guidelines sentencing range.

See 8 U.S.C. § 1326(a) (“[A]ny alien who . . . has been . . . removed . . . while an order 1

of exclusion, deportation, or removal is outstanding, and thereafter . . . enters, attempts to

enter, or is at any time found in the United States . . . shall be fined under Title 18, or

imprisoned not more than 2 years, or both.”).

See U.S. SENTENCING GUIDELINES MANUAL § 2L1.2(a) (2009). 2

See 8 U.S.C. § 1326(b)(2) (“Notwithstanding subsection (a) of this section, in the case

3

of any alien described in such subsection . . . whose removal was subsequent to a conviction

for commission of an aggravated felony, such alien shall be fined under such title, imprisoned

not more than 20 years, or both . . . .”).

2

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The district court opted to vary upwardly from the Guidelines and sentenced

Echeverria-Gomez to a term of forty-eight months imprisonment and three years

of supervised release.

II.

On appeal, Echeverria-Gomez contends the district court erred by

enhancing his sentence under § 2L1.2(b)(1)(C) based on his California conviction

for first-degree burglary. Because Echeverria-Gomez did not object to the

district court’s decision to apply the § 2L1.2(b)(1)(C) sentence enhancement, we

review that decision only for plain error. Plain-error review allows us to correct

4

an error to which the defendant failed to object in the district court if the error

is plain, affects the defendant’s substantial rights, and seriously affects the

fairness, integrity, or public reputation of judicial proceedings. We conclude

5

that the necessary predicate to plain-error review is missing here, as the district

court did not err by enhancing Echeverria-Gomez’s sentence.

6

A.

Section 2L1.2(b)(1)(C) of the Sentencing Guidelines provides for an eightlevel increase to the base offense level of any defendant who “was previously

See, e.g., United States v. Arviso-Mata, 442 F.3d 382, 384 (5th Cir.) (“Forfeiture is the 4

failure to make the timely assertion of a right . . . . Forfeited errors are reviewed under the

plain error standard . . . .”), cert. denied sub nom. Salazar-Palacios v. United States, 547 U.S.

1156 (2006).

See, e.g, United States v. Mares, 402 F.3d 511, 520 (5th Cir.) (quoting United States 5

v. Cotton, 535 U.S. 625, 631 (2002)), cert. denied, 546 U.S. 828 (2005).

The district court’s imposition of a sentence above the range recommended by the 6

Guidelines does not substantially alter our review. The district court must correctly calculate

the applicable Guidelines range even when it chooses to depart upwardly from that range. See

Gall v. United States, 552 U.S. 46, 51 (2007) (“Regardless of whether the sentence imposed is

inside or outside the Guidelines range, the appellate court must . . . first ensure that the

district court committed no significant procedural error, such as failing to calculate (or

improperly calculating) the Guidelines range . . . .”).

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deported, or unlawfully remained in the United States, after . . . a conviction for

an aggravated felony.” As used in § 2L1.2(b)(1)(C), an aggravated felony “has

7

the meaning given that term in 8 U.S.C. § 1101(a)(43).” In turn,

8

§ 1101(a)(43)(F) defines an aggravated felony as “a crime of violence (as defined

in section 16 of Title 18, but not including a purely political offense) for which

the term of imprisonment [is] at least one year.” And under 18 U.S.C. § 16:

9

The term “crime of violence” means—

(a) an offense that has as an element the use, attempted use, or

threatened use of physical force against the person or property of

another, or

(b) any other offense that is a felony and that, by its nature, involves

a substantial risk that physical force against the person or property

of another may be used in the course of committing the offense.

Therefore, we must consider whether Echeverria-Gomez’s conviction of burglary

first degree satisfies the definition of either § 16(a) or § 16(b).

Echeverria-Gomez’s conviction does not qualify as a crime of violence

under § 16(a). Under California law, the crime of first-degree burglary does not

have as an element the use, attempted use, or threatened use of physical force

against the person or property of another. Therefore, the propriety of the

10

district court’s decision to enhance Echeverria-Gomez’s sentence under

§ 2L1.2(b)(1)(C) turns on whether first-degree burglary, as defined by the

See U.S. SENTENCING GUIDELINES MANUAL § 2L1.2(b)(1)(C) (2009). 7

See id. § 2L1.2 cmt. 3(A). 

8

8 U.S.C. § 1101(a)(43)(F). Under California law, a conviction for first-degree burglary

9

is punishable by a term of imprisonment of more than one year. See CAL. PENAL CODE

§ 461(a).

Section 1101(a)(43) also defines the term “aggravated felony” to include “a burglary

offense for which the term of imprisonment [is] at least one year.” 8 U.S.C. § 1101(a)(43)(G). 

However, as the government concedes, Echeverria-Gomez’s sentence was not subject to

enhancement under 8 U.S.C. § 1101(a)(43)(G) because the term “burglary” does not carry the

same meaning in California Penal Code §§ 459 & 460(a) that it carries in federal statutes. See

infra notes 35-37 and accompanying text.

See infra note 20 and accompanying text.

10

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California Penal Code, is a “crime of violence” within the meaning of 18 U.S.C.

§ 16(b).

This Court uses a categorical approach to determine whether a defendant’s

prior conviction is a conviction for a “crime of violence” under 18 U.S.C. § 16(b).

11

“This means that the particular facts of the defendant’s prior conviction do not

matter . . . . The proper inquiry is whether a particular defined offense, in the

abstract, is a crime of violence under 18 U.S.C. § 16(b).” The categorical

12

approach thus focuses on the statutory elements of the prior offense, including

any judicial gloss that the courts charged with interpreting the statute have

placed on those elements. If it is possible to identify the crime of conviction

13

based solely on the language of the statute, we do so. Only if the “defendant’s

14

prior conviction is under a statute that identifies several separate offenses, some

See, e.g., United States v. Chapa-Garza, 243 F.3d 921, 924 (5th Cir. 2001) (“[T]he 11

words ‘by its nature’ require us to employ a categorical approach when determining whether

an offense is a crime of violence.” (citing United States v. Velazquez-Overa, 100 F.3d 418, 420-

21 (5th Cir. 1996))).

Id.; see also Leocal v. Ashcroft, 543 U.S. 1, 7 (2004) (“[Section 16(b)] directs our focus 12

to the ‘offense’ of conviction. . . . This language requires us to look to the elements and the

nature of the offense of conviction, rather than to the particular facts relating to petitioner’s

crime.”); Velazquez-Overa, 100 F.3d at 421 (“A sentencing court need only consider the fact

that [the defendant] was convicted and the inherent nature of the offense.” (citing United

States v. Rodriguez-Guzman, 56 F.3d 18, 21 n.4 (5th Cir. 1995))).

See James v. United States, 550 U.S. 192, 202 (2007) (interpreting Florida’s statute

13

on criminal attempt in light of Florida Supreme Court precedent that had “considerably

narrowed [the statute’s] application in the context of attempted burglary”); United States v.

Rose, 587 F.3d 695, 704 (5th Cir. 2009) (interpreting Texas’s aggravated robbery statute in

light of Texas Court of Criminal Appeals precedent requiring “a close nexus between the theft

and the force”), cert. denied, 130 S. Ct. 1915 (2010). James and Rose interpret, respectively,

the Armed Career Criminal Act, 18 U.S.C. § 924(e)(2)(B), and the Career Offender Statute, 18

U.S.C. § 3559(c). But we use the same categorical approach to classify offenses under those

statutes that we use to classify offenses under 18 U.S.C. § 16(b). See, e.g, Perez-Munoz v.

Keisler, 507 F.3d 357, 362-64 (5th Cir. 2007) (relying on the Supreme Court’s decision in James

to decide a case arising under 18 U.S.C. § 16(b)); see also Larin-Ulloa v. Gonzales, 462 F.3d

456, 463 (5th Cir. 2006) (noting that the categorical approach under 18 U.S.C. § 16(b) “has its

roots in the categorical approach adopted by the Supreme Court in Taylor”).

See, e.g., Zaidi v. Ashcroft, 374 F.3d 357, 360 (5th Cir. 2004) (explaining that the 14

categorical approach “look[s] primarily to the text of the statute violated”).

5

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violent and others not,” will we “apply the modified categorical method and look

to [the indictment] to determine ‘which statutory phrase was the basis for the

conviction.’”

15

Echeverria-Gomez was indicted for committing “first degree residential

burglary” and convicted of “burglary first degree.” Under California law, a

person commits second-degree burglary if he enters any structure with the

intent to commit larceny or a felony. A person commits first-degree burglary

16

only if he commits “burglary of an inhabited dwelling house.” A dwelling house

17

is “a structure where people ordinarily live.” A dwelling house is inhabited if

18

it is “currently being used for dwelling purposes, whether occupied or not.” A 19

conviction for first-degree burglary under California Penal Code §§ 459 & 460(a)

thus requires proof of a total of three elements: (1) entry into a dwelling house;

(2) that was inhabited at the time of the entry; (3) with the intent to commit

larceny or a felony.

20

United States v. Hughes, 602 F.3d 669, 674 (5th Cir. 2010) (quoting Johnson v. United 15

States, 130 S. Ct. 1265, 1273 (2010)), petition for cert. filed, No. 10-5289 (July 6, 2010); see also

Larin-Ulloa, 462 F.3d at 464 (“If the statute of conviction defines multiple offenses, at least

one of which does not describe an aggravated felony, we apply a modified categorical approach,

under which we may also examine certain additional documents (if contained in the record

framing the guilty plea conviction) to determine whether the conviction was ‘necessarily’ for

a particular crime defined by the statute that meets the aggravated felony criterion.”); United

States v. Montgomery, 402 F.3d 482, 486 (5th Cir. 2005) (“We allow for an examination of the

indictment only to ‘pare down’ the statute—that is, to decide under which branch of a

disjunctive statute a defendant’s conviction falls.”). 

See CAL. PENAL CODE §§ 459 & 460(b). 16

Id. § 460(a). 17

People v. Rodriguez, 122 Cal. App. 4th 121, 132 (Cal. Ct. App. 2004) (citation and 18

internal quotation marks omitted). 

 CAL. PENAL CODE § 459. 19

People v. Anderson, 211 P.3d 584, 589 (Cal. 2009); see also id. (“First degree burglary

20

is a greater substantive offense than second degree burglary because it requires proof of all

the elements of second degree burglary and the additional element that the area entered was

used as a dwelling.”).

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B.

We hold that first-degree burglary under California Penal Code §§ 459 &

460(a) is a “crime of violence” within the meaning of 18 U.S.C. § 16(b).

California law founds its distinction between first- and second-degree burglary

“upon the risk of personal injury involved,” and “the higher degree of the

burglary law is intended to prevent those situations which are most dangerous,

most likely to cause personal injury.” As the Supreme Court of California has

21

explained:

Burglary laws are based primarily upon a recognition of the dangers

to personal safety created by the usual burglary situation—the

danger that the intruder will harm the occupants in attempting to

perpetrate the intended crime or to escape and the danger that the

occupants will in anger or panic react violently to the invasion,

thereby inviting more violence. The laws are primarily designed,

then, . . . to forestall the germination of a situation dangerous to

personal safety. . . . [E]ntry into an inhabited structure is recognized

as most dangerous and most likely to create personal injury,

justifying assignment of the greater degree [under] § 460 . . . .

22

Because entry into an inhabited dwelling house is a statutory element of the

offense of first-degree burglary in California, the offense is by its nature one that

involves a substantial risk that physical force against the person or property of

another will be used in the course of committing the offense.

We find direct support for our holding in the Ninth Circuit’s decision

United States v. Becker. There, the Ninth Circuit also concluded that

23

“California convictions for first-degree burglary fit 18 U.S.C. § 16(b)’s . . .

People v. Wilson, 208 Cal. App. 3d 611, 615 (Cal. Ct. App. 1989) (citations, internal 21

quotation marks, and emphasis omitted).

People v. Montoya, 874 P.2d 903, 911-12 (Cal. 1994) (citations and internal quotation

22

marks omitted). 

 919 F.2d 568 (9th Cir. 1990), cert. denied, 499 U.S. 911 (1991). 

23

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statutory definition of a ‘crime of violence.’” The court reasoned that “[a]ny

24

time a burglar enters a dwelling with felonious or larcenous intent there is a risk

that in the course of committing the crime he will encounter one of its lawful

occupants, and use physical force against that occupant either to accomplish his

illegal purpose or to escape apprehension.”

25

Supreme Court precedent interpreting an analogous provision of the

Armed Career Criminal Act (“the ACCA”) further undergirds our conclusion

that California’s first-degree-burglary offense is a “crime of violence” under 18

U.S.C. § 16(b). In James v. United States, the Court held that an attempted

26

burglary conviction under Florida law was a violent felony within the meaning

of a clause in the ACCA that defines a violent felony as a crime that “‘involves

conduct that presents a serious risk of physical injury to another.’” The Court

27

emphasized that “the proper inquiry” under the categorical approach “is whether

the conduct encompassed by the elements of the offense, in the ordinary case,

presents a serious potential risk of injury to another.” Attempted burglary is

28

such an offense, the Court explained, because “[t]he main risk of burglary arises

not from the simple physical act of wrongfully entering onto another’s property,

but rather from the possibility of a face-to-face confrontation between the

Id. at 569-70. In Becker, the defendant received a sentence enhancement under the 24

1988 version of the “career offender” provision of the Sentencing Guidelines. See id. at 569.

At that time, a defendant was a career offender if he had at least two prior felony convictions

for crimes of violence. See id. (quoting U.S. SENTENCING GUIDELINES MANUAL § 4B1.1 (1988)).

“The 1988 version of the Guidelines provided thatthe term ‘crime of violence’ was to be defined

as under 18 U.S.C. § 16.” Id. (citing U.S. SENTENCING GUIDELINES MANUAL § 4B1.2 (1988)).

Id. at 571.

25

 550 U.S. 192 (2007). 26

Id. at 196 (quoting 18 U.S.C. § 924(e)(2)(B)(ii)). This clause is commonly referred to 27

as the Residual Clause. 

Id. at 208. 28

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burglar and a third party,” such as “an occupant.” The same risk attends a

29

burglary that California law classifies as a first-degree burglary. By definition,

such a burglary targets a residence, a structure that is likely to contain

occupants. By its nature, then, residential burglary presents a substantial risk

30

of a face-to-face confrontation between the burglar and an occupant of the

residence and a substantial corresponding risk that the burglar will use physical

force against the occupant to aid in the commission of the burglary.

31

Echeverria-Gomez argues that our prior decisions in United States v.

Gonzales-Terrazas and United States v. Ortega-Gonzaga dictate a contrary

32 33

conclusion. Both cases apply the Supreme Court’s holding in Taylor v. United

States that when Congress uses the term “burglary” in a federal statute, it

34

intends for that term to carry its “generic, contemporary meaning,” which

includes as an element an unlawful or unprivileged entry into a structure.

35

Burglary under California Penal Code § 459 does not include as an element an

Id.. at 203 29

See supra notes 21-25 and accompanying text.

30

See Leocal, 543 U.S. at 10 (observing in dicta that “[a] burglary would be covered 31

under § 16(b) . . . because burglary, by its nature, involves a substantial risk that the burglar

will use force against a victim in completing the crime”); Becker, 919 F.2d at 572

(“[R]esidential burglaries carry with them significant risks to personal safety and valued

personal property.”); United States v. Flores, 875 F.2d 1110, 1113 (5th Cir. 1989) (“Whenever

a private residence is broken into, there is always a substantial risk that force will be used”).

 529 F.3d 293 (5th Cir. 2008).

32

 490 F.3d 393 (5th Cir.), cert. denied sub nom. Ayala-Cordovoa v. United States, 552 33

U.S. 964 (2007).

 495 U.S. 575 (1990). 34

Id. at 598. Taylor construed the term “burglary” in the ACCA. We subsequently held 35

that there is “no reason to create a separate, parallel federal common-law definition for

‘burglary’” and that“Taylor’s definition of ‘burglary’ controls when defining the ‘burglary’ part

of ‘burglary of a dwelling’ under the Guidelines.” Ortega-Gonzaga, 490 F.3d at 395.

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unlawful or unprivileged entry into a structure, so Gonzales-Terrazas and

36

Ortega-Gonzaga hold that a burglary conviction under California Penal Code

§ 459 is not a conviction for the enumerated offense of “burglary of a dwelling”

under § 2L1.2(b)(1)(A)(ii) of the Sentencing Guidelines.

37

Those holdings do not control here. Section 2L1.2(b)(1)(A)(ii) does provide

for a sixteen-level base-offense-level increase for a defendant who has prior

conviction for a “crime of violence.” However, it bears emphasizing that the

term “crime of violence” does not carry the same meaning in § 2L1.2(b)(1)(A)(ii)

that it carries in 18 U.S.C. § 16. Although the “catch-all” provision in the

38

commentary to § 2L1.2(b)(1)(A)(ii) is identical to 18 U.S.C. § 16(a), the

Guidelines replace the language of 18 U.S.C. § 16(b) with a list of specific crimes,

one of which is “burglary of a dwelling.” As the Ninth Circuit explained in

Becker, “18 U.S.C. § 16 mentions no specific crimes at all. It speaks only in

descriptive terms of felonies that carry with them a substantial risk that force

will be used. . . . [B]urglary of a residence . . . falls within this description.”

39

Indeed, in Taylor itself the Supreme Court took care to note that offenses that

do not qualify as the enumerated offense of “burglary,” including “offenses

See supra notes 16-20 and accompanying text; see also Ortega-Gonzaga, 490 F.3d at 36

395-96. 

See Gonzalez-Terrazas, 529 F.3d at 296-98; Ortega-Gonzaga, 490 F.3d at 395-96. 

37

Compare U.S.SENTENCING GUIDELINES MANUAL § 2L1.2 cmt. 1(B)(iii)(2009) (defining

38

“crime of violence” as used in § 2L1.2(b)(1)(A)(iii) to mean any one of twelve enumerated

offenses as well as “any other offense under federal, state, or local law that has as an element

the use, attempted use, or threatened use of physical force against the person of another”),

with 18 U.S.C. § 16. 

919 F.2d at 572 (distinguishing Taylor). The Ninth Circuit has subsequently

39

reaffirmed the soundness of its reasoning in Becker. In Sareang Ye v. I.N.S., 214 F.3d 1128

(9th Cir. 2000), that court held that a person who had been convicted of burglary of a vehicle

under California Penal Code § 459 had not committed a crime of violence within the meaning

of 8 U.S.C. § 1101(a)(43)(F) and 18 U.S.C. § 16(b). Id. at 1133-34. In so holding, the court took

care to distinguish its prior decision in Becker. See id. at 1134 (“We also reject the INS’s

analogy to residential burglary. A person who enters a home or occupied building to commit

theft may well encounter people inside and resort to physical force to carry out his plan.”). 

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similar to generic burglary,” might nonetheless authorize a sentence

enhancement under a statutory provision similar to 18 U.S.C. § 16(b). That a

40

first-degree burglary in California could, in theory, involve a privileged or lawful

entry does not change the fact that, “in the ordinary case,” there is a

41

substantial risk that a burglar will use physical force against the occupant of a

residence to aid in the commission of a residential burglary.

III.

First-degree burglary, as defined in California Penal Code §§ 459 & 460(a),

is a “crime of violence” within the meaning of 18 U.S.C. § 16(b) and therefore

qualifies as an “aggravated felony” under § 2L1.2(b)(1)(C) of the Sentencing

Guidelines. The district court correctly applied the eight-level base-offense-level

increase under § 2L1.2(b)(1)(C) when it calculated Echeverria-Gomez’s sentence.

Therefore, the district court’s judgment is AFFIRMED.

See Taylor, 495 U.S. at 600 n.9 (discussing the ACCA’s Residual Clause). 40

James, 550 U.S. at 208 (emphasis added); see also Perez-Munoz v. Keisler, 507 F.3d 41

357, 364 (5th Cir. 2007) (emphasizing that every act that falls within the definition of a crime

“need not be violent” for the crime “to be a crime of violence by its nature”).

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