FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, 

No. 05-30066 Plaintiff-Appellant,

D.C. No.

v.  CR-04-02115-WFN

ADOLFO GUERRERO-VELASQUEZ,

OPINION Defendant-Appellee. 

Appeal from the United States District Court

for the Eastern District of Washington

Wm. Fremming Nielsen, Senior Judge, Presiding

Submitted November 18, 2005*

Seattle, Washington

Filed January 19, 2006

Before: David R. Hansen,** William A. Fletcher, and

Jay S. Bybee, Circuit Judges.

Opinion by Judge Bybee

*This panel unanimously finds this case suitable for decision without

oral argument. See Fed. R. App. P. 34(a)(2). 

**The Honorable David R. Hansen, Senior United States Circuit Judge

for the Eighth Circuit, sitting by designation. 

773
COUNSEL

James A. McDevitt, United States Attorney’s Office, Yakima,

Washington, for the plaintiff-appellant. 

Alex B. Hernandez, III, Federal Defenders of Eastern Washington and Idaho, Yakima, Washington, for the defendantappellee. 

OPINION

BYBEE, Circuit Judge: 

There are two questions before us on this appeal. First, is

a guilty plea an admission of the facts charged in the indictment? Second, is an Alford plea, in which the defendant enters

a guilty plea while maintaining his innocence, nevertheless a

guilty plea under Taylor v. United States, 495 U.S. 575

(1990)? The first of these questions is well established in our

decisions; the second is not. We answer both in the affirmative, vacate the defendant’s sentence, and remand to the district court for resentencing. 

I. BACKGROUND

Guerrero-Velasquez was charged with being an alien in the

United States after deportation in violation of 8 U.S.C.

§ 1326. He pled guilty on September 28, 2004. The United

States Probation office submitted a presentence investigation

report, and the government objected to the report’s treatment

of Guerrero-Velasquez’s previous conviction for seconddegree burglary in Washington. Specifically, the government

argued that under § 2L1.2(b)(1)(A)(ii) of the United States

Sentencing Guidelines, the report should have imposed “a 16-

level specific offense characteristic enhancement for the

Defendant’s prior crime of violence conviction.” 

776 UNITED STATES v. GUERRERO-VELASQUEZ
Applying Taylor, the district court found that seconddegree burglary was not categorically a crime of violence

under Washington state law. The court then applied Taylor’s

modified categorical approach; after conducting a limited factual inquiry into Guerrero-Velasquez’s criminal history, the

court found that the government had not submitted any evidence from which the court could conclude that he had been

convicted of a crime of violence. It therefore rejected the government’s position and sentenced him without imposing the

enhancement. The government now appeals. 

II. ANALYSIS

[1] Section 2L1.2(b)(1)(A)(ii) of the United States Sentencing Guidelines provides that an alien who has illegally reentered the United States should receive a sixteen-level

sentencing enhancement if he has a prior conviction for “a

crime of violence.” See U.S.S.G. § 2L1.2(b)(1)(A)(ii) (2003).1

The commentary accompanying the sentencing guidelines

defines a crime of violence to include the “burglary of a

dwelling.” See U.S.S.G. § 2L1.2 cmt. n.1(B)(iii) (2003). The

question before this Court is whether Guerrero-Velasquez’s

conviction for second degree burglary constitutes a conviction

for burglary of a dwelling. 

[2] To answer this question, we must define “burglary of a

dwelling” under the sentencing guidelines. Under Taylor, “a

state conviction meets the generic definition of burglary if the

burglary statute ‘contains at least the following elements: an

1We realize, of course, that the sentencing guidelines are advisory and

not mandatory. See United States v. Booker, 543 U.S. 220 (2005); United

States v. Ameline, 409 F.3d 1073 (9th Cir. 2005) (en banc). However, the

guidelines are still an important aid for district judges seeking to determine the appropriate sentence for a defendant and which help to maintain

uniformity in sentencing throughout the country. It is therefore appropriate

that we consider whether the district judge correctly interpreted and

applied the guidelines below. We also note that, on appellate review, a

sentence suggested by the guidelines is presumptively reasonable. 

UNITED STATES v. GUERRERO-VELASQUEZ 777
unlawful or unprivileged entry into, or remaining in, a building or other structure, with intent to commit a crime.’ ”

United States v. Rodriguez-Rodriguez, 393 F.3d 849, 857 (9th

Cir. 2005) (emphasis omitted) (quoting Taylor, 495 U.S. at

598). “The definition of ‘burglary of a dwelling’ is the same

as the ‘Taylor definition of burglary, with the narrowing qualification that the burglary occur in a dwelling.’ ” Id. (quoting

United States v. Wenner, 351 F.3d 969, 973 (9th Cir. 2003)).

[3] Under Taylor, we apply a “categorical approach” to

determine whether a conviction constitutes a crime of violence.2

495 U.S. at 600. Under this approach, we look to the statutory

definition of the crime for which a defendant was convicted

instead of examining the particular facts underlying the conviction. Id. However, if the defendant’s conviction does not

meet the statutory definition for burglary under the categorical

approach, a court may conduct a limited factual inquiry into

the records of the defendant’s prior conviction: 

[T]he sentencing court [may] go beyond the mere

fact of conviction in a narrow range of cases where

a jury was actually required to find all the elements

of generic burglary. For example, in a State whose

burglary statutes include entry of an automobile as

well as a building, if the indictment or information

and jury instructions show that the defendant was

charged only with a burglary of a building, and that

the jury necessarily had to find an entry of a building

to convict, then the Government should be allowed

to use the conviction for enhancement. 

Id. at 602. Thus, “courts may examine the record for documentation or judicially noticeable facts that clearly establish

that the conviction is a predicate conviction for enhancement

2Taylor dealt with this issue in the context of the Armed Career Criminal Act, but this Court has extended this approach to the question it faces

here. See United States v. Becker, 919 F.2d 568, 570 (9th Cir. 1990). 

778 UNITED STATES v. GUERRERO-VELASQUEZ
purposes.” United States v. Corona-Sanchez, 291 F.3d 1201,

1211 (9th Cir. 2002) (en banc) (internal quotations omitted),

superseded by statute, U.S.S.G. § 2L1.2 cmt. n.5 (2002). This

limited inquiry has been dubbed the “modified categorical

approach.” Id. (quoting Ye v. INS, 214 F.3d 1128, 1133 (9th

Cir. 2000)). 

[4] In United States v. Wenner, 351 F.3d 969 (9th Cir.

2003), this Court applied Taylor and held that second-degree

burglary was not a categorical crime of violence under Washington state law.3

 Below, the district court correctly followed

3Technically, this Court found that residential burglary was not a categorical crime of violence under Washington state law. However, under

Washington state law, second-degree burglary is an inferior degree of residential burglary. Compare WASH. REV. CODE § 9A.52.025(1) (2005) (“A

person is guilty of residential burglary if, with intent to commit a crime

against a person or property therein, the person enters or remains unlawfully in a dwelling other than a vehicle.”) (emphasis added) with WASH.

REV. CODE § 9A.52.030(1) (2005) (“A person is guilty of burglary in the

second degree if, with intent to commit a crime against a person or property therein, he enters or remains unlawfully in a building other than a

vehicle or a dwelling.”) (emphasis added). See generally WASH. REV. CODE

§ 9A.52.025(2) (2005) (“In establishing sentencing guidelines and disposition standards, the sentencing guidelines commission and the juvenile disposition standards commission shall consider residential burglary as a

more serious offense than second degree burglary.”); State v. Tamalini,

953 P.2d 450, 453-54 (Wash. 1998) (explaining the difference under

Washington state law between a lesser included offense and an inferior

degree offense); State v. McDonald, 96 P.3d 468, 470 (Wash. Ct. App.

2004) (“[S]econd degree burglary is an inferior degree of residential burglary.”). Under Washington law, second-degree burglary and residential

burglary are really just offense gradations of the same illegal conduct—

burglary. See Tamalini, 953 P.2d at 453 (stating that one requirement for

an inferior degree offense is that “the statutes for both the [superior

degree] offense and the proposed inferior degree offense ‘proscribe but

one offense’ ”) (quoting State v. Foster, 589 P.2d 789, 794 (1979)). Residential burglary requires more offensive conduct than second-degree burglary. A determination that residential burglary encompasses too much

(potentially nonviolent) conduct to constitute a categorical crime of violence therefore necessarily compels the conclusion that second-degree burglary is not a categorical crime of violence either. 

UNITED STATES v. GUERRERO-VELASQUEZ 779
this precedent, and the parties do not dispute this issue on

appeal. 

Following its determination that Guerrero-Velasquez had

not committed a categorical crime of violence, the district

court proceeded to apply Taylor’s modified categorical

approach. However, the district court erroneously restricted

its factual inquiry to the criminal information and the police

reports submitted by the government. The court cited Wenner

for the proposition that it could not rely on the information

alone to conclude that Guerrero-Velasquez had been convicted of a crime of violence, and it relied on Corona-Sanchez

to conclude that the police reports were also insufficient. See

Wenner, 351 F.3d at 974 (“It is well-established that we may

not rely on an information alone to determine the elements of

conviction.”); Corona-Sanchez, 291 F.3d at 1212 (“[A] presentence report reciting the facts of the crime is insufficient

evidence to establish that the defendant pled guilty to the elements of the generic definition of a crime when the statute of

conviction is broader than the generic definition.”); see also

id. at 1211 (“Charging papers alone are never sufficient.”). 

[5] The district court failed to consider GuerreroVelasquez’s signed plea agreement,4

 in which he pled guilty

to second-degree burglary.5“By pleading guilty, [a defendant]

4

In exchange for his plea, the prosecution dropped a charge of firstdegree burglary and a charge of simple assault. 

5We note that second-degree burglary is an offense gradation of burglary, a larger form of illegal conduct clearly contemplated to be a crime

of violence. See footnote 3, supra. We therefore find that the statutory definition of second-degree burglary, which expressly excludes burglaries of

dwellings, does not render it a categorically nonviolent crime for purposes

of the advisory federal sentencing guidelines. Accordingly, we need not,

and do not, reach the question of whether a limited factual inquiry is

appropriate under Taylor when the crime of conviction is categorically not

one of violence. We also note that, as it is used in Washington’s statute,

the word “dwelling” refers to that word’s definition under Washington

law. This differs from the definition of “dwelling” under federal law,

which is the relevant question for purposes of the guidelines. See Wenner,

351 F.3d at 972-73. 

780 UNITED STATES v. GUERRERO-VELASQUEZ
admit[s] the factual allegations in the indictment.” RodriguezRodriguez, 393 F.3d at 857. The charging information stated

that, “with intent to commit a crime against a person or property therein,” Guerrero-Velasquez “enter[ed] or remain[ed]

unlawfully in a building located at 1405 Landon Avenue,

Yakima, Washington, the residence of Rena Ramirez.”

(emphasis added).6 By pleading guilty, Guerrero-Velasquez

admitted all of the facts charged in the information; therefore,

the court may properly take judicial notice that he was convicted of burglarizing a dwelling. See, e.g., Taylor, 495 U.S.

at 602; United States v. Hernandez-Hernandez, ___ F.3d ___,

No. 02-30429 (9th Cir. Dec. 16, 2005) (relying on stipulations

that were the factual basis for a guilty plea to determine that

defendant’s prior conviction was for a crime of violence);

Rodriguez-Rodriguez, 393 F.3d at 857-58 (holding that

because defendant’s conviction contained the element of

“burglary of a dwelling” which was not a required element of

the state crime for which he was convicted, it was a crime of

violence under the sentencing guidelines); Corona-Sanchez,

291 F.3d at 1211 (“[I]f a defendant enters a guilty plea, . . .

court[s] may consider the charging documents . . . to determine whether [he has] pled guilty to the elements of the

generic crime.”); U.S. v. Sweeten, 933 F.2d 765, 769-70 (9th

Cir. 1991) (finding error when the district court applied Taylor’s modified categorical approach without considering the

defendant’s indictment and guilty plea). Compare Wenner,

351 F.3d at 974 (“The government does not point to a signed

plea agreement . . . demonstrat[ing] that Wenner was convicted as charged . . . .”) with Corona-Sanchez, 291 F.3d at

1211 (“[C]harging papers may be considered in combination

with a signed plea agreement.”). 

[6] The defense attempts to distinguish these cases by arguing that Guerrero-Velasquez entered an Alford plea for the

burglary in question—that is to say he pled guilty to receive

6The record is clear that this building was an occupied dwelling at the

time of the burglary; defendant does not dispute this. 

UNITED STATES v. GUERRERO-VELASQUEZ 781
a lower sentence while maintaining his innocence. See North

Carolina v. Alford, 400 U.S. 25 (1970). This contention is

without merit. Whether or not a defendant maintains his innocence, the legal implications of a guilty plea are the same in

the context of the modified categorical approach under Taylor. The question under the sentencing guidelines is whether

a defendant has “a conviction for a . . . crime of violence,” not

whether the defendant has admitted to being guilty of such a

crime. See U.S.S.G. § 2L1.2(b)(1)(A) (2003) (emphasis

added). 

We note that our approach is in accord with that of the Second Circuit, the only other federal court of appeals to have

issued a published opinion addressing a similar question. In

Abimbola v. Ashcroft, 378 F.3d 173 (2d Cir. 2004), that court

concluded that an Alford plea was a conviction for purposes

of the Immigration and Naturalization Act. In doing so, it

drew no greater distinction between an Alford plea and any

other guilty plea than we do here. See id. at 181 (noting that

the relevant question is whether there was a conviction, “as

opposed to an admission of guilt”); id. (“As the plain language indicates, ‘conviction’ includes a guilty plea. An Alford

plea is a guilty plea.”); id. (“The fact that his conviction was

the result of an Alford plea is immaterial . . . .”); id. at 180

(“We agree with the district court that Abimbola’s argument

is meritless.”).

III. CONCLUSION

[7] Because the district court misapplied the modified categorical approach under Taylor in sentencing GuerreroVelasquez, we vacate his sentence and remand to the district

court for resentencing under the discretionary guidelines. See

United States v. Booker, 543 U.S. 220 (2005); United States

v. Ameline, 409 F.3d 1073 (9th Cir. 2005) (en banc);

Rodriguez-Rodriguez, 393 F.3d at 858. 

VACATED and REMANDED. 

782 UNITED STATES v. GUERRERO-VELASQUEZ