United States v. Francisco Bonilla ( 2012 )


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  •                        PUBLISHED
    UNITED STATES COURT OF APPEALS
    FOR THE FOURTH CIRCUIT
    UNITED STATES OF AMERICA,             
    Plaintiff-Appellee,
    v.                         No. 11-4765
    FRANCISCO BONILLA,
    Defendant-Appellant.
    
    Appeal from the United States District Court
    for the District of Maryland, at Baltimore.
    William D. Quarles, Jr., District Judge.
    (1:10-cr-00772-WDQ-1)
    Argued: May 18, 2012
    Decided: July 17, 2012
    Before TRAXLER, Chief Judge, and GREGORY and
    DIAZ, Circuit Judges.
    Affirmed by published opinion. Judge Diaz wrote the major-
    ity opinion, in which Judge Gregory joined. Chief Judge
    Traxler wrote a dissenting opinion.
    2                  UNITED STATES v. BONILLA
    COUNSEL
    ARGUED: Paresh S. Patel, OFFICE OF THE FEDERAL
    PUBLIC DEFENDER, Greenbelt, Maryland, for Appellant.
    Benjamin M. Block, OFFICE OF THE UNITED STATES
    ATTORNEY, Baltimore, Maryland, for Appellee. ON
    BRIEF: James Wyda, Federal Public Defender, Baltimore,
    Maryland, for Appellant. Rod J. Rosenstein, United States
    Attorney, Baltimore, Maryland, for Appellee.
    OPINION
    DIAZ, Circuit Judge:
    After he pleaded guilty to illegal reentry, Francisco Bonilla
    received an enhanced sentence based on his prior Texas con-
    viction for burglary of a habitation. Bonilla argues that the
    district court erred in applying the enhancement because his
    state conviction under Texas Penal Code section
    30.02(a)(3)—which provides that "[a] person commits [bur-
    glary] if, without the effective consent of the owner, the per-
    son . . . enters a building or habitation and commits or
    attempts to commit a felony, theft, or an assault"—does not
    satisfy the definition of generic burglary under Taylor v.
    United States, 
    495 U.S. 575
     (1990). We disagree and affirm
    the judgment of the district court.
    I.
    Bonilla pleaded guilty to a one-count indictment charging
    him with knowingly entering the United States without the
    consent of the Attorney General of the United States after
    having been previously excluded, deported, or removed, in
    violation of 
    8 U.S.C. § 1326
    . The presentence report ("PSR")
    noted that Bonilla’s base offense level of eight should be
    increased by sixteen levels, "[s]ince [Bonilla] ha[d] previ-
    UNITED STATES v. BONILLA                           3
    ously been convicted of a crime of violence," pursuant to U.S.
    Sentencing Guidelines Manual § 2L1.2(b)(1)(A). J.A. 120.
    The offense triggering the enhancement was Bonilla’s May 8,
    1992 conviction in Texas state court for burglary of a habitation.1
    Bonilla objected to the sentencing enhancement, contend-
    ing that his Texas conviction did not qualify as a crime of vio-
    lence because it did not satisfy the elements of generic
    burglary required by Taylor. Specifically, Bonilla argued that
    because he did not have "the requisite intent to commit a
    crime" "at the time" that he illegally entered the dwelling, he
    did not commit generic burglary. Id. 65.
    The district court rejected Bonilla’s argument. Bonilla, the
    court found, was convicted under section 30.02(a)(3) of the
    Texas Penal Code, which provides that "[a] person commits
    [burglary] if, without the effective consent of the owner, the
    person . . . enters a building or habitation and commits or
    attempts to commit a felony, theft, or an assault." Looking to
    the charging document—which specified that Bonilla "know-
    ingly and intentionally enter[ed] a habitation without the
    effective consent of . . . the owner, and therein attempted to
    commit and committed theft," J.A. 36—the court noted that
    "theft or attempted theft would require intent," id. 77, and that
    the intent "has to be formed at some point before leaving the
    habitation, because the charge is within the habitation," id. 80.
    Thus, the court concluded that Bonilla’s conviction met the
    elements of generic burglary under Taylor and qualified as a
    crime of violence under § 2L1.2(b)(1)(a). Applying the
    sixteen-level sentencing enhancement, the court calculated an
    advisory Guidelines range of thirty-seven to forty-six months,
    and sentenced Bonilla to thirty-seven months’ imprisonment.2
    Bonilla timely appealed.
    1
    As detailed in the judgment from the Texas conviction, Bonilla pleaded
    guilty to this offense.
    2
    The district court also rejected Bonilla’s argument for a downward
    variance based on his personal history and circumstances, but this decision
    is not challenged on appeal.
    4                     UNITED STATES v. BONILLA
    II.
    Whether a prior conviction qualifies as a "crime of vio-
    lence" is a legal question we review de novo. United States
    v. Jenkins, 
    631 F.3d 680
    , 682 (4th Cir. 2011). Under U.S.
    Sentencing Guidelines Manual § 2L1.2(b)(1)(A), a defendant
    convicted of illegal reentry is subject to a Guidelines enhance-
    ment if prior to his removal or deportation he had been con-
    victed of a "crime of violence." Application note 1(B)(iii) to
    § 2L1.2 defines a "crime of violence" as one of several enu-
    merated offenses, including "burglary of a dwelling," or an
    offense "that has as an element the use, attempted use, or
    threatened use of physical force against the person of
    another."
    A.
    In Taylor, the Supreme Court sought to provide "some uni-
    form definition [of burglary] independent of the labels
    employed by the various States’ criminal codes." 
    495 U.S. at 592
    . Specifically, the Court considered the meaning of "bur-
    glary" under the Armed Career Criminal Act ("ACCA"), 
    18 U.S.C. § 924
    (e). The ACCA provides a sentencing enhance-
    ment for a conviction for unlawful possession of a firearm
    under 
    18 U.S.C. § 922
    (g) if the defendant "has three previous
    convictions . . . for a violent felony or a serious drug offense."
    
    18 U.S.C. § 924
    (e)(1). A "violent felony," in turn, includes
    "any crime punishable by imprisonment for a term exceeding
    one year . . . 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." 
    Id.
    § 924(e)(2)(B)(ii) (emphasis added).3
    3
    Although Taylor considered whether a conviction qualified as a "vio-
    lent felony" under the ACCA, we apply its analysis to the "crime of vio-
    lence" definition as well—with the additional requirement that a burglary
    qualifying as a "crime of violence" must involve a dwelling. See United
    States v. Herrera-Montes, 
    490 F.3d 390
    , 392 (5th Cir. 2007) ("Taylor’s
    UNITED STATES v. BONILLA                              5
    Taylor’s search for a uniform definition of "burglary"
    stemmed from Congress’s deletion of the same in 1986 from
    the ACCA. In the Armed Career Criminal Act of 1984, "bur-
    glary" was defined as "any felony consisting of entering or
    remaining surreptitiously within a building that is property of
    another with intent to engage in conduct constituting a Fed-
    eral or State offense." Taylor, 
    495 U.S. at 581
     (internal quota-
    tions omitted). Without explanation, Congress in 1986
    excised this definition, while retaining burglary as a predicate
    offense under the ACCA.
    Faced with this legislative hole, the Court in Taylor noted
    that Congress had "singled out burglary (as opposed to other
    frequently committed property crimes such as larceny and
    auto theft) for inclusion as a predicate offense . . . because of
    its inherent potential for harm to persons." 
    Id. at 588
    . As the
    Court explained, "[t]he fact that an offender enters a building
    to commit a crime often creates the possibility of a violent
    confrontation between the offender and an occupant, care-
    taker, or some other person who comes to investigate." 
    Id.
    "And the offender’s own awareness of this possibility," the
    Court added, "may mean that he is prepared to use violence
    if necessary to carry out his plans or to escape." 
    Id.
     Further,
    because "Congress apparently thought that all burglaries seri-
    ous enough to be punishable by imprisonment for more than
    a year . . . shared this potential for violence and . . . were
    likely to be committed by career criminals," Congress did not
    "limit the predicate offense to some special subclass of bur-
    glaries that might be especially dangerous, such as those
    where the offender is armed, or the building is occupied, or
    the crime occurs at night." 
    Id.
    definition of ‘burglary,’ . . . controls the definition of ‘burglary of a dwell-
    ing’ under the Guidelines."); United States v. Wenner, 
    351 F.3d 969
    , 973
    (9th Cir. 2003) ("[T]he most logical and sensible reading of the Guidelines
    . . . is to construe ‘burglary of a dwelling’ as the Taylor definition of bur-
    glary, with the narrowing qualification that the burglary occur in a dwell-
    ing").
    6                  UNITED STATES v. BONILLA
    Finding it "implausible" that Congress would have left the
    meaning of "burglary" under § 924(e) to the variances of the
    states’ criminal codes, id. at 590, the Court concluded that
    "burglary" "must have some uniform definition" separate
    from the idiosyncrasies of the state codes, id. at 592. In its
    search for uniformity, the Court rejected a definition of bur-
    glary tied to the common law, noting that the "contemporary
    understanding" of burglary was far removed from its common
    law counterpart. Id. at 593. That is, although " ‘[b]urglary was
    defined by the common law to be the breaking and entering
    of the dwelling house of another in the nighttime with the
    intent to commit a felony’," id. at 580 n.3 (citation omitted),
    most states had long since "expanded this definition to include
    entry without a ‘breaking,’ structures other than dwellings,
    offenses committed in the daytime, entry with intent to com-
    mit a crime other than a felony, etc.," id. at 593.
    Next, the Court rejected a definition that required "intent to
    engage in conduct constituting a Federal or State offense that
    has as an element . . . conduct that presents a serious risk of
    physical injury to another." Id. at 596 (internal quotations
    omitted). The Court determined that if Congress intended to
    reach only this "subclass" of burglaries, the inclusion of "bur-
    glary" in § 924(e)(2)(B)(ii) was superfluous, as the statute
    separately included any offense that " ‘involves conduct that
    presents a serious potential risk of physical injury to
    another.’ " Id. at 597 (quoting 
    18 U.S.C. § 924
    (e)(2)(B)(ii)).
    A more rational explanation for specifically and separately
    including burglary as a predicate offense, said the Court, was
    that "Congress thought that certain general categories of prop-
    erty crimes—namely burglary, arson, extortion, and the use of
    explosives—so often presented a risk of injury to persons, or
    were so often committed by career criminals, that they should
    be included" even though the statutory elements of such
    offenses do not "necessarily involve the use or threat of force
    against a person." 
    Id.
     Moreover, the lack of qualifying lan-
    guage in § 924(e)(2)(B)(ii) suggested that Congress was con-
    UNITED STATES v. BONILLA                  7
    cerned "not only [with] aggravated burglaries, but also run-of-
    the-mill burglaries involving an unarmed offender, an unoccu-
    pied building, and no use or threat of force." Id.
    In sum, the Court declined to limit the term "burglary" to
    "a special subclass of burglaries, either those that would have
    been burglaries at common law, or those that involve espe-
    cially dangerous conduct." Id. at 598. Rather, the Court deter-
    mined that Congress intended the offense to match in "the
    generic sense" the way "the term is now used in the criminal
    codes of most States." Id. And, it concluded that "[a]lthough
    the exact formulations vary, the generic, contemporary mean-
    ing of burglary contains at least the following elements: an
    unlawful or unprivileged entry into, or remaining in, a build-
    ing or other structure, with intent to commit a crime." Id.
    (emphasis added).
    The Court stated that if the defendant was convicted of bur-
    glary in a state "where the generic definition has been
    adopted, with minor variations in terminology, then the trial
    court need find only that the state statute corresponds in sub-
    stance to the generic meaning of burglary." Id. at 599 (empha-
    sis added). Thus, the Court held that "an offense constitutes
    ‘burglary’ for purposes of a § 924(e) sentence enhancement if
    . . . its statutory definition substantially corresponds to
    ‘generic’ burglary." Id. at 602 (emphasis added).
    It is against this backdrop that we consider Bonilla’s
    appeal.
    B.
    Texas Penal Code section 30.02(a) provides as follows:
    A person commits an offense if, without the effec-
    tive consent of the owner, the person:
    8                     UNITED STATES v. BONILLA
    (1) enters a habitation, or a building (or any portion
    of a building) not then open to the public, with intent
    to commit a felony, theft, or an assault; or
    (2) remains concealed, with intent to commit a fel-
    ony, theft, or an assault, in a building or habitation;
    or
    (3) enters a building or habitation and commits or
    attempts to commit a felony, theft, or an assault.
    Bonilla was convicted of violating section (a)(3) of the stat-
    ute, which, Bonilla concedes, includes all of the Taylor ele-
    ments—unlawful entry, of a building or other structure, and
    the requisite intent to commit a felony or other predicate crime.4
    Bonilla notes, however, and we agree, that section (a)(3) does
    not require that the intent exist at entry. According to Bonilla,
    this quirk as to the timing element is fatal under Taylor. With
    that, however, we cannot agree.
    In adopting a generic definition of "burglary," Taylor
    repeatedly emphasized that a precise lining up of the elements
    is not required, but rather that "the exact formulations vary."
    
    495 U.S. at 598
     (emphasis added). And in offering guidance
    to courts as to how to apply the definition, Taylor added that
    "where the generic definition has been adopted, with minor
    variations in terminology, then the trial court need find only
    that the state statute corresponds in substance to the generic
    meaning of burglary." 
    Id. at 599
     (emphasis added).
    4
    Under the modified categorical approach, see generally Shepard v.
    United States, 
    544 U.S. 13
     (2005), we confirm, as did the district court,
    that Bonilla entered a habitation. Thus, the requirement that Bonilla was
    convicted of "burglary of a dwelling," thereby supporting the "crime of
    violence" sentencing enhancement, is satisfied. See U.S. Sentencing
    Guidelines Manual § 2L1.2 cmt. n.1(B)(iii). Bonilla does not challenge
    this finding on appeal.
    UNITED STATES v. BONILLA                   9
    Because section (a)(3) requires an unlawful entry, of a
    building or habitation, and the separate intent to commit a fel-
    ony, theft, or assault, we find that it corresponds "in sub-
    stance" to Taylor’s generic definition of burglary. See id. As
    the government notes, "[b]ecause the Texas statute applies
    only where a defendant’s entry or remaining in a building is
    unlawful, proof of a completed or attempted felony necessar-
    ily requires proof that the defendant formulated the intent to
    commit a crime either prior to his unlawful entry or while
    unlawfully remaining in the building." Appellee’s Br. 7-8
    (emphasis added).
    We also agree with the government that while sections
    (a)(1) and (2) of the Texas statute cover, respectively, situa-
    tions where it is clear that the intent "existed prior to the
    unlawful entry, such as when a defendant is caught with bur-
    glary tools," or where a defendant "lawfully enter[s] a store
    and then conceal[s] himself until after closing with intent to
    steal," section (a)(3) "fills a gap in the statutory scheme for
    cases in which it is unclear whether the necessary intent
    existed at the time of an unlawful entry or was formed subse-
    quent[ly]." Id. 13-14. For example, "remaining in" cases could
    be charged under section (a)(3), "either because the state can-
    not prove when the defendant formed the intent to commit a
    subsequent felony or because there is insufficient proof that
    the defendant ‘concealed’ himself." Id. 14.
    In arguing that section (a)(3) does not satisfy Taylor
    because it does not require intent at the moment of entry,
    Bonilla offers the example of a homeless person who unlaw-
    fully enters a home only to seek warmth, but while inside,
    forms an intent to steal property. Framing the subsequent theft
    as a "crime of opportunity," rather than one resulting from
    planning or plotting, Bonilla argues that the homeless man
    presents less of a risk than the person who enters a home after
    plotting to commit a crime.
    That argument is flawed. Taylor does not distinguish
    between burglaries based on their comparative level of risk,
    10                  UNITED STATES v. BONILLA
    but rather is concerned with a defendant’s (1) unlawful pres-
    ence, (2) in a building or structure, (3) with the intent to com-
    mit a crime—all of which are required under section (a)(3).
    We therefore hold that Bonilla’s conviction under Texas
    Penal Code section 30.02(a)(3) substantially corresponds to
    the elements of generic burglary as outlined in Taylor and
    therefore qualifies as a "crime of violence" for sentencing
    purposes.
    C.
    The Fifth Circuit has held, and our dissenting colleague
    urges, that "a burglary conviction under § 30.02(a)(3) of the
    Texas Penal Code is not a generic burglary under the Taylor
    definition because it does not contain an element of intent to
    commit a felony, theft, or assault at the moment of entry."
    United States v. Constante, 
    544 F.3d 584
    , 587 (5th Cir. 2008)
    (per curiam). In support, the court noted that although section
    (a)(3) requires that a defendant intentionally or knowingly
    enter the building, "he would not have to intend to commit a
    felony . . . at that time" and "[o]nly this latter type of specific
    intent is relevant to the Taylor definition of generic burglary."
    
    Id.
     at 586 n.3.
    With respect, we think this reading of Taylor too rigid,
    given that a defendant convicted under section (a)(3) neces-
    sarily developed the intent to commit the crime while remain-
    ing in the building, if he did not have it at the moment he
    entered. The critical question is whether section (a)(3) of the
    Texas statute "corresponds in substance to the generic mean-
    ing of burglary," Taylor, 
    495 U.S. at 599
    . Bonilla pleaded
    guilty to an offense under Texas law that required proof of (1)
    an unlawful entry, (2) into a building or habitation, and (3) the
    intent to commit a felony, theft, or assault. We hold that these
    elements satisfy Taylor’s description of generic burglary, not-
    withstanding that Bonilla might not have formulated his intent
    prior to the unlawful entry.
    UNITED STATES v. BONILLA                 11
    III.
    For the foregoing reasons, we affirm the district court’s
    judgment.
    AFFIRMED
    TRAXLER, Chief Judge, dissenting:
    Under Taylor v. United States, 
    495 U.S. 575
     (1990), a prior
    conviction is a burglary conviction for sentence-enhancement
    purposes if the underlying offense, "regardless of its exact
    definition or label, ha[s] the basic elements of unlawful or
    unprivileged entry into, or remaining in, a building or struc-
    ture, with intent to commit a crime." 
    Id. at 599
    . While there
    are offenses under Texas law that meet this definition, the
    statute under which Bonilla was convicted does not contain
    the intent element required by Taylor. I therefore do not
    believe that Bonilla’s prior conviction is a crime of violence
    under U.S.S.G. § 2L1.2, and I respectfully dissent from the
    affirmance of Bonilla’s sentence.
    I.
    A.
    The Sentencing Guidelines provide for a 16-level increase
    in the offense level if the defendant was deported after being
    convicted of a "crime of violence" that receives criminal his-
    tory points. U.S.S.G. § 2L1.2(b)(1)(A)(ii). The Guideline
    defines "crime of violence" to include "burglary of a dwell-
    ing," id. cmt. n.1(B)(iii), but it does not define "burglary."
    In Taylor, the Supreme Court considered the scope of the
    similarly undefined reference to a prior conviction for bur-
    glary contained in 
    18 U.S.C. § 924
    (e). Although the Court
    recognized that burglary has a well-defined meaning at com-
    mon law—"a breaking and entering of a dwelling at night,
    12                 UNITED STATES v. BONILLA
    with intent to commit a felony," Taylor, 
    495 U.S. at 592
    , the
    Court observed that the contemporary understanding of "bur-
    glary" had evolved far from its common-law roots and that
    "[t]he arcane distinctions embedded in the common-law defi-
    nition have little relevance to modern law enforcement con-
    cerns," 
    id. at 593
    . The Court thus rejected the argument that
    "burglary" as used in § 924(e) was common-law burglary, see
    id. at 594, and instead concluded that the statute referred to
    burglary in "the generic sense in which the term is now used
    in the criminal codes of most States," id. at 598. "Although
    the exact formulations vary, the generic, contemporary mean-
    ing of burglary contains at least the following elements: an
    unlawful or unprivileged entry into, or remaining in, a build-
    ing or other structure, with intent to commit a crime." Id.
    B.
    The Texas statute under which Bonilla was convicted pro-
    vides that:
    A person commits an offense if, without the effec-
    tive consent of the owner, the person:
    (1) enters a habitation, or a building (or any por-
    tion of a building) not then open to the public, with
    intent to commit a felony, theft, or an assault; or
    (2) remains concealed, with intent to commit a fel-
    ony, theft, or an assault, in a building or habitation;
    or
    (3) enters a building or habitation and commits or
    attempts to commit a felony, theft, or an assault.
    
    Tex. Penal Code Ann. § 30.02
    (a). As is apparent from the
    face of the statute, "with intent to commit a felony, theft, or
    assault" is an element of the offenses set out in § 30.02(a)(1)
    and § 30.02(a)(2). Bonilla, however, was charged with and
    UNITED STATES v. BONILLA                   13
    pleaded guilty to a violation of § 30.02(a)(3), which replaces
    the with-intent element with the requirement that the defen-
    dant committed or attempted to commit the specified crimes.
    Bonilla argues on appeal that Taylor’s intent-to-commit-a-
    crime element requires contemporaneous intent — intent that
    accompanies or coincides with the commission of the other
    elements. Because § 30.02(a)(3) only requires that the defen-
    dant unlawfully enter and thereafter commit or attempt to
    commit a felony, the intent necessary for conviction under
    § 30.02(a)(3) need not have existed at the moment of entry.
    Bonilla thus contends that his conviction under § 30.02(a)(3)
    is not a conviction for generic burglary as defined by Taylor.
    For its part, the government argues that § 30.02(a)(3) in
    substance prohibits the same conduct as generic burglary,
    which is all that Taylor requires. See Taylor, 
    495 U.S. at 602
    ("[A]n offense constitutes ‘burglary’ for purposes of a
    § 924(e) sentence enhancement if . . . its statutory definition
    substantially corresponds to ‘generic’ burglary. . . ." (empha-
    sis added)). The government notes that because Taylor
    defines generic burglary to include offenses involving unlaw-
    ful "remaining" on the premises, generic burglary necessarily
    encompasses offenses where the intent to commit a crime is
    formed while the defendant remained in the building. The
    government thus contends that, contrary to Bonilla’s asser-
    tion, generic burglary does not require that the intent exist at
    the moment of entry. And because proof of the completed or
    attempted crime required by § 30.02(a)(3) necessarily shows
    that the defendant formulated the requisite intent either before
    entering the building or while he remained in the building, the
    government asserts that the crime set out in § 30.02(a)(3) sub-
    stantially corresponds to generic burglary.
    II.
    Before addressing the merits of the parties’ arguments, I
    think it will be helpful to clarify the nature of the issue before
    14                 UNITED STATES v. BONILLA
    the court. Generic burglary as defined in Taylor is "a crime
    consisting of three necessary elements: 1) an unlawful or
    unprivileged entry or remaining in; 2) a building or other
    structure; 3) with intent to commit a crime." United States v.
    Bowden, 
    975 F.2d 1080
    , 1083 (4th Cir. 1992). The alternate
    phrasing of the first element means that generic burglary can
    be committed in two ways: by unlawfully entering a building
    or structure with intent to commit a crime, or by unlawfully
    remaining in a building or structure with intent to commit a
    crime. But whether the crime is committed by unlawfully
    entering or by unlawfully remaining, the intent to commit a
    crime remains a separate element. See United States v.
    Ortega-Gonzaga, 
    490 F.3d 393
    , 395 (5th Cir. 2007) (under
    Taylor’s definition of generic burglary, unlawful entry and
    intent to commit a crime are separate elements).
    As noted above, the government’s argument focuses pri-
    marily on Taylor’s inclusion of "remaining-in" offenses in the
    definition of generic burglary. This focus on the remaining-in
    language, however, obscures a critical point—remaining-in
    offenses are not included in the statute under which Bonilla
    was convicted. Section 30.02(a)(3) prohibits unlawful entries,
    not unlawful remaining. See 
    Tex. Penal Code Ann. § 30.02
    (a)(3) ("A person commits an offense if, without the
    effective consent of the owner, the person . . . enters a build-
    ing or habitation and commits or attempts to commit a felony,
    theft, or an assault." (emphasis added)). And in accordance
    with the terms of the statute, Bonilla was charged with and
    pleaded guilty to unlawful entry only; he was neither charged
    with nor convicted of unlawfully remaining.
    When Bonilla’s argument is considered in light of the stat-
    ute under which he was actually indicted and convicted, it is
    clear that Bonilla does not contend that generic burglary
    always requires that the intent to commit a crime exist at the
    moment of entry. Instead, Bonilla argues that the intent
    required by Taylor must be contemporaneous with the prohib-
    ited act, whether that act is unlawful entry or unlawful remain-
    UNITED STATES v. BONILLA                         15
    ing.1 Because he was charged with and convicted of unlawful
    entry under a statute that does not require the unlawful entry
    to be accompanied by an intent to commit a crime, Bonilla
    argues that he was not convicted of generic burglary.
    It thus seems to me that the question to be answered here
    is not, as the government contends, whether the intent
    required for generic burglary must always and in every case
    exist at the moment of entry; Taylor’s inclusion of unlawful-
    remaining offenses makes it clear the answer to that question
    is "No." Instead, the question is whether a conviction under
    a statute proscribing unlawful entries without requiring con-
    temporaneous intent amounts to a conviction for generic bur-
    glary. In my view, Taylor makes it clear that the answer to
    that question likewise is "No."
    A.
    Although the Taylor Court had no need to elaborate on the
    point, there is no doubt that for an offense to constitute bur-
    glary at common law, the intent to commit a crime must have
    existed at the time of the breaking and entering. Contempora-
    neous intent was the essence of burglary at common law, as
    it was the element that distinguished the offense from tres-
    pass. See 3 Wayne R. LaFave, Substantive Criminal Law
    § 21.1(e) (2d. ed.) ("To have committed the offense of bur-
    glary at common law, one must have intended to commit a
    felony while fulfilling the other requirements." (emphasis
    added));2 4 William Blackstone, Commentaries on the Laws
    1
    In fact, Bonilla acknowledges that if he had been charged and con-
    victed under subsection (a)(2) of the Texas statute, which prohibits "re-
    main[ing] concealed" with intent to commit a crime, see 
    Tex. Penal Code Ann. § 30.02
    (a)(2), the conviction would be for generic burglary. See
    Brief of Appellant at 22; Reply Brief at 3.
    2
    The Court in Taylor relied extensively on a criminal-law treatise co-
    authored by Professor LaFave and its discussion of burglary’s evolution
    from its common-law roots to its modern statutory form. See Taylor, 
    495 U.S. at
    580 n.3 (quoting W. LaFave & A. Scott, Substantive Criminal Law
    § 8.13 at 464 (1986)); id. at 588 n.4; id. at 593; id. at 598.
    16                 UNITED STATES v. BONILLA
    of England (1769) ("As to the intent; it is clear, that breaking
    and entry must be with a felonious intent, otherwise it is only
    a trespass." (second emphasis added)).
    In my view, generic burglary as defined by Taylor retains
    the common-law requirement of contemporaneous intent.
    This conclusion is compelled by the plain language of the
    intent requirement itself — "with intent to commit a crime"
    can only be understood as requiring the intent to accompany
    the other elements. See Webster’s Encyclopedic Unabridged
    Dictionary of the English Language at 2183 (2001) (defining
    "with" as "accompanied by; accompanying"); cf. Harris v.
    State, 20 Tex. App. 652, 
    1886 WL 4656
     at *3 (Tex. Ct. App.
    1886) ("[T]o constitute burglary . . . , the party must enter the
    house with intent to commit theft. This intent must accompany
    — prompt—the entering." (emphasis added)). The Court’s
    with-intent-to-commit phrasing of the element mirrors the
    typical phrasing at common law, and I do not believe the
    Court could have been unaware of the significance of its cho-
    sen language.
    Moreover, the Taylor Court noted that its formulation of
    generic burglary "approximates that adopted by the drafters of
    the Model Penal Code." Taylor, 
    495 U.S. at
    598 n.8. And as
    defined by the Model Penal Code, burglary requires contem-
    poraneous intent. See Model Penal Code § 221.1 (1980) ("A
    person is guilty of burglary if he enters a building or occupied
    structure, or separately secured or occupied portion thereof,
    with purpose to commit a crime therein, unless the premises
    are at the time open to the public or the actor is licensed or
    privileged to enter." (emphasis added)).
    The Taylor Court fashioned its definition of generic bur-
    glary to reflect the modern, prevailing view of the crime. See
    Taylor, 
    495 U.S. at 598
    . There is little doubt that a defen-
    dant’s intent to commit a crime remains central to the modern
    offense. See, e.g., State v. Chatelain, 
    220 P.3d 41
    , 45 (Or.
    2009) ("Since the time of Blackstone, the defendant’s intent
    UNITED STATES v. BONILLA                          17
    to commit a crime in the building has been the characteristic
    distinguishing burglary from mere trespass. And, under cur-
    rent Oregon law, intent to commit a crime is required to com-
    mit any degree of burglary; it continues to be the primary
    element distinguishing burglary from criminal trespass." (cita-
    tion omitted)); People v. Maggette, 
    747 N.E.2d 339
    , 349 (Ill.
    2001) ("The gist of the offense is the defendant’s felonious
    intent with which he or she enters the dwelling . . . ."); Keady
    v. State, 
    687 S.W.2d 757
    , 760 (Tex. Crim. App. 1985) ("The
    conduct that is the gist of the offense of burglary is the entry
    with the requisite intent, not the physical act of entering.").
    "Unlawful remaining" was not a basis for a burglary con-
    viction at common law,3 but I find nothing in Taylor’s analy-
    sis to suggest that the inclusion of remaining-in offenses
    eliminated or fundamentally altered the contemporaneous-
    intent requirement. Instead, it seems to me that the inclusion
    of remaining-in offenses simply means that if a defendant is
    charged with unlawful remaining, the intent must exist at the
    time of the unlawful remaining. See United States v. Herrera-
    Montes, 
    490 F.3d 390
    , 392 (5th Cir. 2007) ("Taylor requires
    that the defendant intend to commit a crime at the time of
    unlawful entry or remaining in, as do the Model Penal Code
    § 221.1 and Black’s Law Dictionary 197-98 (6th ed. 1990).");
    see also 3 LaFave, Substantive Criminal Law § 21.1(b) (under
    a statute prohibiting unlawful remaining, "the requisite intent
    3
    Burglary at common law required a "breaking" and an entry. Most
    states now have eliminated the breaking requirement, and most have
    placed qualifiers (e.g., unlawful, unprivileged) on the type of entry
    required. See 3 LaFave, Substantive Criminal Law § 21.1(b). While many
    states still limit burglary to unlawful entries, it is now "far more common"
    for states to define burglary to include unlawful entry or unlawful remain-
    ing in the premises, id., which permits burglary convictions in cases where
    the initial entry may have been lawful. See id. ("This common statutory
    expansion in the definition of burglary makes great sense. A lawful entry
    does not foreclose the kind of intrusion burglary is designed to reach, as
    is illustrated by the case of a bank customer who hides in the bank until
    it closes and then takes the bank’s money.").
    18                 UNITED STATES v. BONILLA
    to commit a crime within need only exist at the time the
    defendant unlawfully remained within"); Hernandez v. State,
    
    190 S.W.3d 856
    , 863 (Tex. App. 2006) ("If a defendant is
    charged with burglary under [Tex. Penal. Code § 30.02] (a)(1)
    or (a)(2), the State is required to prove the defendant’s intent
    to commit a felony or theft at the time the defendant entered
    or remained concealed in a habitation or building." (emphasis
    added)); Pushruk v. State, 
    780 P.2d 1044
    , 1048 (Alaska Ct.
    App. 1989) ("[T]o find a defendant guilty of burglary, the
    state must show the defendant had the intent to commit an
    additional crime at the time his presence on the premises first
    became unlawful, i.e., at the time that he first trespassed,
    entered or remained unlawfully on the premises.")
    Accordingly, I believe that under Taylor’s definition of
    generic burglary, a defendant’s intent to commit a crime must
    exist contemporaneously with the unlawful entry or the
    unlawful remaining.
    B.
    Bonilla was charged with and pleaded guilty to entering a
    dwelling without consent of the owner and committing a theft
    in the dwelling, in violation of Texas Penal Code
    § 30.02(a)(3). Intent to commit a crime is a necessary element
    of generic burglary, see Taylor, 
    495 U.S. at 599
    , but "‘intent
    to commit a felony or theft’ is not an element of the offense
    proscribed by § 30.02(a)(3)," DeVaughn v. State, 
    749 S.W.2d 62
    , 65 n.4 (Tex. Crim. App. 1988) (en banc). It thus seems
    clear to me Bonilla was not convicted of generic burglary as
    defined by Taylor. See United States v. Constante, 
    544 F.3d 584
    , 587 (5th Cir. 2008) (per curiam) ("[A] burglary convic-
    tion under § 30.02(a)(3) of the Texas Penal Code is not a
    generic burglary under the Taylor definition because it does
    not contain an element of intent to commit a felony, theft, or
    assault at the moment of entry.").
    The government, of course, argues that § 30.02(a)(3)’s
    attempted-or-committed-crime element substantially corre-
    UNITED STATES v. BONILLA                  19
    sponds to generic burglary’s intent element because generic
    burglary can be committed by unlawfully remaining, and "the
    fact of attempted or completed theft ‘necessarily implies’ that
    such intent was formed while the Defendant unlawfully
    remained in the premises." Brief of Respondent at 13. Tay-
    lor’s determination that generic burglary encompasses
    offenses involving unlawful entry and offenses involving
    unlawful remaining, however, does not give this court license
    to read unlawful remaining into a burglary statute that only
    prohibits unlawful entry. Bonilla was charged and convicted
    of unlawful entry, the only act proscribed by § 30.02(a)(3).
    The commission of a crime after entry might establish that the
    defendant formed the intent to commit the crime while he
    remained on the premises, but it does not establish that the
    intent was contemporaneous with the unlawful entry. See
    DeVaughn, 
    749 S.W.2d at
    65 (§ 30.02(a)(3) "includes as bur-
    glary the conduct of one who enters without effective consent
    but, lacking intent to commit any crime upon his entry, subse-
    quently forms that intent and commits or attempts a felony or
    theft" (emphasis added; internal quotation marks omitted)).
    The government’s argument, in essence, is that Bonilla’s
    conduct could have supported a conviction under a remaining-
    in statute. Under Taylor’s categorical approach, however, we
    must focus on the elements of the underlying offense of con-
    viction, not the conduct that led to the conviction. See Taylor,
    
    495 U.S. at 600
    . That is, whether Bonilla was convicted of
    generic burglary is a determination to be made "not by com-
    paring the defendant’s prior conduct with the generic offense,
    but rather by comparing the elements of the crime of convic-
    tion with the generic offense." United States v. Peterson, 
    629 F.3d 432
    , 436 (4th Cir. 2011) (emphasis added). Bonilla was
    charged and convicted of violating § 30.02(a)(3), which pro-
    scribes unlawful entries but does not require the entry to be
    accompanied by an intent to commit a crime. See DeVaughn,
    
    749 S.W.2d at 65
    . The elements of § 30.02(a)(3) thus do not
    substantially correspond to the elements of generic burglary,
    see Constante, 
    544 F.3d at 587
    , and Bonilla’s conviction
    20              UNITED STATES v. BONILLA
    should not have been used to enhance his sentence under
    U.S.S.G. § 2L1.2(b)(1)(A)(ii).
    Accordingly, I respectfully dissent from the judgment
    affirming Bonilla’s sentence.