United States v. Medellin-Herrera ( 2009 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
May 7, 2009
No. 08-50773
Summary Calendar Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA
Plaintiff-Appellee
v.
JUAN MANUEL MEDELLIN-HERRERA, also known as Jose Mendoza-Herrera
Defendant-Appellant
Appeal from the United States District Court
for the Western District of Texas
USDC No. 3:08-CR-289-1
Before JOLLY, BENAVIDES, and HAYNES, Circuit Judges.
PER CURIAM:*
Juan Manuel Medellin-Herrera (Medellin) appeals the sentence imposed
following his guilty plea conviction for illegal reentry. Medellin argues that the
district court erred in applying a 16-level enhancement under U.S.S.G.
§ 2L1.2(b)(1)(A)(ii) based on his prior Nebraska state conviction for aiding and
abetting burglary. He asserts that his prior conviction does not constitute the
enumerated offense of burglary of a dwelling because the Nebraska statute does
*
Pursuant to 5 TH C IR. R. 47.5, the court has determined that this opinion
should not be published and is not precedent except under the limited
circumstances set forth in 5 TH C IR. R. 47.5.4.
No. 08-50773
not track the generic, contemporary definition of this offense. Medellin contends
that the Nebraska statute does not require the necessary intent with regard to
unlawful or unprivileged entry. He also contends for the first time on appeal
that the Nebraska statute’s reference to “improvements” is broader than the
generic definition of buildings or structures.
Medellin argued before the district court that his prior offense was not a
crime of violence and that the intent requirement with respect to entry was
missing from the Nebraska statute. Because he did not specifically argue that
statute’s language regarding “improvements” was overly broad, this issue
arguably is subject to plain error review. See United States v. Gracia-Cantu, 302
F.3d 308, 310 (5th Cir. 2002). However, it is unnecessary to decide this question
because Medellin’s arguments fail under de novo review, as well as plain error
review. See United States v. Baker, 538 F.3d 324, 332 (5th Cir. 2008), cert.
denied, 129 S. Ct. 962 (2009); United States v. Santiesteban-Hernandez, 469 F.3d
376, 378 (5th Cir. 2006).
Under § 2L1.2(b)(1)(A)(ii), a defendant’s base offense level is increased by
16 levels if he was previously deported after being convicted of a crime of
violence. The Government argues only that Medellin’s prior conviction is an
enumerated crime of violence. See § 2L1.2, comment. (n.1(B)(iii)). We apply a
three-step process to determine whether an offense qualifies as an enumerated
crime of violence: (1) the statute and its elements are analyzed categorically; (2)
the charging papers may be examined to narrow the definition and “to determine
which of the crime’s underlying facts were necessary to the plea or verdict”; and
(3) the definition of the crime is compared to the “‘generic, contemporary’
meaning of the enumerated offense.” United States v. Carbajal-Diaz, 508 F.3d
804, 807-10 (5th Cir. 2007), cert. denied, 128 S. Ct. 1731 (2008).
This court has adopted the generic, contemporary definition of burglary
defined by the Supreme Court in Taylor v. United States, 495 U.S. 575, 598
(1990), as “an unlawful or unprivileged entry into, or remaining in, a building
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No. 08-50773
or other structure, with the intent to commit a crime.” United States v. Ortega-
Gonzaga, 490 F.3d 393, 394-95 (5th Cir.), cert. denied, 128 S. Ct. 410 (2007).
Dwelling has been defined to include “a structure, tent, or vessel where someone
lives.” United States v. Castillo-Morales, 507 F.3d. 873, 877 (5th Cir. 2007), cert.
denied, 128 S. Ct. 1106 (2008). N EBRASKA R EV. S TAT. A NN. § 28-507 provides
that: “[a] person commits burglary if such person willfully, maliciously, and
forcibly breaks and enters any real estate or any improvements erected thereon
with intent to commit any felony or with intent to steal property of any value.”
Although the statute does not use the words “unlawful or unprivileged entry,”
the force required by the statute indicates that the entry is nonconsensual.
Accordingly, Medellin’s assertion that the statute lacks the requisite intent
regarding entry is without merit. Cf. Ortega-Gonzaga, 490 F.3d at 394-96(holding California burglary offense was not a crime of violence where the entry
was not required to be nonconsensual).
With respect to Medellin’s second argument, the Government concedes
that the statute encompasses burglaries beyond those of a dwelling. See § 28-
507. However, because the statute is written in the disjunctive, it is permissible
to look to the charging document to see what portion of the statute Medellin was
charged with violating. See United States v. Murillo-Lopez, 444 F.3d 337, 339-45
(5th Cir. 2006). The charging document shows that Medellin was charged with
aiding and abetting the breaking and entering of a residence. Therefore,
Medellin’s prior offense qualifies as burglary of a dwelling and is a crime of
violence. See Carbajal-Diaz, 508 F.3d at 810-12. Because Medellin has not
established error or plain error with respect to the district court’s application of
the 16-level enhancement in § 2L1.2, the district court’s judgment is
AFFIRMED.
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