United States v. Davis ( 2009 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
March 31, 2009
No. 07-10177
Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JAMES M. DAVIS,
Defendant-Appellant.
Appeal from the United States District Court
for the Northern District of Texas
No. 7:05-CR-4
Before DAVIS, SMITH, and DeMOSS, Circuit Judges
PER CURIAM:*
James Davis pleaded guilty of being a felon in possession of a firearm in
violation of 18 U.S.C. § 922(g) and was sentenced to the statutory minimum of
fifteen years’ imprisonment under the Armed Career Criminal Act (“ACCA”), 18
*
Pursuant to 5TH CIR . R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .
R. 47.5.4.
No. 07-10177
U.S.C. § 924(e). The sentence was based in part on Davis’s Arizona convictions
of second-degree burglary in violation of A RIZ. R EV. S TAT. A NN. § 13-1507, which
the district court deemed “violent felonies” under § 924(e)(2)(B)(ii). Id.
Davis appealed, and we issued two non-dispositive opinions. See United
States v. Davis, 530 F.3d 318, 319 (5th Cir. 2008) (per curiam); United States v.
Davis, 291 F. App’x 563 (5th Cir. 2008) (per curiam). As requested, we received
supplemental briefs.
Davis contends that his Arizona convictions were not for violent felonies
under § 924(e)(2)(B)(ii), because second-degree burglary under Arizona law does
not fit within the generic, contemporary meaning of burglary as defined in Tay-
lor v. United States, 495 U.S. 575 (1990). Because Davis did not raise this issue
below, we review for plain error. See United States v. Dupre, 117 F.3d 810, 817
(5th Cir. 1997). Plain error review has four steps. Puckett v. United States, 2009
U.S. LEXIS 2330, at *11-*12 (U.S. Mar. 25, 2009). We “may reverse only if:
(1) there was error (2) that was clear and obvious and (3) that affected a defen-
dant’s substantial rights.” Id. If these elements are present, we have the “dis-
cretion to correct the error if it seriously affect[s] the fairness, integrity, or public
reputation of judicial proceedings.” Id. (internal quotation marks and citations
omitted). If existing law is unsettled regarding an alleged error, the alleged er-
ror is not clear or obvious. United States v. Salinas, 480 F.3d 750, 756, 759 (5th
Cir. 2007).
“[A] person has been convicted of burglary for purposes of a § 924(e) en-
hancement if he is convicted of any crime, regardless of its exact definition or
label, having the basic elements of unlawful or unprivileged entry into, or re-
maining in, a building or structure, with intent to commit a crime.” Taylor, 495
U.S. at 599. Under Arizona law, “[a] person commits burglary in the second-de-
gree by entering or remaining unlawfully in or on a residential structure with
the intent to commit any theft or any felony therein.” A RIZ. R EV. S TAT.
§ 13-1507(A).
2
No. 07-10177
On its face, the Arizona statute is indistinguishable from the generic con-
temporary definition of burglary adopted in Taylor. Indeed, the Tenth Circuit
cited § 13-1507 and concluded that it is “uncontested that burglary of a dwelling
is a crime of violence” under the federal sentencing guidelines. United States v.
Cornelio-Pena, 435 F.3d 1279, 1282 (10th Cir. 2006). The definition of “violent
felony” under § 924(e)(2)(B) is identical to the definition of “crime of violence” as
used in the sentencing guidelines. United States v. Mohr, 554 F.3d 604, 609 (5th
Cir. 2009).
In United States v. Bonat, 106 F.3d 1472, 1475 (9th Cir. 1997), however,
the court observed that Arizona’s courts had broadened the definition of burglary
to allow for a conviction if the intent to commit a crime was formed after entry
into a residential structure or if entry was privileged. If it is assumed that the
Ninth Circuit’s assessment of Arizona jurisprudence on the formation of intent
is correct, that assessment nonetheless has no significance unless one first con-
cludes that the definition of generic burglary requires that a defendant form the
intent to commit a crime before entering a structure. Taylor contains no explicit
requirement, and such a requirement would be inconsistent with the “remaining
in” aspect of Taylor’s definition. Since deciding Bonat, the Ninth Circuit has ex-
pressed doubt about a requirement of intent upon entry.1 “To hold [that intent
must be formed prior to entry] would render Taylor’s ‘remaining in’ language
surplusage.”2
We have suggested that generic burglary requires the defendant to have
formed an intent to commit a crime before entering the premises. See United
States v. Herrera-Montes, 490 F.3d 390, 392 & n.2 (5th Cir.), cert. denied, 128
1
See United States v. Reina-Rodriguez, 468 F.3d 1147, 1155 (9th Cir. 2006) (noting that
Taylor requires only that the defendant form the intent to commit a crime while unlawfully
remaining on the premises), overruled on other grounds by United States v. Grisel, 488 F.3d
844, 851 n.5 (9th Cir.), cert. denied, 128 S. Ct. 425 (2007).
2
Id.
3
No. 07-10177
S. Ct. 410 (2007). Herrera-Montes, however, did not concern “remaining in” a
structure, and we have not had occasion to reconcile the “remaining in” aspect
of Taylor with a requirement for intent at the time of entry. Bonat does not es-
tablish that it was a clear or obvious error for the district court to have treated
Arizona second-degree burglary as generic burglary under Taylor.3
Davis contends that the Arizona statute is broader than generic burglary,
because it allows a conviction based on burglary of a vehicle. Section 13-1507
proscribes “entering or remaining unlawfully in or on a residential structure.”
§ 13-1507(A). The definition of “residential structure” includes vehicles only if
they are “adapted for both human residence and lodging.” § 13-1501(11), (12).
Such statutes describe generic burglary where they apply to vehicles when used
as residences or habitations.4 Davis shows no clear or obvious error regarding
Arizona’s definition of “residential structure.”
The judgment is AFFIRMED.
3
See United States v. Garcia-Lopez, 262 F. App’x 584, 585 (5th Cir. 2008) (holding that
it was not plain error to treat a violation of § 13-1507 as generic burglary under Taylor be-
cause the law was unsettled).
4
See United States v. Murillo-Lopez, 444 F.3d 337, 339-45 (5th Cir. 2006) (California
statute); United States v. Garcia-Mendez, 420 F.3d 454, 456-57 (5th Cir. 2005) (Texas); United
States v. Cordoba-Posos, 295 F. App’x 651, 655 (5th Cir. 2008) (Illinois).
4