United States v. Snellenberger , 548 F.3d 699 ( 2008 )

GRABER, Circuit Judge,

with whom RYMER, KLEINFELD, HAWKINS, GOULD, and TALLMAN, join, concurring:

I join fully in the court’s opinion but write briefly to respond to the dissent, which asserts that we should reach the question whether Navarro-Lopez v. Gonzales, 503 F.3d 1063 (9th Cir.2007) (en banc), would counsel reversal.

Even if we were to consider this un-raised issue, we would have to do so using a “plain error” analysis. See United States v. Beng-Salazar, 452 F.3d 1088, 1092 (9th Cir.2006) (“We review unpre-served errors for plain error.” (citing Fed. R.Crim.P. 52(b)); see also United States v. Olano, 507 U.S. 725, 732, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993) (“[T]he authority created by Rule 52(b) is circumscribed. There must be an error that is plain and that affect[s] substantial rights.” (internal quotation marks omitted) (second alteration in original)). There is no plain error here.

As the opinion properly notes, Defendant Snellenberger pleaded nolo contende-re to “entering] an inhabited dwelling house and trailer coach and inhabited portion of a building occupied by Peter Mac-Pherson, with the intent to commit larceny and any felony.” Majority op. at 701-02 (internal quotation marks omitted) (alteration in original). Whether or not that conduct counts as “generic burglary” under the peculiarities of California law, the act described “involves conduct that presents a serious potential risk of physical injury to another,” U.S.S.G. § 4B1.2(a)(2), to wit, MacPherson. For that reason, we would still have to affirm Snellenberger’s conviction.