                                                                         FILED
                                                             United States Court of Appeals
                                                                     Tenth Circuit

                                                                     July 27, 2012
                                     PUBLISH                     Elisabeth A. Shumaker
                                                                     Clerk of Court
                    UNITED STATES COURT OF APPEALS

                                 TENTH CIRCUIT


 UNITED STATES OF AMERICA,

       Plaintiff-Appellee,
                                                          No. 11-6270
 v.

 ALFREDO HUIZAR,

       Defendant-Appellant.


                  Appeal from the United States District Court
                     for the Western District of Oklahoma
                           (D.C. No. 5:10-00169-R-1)


Terri Coulter, Oklahoma City, Oklahoma, for Defendant-Appellant.

Suzanne Mitchell, Assistant United States Attorney (Sanford C. Coats, United
States Attorney, and Rozia McKinney-Foster, Assistant United States Attorney,
with her on the brief), Oklahoma City, Oklahoma, for Plaintiff-Appellee.


Before MURPHY, GORSUCH, and HOLMES, Circuit Judges.


GORSUCH, Circuit Judge.



      When Alfredo Huizar pleaded guilty to reentering the United States

illegally after an earlier deportation, the district court began the business of

settling on a sentence. As these things go, the court started by trying to get a fix
on the appropriate advisory guidelines range. And as part of that effort the

district court held Mr. Huizar’s 1995 California conviction for residential

burglary qualified as a “crime of violence,” triggering a sixteen-level

enhancement. The court then proceeded to craft its own sentence relying on and

incorporating that enhancement. On appeal, Mr. Huizar argues the enhancement

wasn’t legally authorized and his sentence needs to be reconsidered. And he is

right about that.

      The guidelines suggest that among the “crimes of violence” warranting a

sentencing enhancement is any “burglary of a dwelling.” U.S.S.G.

§ 2L1.2(b)(1)(A)(ii) & Application Note 1(B)(iii). Given this, one might be

excused for thinking the fact a California court convicted Mr. Huizar of

residential burglary neatly resolves the case. He burgled a dwelling, under

§ 2L1.2 that’s a “crime of violence,” so the enhancement applies.

      But the law’s path is a bit more circuitous than that. In Taylor v. United

States, 495 U.S. 575 (1990), the Supreme Court held the word “burglary,” at least

as it appears in the Armed Career Criminal Act (ACCA), doesn’t refer to

whatever conduct the states consider to be burglary. Or, for that matter, to

conduct the common law considered burglary. Instead, Taylor told us, the term

“burglary” has a professedly more “generic, contemporary meaning” ascribed to it

by the Court. See 495 U.S. at 590-92, 598-99. And for this court’s part, we have

already extended Taylor’s ACCA analysis to the sentencing guidelines context,

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engrafting it on § 2L1.2’s use of the phrase “burglary of a dwelling.” See United

States v. Rivera-Oros, 590 F.3d 1123, 1126 (10th Cir. 2009). So it is that to

qualify for a § 2L1.2 sentencing enhancement under our precedents Mr. Huizar’s

California conviction must meet Taylor’s particular definition of burglary and be

aimed at a dwelling — in the end requiring proof that he committed an “unlawful

or unprivileged entry into, or remaining in” a dwelling “with intent to commit a

crime.” See Taylor, 495 U.S. at 598.

      The problem is, we can’t be sure Mr. Huizar’s California conviction

touches all these bases. California’s burglary statute, Cal. Penal Code § 459,

doesn’t require proof that the burgled place was a dwelling. Neither does it

require proof that the defendant’s entry was unlawful or unprivileged: in

California, one can burgle a place after being invited in. See United States v.

Strahl, 958 F.2d 980, 983 (10th Cir. 1992). For both these reasons, we can’t say

as a categorical matter that a California burglary conviction like Mr. Huizar’s

qualifies as a “generic” burglary of a dwelling meriting a § 2L1.2 sentencing

enhancement.

      But even that doesn’t end our inquiry. When a state’s definition of an

offense is, as a categorical matter, broader than the federal “generic” definition of

a crime, our precedent indicates that we may — at least sometimes — apply the

so-called “modified categorical approach.” Under this approach we consult

certain authoritative documents (indictments, informations, pleas, and the like) to

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ascertain whether the defendant’s offense was, in actuality, the “generic” offense.

See, e.g., United States v. Venzor-Granillo, 668 F.3d 1224, 1229 (10th Cir. 2012).

And everyone before us agrees this approach may be used to determine whether

Mr. Huizar’s burglary meets the federal “generic” definition of residential

burglary. To be sure, before the district court Mr. Huizar disputed the

applicability of the modified categorical approach to his case. But in this court he

has conceded otherwise, stating at oral argument that we may properly employ it

in light of Venzor-Granillo. 668 F.3d at 1228-31. Given that concession, and

because it makes no difference to the outcome of this case, we assume without

deciding the modified categorical approach may be used here.

      Assuming as much doesn’t change the outcome because, even using the

modified categorical approach, we still can’t be sure that Mr. Huizar’s California

burglary involved the unlawful or unprivileged entry required to establish a

“generic” residential burglary. Of course, looking to the authoritative materials

surrounding his conviction we quickly see that California authorities issued an

information charging Mr. Huizar with “unlawfully” entering a dwelling. And we

see as well that Mr. Huizar pleaded guilty to that charge. But even with this new

information in hand, we can’t be certain his entry was unlawful or unprivileged in

the “generic” sense. And certain we must be: whether we use a categorical or the

modified categorical approach, our precedent requires the government to show

that Mr. Huizar’s conviction “necessarily” qualifies as “generic” burglary before

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either the ACCA or § 2L1.2’s sentencing enhancement may be triggered. See

Taylor, 495 U.S. at 602 (ACCA); Shepard v. United States, 544 U.S. 13, 16, 21,

24 (2005) (same); Venzor-Granillo, 668 F.3d at 1229 (sentencing guidelines).

      We can’t be certain because the word “unlawfully” in Mr. Huizar’s

charging document could be doing at least two — entirely different — things.

First, it is possible the prosecution added the word “unlawfully” to suggest Mr.

Huizar’s entry was unlawful in the “generic” federal sense. But there was no

need to do so. Nothing turned on it. A burglary conviction could be won against

Mr. Huizar all the same: in California, again, one can just as readily commit

burglary after being invited in. Second, and very differently, the word could have

been added to address a recognized affirmative defense in California law. A

burglary defendant in California may avoid a conviction by showing “the owner

actively invite[d] the accused to enter, knowing the illegal, felonious intention in

the mind of the invitee.” See, e.g., People v. Sherow, 128 Cal. Rptr. 3d 255, 259

(Cal. Ct. App. 2011) (emphasis in original, quotation omitted). Sometimes

loosely called the “informed consent” defense, it is possible the prosecution

added the word “unlawfully” to rule out this defense in Mr. Huizar’s case.

Because at least two live possibilities exist about the work the term “unlawfully”

might be doing in Mr. Huizar’s charging document, we can’t say as a categorical

(or modified categorical) matter that Mr. Huizar’s burglary necessarily qualifies

as a “generic” burglary.

                                         -5-
      An example helps illuminate the problem. Take the defendant in Sherow.

The state charged him with “burglarizing” a pawn shop by entering with the intent

to sell stolen DVDs. Now, surely fencing ill-gotten goods is a crime most

everywhere. But just as surely it seems an odd thing to call the activity a

“burglary.” We usually (“generically”) think of burglary as involving an entirely

unlawful or unprivileged entry, not walking into a pawn shop to sell goods during

working hours. But California is different. It defines burglary to encompass any

entry (lawful or unlawful) with the intent to commit a felony. So in California

the state could charge Mr. Sherow with burglarizing even a shop he entered to sell

(stolen) goods to a willing buyer. And this oddity is only followed by another.

Mr. Sherow could avoid a conviction by showing “informed consent” — by

showing the pawn shop manager invited him to enter the shop knowing of his

felonious intent to sell stolen merchandise. On such a showing, Mr. Sherow’s

activity all of a sudden no longer qualifies as a burglary even in California,

whatever else it might be called and however else it might be punished. 128 Cal.

Rptr. 3d at 259-64.

      Now to our curious situation add this assumption: the state’s burglary

indictment says Mr. Sherow “unlawfully” entered the pawn shop. By adding the

word “unlawfully,” it’s possible the state prosecutors meant to charge Mr. Sherow

with entering the pawn shop without any consent from the manager. But there

was no reason for the prosecutors to do so in order to win a conviction. Maybe

                                         -6-
they foresaw the possibility Mr. Sherow would commit a federal crime some time

in the future and meant to lay the foundation for a sentencing enhancement or

ACCA charge. A very prescient and helpful move for the benefit of future federal

prosecutors surely, but otherwise pointless for state prosecutors seeking to prove

a state crime. Alternatively, it is possible the state prosecutors added the word in

order to indicate Mr. Sherow entered without the manager’s informed consent. In

the unconventional world California has constructed, the word “unlawfully” in

this scenario does real work under state law, aiming directly at an affirmative

defense and claiming Mr. Sherow can’t prove it.

      Given these dual and dueling possibilities, we cannot be certain Mr.

Huizar’s conviction was for a “generic” burglary. We cannot be sure his crime

involved a totally nonconsensual entry rather than an idiosyncratic California

burglary involving a lawful and consensual entry taken without the victim’s

involvement in the underlying felony. To be sure, it’s possible Mr. Huizar’s entry

was unlawful in the “generic” sense. And to be sure too, the current cloud of

uncertainty hovering over this question might have been lifted if Mr. Huizar had

admitted in the state equivalent of a federal Rule 11 plea colloquy that he made

his entry without any consent. But that kind of record we do not have in this

case. All we have is the charging document and it does not necessarily show Mr.

Huizar committed a “generic” burglary of a dwelling. And without that degree of




                                         -7-
assurance, our precedent precludes the imposition of § 2L1.2’s sixteen-level

sentencing enhancement.

      While the details may differ, the result we reach aligns perfectly with the

Ninth Circuit’s treatment of this issue in United States v. Aguila-Montes de Oca,

655 F.3d 915, 940-46 (9th Cir. 2011) (en banc), as well as with the relevant

portions of the concurrence, see id. at 974 (Berzon, J., concurring in the

judgment). Neither is all this much of a surprise given that the California

charging document in Aguila-Montes de Oca was virtually identical to the one

now before us. Id. at 945. Admittedly, the Ninth Circuit majority and

concurrence avidly disagreed on a variety of other questions, including whether a

defendant’s guilty plea constitutes an admission of everything in an indictment or

whether the admission of guilt is restricted to the essential elements of the crime.

Compare id. at 945 (majority), with id. at 962-64 (Berzon, J., concurring in the

judgment). And we might well ask, too, whether state prosecutors choosing to

allege an “unlawful” entry in an indictment must carry that burden of proof

(either by taking responsibility to disprove the informed consent defense or by

proving an entirely unlawful entry), even though state burglary law doesn’t

impose that burden on them. But in this case there’s no need for us to tangle with

these tangents. Whatever its legal consequences, the addition of the word

“unlawfully” to the information against Mr. Huizar carries with it an interpretive

ambiguity — and that ambiguity disposes of the § 2L1.2 inquiry.

                                         -8-
      For similar reasons, we have no need to rely on some of the other grounds

the Ninth Circuit cited for its result. For example, the Ninth Circuit asserted the

term “unlawfully” in a charging document could mean yet something else —

beyond addressing the informed consent defense or equating Mr. Huizar’s crime

to a “generic” federal burglary. According to the Ninth Circuit, the term might

also mean that the defendant entered the premises with a felonious intent. After

all, the reasoning goes, California law allows a burglary conviction only if the

defendant formed his felonious intent before his entry. Id. at 942-43. The

difficulty is that the information at issue before us, like the one before the Ninth

Circuit, already includes separate language specifically addressing this issue,

alleging the defendant entered “with the intent to commit larceny and any

felony.” So for the Ninth Circuit’s view to work, the term “unlawfully” must

duplicate work already being done elsewhere in the charging document. The law,

however, is usually wary of rendering words superfluous in legal documents.

And one ambiguity is enough to resolve this case in Mr. Huizar’s favor: we have

no need to suppose a superfluity to secure a second.

      For its part, the government replies by suggesting that, whatever the merits

of our analysis, circuit precedent compels us to part ways with the Ninth Circuit

and permit the enhancement. In particular, the government points to United

States v. Strahl, 958 F.2d 980 (10th Cir. 1992). But in that case we held a

charging document insufficient to establish a generic burglary. Id. at 984. And

                                         -9-
that holding hardly helps the government’s cause, let alone compels its course.

Alternatively, the government points to United States v. Torres-Gonzalez, 1 F.

App’x 834 (10th Cir. 2001) (unpublished). There we did hold that a defendant

committed generic burglary based on a California complaint charging him with

“unlawfully enter[ing]” a building. But that decision is not only unpublished and

so non-binding. Even more importantly, it didn’t purport to pass on the issue

whether the term “unlawfully” in an indictment can be read as merely ruling out

the consent defense, the argument Mr. Huizar now presses before us, the cause for

our current concern, and the basis for our holding today. Id. at 836-37. And of

course an issue not “raised in briefs or arguments nor discussed in the opinion of

the [c]ourt” remains open and a decision resolving other issues merely in the

same neighborhood cannot be taken “as a binding precedent on th[e] point.”

Harper v. Va. Dep’t of Taxation, 509 U.S. 86, 118 (1993) (quotation omitted).

      Having ruled as we have, we pause to emphasize what remains open even

now. We do not express any view on whether Mr. Huizar did or didn’t commit

what Taylor calls a “generic” burglary. And nothing in today’s opinion prohibits

the district court from considering Mr. Huizar’s actual conduct in fashioning an

appropriate sentence under 18 U.S.C. § 3553(a). This appeal concerns only a

different, narrower, more mechanical, and admittedly more arcane question —

whether using the categorical or modified categorical approach we can say Mr.

Huizar’s California conviction necessarily meets Taylor’s definition of “generic”

                                       - 10 -
burglary. Because we cannot be certain of that, our sentencing precedents

preclude the imposition of § 2L1.2’s sixteen-level enhancement. And because we

can’t be sure what sentence the district court might select armed with this new

information, a remand for resentencing is required. See United States v. Todd,

515 F.3d 1128, 1134-35 (10th Cir. 2008) (“When a district court does err in

calculating the applicable Guidelines range, we must remand for resentencing . . .

unless we are able to ascertain that the court’s [erroneous] calculation” didn’t

affect the ultimate sentence issued).

      The case is remanded to the district court, with instructions to vacate Mr.

Huizar’s sentence and resentence him in light of this opinion.




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