                                                                               FILED
                            NOT FOR PUBLICATION                                AUG 21 2014

                                                                           MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                           U.S. COURT OF APPEALS



                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No. 12-10607

              Plaintiff - Appellee,              D.C. No. 4:11-cr-03518-DCB-
                                                 DTF-1
  v.

SAMUEL NAVARRO, AKA Samuel                       MEMORANDUM*
Narvarro,

              Defendant - Appellant.


                    Appeal from the United States District Court
                             for the District of Arizona
                     David C. Bury, District Judge, Presiding

                     Argued and Submitted December 5, 2013
                            San Francisco, California

Before: GOULD and PAEZ, Circuit Judges, and EZRA, District Judge.**

       Defendant and appellant Samuel Navarro appeals his 51 month sentence for

illegal reentry in violation of 8 U.S.C. § 1326(a). Navarro argues that the district

court erred when it concluded that Navarro’s 2004 conviction for second degree

        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
       **
             The Honorable David A. Ezra, District Judge for the U.S. District
Court for the Western District of Texas, sitting by designation.
burglary in violation of Arizona Revised Statutes § 13-1507 met the definition of

generic burglary of a dwelling and applied a 16-point sentencing enhancement

under U.S.S.G. § 2L1.2 for committing a crime of violence based on this burglary

conviction. We review de novo whether Navarro’s conviction qualifies as a crime

of violence. See United States v. Grajeda, 581 F.3d 1186, 1188 (9th Cir. 2009).

We conclude that the district court erred in applying the 16-point enhancement.

Accordingly, we reverse Navarro’s sentence and remand for re-sentencing.

      A conviction under section 13-1507 does not qualify as generic burglary

under either the categorical or modified categorical approach. Under the

categorical approach, a court must “compare the elements of the statute forming

the basis of the defendant’s conviction with the elements of the ‘generic’

crime—i.e., the offense as commonly understood.” Descamps v. United States,

133 S. Ct. 2276, 2281 (2013). The government concedes that a conviction for

violating section 13-1507 does not qualify as generic burglary under the

categorical approach because: (1) generic burglary does not include burglary of

movable structures and, under section 13-1507, the structure can be either movable

or immovable, see Ariz. Rev. Stat. Ann. § 13-1501; United States v. Terrell, 593

F.3d 1084, 1092 (9th Cir. 2010), and (2) unlike generic burglary, a conviction for

second degree burglary may be obtained under section 13-1507 even where the


                                         2
intent to commit the crime was formed after the defendant entered the structure,

United States v. Bonat, 106 F.3d 1472, 1475 (9th Cir. 1997).

      We cannot consider whether a conviction under section 13-1507 qualifies as

generic burglary under the modified categorical approach. The modified

categorical approach is only applicable when a statute is “divisible.” Descamps,

133 S. Ct. at 2281. A divisible statute is one that “sets out one or more elements of

the offense in the alternative—for example, stating that burglary involves entry

into a building or an automobile.” Id. Section 13-1507 is not divisible with

respect to whether the intent to commit the crime was formed after the defendant

entered the structure. The statute does not set forth, as separate alternatives,

circumstances where the intent was formed after the defendant entered the structure

and circumstances where the intent was formed before entry. See United States v.

Cabrera-Gutierrez, 12-30233, 2014 WL 998173, at *6-9 (9th Cir. Mar. 17, 2014).

Accordingly, the district court erred by concluding that Navarro’s conviction

qualified as generic burglary under the modified categorical approach and

enhancing Navarro’s sentence.

      REVERSED and REMANDED.




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