                FOR PUBLICATION

  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                 No. 11-10029
                Plaintiff-Appellee,
                                            D.C. No.
                 v.                      4:06-cr-01142-
                                          FRZ-GEE-1
VICTOR MANUEL REZA-RAMOS,
            Defendant-Appellant.            OPINION


      Appeal from the United States District Court
               for the District of Arizona
    Frank R. Zapata, Senior District Judge, Presiding

         Argued and Submitted March 11, 2013
        Submission Vacated November 25, 2013
             Resubmitted March 2, 2016
               San Francisco, California

                  Filed March 9, 2016

  Before: J. Clifford Wallace, M. Margaret McKeown,
          and Sandra S. Ikuta, Circuit Judges.

                Opinion by Judge Ikuta
2               UNITED STATES V. REZA-RAMOS

                           SUMMARY*


                          Criminal Law

    The panel affirmed in part and vacated in part a criminal
judgment, and remanded, in a case in which a non-Indian was
convicted under 18 U.S.C. § 1111, the federal murder statute,
for a murder on the Tohono O’odham Indian reservation.

    The panel held that § 1111 was applicable to the
defendant under the Indian General Crimes Act, 18 U.S.C.
§ 1152, which (among other things) makes federal criminal
law applicable in federal enclaves when the defendant is a
non-Indian and the victim is an Indian. The panel held that
the government had the burden of proving beyond a
reasonable doubt that the victim was an Indian, a
jurisdictional element in this case, and that the government
adduced sufficient evidence to establish both prongs of the
Indian status test.

    The panel also held that the evidence introduced at trial,
taken in the light most favorable to the government, was
sufficient to establish that Reza-Ramos acted with
premeditation. The panel therefore affirmed the defendant’s
conviction for first degree premeditated murder.

   The panel vacated the defendant’s conviction for felony
murder because the district court erred in defining the term
“burglary” in § 1111 by reference under the Assimilated
Crimes Act, 18 U.S.C. § 13, to Arizona’s third-degree

  *
    This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
              UNITED STATES V. REZA-RAMOS                    3

burglary statute. The panel concluded that this error was not
harmless because burglary, in the context of § 1111, is
defined as the breaking and entering into a building or other
structure with intent to commit a crime, and the government
did not produce overwhelming evidence of a breaking.


                         COUNSEL

Jon M. Sands, Federal Public Defender, and M. Edith
Cunningham (argued), Assistant Federal Public Defender,
Tucson, Arizona, for Defendant-Appellant.

John S. Leonardo, United States Attorney, and Bruce M. Ferg
(argued), Assistant United States Attorney, Tucson, Arizona,
for Plaintiff-Appellee.


                         OPINION

IKUTA, Circuit Judge:

    Victor Reza-Ramos, a non-Indian, appeals from his
judgment of conviction under 18 U.S.C. § 1111, the federal
murder statute, following his jury trial for the murder of Jose
Flores on the Tohono O’odham Indian reservation in Arizona.
We conclude that § 1111 was applicable to Reza-Ramos
under the Indian General Crimes Act, 18 U.S.C. § 1152,
which (among other things) makes federal criminal law
applicable in federal enclaves when the defendant is a non-
Indian and the victim is an Indian, because the government
adduced sufficient evidence to establish that Flores was an
Indian. We also hold that the evidence introduced at trial,
taken in the light most favorable to the government, was
4              UNITED STATES V. REZA-RAMOS

sufficient to establish that Reza-Ramos acted with
premeditation. We therefore affirm Reza-Ramos’s conviction
for first degree premeditated murder.1 Nevertheless, we
vacate Reza-Ramos’s conviction for felony murder, because
the district court erred in defining the term “burglary” in
§ 1111 by reference to Arizona’s third-degree burglary
statute, and this error was not harmless.

                                  I

    The Kisto Ranch is located on the Tohono O’odham
Indian reservation near Sells, Arizona. Fred Narcho, nephew
of the ranch’s deceased owner, hired Jose Flores to take care
of the ranch after the owner died. The ranch contained
several structures, including the ranch house and a separate
carport with walls and doors made of sticks extending from
the ground to the roof, held together by horizontal supports.
A black truck was parked in the carport.

    Narcho and Flores planned to spend March 25, 2003,
branding cattle. On March 24, Flores mentioned over the
phone to Narcho that he had a Mexican visitor at the ranch.
When Narcho arrived at the ranch on the morning of March
25, Flores was not waiting for him at the corral or the shop.
Narcho tried the ranch house, but it was locked. Narcho
noticed blood on the ground, a bloody rock, and drag marks
leading over the end of a hill to a shallow ravine. There
Narcho found Flores’s battered, bloody corpse with three big
rocks on his chest and one on his face, and a bloody sweater
next to him. His face and head were “all smashed up.”


    1
    We reject Reza-Ramos’s remaining arguments in a memorandum
disposition filed concurrently with this opinion. See United States v.
Reza-Ramos, ___ Fed App’x ___ (2016).
              UNITED STATES V. REZA-RAMOS                     5

    Narcho notified the police, who arrived and started their
investigation. The investigators discovered two beds in the
ranch house and both appeared to have been used. They later
learned that Flores slept in the bedroom on the west end of
the ranch house, which adjoined a living room containing a
fireplace.

    Outside, at the northwest corner of the house, the
investigators discovered a scuffle area. Within that area,
police found a baseball cap with blood spatter, blood stains
on the house and in the dirt, drag marks, and a metal scoop
end of a broken fireplace shovel.

    Investigators followed the drag marks down a hill into a
shallow ravine, where Flores’s body lay. Investigators found
a bloody iron bar, later determined to be the handle of the
fireplace shovel, on Flores’s chest. A forensic analysis
revealed hairs on the broken end of the shovel. An autopsy
would later show that Flores died of “blunt force injuries to
the head” consistent with a beating from the rock or the
shovel handle. The injuries were caused by 60 separate
strikes to the head and torso. Blood evidence around the
body was consistent with the killer kneeling next to Flores
while striking him.

    Inside the carport, the police found the black truck. One
of the truck’s windows was broken and there were blood
stains on the exterior and interior of the truck on the driver’s
side and on the steering wheel. The police also found
fingerprints on the truck that did not belong to Flores. On
some shelves next to the truck, investigators found blood-
stained clothing covered up by a blanket. Police also found
blood stains on nearby tools, including a broken knife handle,
knife blade, hammer, and vice grips.
6                    UNITED STATES V. REZA-RAMOS

    In January 2004, a Mexican citizen, Victor Manuel Reza-
Ramos, was arrested in Mesa for simple drug possession. His
prints were taken and entered into the database. In the spring
of 2004, these prints were matched to prints taken at the scene
of Flores’s murder.

     In 2006, federal prosecutors charged Reza-Ramos with
first-degree premeditated murder and felony murder.
Because the murder occurred on an Indian reservation, the
indictment cited 18 U.S.C. §§ 13(a), 1111(a), 1151, and 1152.
Section 1111(a) is the federal murder statute which
criminalizes, among other things, “the unlawful killing of a
human being with malice aforethought,” including any
“willful, deliberate, malicious, and premeditated killing.” It
also criminalizes felony murder, which is any murder
“committed in the perpetration of, or attempt to perpetrate,
any arson, escape, murder, kidnapping, treason, espionage,
sabotage, aggravated sexual abuse or sexual abuse, child
abuse, burglary, or robbery.” Id.2 Sections 1151 and 1152




    2
        18 USC § 1111(a) states in full:

             (a) Murder is the unlawful killing of a human being
             with malice aforethought. Every murder perpetrated by
             poison, lying in wait, or any other kind of willful,
             deliberate, malicious, and premeditated killing; or
             committed in the perpetration of, or attempt to
             perpetrate, any arson, escape, murder, kidnapping,
             treason, espionage, sabotage, aggravated sexual abuse
             or sexual abuse, child abuse, burglary, or robbery; or
             perpetrated as part of a pattern or practice of assault or
             torture against a child or children; or perpetrated from
             a premeditated design unlawfully and maliciously to
                 UNITED STATES V. REZA-RAMOS                            7

make § 1111 applicable on an Indian reservation. Section
1152 provides that “the general laws of the United States as
to the punishment of offenses committed in any place within
the sole and exclusive jurisdiction of the United States . . .
shall extend to the Indian country,” and § 1151 defines
“Indian country” as including “all land within the limits of
any Indian reservation under the jurisdiction of the United
States Government.”3 Finally, 18 U.S.C. § 13, the




          effect the death of any human being other than him who
          is killed, is murder in the first degree.

          Any other murder is murder in the second degree.
 3
     18 U.S.C. § 1152 provides:

          Except as otherwise expressly provided by law, the
          general laws of the United States as to the punishment
          of offenses committed in any place within the sole and
          exclusive jurisdiction of the United States, except the
          District of Columbia, shall extend to the Indian country.

          This section shall not extend to offenses committed by
          one Indian against the person or property of another
          Indian, nor to any Indian committing any offense in the
          Indian country who has been punished by the local law
          of the tribe, or to any case where, by treaty stipulations,
          the exclusive jurisdiction over such offenses is or may
          be secured to the Indian tribes respectively.

18 U.S.C. § 1151 provides, in pertinent part:

          Except as otherwise provided in sections 1154 and
          1156 of this title, the term “Indian country”, as used in
          this chapter, means (a) all land within the limits of any
          Indian reservation under the jurisdiction of the United
8                    UNITED STATES V. REZA-RAMOS

Assimilated Crimes Act (“ACA”), allows the government to
apply state law in a federal enclave under certain
circumstances. Specifically, a person who “is guilty of any
act or omission which, although not made punishable by any
enactment of Congress, would be punishable if committed or
omitted within the jurisdiction of the State . . . in which such
place is situated, by the laws thereof in force at the time of
such act or omission, shall be guilty of a like offense and
subject to a like punishment.” 18 U.S.C. § 13(a).4

    The indictment alleged that Reza-Ramos “intentionally
kill[ed] and murder[ed] Jose Flores, an Indian, by beating him
to death.” The government proposed four alternative theories
of first degree murder. First, the indictment alleged that
Reza-Ramos committed murder with premeditation and
malice aforethought. Second, the indictment alleged three
alternative felony murder theories, that Reza-Ramos


             States Government, notwithstanding the issuance of any
             patent, and, including rights-of-way running through
             the reservation . . . .
    4
        18 U.S.C. § 13(a) provides in full:

             (a) Whoever within or upon any of the places now
             existing or hereafter reserved or acquired as provided in
             section 7 of this title, or on, above, or below any
             portion of the territorial sea of the United States not
             within the jurisdiction of any State, Commonwealth,
             territory, possession, or district is guilty of any act or
             omission which, although not made punishable by any
             enactment of Congress, would be punishable if
             committed or omitted within the jurisdiction of the
             State, Territory, Possession, or District in which such
             place is situated, by the laws thereof in force at the time
             of such act or omission, shall be guilty of a like offense
             and subject to a like punishment.
                UNITED STATES V. REZA-RAMOS                          9

committed murder: (1) “during the attempt to perpetrate the
robbery of Jose Flores of a Chevrolet Silverado truck, a
felony, in violation of [Ariz. Rev. Stat. Ann.] §§ 13-1001,
1902;” (2) during “the perpetration of the burglary of a
nonresidential structure with the intent to commit the felony
of robbery of a Chevrolet Silverado truck, a felony, in
violation of [Ariz. Rev. Stat. Ann.] § 13-15[06](A); and
(3) during “the perpetration of the burglary of a
nonresidential structure with intent to commit the felony of
theft of property” in violation of [Ariz. Rev. Stat. Ann.] § 13-
1506(A).5 The state statutes define attempted robbery, § 13-
1001 (defining attempt); 13-1902 (defining robbery); and
burglary, § 13-1506(A) (defining third degree burglary as the
“[e]ntering or remaining unlawfully in or on a nonresidential
structure or in a fenced commercial or residential yard with
the intent to commit any theft or any felony therein.”).

    At trial, the government presented an exhibit showing
Flores’s death certificate, listing Flores’s race as “4/4 Tohono
O’odham.” The government also introduced the medical
examiner’s report from the scene of the murder, which
described Flores as “Native American.” One of the
government’s witnesses, RoseMarie Savala, testified that she
had a “relationship” with Flores from 1998 until his death,
and that Flores was a member of the Tohono O’odham
tribe. Narcho, who hired Flores to take care of the Kisto
Ranch, testified that Flores lived and worked on the
Tohono O’odham reservation in Arizona, and spoke in
Tohono O’odham.


 5
   The indictment lists both Arizona Revised Statute § 13-1560(A) and
§ 13-1506(A) in regard to the burglary predicate offenses. There is no
Arizona Revised Statute § 13-1560(A), so we assume it was a scrivener’s
error.
10           UNITED STATES V. REZA-RAMOS

     At the close of the government’s case, Reza-Ramos
moved for a judgment of acquittal under Federal Rule of Civil
Procedure 29, arguing insufficiency of the evidence of both
first degree premeditated murder and felony murder. Reza-
Ramos also argued that the indictment improperly charged
him with felony murder premised on the Arizona offense of
burglary of a non-residential structure. The district court
denied the motion. Reza-Ramos unsuccessfully renewed the
motion after the defense rested and after the verdict.

    The jury instructions stated that to convict Reza-Ramos,
the government must prove beyond a reasonable doubt that
“Jose L. Flores was an Indian.” The jury instructions on
“burglary” stated:

           In order for you to find that the defendant
       committed a burglary with intent to commit
       theft, the government must prove each of the
       following elements beyond a reasonable
       doubt:

           The defendant entered, or remained
       unlawfully, in or on a nonresidential structure
       or in a fenced commercial or residential yard,
       and

           The defendant entered or remained
       unlawfully with the intent to commit any
       theft; and

           This unlawful or unprivileged entry
       occurred on the Tohono O’odham Indian
       reservation within the district of Arizona.
               UNITED STATES V. REZA-RAMOS                        11

            “Nonresidential structure” means any
        structure other than a residential structure and
        includes a retail establishment.6

    The jury convicted Reza-Ramos of premeditated murder,
felony murder premised upon commission of burglary with
intent to commit theft, and felony murder premised upon
commission of burglary with intent to commit robbery, all as
charged in the indictment. The jury acquitted Reza-Ramos of
felony murder premised upon commission of a robbery. This
timely appeal followed. We have jurisdiction to review the
district court’s final judgment under 28 U.S.C. § 1291.

                                 II

    We first consider Reza-Ramos’s challenge to his
conviction for first degree premeditated and felony murder
under 18 U.S.C. § 1111 on the ground that the evidence was
insufficient to establish that this statute is applicable to his
conduct. According to Reza-Ramos, § 1111 does not apply
to him under § 1152 unless Flores is an Indian. Further,
Reza-Ramos claims that the government has the obligation of
proving Flores’s Indian status and there was insufficient
evidence to prove this element here. In considering a
sufficiency of the evidence claim, we must uphold the jury’s
verdict unless, viewing the evidence “in the light most
favorable to the prosecution,” no “rational trier of fact could
have found the essential elements of the crime beyond a
reasonable doubt.” United States v. Nevils, 598 F.3d 1158,



   6
      The instructions for felony murder premised upon the alleged
commission of the crime of burglary with intent to commit robbery are
substantially the same.
12           UNITED STATES V. REZA-RAMOS

1161 (9th Cir. 2010) (quoting Jackson v. Virginia, 443 U.S.
307, 319 (1979)).

                              A

    We first address a question of first impression: when the
government charges a defendant with a federal crime made
applicable to Indian country under the Indian General Crimes
Act, 18 U.S.C. § 1152, does the government or the defendant
have the burden of proving that the victim of the crime is an
Indian or non-Indian? We review questions of law de novo,
United States v. Bynum, 327 F.3d 986, 992 (9th Cir. 2003),
and conclude that because the victim’s Indian status here is a
jurisdictional element, the burden is on the government.

    Section 1152 provides that, in general, federal criminal
laws “extend to the Indian country.” But this rule has both a
statutory and judicial exception.

    First, the statute itself provides an exception: “This
section shall not extend to offenses committed by one Indian
against the person or property of another Indian.” In other
words, by its terms, § 1152 does not apply where both the
perpetrator and victim of the crime are Indians. The purpose
of this exception is to ensure “that federal criminal laws
reached non-Indians committing crimes in Indian country,
while at the same time preserving the right of the tribes to
punish their own.” United States v. Bruce, 394 F.3d 1215,
1219 (9th Cir. 2005).

    There is also a judge-made exception to the rule that
federal criminal law applies in Indian country. In United
States v. McBratney, the Supreme Court considered the
applicability of § 1152 to a case where both the perpetrator
             UNITED STATES V. REZA-RAMOS                   13

and the victim were non-Indians, but the act at issue occurred
on an Indian Ute reservation in Colorado. 104 U.S. 621
(1881). The Court reasoned that because Colorado had been
admitted into the Union “upon an equal footing with the
original States,” Colorado “acquired criminal jurisdiction
over its own citizens and other white persons throughout the
whole of the territory within its limits, including the Ute
Reservation, and that reservation is no longer within the sole
and exclusive jurisdiction of the United States.” Id. at 624.
Given Colorado’s exclusive criminal jurisdiction over non-
Indians, the Court concluded that federal courts had “no
jurisdiction to punish crimes within that reservation” of
“offences committed by white men against white men,”
although federal courts did have jurisdiction “to carry out
such provisions of the treaty with the Ute Indians as remain
in force.” Id.

    In sum, when McBratney is read together with the
exception in § 1152, the general laws of the United States
extend to Indian country under § 1152 only when an Indian
perpetrator commits a crime against a non-Indian victim, or
a non-Indian perpetrator commits a crime against an Indian
victim. See Bruce, 394 F.3d at 1221.

    The burden of proving the applicability of the statutory
exception in § 1152 is on the defendant, United States v.
Hester, 719 F.2d 1041, 1042–43 (9th Cir. 1983), because it is
in the nature of an affirmative defense, Bruce, 394 F.3d at
1223. As a general rule, the government does not have to
“allege the non-applicability of an exception” written into a
statute when charging a defendant under that statute. Hester,
719 F.2d at 1042–43; see also McKelvey v. United States,
260 U.S. 353, 357 (1922) (“[A]n indictment . . . need not
negative the matter of an exception made by a proviso or
14             UNITED STATES V. REZA-RAMOS

other distinct clause . . . . ”). Rather, the defendant must
come forward with sufficient evidence regarding the
applicability of the statutory exception to permit the finder of
fact to decide the issue in the defendant’s favor. See Bruce,
394 F.3d at 1222–23. Nevertheless, “the government retains
the ultimate burden of persuasion—or ‘the obligation to
persuade the trier of fact of the truth of [the] proposition’ . . .
—that the exception [the defendant] claims is inapplicable.”
Id. at 1223. Applying this rule, we have held that where the
government alleges that the victims are Indians, the
government has no obligation to plead and prove the
defendant’s non-Indian status under § 1152. Hester, 719 F.2d
at 1043. Instead, the defendant has the burden of production
on this issue. Id. The result makes practical sense because
where the government alleges that the victim is an Indian,
“[i]t is far more manageable for the defendant to shoulder the
burden of producing evidence that [the defendant] is a
member of a federally recognized tribe than it is for the
Government to produce evidence that [the defendant] is not
a member of any one of the hundreds of such tribes.” Id.

    By contrast, the judicial exception is jurisdictional. Thus,
“the government must prove the jurisdictional element in a
federal criminal statute beyond a reasonable doubt, like any
other element of the offense,” United States v. Gomez,
87 F.3d 1093, 1096–97 (9th Cir. 1996). Accordingly, the
government has the burden of proving that the McBratney
exception to federal court jurisdiction under § 1152 is not
applicable.

    In this case, it is undisputed that Reza-Ramos is a non-
Indian. Because Arizona was admitted into the Union upon
an equal footing with the original states, California ex rel.
State Lands Comm’n v. United States, 457 U.S. 273, 281 n.9
              UNITED STATES V. REZA-RAMOS                   15

(1982), Arizona courts have jurisdiction over criminal cases
involving two non-Indians, even if the criminal conduct
occurs on an Indian reservation. McBratney, 104 U.S. at 624.
Therefore, unless Flores is an Indian, the general laws of the
United States would not be applicable to Reza-Ramos’s
offense and a federal court would have no jurisdiction to hear
this case. Id. Because the district court’s jurisdiction hinges
on Flores’s status, the government has the burden of proving
this element. Gomez, 87 F.3d at 1096–97.

    We therefore conclude that the government had the
burden of proving beyond a reasonable doubt that Flores was
an Indian.

                              B

    Given this conclusion, we now turn to Reza-Ramos’s
argument that the government failed to carry its burden of
proving Flores was an Indian. Proof of Indian status requires:
“(1) proof of some quantum of Indian blood, whether or not
that blood derives from a member of a federally recognized
tribe, and (2) proof of membership in, or affiliation with, a
federally recognized tribe.” United States v. Zepeda,
792 F.3d 1103, 1113 (9th Cir. 2015) (en banc). Although
Zepeda involved the applicability of § 1153, “the same test
applies to the determination of Indian status” under both
§ 1153 and § 1152. United States v. Cruz, 554 F.3d 840, 845
(9th Cir. 2009).

   The first prong of the Indian status test, proof of some
quantum of Indian blood, “requires ancestry living in
America before the Europeans arrived, but this fact is
obviously rarely provable as such.” Bruce, 394 F.3d at 1223.
As a result, “evidence of a parent, grandparent, or great-
16            UNITED STATES V. REZA-RAMOS

grandparent who is clearly identified as an Indian is generally
sufficient to satisfy this prong.” Id. Reliable or undisputed
documentation that a defendant has Indian blood, or
testimony regarding the defendant’s ancestry may meet this
requirement. For instance, in Zepeda, a tribal certificate of
enrollment stating that the defendant “had one-half Indian
blood, with blood from the Pima and Tohono O‘Odham
tribes,” along with testimony from the defendant’s brother
that their father was an Indian, satisfied the first prong.
792 F.3d at 1115. Similarly, in Bruce, a certificate of Indian
blood confirming that the defendant was one-eighth
Chippewa Indian, along with testimony that the defendant’s
mother and two children were enrolled members of an Indian
tribe, was sufficient evidence of Indian blood. 394 F.3d at
1224.

    Here, the evidence presented by the government included
Flores’s death certificate, which stated that his race was “4/4
Tohono O’odham,” testimony that Flores was a Tohono
O’odham tribal member, and a medical examiner’s report
describing Flores as “Native American.” This evidence
meets the first prong of the Indian status test. See id. at
1223–24. The government had no obligation to introduce
additional evidence, such as verification of Flores’s
demographic information, given that the submitted evidence
was undisputed. See Zepeda, 792 F.3d at 1115.

    The second prong of the Indian status test “probes
whether the Native American has a sufficient non-racial link
to a formerly sovereign people,” Bruce, 394 F.3d at 1224, by
asking whether “the defendant was a member of, or affiliated
with, a federally recognized tribe at the time of the offense,”
Zepeda, 792 F.3d at 1114. The criteria for such recognition
are, in declining order of importance: (1) enrollment “in a
              UNITED STATES V. REZA-RAMOS                    17

federally recognized tribe; (2) government recognition
formally and informally through receipt of assistance
available only to individuals who are members, or are eligible
to become members, of federally recognized tribes;
(3) enjoyment of the benefits of affiliation with a federally
recognized tribe; [and] (4) social recognition as someone
affiliated with a federally recognized tribe through residence
on a reservation and participation in the social life of a
federally recognized tribe.” Id. Because the list of federally
recognized tribes prepared by the Bureau of Indian Affairs
(BIA) is the best evidence of a tribe’s federal recognition, the
question whether a tribe is federally recognized is a question
of law. Id. at 1114–15. The government should “present to
the judge evidence that the tribe was recognized at the time
of the offense,” but the judge may also “consult other
evidence that is judicially noticeable or otherwise appropriate
for consideration.” Id. at 1114.

    There is no dispute that the Tohono O’odham Nation of
Arizona is a federally recognized tribe. Rather, Reza-Ramos
disputes that the evidence introduced by the government
established Flores’s membership in the Tohono O’odham
Nation of Arizona and not some unrecognized Tohono
O’odham tribe. Although no tribal membership certificate
was provided, the government presented undisputed
testimony that Flores was a Tohono O’odham tribal member
and that he lived and worked on the Tohono O’odham
reservation in Arizona. This evidence was sufficient for a
reasonable juror to conclude that Flores was a member of the
Tohono O’odham Nation of Arizona. Flores thus met the
most important criteria of “enrollment in a federally
recognized tribe.” Zepeda, 792 F.3d at 1114.
18            UNITED STATES V. REZA-RAMOS

    The testimony adduced at trial also showed that Flores
enjoyed benefits of affiliation with the tribe by living and
working on the reservation, and that he was recognized as a
member of the tribe, the third and fourth criteria. Witnesses
testified that Flores had lived in Sells, Arizona (the capital of
the Tohono O’odham Nation) with his wife before she died
in 1996, and that Flores had lived and worked on the
reservation for five months before his murder. Flores’s death
certificate stated that he was buried at the Fresnal Canyon
Village Cemetery in Fresnal, Arizona, which is located within
the Tohono O’odham reservation. There was also undisputed
testimony that Flores spoke the tribal language. While there
was evidence that Flores had lived in Tucson before moving
to the Tohono O’odham reservation, and still visited Tucson
regularly, a reasonable juror could conclude that Flores had
social recognition as someone affiliated with a federally
recognized tribe given that he had lived and worked on the
reservation for some time. See United States v. LaBuff,
658 F.3d 873, 878–79 (9th Cir. 2011) (holding that the lack
of evidence of participation in tribal activities does not
preclude an inference of social recognition). Although there
was no evidence regarding Flores’s receipt of benefits from
the tribe, receipt of tribal assistance is only one indicia of
tribal affiliation, not a mandatory factor. Accordingly,
viewing the evidence in the light most favorable to the
government, a reasonable juror could conclude that Flores
met the second prong of the Indian status test.

    There was sufficient evidence to show Flores met both
prongs of the Indian status test, so we conclude that the
government met its burden of establishing Flores’s Indian
status. Because the victim was an Indian, Arizona did not
have exclusive jurisdiction over the crime, see McBratney,
               UNITED STATES V. REZA-RAMOS                        19

104 U.S. at 624, and the government could prosecute Reza-
Ramos under § 1111.

                                 C

     Reza-Ramos also argues that the district court erred in
failing to define “Indian” in the jury instructions. Because
Reza-Ramos did not object to the instruction at trial, we
review for plain error. Zepeda, 792 F.3d at 1115. “Plain
error is (1) error, (2) that is plain, (3) that affect[s] substantial
rights, and (4) the error seriously affect[s] the fairness,
integrity, or public reputation of judicial proceedings.”
United States v. Gadson, 763 F.3d 1189, 1203 (9th Cir. 2014)
(internal quotation marks omitted) (alteration in original).

    Under Zepeda, the court must instruct the jury both:
(1) “that it has to find beyond a reasonable doubt that the
defendant has some quantum of Indian blood”; and (2) “that
it has to find beyond a reasonable doubt that the defendant
was a member of, or affiliated with, a federally recognized
tribe at the time of the offense.” Zepeda, 792 F.3d at 1114.
Further, “[i]f the court has found that the tribe of which the
government claims the defendant is a member, or with which
the defendant is affiliated, is federally recognized, it should
inform the jury that the tribe is federally recognized as a
matter of law.” Id. at 1114–15. Although failure to provide
such an instruction is an error, it does not affect the
defendant’s substantial rights where there is “clear and
undisputed evidence that [the defendant] both had Indian
blood and was an enrolled member of a federally recognized
tribe.” Id. at 1115.

   Here, the jury instructions stated only that the government
must prove beyond a reasonable doubt that “Jose L. Flores
20           UNITED STATES V. REZA-RAMOS

was an Indian,” and did not provide any instruction regarding
the two prongs of the Indian status test. Accordingly, the
court committed an error that is plain. Nevertheless, this
error did not affect Reza-Ramos’s substantial rights because,
as discussed above, “there was clear and undisputed evidence
that [Flores] both had Indian blood and was an enrolled
member of a federally recognized tribe.” Id. Thus, the
court’s jury instruction was not plain error.

                              III

    Because we conclude that the government could charge
Reza-Ramos with murder under § 1111, we address his
additional argument that he could not be convicted of first
degree premeditated murder because no rational trier of fact
could have found that the killing was “deliberate” or
“premeditated” beyond a reasonable doubt. See Nevils,
598 F.3d at 1163–64.

    Premeditation is a required element of first-degree
premeditated murder under § 1111(a). See United States v.
Begay, 673 F.3d 1038, 1042 (9th Cir. 2011) (en banc). The
district court here instructed the jury as follows on the
element of premeditation:

       “Premeditation” means with planning or
       deliberation, so that the defendant planned or
       deliberated about killing Jose L. Flores before
       doing so. The amount of time needed for
       premeditation of a killing depends on the
       person and the circumstances. It must be long
       enough, after forming the intent to kill, for the
       killer to have been fully conscious of the
       intent and to have considered the killing.
             UNITED STATES V. REZA-RAMOS                   21

Reza-Ramos does not dispute that this is a correct statement
of the law.

     “Premeditation can be proved by circumstantial
evidence.” Id. at 1043. We have noted a range of relevant
circumstantial evidence establishing that a defendant “acted
with planning or deliberation in killing his victims” and that
“there was sufficient time for him to plan or deliberate.” Id.
“Carrying the murder weapon to the scene is strong evidence
of premeditation.” Id. at 1043–44. The defendant need not
carry the weapon over a long distance. See id. (noting that
the jury could reasonably infer evidence of premeditation
from the defendant’s carrying of a gun across a street).
Evidence that the defendant was not “agitated or rushed”
gives rise to the inference that the defendant “had enough
time to become fully conscious of his intent to kill and to
consider the killing.” Id. at 1044. Multiple strikes with
multiple weapons over a long period of time suggest that the
killing was not rushed. Cooper v. Calderon, 255 F.3d 1104,
1110 & n.5 (9th Cir. 2001). A jury can also reasonably infer
evidence of premeditation from “calculated behavior”
exhibited both before and after the killing, Begay, 673 F.3d
at 1044 (quoting Jackson, 443 U.S. at 325), as well as from
“the manner of the killing,” United States v. Free, 841 F.2d
321, 325 (9th Cir. 1988). Finally, lack of evidence presented
at trial to establish a motive on the part of the defendant to
kill the victim does not preclude a reasonable juror from
finding sufficient evidence of premeditation. Begay, 673
F.3d at 1045.

    Viewing the evidence in the light most favorable to the
government, there was sufficient evidence for a reasonable
juror to find that the killing was premeditated. The
government adduced evidence that Reza-Ramos had slept in
22            UNITED STATES V. REZA-RAMOS

the ranch house, taken a fireplace shovel located inside the
house to an area outside the house, and used it to beat Flores.
A reasonable juror could infer from the evidence that Reza-
Ramos had selected a weapon and carried it to the site of the
murder. There was also evidence that after Flores had fallen
to the ground, Reza-Ramos kneeled over his body and
repeatedly struck him on the head and torso with both a rock
and the shovel handle, from which a reasonable jury could
infer that the killing was not rushed. Finally, the evidence
was sufficient to show that Reza-Ramos had dragged the
victim’s body into the ravine, partially covered it with rocks,
and concealed blood-stained clothing under a blanket in the
carport. This evidence reasonably supports the inference that
Reza-Ramos engaged in calculated behavior after the killing,
which demonstrates “he was fully capable of committing
premeditated murder.” Jackson, 443 U.S. at 325. Because
this evidence shows planning and deliberation, a reasonable
juror could conclude that the killing was premeditated.

    Accordingly, and because we reject Reza-Ramos’s
remaining challenges to his conviction of first degree
premeditated murder in the memorandum disposition filed
concurrently herewith, we affirm Reza-Ramos’s conviction
of this charge.

                              IV

    Reza-Ramos also challenges his conviction for first
degree murder on the felony murder theories. The
government argues that because felony murder is merely an
alternative means for proving mens rea, we need not address
Reza-Ramos’s arguments concerning felony murder after we
affirm his conviction for premeditated murder. We disagree.
              UNITED STATES V. REZA-RAMOS                   23

    Should Reza-Ramos ultimately prevail in vacating his
conviction of first degree premeditated murder (before the
Supreme Court or on collateral review) on the ground that
there was insufficient evidence of premeditation (or some
other ground that is not equally applicable to his conviction
of felony murder), the government might nevertheless be able
to enforce Reza-Ramos’s conviction for felony murder, given
that the jury unanimously agreed on this alternative theory.
Cf. Griffin v. United States, 502 U.S. 46, 56 (1991) (even a
general verdict for a multiple-object conspiracy need not be
set aside merely because the verdict is unsupportable on one
of the alternate grounds and it is not possible to tell which
ground the jury selected); id. at 61 (Blackmun, J., concurring)
(“[T]he Government had two other means of avoiding the
possibility, however remote, that petitioner was convicted on
a theory for which there was insufficient evidence: The
Government either could have charged the two objectives in
separate counts, or agreed to petitioner’s request for special
interrogatories.”); see also Schad v. Arizona, 501 U.S. 624,
630–45 (1991) (plurality opinion) (stating that when a state
charges first degree murder as a single crime, the constitution
does not require juries to be unanimous on whether the
government proved the mens rea element under a felony-
murder or premeditation theory).

    Accordingly, we turn to Reza-Ramos’s arguments that the
district court erred in allowing the jury to convict him for
felony murder under § 1111 by incorporating Arizona’s third-
degree burglary statute, Arizona Revised Statute § 13-
1506(A), as a predicate felony under the ACA. We review de
novo whether the ACA permits federal prosecution under the
state statute at issue. United States v. Waites, 198 F.3d 1123,
1126 (9th Cir. 2000).
24            UNITED STATES V. REZA-RAMOS

                               A

      The ACA provides that in federal enclaves, a person who
“is guilty of any act or omission which, although not made
punishable by any enactment of Congress, would be
punishable if committed or omitted within the jurisdiction of
the State . . . in which such place is situated, by the laws
thereof in force at the time of such act or omission, shall be
guilty of a like offense and subject to a like punishment.”
18 U.S.C. § 13(a). The statute therefore “assimilates into
federal law, and thereby makes applicable on federal enclaves
. . . certain criminal laws of the State in which the enclave is
located.” Lewis v. United States, 523 U.S. 155, 158 (1998).
“[T]he ACA is . . . made applicable to Indian reservations by
18 U.S.C. § 1152,” United States v. Marcyes, 557 F.2d 1361,
1364 (9th Cir. 1977), and thus is applicable here, where the
alleged crime occurred on the Tohono O’odham reservation.

    As we recently explained, see United States v. Rocha,
598 F.3d 1144, 1147–48 (9th Cir. 2010), our analysis of
whether a defendant in a federal enclave can be charged with
violating a state criminal statute under the ACA is guided by
the Supreme Court’s decision in Lewis. In Lewis, a defendant
was charged with violating Louisiana’s first-degree murder
statute for beating and killing a four-year-old girl on a federal
Army base in Louisiana. 523 U.S. at 158. Relying on the
ACA, the government charged the defendant with a violation
of a state first-degree murder statute, which defined first
degree murder to include the killing of a human being with
the “specific intent to kill or to inflict great bodily harm upon
a victim under the age of twelve.” Id. at 158, 167 (internal
quotations and citations omitted).
              UNITED STATES V. REZA-RAMOS                    25

    The Court concluded that the defendant could not be
charged with a violation of the state law, and it set out a
framework for analyzing the ACA. By its terms, the ACA
applies to acts or omissions “not made punishable by any
enactment of Congress.” 18 U.S.C. § 13(a). However, the
Court concluded that it would be an error to interpret the
phrase “any enactment of Congress” too broadly, because
“[t]he Act would be unable to assimilate even a highly
specific state law aimed directly at a serious, narrowly
defined evil, if the language of any federal statute, however
broad and however clearly aimed at a different kind of harm,
were to cover the defendant’s act.” Id. at 161. Such an
overbroad interpretation would defeat the purpose of the Act,
which is to “fill gaps in the federal criminal law that applies
on federal enclaves,” id. at 160.

    Therefore, Lewis articulated a two part test for applying
the ACA to determine whether state criminal law applies in
a federal enclave. Id. at 164; see also Rocha, 598 F.3d at
1148. First, a court must determine whether the defendant’s
act is made punishable by any act of Congress. Lewis,
523 U.S. at 164. If the answer is no, then state law may be
assimilated. Rocha, 598 F.3d at 1148 (quoting Lewis,
523 U.S. at 164).

    If a federal law does punish the defendant’s act, the court
must proceed to the second question and determine
Congress’s intent, i.e., “[d]oes applicable federal law indicate
an intent to punish conduct such as the defendant’s to the
exclusion of the particular state statute at issue?” Lewis,
523 U.S. at 166. As we explained in Rocha, “The Court gave
three examples of when a federal enactment precludes
application of a state law: (1) application of the state law
‘would interfere with the achievement of a federal policy’;
26            UNITED STATES V. REZA-RAMOS

(2) application of the state law ‘would effectively rewrite an
offense definition that Congress carefully considered’; or
(3) the ‘federal statutes reveal an intent to occupy so much of
a field as would exclude use of the particular state statute at
issue.’” 598 F.3d at 1149 (quoting Lewis, 523 U.S. at 164).

     Applying this two-part test, Lewis first concluded that the
defendant’s act (the murder of the four-year-old) was
punishable by the federal murder statute, 18 U.S.C. § 1111,
and thus “punishable by any enactment of Congress.”
523 U.S. at 168. The Court then turned to the second
question: “Does applicable federal law indicate an intent to
punish conduct such as the defendant’s to the exclusion of the
particular state statute at issue?” Id. The Court conceded that
the state statute focused on a narrower and different range of
conduct than § 1111. Id. at 169. Nevertheless, the Court
concluded that given “[t]he complete coverage of the federal
statute over all types of federal enclave murder,” Congress
intended the federal murder statute to preclude application of
Louisiana’s murder statute. Id. In fact, “Congress intended
its statute to cover a particular field—namely, ‘unlawful
killing of a human being with malice aforethought’—as an
integrated whole.” Id. In reaching this conclusion, the Court
rejected the government’s arguments that the state murder
law was a child protection statute that filled a gap in § 1111.
Id. at 171–72.

    Lewis is directly applicable here. The first question is
whether Reza-Ramos’s conduct was made punishable by any
enactment of Congress. It clearly was, because the
government charged Reza-Ramos with murdering Flores
during the commission of a burglary, and this conduct was
punishable as a murder “committed in the perpetration of . . .
burglary” under the federal murder statute, 18 U.S.C. § 1111.
              UNITED STATES V. REZA-RAMOS                     27

Lewis also controls the answer to the second question,
whether applicable federal law indicates an intent to punish
murder to the exclusion of the particular state statute at issue.
Lewis has already ruled that in enacting § 1111, Congress
intended to preclude application of state statutes, and to
provide complete coverage “over all types of federal enclave
murder.” Id. at 169. Moreover, Lewis held that Congress did
not intend to allow state law to fill any purported “gap” in
§ 1111. Therefore, we conclude that Congress did not intend
to allow Arizona criminal law to fill a “gap” in § 1111, and
the government can convict Reza-Ramos only under § 1111
to the exclusion of state law.

    We acknowledge that the issue here is distinguishable
from the situation in Lewis: the defendant in Lewis was
directly charged with a state crime, while here, Reza-Ramos
was charged with federal murder, and the government seeks
to use state law to define one of the terms (“burglary”) in the
federal murder statute. But if anything, this distinction
weighs against assimilating state law here. Where Lewis
raised a question about the interpretation of the ACA, namely
whether the ACA allows the government to charge a
defendant who committed a crime in a federal enclave under
state law, this case raises a completely different question of
statutory interpretation, namely, how should we interpret a
specific term in § 1111. The ACA has no bearing on this
question. And with respect to this statutory interpretation
question, the Supreme Court has been clear: “in the absence
of a plain indication of an intent to incorporate diverse state
laws into a federal criminal statute, the meaning of the federal
statute should not be dependent on state law.” United States
v. Turley, 352 U.S. 407, 411 (1957); see also Dickerson v.
New Banner Inst., Inc., 460 U.S. 103, 119–20 (1983) (holding
that absent plain Congressional intent to the contrary, courts
28              UNITED STATES V. REZA-RAMOS

should not construe federal laws so that their application is
dependent on state law). Rather, when a federal criminal
statute uses an undefined term, a court must determine the
definition of that term through ordinary tools of statutory
construction. See, e.g., Taylor v. United States, 495 U.S. 575
(1990) (construing the term “burglary” for purposes of 18
U.S.C. § 924(e) by reference to legislative intent); Perrin v.
United States, 444 U.S. 37, 42–49 (1979) (construing the
undefined term “bribery” in the federal Travel Act by
applying canons of statutory construction).

     We take this approach even when considering the
applicability of state law under the ACA. For instance, in
Rocha, a defendant in a federal correctional facility was
charged with assault in violation of a state statute, assimilated
into federal law by the ACA. 598 F.3d at 1146. Applying the
first part of the Lewis test, we determined that Rocha’s
conduct was made punishable by the federal assault statute.
Id. at 1148. Because the federal assault statute did not define
assault, we adopted the common law definition and
concluded that it punished the defendant’s wrongful conduct,
and thus the ACA did not properly assimilate the state law.
Id.; see also United States v. Lewellyn, 481 F.3d 695, 697 (9th
Cir. 2007) (adopting common law definition for assault under
8 U.S.C. § 113). Similarly, in United States v. Lilly, we
defined the “robbery” predicate offense to felony murder
under § 1111 by reference to the federal robbery statute,
which we interpreted in light of common law to include a
specific intent element. 512 F.2d 1259 (9th Cir. 1975).7 In


  7
    We therefore reject the Fourth Circuit’s conclusory and unreasoned
statement that because there is no federal burglary statute, the ACA
incorporates the state law of burglary into § 1111. See United States v.
Scheetz, 293 F.3d 175, 187 (4th Cir. 2002).
              UNITED STATES V. REZA-RAMOS                      29

neither case did we look to state law to define a term in the
federal offense.

    When Congress intends to define terms in federal criminal
statutes by reference to state law, it does so explicitly. The
Indian Major Crimes Act, 18 U.S.C. § 1153, provides a list of
criminal offenses and states that any offense “that is not
defined and punished by Federal law . . . shall be defined and
punished in accordance with the laws of the State in which
such offense was committed.” 18 U.S.C. § 1153(b).
Applying this language, we determined that where the
defendant’s conduct — the burglary of a private residence —
was not “defined and punished by Federal law,” the offense
had to “be defined and punished” under state law, pursuant to
§ 1153. United States v. Bear, 932 F.2d 1279, 1281 (9th Cir.
1990).

     But contrary to the government’s argument, Bear and
other cases interpreting § 1153 are inapposite here because
the ACA does not require the offenses listed in § 1111 to be
“defined” under state law. Rather, the ACA directs courts to
assimilate state statutes only when an act or omission is “not
made punishable by any enactment of Congress.” Because
the language of § 1153 makes clear that Congress knew how
to instruct courts to use state law to define an offense listed in
a state statute, we may infer that Congress did not intend
courts to define “burglary” in § 1111 by reference to state
law.

    Because Lewis holds that § 1111 punishes murder in a
federal enclave, including felony murder, and the lack of a
definition for “burglary” in § 1111 does not create a gap that
must be filled by state law, we conclude that the district court
30            UNITED STATES V. REZA-RAMOS

erred in incorporating the Arizona burglary statute under the
ACA.

                               B

    Although the district court erred in convicting Reza-
Ramos of felony murder predicated on a state crime of
burglary, this error may still be harmless if the jury
instructions included all the elements of burglary as defined
in § 1111, or if there was “overwhelming” and
uncontroverted evidence of any missing element in the
instruction so that no jury could reasonably find that the
government had not proven that element beyond a reasonable
doubt. Neder v. United States, 527 U.S. 1, 9 (1999). In order
to determine if the error here is harmless under Neder, we
must first determine the elements of burglary under § 1111.

     Over the course of some forty years, the Supreme Court
has developed a framework for determining the meaning of
an undefined criminal offense in a federal statute. The Court
first addressed this issue in a series of cases interpreting the
Travel Act, 18 U.S.C. § 1952, which (among other things)
makes it unlawful to engage in specified unlawful activities,
defined by the statute to include “extortion, bribery, or arson
in violation of the laws of the State in which committed.” See
Perrin, 444 U.S. 37; United States v. Nardello, 393 U.S. 286
(1969). In these cases, the Court first considered the
legislative history of the act at length, and determined that
Congress’s intent in enacting the Travel Act was to
supplement state authority and enforcement. Perrin, 444 U.S.
at 42; Nardello, 393 U.S. at 292. In light of this legislative
history, the Court concluded that Congress intended the term
“extortion” in § 1952(b) to refer to a generic offense, and
rejected the argument that Congress intended “extortion” to
              UNITED STATES V. REZA-RAMOS                    31

mean only state crimes labeled as such. Nardello, 393 U.S.
at 293–94. The Court then considered the specific offense
terms in the federal act in light of their ordinary meaning at
the time Congress enacted the Travel Act in 1961. Perrin,
444 U.S. at 42–43. Having determined that “by the time the
Travel Act was enacted in 1961, federal and state statutes had
extended the term bribery well beyond its common-law
meaning,” id. at 43, the Court rejected petitioner’s argument
that Congress intended to adopt a narrow common law
meaning, id. at 49; see also Nardello, 393 U.S. at 296 (“In
light of the scope of the congressional purpose we decline to
give the term ‘extortion’ an unnaturally narrow reading.”).
Instead, the Court held that Congress intended the
contemporary “generic definition” of the offense terms in the
Travel Act, which included bribery and extortion relating to
private individuals as well as public officials. Perrin,
444 U.S. at 49.

    The Supreme Court took the same approach in Taylor
when interpreting the term “burglary” in the Armed Career
Criminal Act (ACCA), 18 U.S.C. § 924(e). 495 U.S. 575.
This section of ACCA (among other things) imposes a
sentencing enhancement on a person convicted of three
violent felonies, and defines the term “violent felony” to
include convictions for burglary, arson, or extortion.
18 U.S.C. § 924(e)(2)(B); see Taylor, 495 U.S. at 578. The
Court again began with a thorough review of the legislative
history of § 924(e). Taylor, 495 U.S. at 581. Based on this
review, the Court discerned that the intent and purpose of the
Act was to supplement the states’ efforts against career
criminals, which included ensuring that “the same type of
conduct is punishable on the Federal level in all cases,” id. at
582 (quoting S. Rep. No. 98–190, at 20 (1983)). Given this
review, the Court rejected the argument that the offense terms
32            UNITED STATES V. REZA-RAMOS

should be given their narrow common law meaning,
explaining that “[t]he arcane distinctions embedded in the
common-law definition have little relevance to modern law
enforcement concerns.” Id. at 593. The Court declined to
incorporate common law definitions that were “ill suited” to
Congress’s purpose “[i]n the absence of any specific
indication that Congress meant to incorporate” such common
law meanings. Id. at 594. Accordingly, the Court concluded
that Congress “had in mind a modern ‘generic’ view of
burglary, roughly corresponding to the definitions of burglary
in a majority of the States’ criminal codes” at the time of its
enactment in 1984 and reenactment in 1986. Id. at 589. The
Court therefore reviewed the modern statutory definitions of
“burglary” and derived the rule that “a person has been
convicted of burglary for purposes of a § 924(e) enhancement
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 remaining in, a building or
structure, with intent to commit a crime.” Id. at 599.

    Therefore, in interpreting a federal statute that references
a criminal offense that is otherwise undefined, a court must
consider legislative history of the act to determine the intent
and purpose of the law. If neither the text nor legislative
history indicates that Congress intended “to incorporate
diverse state laws into a federal criminal statute,” Turley,
352 U.S. at 411, the court should develop “uniform
categorical definitions,” see Taylor, 495 U.S. at 591. Nor
should a court use a narrow common law definition of the
criminal offenses when doing so would be contrary to
Congressional intent. “In the absence of any specific
indication that Congress meant to incorporate” common law
meanings, id. at 594, a court should survey the state law
understanding of the crimes current at the time of the
             UNITED STATES V. REZA-RAMOS                   33

enactment (or reenactment) of the federal statute, and derive
from that review a generic definition of the offense.

                              C

    We now apply these principles to our analysis of the word
“burglary” in § 1111, which defines “murder in the first
degree” to include murder “in the perpetration of . . .
burglary.” The term “burglary” is not defined in the statute,
so we turn to the legislative history. The original federal
murder statute was enacted in the Act of March 4, 1909, as
section 273. The purpose of the act was to codify, revise, and
amend all the laws of the United States. Act of March 4,
1909, Pub. L. No. 60-350, ch. 321, 35 Stat. 1088 (preamble).
The codification of federal criminal law was a
“comprehensive effort” which included expanding the scope
of some crimes and adding new federal laws, some of which
were explained by reference to state law. John L. McClellan,
Codification, Reform, and Revision: The Challenge of a
Modern Federal Criminal Code, 1971 Duke L. J. 663, 677,
679. This “clear and systematic compilation” was intended
to become “the original and authoritative law of the land,”
covering “the whole field of common law and statutory
crime.” Id. at 678 (internal quotations omitted).

    As we have previously explained, the federal murder
statute (originally § 273, now § 1111) “was passed by
Congress to ‘enlarge the common law definition’ of murder.”
United States v. Spencer, 839 F.2d 1341, 1343 (9th Cir. 1988)
(quoting Special Joint Comm. on the Revision of the Laws,
Revision and Codification of the Laws, Etc., H.R. Rep. No.
2, 60th Cong., 1st Sess., pt. 1, at 24 (1908)). “The enlarged
§ [273] definition was ‘similar in terms to the statutes
defining murder in a large majority of States.’” Id. Section
34              UNITED STATES V. REZA-RAMOS

273 was codified without change in 1946 as 18 U.S.C. § 452
(1946).

    In 1948 there was a second major revision to the federal
criminal code. McClellan, 1971 Duke L. J. at 683. Despite
extensive changes to other sections of the code, § 452
(formally § 273) was reenacted without change as part of
§ 1111. The Reviser’s Notes to the 1948 revision do not
indicate any intention to change the meaning of “burglary” in
§ 1111. See H.R. Rep. No. 304, 80th Cong., 1st Sess., at
A89–90 (1947).8

    We conclude that Congress’s intent in enacting § 273
(now § 1111) was to modernize and make uniform the federal
criminal law with respect to murder. Given this goal, and
legislative history indicating that the proposed murder statute
enlarged the common law, there is no “specific indication that
Congress meant to incorporate” common law meanings into
§ 1111. Taylor, 495 U.S. at 594. We therefore conclude that
Congress did not use a narrow common law definition of the
predicate offenses in § 1111.

   Based on this analysis, we must survey the state law
understanding of burglary in 1909, when the law was




  8
     Indeed, during a Congressional hearing by the Subcommittee of the
Committee on the Judiciary on June 5, 1946, one Congressman asked a
member of West Publishing Company, who worked on the bill recodifying
the criminal code, “What is the difference between what [§ 1111 in this]
bill will be when it is enacted into law and what it is now?” Hearing on
H.R. 2200 Before the Subcomm. of the H. Comm. on the Judiciary, 79th
Cong. 12 (June 5, 1946). The West representative responded: “We did not
change the Homicide Statute at all.” Id.
                 UNITED STATES V. REZA-RAMOS                            35

enacted.9 As explained in Taylor, the common-law definition
of “burglary” is “a breaking and entering of a dwelling at
night with intent to commit a felony.” Taylor, 495 U.S. at
576. Based on our review, by 1909 a majority of states had
expanded this common law definition by statute. Although
most relevant state statutes did retain the element of breaking,
i.e., forced entry, see e.g., Ala. Code § 6415 (1907); Del. Rev.
Stat. § 4727 (1915); Kan. Gen. Stat. § 2549 (1910), a majority
of state statutes in 1909 either eliminated the element of
nighttime entry in defining the crime of burglary and
specified that the act could occur at any time, see e.g., Ind.
Stat. Ann. § 2264 (1908); Miss. Code Ann. § 1066 (1906);
Wyo. Stat. Ann. § 5819 (1910), established different levels of
culpability if the act took place during the day or night, see
e.g., W. Va. Code Ann. § 5202 (1914); Nev. Rev. Stat. § 6634
(1920), or were silent on the applicable time frame, see e.g.,
Cal. Penal Code § 459 (1909); Fla. Stat. Ann. § 3281 (1915).
Many of the relevant state statutes did not limit burglary to
entry into a dwelling, but rather included a list of enumerated
buildings that would qualify. See, e.g., Ark. Code Ann.
§ 1603 (1904); Cal. Penal Code § 459 (1909); Ill. Rev. Stat.,
ch. 38, § 36 (1908). And a majority of the state burglary
statutes did not require an intent to commit a felony, but


  9
    Although § 1111 was reenacted in 1948, Congress made no changes
to the statutory language, nor gave any indication that it intended to make
any change in the law. Nor can we infer that Congress intended to
incorporate a consistent judicial interpretation of “burglary,” because none
existed at that time. Therefore, we must consider Congress’s intent as of
1909 when the statute was originally enacted. See Pierce v. Underwood,
487 U.S. 552, 566–67 (1988) (holding that when Congress reenacts a
statute without changing its language, and when there is no indication that
"Congress thought it was doing anything . . . except reenacting and
making permanent” the earlier legislation, a court should not give weight
to legislative history pertaining to the reenactment).
36            UNITED STATES V. REZA-RAMOS

merely an intent to commit a range of crimes. See, e.g.,
Minn. Gen. Stat. § 8826 (1913); N.D. Penal Code § 9868
(1914); Tex. Penal Code Art. 838 (1910). In sum, by 1909,
the generic definition of “burglary” had a scope broader than
the common law definition. With the exception of the
requirement of “breaking and entering,” which was retained
by the majority of state statutes at the time, the 1909
definition was analogous to the definition of the crime
described in Taylor. We thus conclude that burglary, in the
context of § 1111, is defined as the breaking and entering
(i.e., a forcible entry) into a building or other structure with
intent to commit a crime. See Taylor, 495 U.S. at 598.

    With the correct definition of burglary in mind, we now
turn to the question whether the government and district
court’s error in predicating the charge of felony murder under
§ 1111 on a state crime of burglary was harmless beyond a
reasonable doubt. The jury was instructed that it had to find,
“beyond a reasonable doubt,” that the “defendant entered, or
remained unlawfully, in or on a nonresidential structure or in
a fenced commercial or residential yard.” Unlike the generic
federal offense of burglary, this instruction did not require the
jury to find that Reza-Ramos made a forcible entry into a
building or other structure. Although this error could be
harmless beyond a reasonable doubt if there were
overwhelming evidence of these missing elements, Neder,
527 U.S. at 9, the error was not harmless here. Although
there was evidence at trial that Reza-Ramos had broken a
window in the truck and used various tools in an attempt to
steal it, the government presented no evidence that Reza-
Ramos had forcibly entered into the carport, even assuming
that the carport constitutes a building or structure. Thus,
under Neder, there was not overwhelming evidence of a
               UNITED STATES V. REZA-RAMOS                         37

breaking. Id. As a result, we vacate the conviction for felony
murder.10

                                 V

    Accordingly, we affirm Reza-Ramos’s conviction for first
degree premeditated murder under § 1111. This federal
criminal statute applied to Reza-Ramos under § 1152 because
it was undisputed that Reza-Ramos was a non-Indian, and,
viewed in the light most favorable to the government, the
evidence of the victim’s Indian status was sufficient to
establish federal jurisdiction over the offense. We vacate
Reza-Ramos’s conviction on a theory of felony murder,
because the district court erred in defining the term
“burglary” in § 1111 by reference to state law, and this error
was not harmless.

  AFFIRMED in part, VACATED in part, and
REMANDED.




  10
      Because we vacate Reza-Ramos’s felony murder conviction on this
ground, we do not reach the question whether there was sufficient
evidence to show that the murder was “committed in the perpetration of
. . . burglary” for purposes of § 1111.
