                                                                             FILED
                            NOT FOR PUBLICATION                               JUL 08 2013

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



                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                         No. 11-10681

              Plaintiff - Appellant,              D.C. No. 2:10-cr-00576-KJD-
                                                  GWF-1
  v.

BRYAN HISER,                                      MEMORANDUM*

              Defendant - Appellee.


                    Appeal from the United States District Court
                             for the District of Nevada
                     Kent J. Dawson, District Judge, Presiding

                              Argued January 16, 2013
                               Submitted July 8, 2013
                              San Francisco, California

Before: FARRIS and BYBEE, Circuit Judges, and ADELMAN, District Judge.**

       The United States appeals Bryan Hiser’s sentence imposed after he pled

guilty to two counts of violating 18 U.S.C. § 922(g)(1). The United States

contends that the district court erred in determining that Hiser’s prior burglary

        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
       **
             The Honorable Lynn S. Adelman, District Judge for the U.S. District
Court for the Eastern District of Wisconsin, sitting by designation.
convictions did not constitute crimes of violence for purposes of sentence

enhancement according to U.S.S.G § 2K2.1(a)(2). We have jurisdiction under 28

U.S.C. § 1291, and we affirm.

      We review the district court’s interpretation of the sentencing guidelines de

novo. United States v. Alvarez-Hernandez, 478 F.3d 1060, 1063 (9th Cir. 2007).

Hiser’s prior two convictions were for burglary in violation of Nev. Rev. Stat.

205.060. Nevada’s burglary statute is facially broader than the generic definition

of burglary because it “does not require the entry to have been unlawful in the way

most burglary laws do.” Descamps v. United States, No. 11-9540, 2013 WL

3064407, at *4 (U.S. June 20, 2013). Nevada has long since eliminated “[t]he

common-law vestige of ‘breaking’ as an element in the crime of burglary.”

McNeeley v. State, 409 P.2d 135, 136 (Nev. 1964) (citing State v. Watkins, 11 Nev.

30 (1876)). Under Nevada’s statute, consent to entry is not a defense, “so long as

the defendant was shown to have made the entry with larcenous intent.” Thomas v.

State, 584 P.2d 674, 677 (Nev. 1978) (citing favorably for support People v.

Deptula, 373 P.2d 430, 431–32 (Cal. 1962) (en banc)). Accordingly, Nevada

courts have upheld convictions for burglary that did not include unlawful entry.

See, e.g., Stephans v. State, 262 P.3d 727 (Nev. 2011) (upholding burglary

conviction for shoplifting). Thus, Nevada’s burglary statute is quite similar to that

of California’s. See Descamps, at *4 (citing People v. Barry, 29 P. 1026, 1026–27
(Cal. 1892) (“The common-law element, to wit, the use of force by breaking, in

order to constitute burglary, was originally a part of our statute; but it has long

since ceased to exist . . . . That the entry is made in the daytime, when the store is

open for business, may render it more difficult to prove the criminal intent present

in the mind of the defendant when he enters; but that is a matter of evidence, and

not a question of law.”)). “In sweeping so widely, [Nevada’s burglary statute] goes

beyond the normal, ‘generic’ definition of burglary.” Id. Therefore, Hiser’s prior

two convictions could not constitute crimes of violence under the categorical

approach. See id. at *5.

      Additionally, because the Nevada statute is indivisible with respect to the

element of entry—an element we determined is broader than the generic definition

of burglary—we are precluded from applying the modified categorical approach

under the Supreme Court’s recent decision in Descamps. See id. at *14. Reading

the Nevada burglary statute in conjunction with Nev. Rev. Stat. 205.065, as the

government contends we must, does not alter this conclusion, as the latter statute

only indicates what reasonable inferences a jury may make if they determine the

entry was unlawful. It does not change the fact that an individual can be convicted

under the Nevada statute without “breaking and entering or [committing] similar

conduct . . . [and covers] a shoplifter who enters a store, like any customer, during

                                           3
normal business hours.” Id. at 4. Therefore, we are precluded from implementing

the modified categorical approach in conducting our categorical analysis of the

Nevada burglary statute. See id. at *5, *14.

      AFFIRMED.




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