     Case: 12-40802   Document: 00512471396     Page: 1   Date Filed: 12/16/2013




        IN THE UNITED STATES COURT OF APPEALS
                 FOR THE FIFTH CIRCUIT
                                                                United States Court of Appeals
                                                                         Fifth Circuit

                                                                       FILED
                                   12-40802                     December 16, 2013
                                                                  Lyle W. Cayce
UNITED STATES OF AMERICA,                                              Clerk


                                           Plaintiff-Appellee
v.

REY DAVID GUERRERO-NAVARRO,

                                           Defendant-Appellant




                Appeal from the United States District Court
                     for the Southern District of Texas


Before KING, BENAVIDES, and DENNIS, Circuit Judges.
FORTUNATO P. BENAVIDES, Circuit Judge:
      Rey David Guerrero-Navarro challenges the district court’s classification
of his 2009 conviction of Residential Burglary, WASH. REV. CODE ANN.
§ 9A.52.025, as a crime of violence for the purposes of United States Sentencing
Guidelines Manual (“USSG”) § 2L1.2(b)(1)(A). We affirm.
      Guerrero-Navarro recently pled guilty to (1) knowing unlawful presence
in the United States, in violation of 6 U.S.C. §§ 202(3) & 202(4); and
(2) knowing possession of a firearm, in violation of 18 U.S.C. §§ 922(g)(5)(A) &
924(a)(2). The district court concluded that the aforementioned Washington
state offense qualifies as a crime of violence under USSG § 4B1.2(a). After
overruling Guerrero-Navarro’s objection to this classification, the court
enhanced his sentence accordingly. Guerrero-Navarro appeals, arguing that
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                                  No. 12-40802
the offense cannot constitute the enumerated generic offense of burglary of a
dwelling, because the statute defines “dwelling” more liberally than permitted
by Taylor v. United States, 495 U.S. 575 (1990). He does not contest any other
aspect of the sentence calculation. Because Guerrero-Navarro raised timely
objection, we review de novo. United States v. Murillo-Lopez, 444 F.3d 337,
339 (5th Cir. 2006).
      The Sentencing Guidelines allow enhancement when a previously
deported alien unlawfully returns to the United States and has a prior
conviction of a felony crime of violence. § 2L1.2(b)(1)(A). Crime of violence is
defined, inter alia, as “burglary of a dwelling, arson, or extortion . . . .” USSG
§ 4B1.2(a). To determine whether a state offense constitutes one of these
enumerated generic crimes, courts must examine the statutory definition of
the offense to determine whether an associated conviction necessarily satisfies
the elements of the generic crime, as that crime is understood in its ordinary,
contemporary meaning.      Taylor, 495 U.S. at 599.        This Court employs a
“common sense” approach in making this determination. Murillo-Lopez, 444
F.3d at 339. Where the state statute criminalizes conduct that falls both
within and without the scope of the generic crime, the offense is overbroad and
any associated conviction cannot categorically be classified as a crime of
violence. Id. at 600–01. Before determining that a statute is overbroad, courts
“must find a realistic probability, and not merely a theoretical possibility, that
the state would apply its statute to conduct that falls outside the generic
definition of the crime.” Gonzales v. Duenas-Alvarez, 549 U.S. 183, 193 (2007)
(emphasis added). To establish a realistic probability that a state would apply
its statute in an overly broad manner, a defendant “must at least point to his
own case or [to] other cases” in which a state court has done so. Id.
      “The generic offense of burglary contains at least the following elements:
an unlawful or unprivileged entry into, or remaining in, a building or other
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                                      No. 12-40802
structure, with intent to commit a crime.” Taylor, 495 U.S. at 598. Burglary
of a dwelling, then, is the unlawful entry into or remaining within, with the
intent to commit a crime, a “structure, tent, or vessel where someone lives.”
United States v. Castillo-Morales, 507 F.3d 873, 875 (5th Cir. 2007). A review
of the statutory language and judicial interpretation indicates that
Washington’s Residential Burglary offense is consistent with these standards
and is not overbroad.
       The state of Washington defines Residential Burglary as “enter[ing] or
remain[ing] unlawfully in a dwelling other than a vehicle” with an “intent to
commit a crime against a person or property therein.” WASH. REV. CODE ANN.
§ 9A.52.025(1). A dwelling is “any building or structure . . . which is used or
ordinarily used by a person for lodging.” Id. § 9A.04.110(7). “Building, in
addition to its ordinary meaning, includes any dwelling, fenced area, vehicle,
railway car, cargo container, or any other structure used for lodging of persons
or for carrying on business therein . . . .” Id. § 9A.04.110(5). Guerrero-Navarro
contends that these statutory definitions result in an impermissibly broad
rendering of the “dwelling” element of the generic offense. The other elements
are not in dispute.
       Guerrero-Navarro argues that Washington’s statutory definitions
suggest that dwelling may refer to fenced areas, cargo containers, or other
structures impermissible under Taylor, 495 U.S. at 599. We note, however,
that the generic crime at issue here is not the one discussed in Taylor. 1 The
Taylor Court described overbreadth with respect to the generic crime of



       1 See United States v. Ortega-Gonzaga, 490 F.3d 393, 395 (5th Cir. 2007) (emphasizing
the distinction between dwellings and the structures permitted under Taylor); Murillo-Lopez,
444 F.3d at 342 (expressly rejecting the suggestion that Taylor’s discussion of buildings
constrains our interpretation of dwelling); United States v. Garcia-Mendez, 420 F.3d 454,
456–57 (5th Cir. 2005) (finding that a Texas offense constitutes burglary of a dwelling, even
though the statutory language reaches vehicles and other structures excluded by Taylor).
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                                No. 12-40802
burglary, and explained that a state’s statutory language must not reach
places “other than buildings.” Id. Yet the question before us is not whether
Washington’s offense constitutes general burglary, but whether it constitutes
burglary of a dwelling. Common sense dictates that a statutory rendering of
burglary of a dwelling must convey the characteristics that distinguish a
dwelling from other buildings and structures.        That is precisely what
Washington’s lawmakers have done in the statute before us, by recognizing
that a dwelling need not be a traditional structure, but must be some kind of
venue “used for lodging.” WASH. REV. CODE ANN. § 9A.04.110(7). Consider, for
example, camping tents or travel trailers. These are not buildings, but they
may nevertheless be dwellings in the ordinary sense. See Castillo-Morales, 507
F.3d at 877 (defining a dwelling as “a structure, tent, or vessel where someone
lives”); MERRIAM-WEBSTER, www.m-w.org (defining dwelling as “a shelter in
which people live”). So although a certain venue may not qualify as a Taylor-
approved building or structure, it may still serve as a residence and thus
constitute a dwelling. Washington’s statutory language reflects this fact.
      Even assuming that the Taylor discussion of buildings has some
relevance here, it seems that the proffered non-generic interpretation is not
consistent with the natural, common-sense reading of the statute in context.
As a preliminary matter, we recognize that the definitions of building and
dwelling established by the Washington legislature are not listed for the
purpose of a single offense or a single statutory chapter, but for the purposes
of the state’s entire criminal code.   WASH. REV. CODE ANN. § 9A.04.090.
Consequently, the definitions must be broad enough to allow for appropriate
interpretation in context. It makes sense, then, that the general definition of
building would include storage containers and fences. Consider prohibitions
on arson or vandalism: clearly legislators must protect many kinds of
structures from these crimes. But this broad, general-purpose definition need
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                                       No. 12-40802
not imply that a fence is a dwelling for the purpose of residential burglary. In
fact, the modifying clause “ordinarily used for lodging” suggests that a dwelling
will rarely—if ever—consist of a fenced area (or other unusual structure)
alone. 2 Our review of Washington case law confirms that, when interpreting
dwelling, the state’s courts have focused on this limiting language, and have
only affirmed convictions involving the very structures we would expect to see
in an “ordinary, contemporary” statute proscribing burglary of a dwelling.
Taylor, 495 U.S. at 599. In fact, Guerrero-Navarro points to no instance in
which the statute has been interpreted in the manner proposed, as is necessary
for this Court to find the offense overbroad. Duenas-Alvarez, 549 U.S. at 193.
       Before deliberating a Residential Burglary case, Washington jurors are
simply instructed that “[d]welling means any building or structure, though
movable or temporary, or a portion thereof, that is used or ordinarily used by
a person for lodging.” 11A WASHINGTON PRACTICE: WASHINGTON PATTERN
JURY INSTRUCTIONS: CRIMINAL 2.08, at 50 (3d ed. 2008). There is no further
definition of building, and there is no mention of the fenced areas or cargo
containers that appear in the broader statutory definition.                      Id.   When
reviewing these cases, Washington’s appellate courts have affirmed
convictions involving vacant houses, vacation houses, “trailer” houses,
attached garages, attached sheds, and apartment work rooms. 3 In over two


       2   WASH. REV. CODE ANN. § 9A.04.090. Washington case law suggests that—
hypothetically speaking—the fenced area itself would have to constitute the dwelling. That
is to say, burglary of a backyard or fenced curtilage does not appear to constitute Residential
Burglary. See State v. Motuliki, 175 Wash. App. 1075 (2013) (finding evidence sufficient to
sustain conviction—not because eyewitnesses saw the defendant break into a fenced
backyard—but because fingerprints suggested that the defendant actually entered the
house). State authorities consistently prosecute burglary of fenced areas as crimes other
than Residential Burglary. E.g., State v. Runchey, 169 Wash. App. 1024 (2012); State v.
Engel, 210 P.3d 1007 (Wash. 2009); State v. Wentz, 68 P.3d 282 (Wash. 2003).
        3 State v. Langford, 173 Wash. App. 1029 (2013); State v. Hall, 163 Wash. App. 1013

(2011); State v. Neal, 249 P.3d 211 (Wash. Ct. App. 2011); State v. Albrecht, 131 Wash. App.
1024 (2006); State v. Busev, 131 Wash. App. 1041 (2006); State v. Cobb, 136 Wash. App. 1031
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                                      No. 12-40802
decades of interpretation on point, these are the most extreme interpretations
of dwelling.     And yet none of these is inconsistent with the “building or
structure” element established by Taylor, to whatever extent Taylor’s elements
are relevant here. Nor are these interpretations analogous to the examples—
like vending machines and curtilage—that the Supreme Court has used in
illustrating overbreadth. James, 550 U.S. at 212; Taylor, 495 U.S. at 591.
Thus, there is little or no “realistic probability” that a Washington court would
apply the statute to anything other than the structures permitted by both
Castillo-Morales and Taylor. See Duenas-Alvarez, 549 U.S. at 193. As a
consequence, and because the other elements are not in dispute, the offense is
no broader than the generic crime of burglary of a dwelling.
       We realize that a sister circuit examined the same offense and arrived at
the opposite conclusion. See generally United States v. Wenner, 351 F.3d 969
(9th Cir. 2003).      Ten years ago, that court concluded that Washington’s
statutory definitions combine to create an overly inclusive depiction of
dwelling. Id. at 972. We disagree, and have the benefit of an additional decade
of jurisprudence in which Washington’s courts have consistently interpreted
the term such that it denotes and connotes traditional structures, and only
those used for human habitation. As already explained, this interpretation
renders the definition consistent with the relevant legal standards.                     We
conclude, therefore, that Washington’s Residential Burglary offense, WASH.
REV. CODE ANN. § 9A.52.025, constitutes the enumerated generic crime of
burglary of a dwelling, and thus that the district court correctly classified
Guerrero-Navarro’s prior conviction as a crime of violence for the purposes of




(2006); State v. McDonald, 96 P.3d 468 (Wash. Ct. App. 2004); State v. Culler, 116 Wash. App.
1024 (2003); State v. Murbach, 843 P.2d 551 (Wash. Ct. App. 1993).
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                              No. 12-40802
USSG § 2L1.2(b)(1)(A).   Accordingly, we AFFIRM the interpretation and
associated sentence enhancement.




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