     Case: 09-20587 Document: 00511276611 Page: 1 Date Filed: 10/27/2010




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

                                              FILED
                                                                  October 27, 2010

                                 No. 09-20587                      Lyle W. Cayce
                                                                        Clerk

UNITED STATES OF AMERICA,

                                           Plaintiff - Appellee
v.

RENE MARTINEZ GARCIA, also known as Jesus Renosa Geraldo, also
known as Rene Martinez, also known as Rene Martinez-Garcia,

                                           Defendant - Appellant




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


Before BARKSDALE, STEWART, and SOUTHWICK, Circuit Judges.
LESLIE H. SOUTHWICK, Circuit Judge:
      This appeal solely concerns a sentence enhancement. The issue is whether
the defendant’s prior conviction under Georgia law was for a crime of violence.
We conclude that it was and AFFIRM.
                            I. Statement of Facts
      Rene Martinez-Garcia pled guilty to illegal reentry into the United States
after being deported following a conviction for an aggravated felony.          The
Presentence Report (“PSR”) assigned a base offense level of eight. A 16-level
enhancement was applied due to a 2002 conviction for burglary in Georgia,
which the PSR recommended be classified as a crime of violence. The PSR then
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                                  No. 09-20587

reduced the offense level by three for acceptance of responsibility. A total offense
level of 21 combined with a criminal history category of V resulted in a
Sentencing Guidelines range of 70-87 months of imprisonment.
      Martinez-Garcia objected to the 16-level enhancement. He argued that the
Georgia offense of burglary did not constitute the Guidelines’ enumerated
offense of burglary of a dwelling. The probation officer agreed and prepared an
addendum to the PSR that eliminated the enhancement.
      The district court overruled the objection, adopted the original PSR,
applied the crime of violence enhancement, and entered a sentence within the
Guidelines range of 78 months of imprisonment. Martinez-Garcia appealed.
                                  II. Discussion
      This court reviews “the district court’s interpretation and application of
the Sentencing Guidelines de novo.” United States v. Murillo-Lopez, 444 F.3d
337, 339 (5th Cir. 2006) (citation omitted). If this court finds error, it must
determine whether the error was harmless. United States v. Lopez-Urbina, 434
F.3d 750, 765 (5th Cir. 2005) (citation omitted).
      Martinez-Garcia argues the district court erred in holding that his Georgia
conviction of burglary qualified as a “crime of violence.” Further, the error could
not be harmless because without the crime of violence enhancement, he would
have been subject to a lower Guidelines sentencing range.
      The substance of the argument now is the same as it was at sentencing,
namely, that the Georgia offense of burglary does not qualify as the Guidelines’
enumerated crime of violence of “burglary of a dwelling” because Georgia courts
interpret “dwelling” to include structures within the curtilage thereof.        We
disagree.   As we explain, the term “dwelling” within the Georgia burglary
statute comports with the ordinary, common meaning of that term, and does not
now – though it once did – include structures within the curtilage.



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                                  No. 09-20587

      The Guidelines include “burglary of a dwelling” as a “crime of violence,”
but the crime is not defined. U.S. Sentencing Guidelines Manual § 2L1.2 cmt.
n.1(B)(iii) (2010). Because Martinez-Garcia was convicted in Georgia of one of
the offenses enumerated as a crime of violence that is not specifically defined in
the Guidelines, we are to determine whether the Georgia crime is consistent
with the “ordinary, contemporary, [and] common meaning” of burglary of a
dwelling. Murillo-Lopez, 444 F.3d at 339 (quotation marks and citation omitted).
We employ the categorical approach in determining whether the Georgia crime
matches the ordinary meaning. Id. at 342.
      The “‘ordinary, contemporary, common meaning’ of ‘burglary of a dwelling’
does not extend to the grounds around the dwelling,” and demands an entry into
or remaining in the dwelling. United States v. Gomez-Guerra, 485 F.3d 301, 304
(5th Cir. 2007) (citation omitted). The commonly understood meaning of a
dwelling is “a house or other structure in which a person lives.” United States
v. Mendoza-Sanchez, 456 F.3d 479, 482 (5th Cir. 2006) (quotation marks
omitted). The dwelling “does not extend to the grounds around the dwelling,”
i.e., the curtilage. Gomez-Guerra, 485 F.3d at 304. If a state burglary statute
may be violated by entry only into the curtilage, a conviction under that statute
is not a crime of violence. Id. at 303-04.
      To identify the prior conviction’s scope, we start with an examination of
the statute. Id. at 303. The present Georgia burglary statute, in effect for
Martinez-Garcia’s 2002 conviction, states:
      A person commits the offense of burglary when, without authority
      and with the intent to commit a felony or theft therein, he enters or
      remains within [1] the dwelling house of another or [2] any building,
      vehicle, railroad car, watercraft, or other such structure designed for
      use as the dwelling of another or [3] enters or remains within any
      other building, railroad car, aircraft, or any room or any part
      thereof.
Ga. Code Ann. § 16-7-1(a) (2007) (bracketed numbers added).

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                                   No. 09-20587

      Where a statute is divisible, as it is here, we apply a “modified categorical
approach” by examining certain adjudicative records. United States v. Gonzalez-
Terrazas, 529 F.3d 293, 297 (5th Cir. 2008). The record of conviction, which
contains the “Accusation,” states Martinez-Garcia was charged with having
“entered the dwelling house of another” at a certain address.
      Martinez-Garcia’s argument seeks to make two separate points. First, he
asserts that a reference to a dwelling house in a charging instrument under
Georgia law historically has included structures within the curtilage of the
dwelling. Second, he argues that despite a statutory change, the Georgia courts
still interpret the statute as they did under prior caselaw.
      In the past, Georgia courts have interpreted “dwelling house” to include
particular buildings within the curtilage. E.g., King v. State, 25 S.E. 613 (Ga.
1896); Daniels v. State, 78 Ga. 98 (1886); Bryant v. State, 60 Ga. 358 (1878).
These cases were decided under a prior statute, though, which explicitly stated
that “outhouses . . . within the curtilage . . . of the . . . dwelling house shall be
considered as parts of the same.” Ga. Code Ann. § 4386 (1895). There are no
references to outhouses and curtilage in the current statute.
      Nonetheless, Martinez-Garcia insists that Georgia courts continue to
interpret the current burglary statute to include structures within the curtilage.
This argument fails. As recently as 2008, a Georgia court has defined “dwelling
house” under the present burglary statute as a “‘residence or habitation of a
person other than the defendant, where such person makes his abode.’” Sanders
v. State, 667 S.E.2d 396, 399 (Ga. Ct. App. 2008) (quoting Mash v. State, 82
S.E.2d 881 (Ga. Ct. App. 1954)). The usual understanding of those words makes
the Georgia definition consistent with the contemporary meaning.
      Martinez-Garcia persists.      He considers Sanders’ citation to the pre-
amendment case of Mash to undermine the quoted definition of “dwelling house.”
Specifically, because Sanders quoted a definition from precedent interpreting the

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                                  No. 09-20587

prior statute, Martinez-Garcia argues that the definition of “dwelling house”
implicitly included structures within its curtilage. Thus, when Sanders cited
Mash, it brought along the meaning of “dwelling house” that applied in 1954
when Mash was decided.
      This argument, though ably made, is unreasonable. The Georgia court in
Sanders was addressing the difference between completed residences and those
under construction, not outhouses compared to dwellings.         Id. at 397-99.
Sanders found in Mash a source for the useful quote that a “dwelling house” was
“a residence or habitation” used as an abode. Id. at 399.
      We conclude that none of the Georgia opinions interpreting the current
version of the Georgia burglary statute has held that a “dwelling house” includes
structures within the curtilage. The current statute has other provisions that
allow for conviction if entry is into certain other buildings, but those structures
are not “dwelling houses.”
      The term “dwelling” within the Georgia burglary statute comports with the
ordinary, contemporary definition of that term.
      Accordingly, the district court did not err in applying the 16-level crime of
violence enhancement when sentencing Martinez-Garcia, as his prior conviction
of burglary under Georgia state law falls within the scope of the Guidelines
offense of “burglary of a dwelling.” Because there was no error, we do not
consider Martinez-Garcia’s argument as to whether the error was harmless.
      AFFIRMED.




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