                                                                        F I L E D
                                                                  United States Court of Appeals
                                                                          Tenth Circuit
                      UNITED STATES COURT OF APPEALS
                                                                         MAY 13 1999
                                    TENTH CIRCUIT
                                                                     PATRICK FISHER
                                                                                Clerk

 UNITED STATES OF AMERICA,

           Plaintiff-Appellee,
                                                        No. 98-4094
 vs.                                              (D.C. No. 97-CR-441-C)
                                                         (D. Utah)
 JUAN BLANCO-MUNOZ,

           Defendant-Appellant.


                                 ORDER AND JUDGMENT *


Before KELLY, McKAY, and HENRY, Circuit Judges.


       Juan Blanco-Munoz pled guilty to one count of illegal reentry into the

United States after deportation in violation of 8 U.S.C. § 1326. The district court

determined his sentence with reference to USSG § 2L1.2(b)(1)(A), which

provides a sixteen-level enhancement, based on Mr. Blanco-Munoz’ prior

conviction of an aggravated felony. Mr. Blanco-Munoz appeals the sixteen-level

enhancement, arguing that his prior state conviction did not presumptively qualify

as an aggravated felony under § 1326(b)(2) and 8 U.S.C. § 1101(a)(43)(G). Our


       *
        This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. This court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
jurisdiction arises under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a)(1). We

affirm.

      Sentencing Guideline § 2L1.2 provides for a base offense level of eight and

mandates a sixteen-level increase if the defendant was deported after an

aggravated felony conviction. See USSG § 2L1.2(b)(1)(A). The commentary to

the guideline defines aggravated felony by reference to 8 U.S.C. § 1101(a)(43),

see USSG § 2L1.2 commentary at n.1, which in turn defines aggravated felony as,

inter alia, “a theft offense (including receipt of stolen property) or burglary

offense for which the term of imprisonment [is] at least one year.” §

1101(a)(43)(G).

      In seeking the enhancement, the government relied on a prior state court

conviction in 1993 for third-degree burglary which carried an indeterminate

sentence of zero to five years. We construe this as a sentence for a term of five

years. See United States v. Reyes-Castro, 13 F.3d 377, 379-80 (10th Cir. 1993).

Mr. Blanco-Munoz was deported in 1994.

      Mr. Blanco-Munoz asserts that the term “burglary offense” in §

1101(a)(43)(G) is ambiguous, and argues that the district court erred by failing to

look at the state statutory definition of burglary to determine whether it contained

the same basic elements found in the Supreme Court’s “generic” definition of

burglary: “an unlawful or unprivileged entry into, or remaining in, a building or


                                         -2-
other structure, with intent to commit a crime.” Taylor v. United States, 495 U.S.

575, 598 (1990). In Taylor, the Court adopted this uniform definition for the

purpose of determining whether a defendant’s sentence could be enhanced due to

a prior burglary conviction under 18 U.S.C. § 924(e)(2)(B)(ii) (an enhancement

under the Armed Career Criminal Act for defendants having three prior

convictions for a violent felony or a serious drug offense). The government

responds that the burglary definition in Taylor is inapplicable because, unlike the

enhancement statute in Taylor, a prior “burglary offense” in 8 U.S.C. §

1101(a)(43)(G) need not be a crime of violence. According to the government,

any state burglary conviction for which the sentence imposed is at least one year

qualifies as an aggravated felony.

      We need not decide between these two positions because, even if we were

to adopt Mr. Blanco-Munoz’ position, we would still find that his state burglary

conviction qualified as an aggravated felony under § 1101(a)(43). The statute

under which he was convicted, Utah Code Ann. § 76-6-202 (1990), provides that

“[a] person is guilty of burglary if he enters or remains unlawfully in a building or

any portion of a building with intent to commit a felony or theft or commit an

assault on any person.” This definition has the same basic elements as found in

Taylor.

      However, citing our decision in United States v. Barney, 955 F.2d 635


                                         -3-
(10th Cir. 1992), Mr. Blanco-Munoz argues that the Utah statute defines burglary

more broadly than does Taylor because “building” is defined, in addition to its

ordinary meaning, as “any watercraft, aircraft, trailer, sleeping car, or other

structure or vehicle adapted for overnight accommodation of persons or for

carrying on business therein.” Utah Code Ann. § 76-6-201 (1990). We disagree.

The Wyoming statutes at issue in Barney both defined burglary as entering or

remaining in a building or, inter alia, a vehicle. See Barney, 955 F.2d at 638-39

(citing Wyo. Stat. § 6-7-201 (1977) and § 6-3-301(a) (1988)). The Utah statute is

not so broad — although “building” is defined more broadly than its ordinary

meaning, it is restricted by the requirement that the “other structure or vehicle” be

“adapted for overnight accommodation of persons or for carrying on business

therein.” § 76-6-201. Thus entering or remaining in an ordinary unoccupied car

would not qualify as burglary under the statute, and the Supreme Court’s concern

in Taylor, 495 U.S. at 591, would not apply.

      AFFIRMED.



                                        Entered for the Court


                                        Paul J. Kelly, Jr.
                                        Circuit Judge




                                         -4-
