    Case: 13-41349   Document: 00512823256     Page: 1   Date Filed: 11/03/2014




         IN THE UNITED STATES COURT OF APPEALS
                  FOR THE FIFTH CIRCUIT


                                No. 13-41349
                                                                United States Court of Appeals
                                                                         Fifth Circuit

                                                                       FILED
                                                                November 3, 2014
                                                                  Lyle W. Cayce
UNITED STATES OF AMERICA,                                              Clerk

                                          Plaintiff−Appellee,

versus

RAFAEL ALBORNOZ-ALBORNOZ,

                                          Defendant–Appellant.




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




Before REAVLEY, SMITH, and SOUTHWICK, Circuit Judges.
PER CURIAM:
     Rafael Albornoz-Albornoz appeals his sentence by challenging a sixteen-
level enhancement for a crime of violence (“COV”). He maintains that his past
conviction of attempted second-degree burglary does not qualify as a COV
under U.S. SENTENCING GUIDELINES MANUAL (“U.S.S.G.) § 2L1.2(b)(1)(A)(ii)
because New York’s burglary statute is broader than the generic crime of burg-
lary of a dwelling under the sentencing guidelines. Specifically, he reasons
that the term “dwelling” under New York law is more expansive than the
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                               No. 13-41349
common definition of that term. We conclude otherwise and affirm.


                                             I.
       In 2011, Albornoz-Albornoz was convicted in New York of attempted
second-degree burglary. A Colombian citizen, he was deported, but border
agents later apprehended him in the United States. He pleaded guilty of illegal
reentry under 8 U.S.C. § 1326(a).
       The presentence investigation report (“PSR”) made the following sen-
tencing calculations: a base offense level of 8 and a criminal-history category
of III, a two-level reduction for acceptance of responsibility, and a sixteen-level
enhancement for a felony conviction of a COV. See U.S.S.G. §§ 2L.1.2, 3E1.1(a).
After the government moved for an additional one-level reduction, the final
sentencing range was 46−57 months.
       Albornoz-Albornoz submitted timely objections to the enhancement, con-
tending that the New York burglary statute was broader than the generic
crime of burglary of a dwelling in the guidelines’ list of enumerated offenses.
The court disagreed and sentenced him to forty-six months.


                                            II.
       We review the district court’s interpretation and application of the guide-
lines de novo. 1 Under U.S.S.G. § 2L.1.2(b)(1)(A), a defendant convicted of ille-
gal reentry is subject to a sixteen-level sentencing enhancement if he was pre-
viously deported after any federal, state, or local conviction for, among other
things, a COV. The commentary then lists what offenses count as COVs,
including “burglary of a dwelling.” § 2L.1.2 cmt (1)(B)(iii).
       For an enhancement based on a state conviction, the state crime must


       1 United States v. Guerrero-Navarro, 737 F.3d 976, 977 (5th Cir. 2013); United States
v. Murillo-Lopez, 444 F.3d 337, 339 (5th Cir. 2006).
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                                 No. 13-41349
not stretch further than the generic definition of the enumerated crime. Taylor
v. United States, 495 U.S. 575, 599–601 (1990). To resolve whether a state
statute is more expansive than an enumerated crime, “courts must examine
the statutory definition of the offense to determine whether an associated con-
viction necessarily satisfies the elements of the generic crime, as that crime is
understood in its ordinary, contemporary meaning.” Guerrero-Navarro, 737
F.3d at 978. This is a categorical, common-sense analysis, and courts do not
look to the actual facts of the conviction. Taylor, 495 U.S. at 599–600; Murillo-
Lopez, 444 F.3d at 339–40.
      For instance, a state conviction of arson qualifies as a COV under
§ 2L.1.2(b)(1)(A)(ii) only “if either its statutory definition substantially corres-
ponds to ‘generic’ [arson], or the charging paper and jury instructions actually
required the jury to find all the elements of generic [arson] in order to convict.”
Taylor 495 U.S. at 602; see also Guerrero-Navarro, 737 F.3d at 978. If the court
finds “a realistic probability, not a theoretical possibility, that the State would
apply its statute to conduct that falls outside the generic definition of the
crime,” then it cannot use the state conviction to enhance. Gonzales v. Duenas-
Alvarez, 549 U.S. 183, 193 (2007) (emphasis added). At a minimum, the defen-
dant must point to cases in which a state court has applied the statute in a
broader manner. Id.


                                        III.
                                        A.
      Following the Supreme Court’s roadmap, we begin with New York’s
burglary statute: “A person is guilty of burglary in the second degree when he
knowingly enters or remains unlawfully in a building with intent to commit a
crime therein, and when . . . [t]he building is a dwelling. N.Y. PENAL LAW
§ 140.25 (McKinney 2014). Elsewhere, the law defines a “dwelling” as “a

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                                No. 13-41349
building which is usually occupied by a person lodging therein at night” and
states that “[w]here a building consists of two or more units separately secured
or occupied, each unit shall be deemed both a separate building in itself and a
part of the main building.” Id. § 140.00(2), (3). Albornoz-Albornoz does not
dispute that these are the relevant statutes but maintains that New York
courts have interpreted “dwelling” to be broader than the generic definition.
       To see how New York courts have interpreted and applied the burglary
statute, we need not look much further than People v. McCray, 23 N.Y.3d 621,
624 (2014):
    Generally, if a building contains a dwelling, a burglary committed in
    any part of that building is the burglary of a dwelling; but an exception
    exists where the building is large and the crime is committed in a place
    so remote and inaccessible from the living quarters that the special dan-
    gers inherent in the burglary of a dwelling do not exist.
Thus, New York’s highest court upheld McCray’s second-degree burglary con-
viction of entering part of a building with direct stairway access to a hotel floor
with guest rooms. Id. at 629–30. That definition also comports with the
intermediate-court decisions that Albornoz-Albornoz relies on. 2 Therefore, we
accept the Court of Appeals’s holding, along with the statutory language, as
the relevant authorities for New York’s definition of “dwelling.”


                                            B.
      Following the Taylor roadmap, we next determine the general meaning
of “dwelling” within the Guidelines by examining the “ordinary, contemporary”
definition of the enumerated crime, Guerrero-Navarro, 737 F.3d at 979,
including “look[ing] to sources such as the Model Penal Code, Professor



      2 See, e.g., People v. Rohena, 589 N.Y.S.2d 156, 157–58 (App. Div. 1992) (upholding a
burglary conviction of entering a doctor’s office that shared a building with residential
tenants).
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                                No. 13-41349
LaFave’s treatise, and legal dictionaries,” United States v. Mungia-Portillo,
484 F.3d 813, 816 (5th Cir. 2007). We start with definitions for “dwelling” or
“dwelling house” from legal and general dictionaries:
    a building, a part of a building, a tent, a mobile home, or another
    enclosed space that is used or intended for use as a human habitation.
    The term . . . now typically includes only the structures connected either
    directly with the house or by an enclosed passageway.
BLACK’S LAW DICTIONARY 618 (10th ed. 2014). To the same effect,
    a house or sometimes part of a house that is occupied as a residence in
    distinction from a store, office, or other building and that may legally
    include associated or connected buildings within the same curtilage.
WEBSTER’S THIRD NEW INTERNATIONAL DICTIONARY 706 (2002) (defining
“dwelling house”).
      The language including connected structures is significant. Albornoz-
Albornoz claims that New York’s definition is more capacious because it
includes any part of a building in which people reside, regardless of the build-
ing’s other uses. But those sources illustrate that New York’s definition aligns
with the everyday meaning. Ordinarily understood, a burglar enters a “dwell-
ing” when he breaches a part of a building that is directly connected to a space
used for human habitation.
      Other sources reinforce this understanding. Professor LaFave’s treatise,
when discussing the meaning of “dwelling of another,” observes that “[a] place
of business used only during the day will not so qualify, but if it is attached to
a residence it will.” 3 Similarly, the Model Penal Code states that “[a] person is
guilty of burglary if he enters a building or occupied structure, or separately
secured or occupied portion thereof, with purpose to commit a crime therein.” 4



      3 WAYNE L. LAFAVE, CRIMINAL LAW § 21.2(c) (5th ed. 2010) (emphasis added) (cita-
tions omitted).
      4  MODEL PENAL CODE § 221.1 (1980). See also id. § 221.1 cmt 3(b) (1980) (“The
provision . . . as to separately secured or occupied portions of buildings and occupied
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                                 No. 13-41349
       This court has provided its own generic definition of “dwelling,” which
includes “a building, structure, tent, or vessel used for human habitation.” 5
Yet that definition does not help to resolve this case because it explains a dif-
ferent aspect of what counts as a “dwelling”—whether it includes more than
brick-and-mortar buildings. Rather, it is sufficient to rely on these endorsed
resources to help answer the question of how single buildings that contain both
dwellings and non-dwellings fit into the general definition.


                                              C.
       New York’s definition of “dwelling” is not broader than the generic
definition. Each source recognizes that the word’s ordinary meaning includes
structures connected to the dwelling. Moreover, the LaFave treatise and the
Model Penal Code specifically address the alleged problem with New York’s
definition: single buildings that contain both residences and non-residences.
Both sources reason that entry into the relevant unit of analysis—the single
structure—is sufficient to constitute entry into the dwelling. That understand-
ing makes good sense.
       Albornoz-Albornoz offers no other way in which New York’s second-
degree burglary statute is broader than the generic crime of burglary of a
dwelling, and we discern none. Consequently, the district court did not err in
applying a sixteen-level enhancement under § 2L1.2(b)(1)(A)(ii).
       AFFIRMED.




structures takes care of the situation of apartment houses, office buildings, hotels, . . . etc.
where occupancy is by unit. It is the individual unit as well as the overall structure that
must be safeguarded.”).
       5United States v. Morales-Mota, 704 F.3d 410, 412 (5th Cir. 2013); see also Murillo-
Lopez, 444 F.3d at 345.
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