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

                                                                            FILED
                                                                          August 21, 2008
                                     No. 07-51410
                                   Summary Calendar                   Charles R. Fulbruge III
                                                                              Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff–Appellee,

v.

JACINTO MONTOYA–BELTRAN,

                                                  Defendant–Appellant.


                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 2:07-CR-443


Before KING, DENNIS, and OWEN, Circuit Judges.
PER CURIAM:*
       Jacinto Montoya-Beltran (Montoya) appeals the sentence imposed
following his guilty–plea conviction for unlawful reentry in violation of 8 U.S.C.
§ 1326. For the following reasons, we vacate his sentence and remand this
matter for further proceedings.
       Montoya argues that the district court erred by imposing a 16–level
enhancement pursuant to U.S.S.G. § 2L1.2(b)(1)(A)(ii) based on three 1963
convictions for burglary of a house. The district court concluded that the offense,

       *
         Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
                                  No. 07-51410

burglary of a house, was the equivalent of the enumerated offense of burglary
of a dwelling under § 2L1.2(b)(1)(A)(ii). According to Montoya, at the time of his
conviction, the term “house” was broadly defined to include structures other than
those that meet the definition of “dwelling” as defined for purposes of the
enhancement.
      In determining whether an offense constitutes an enumerated offense
under § 2L1.2, this court employs a “common sense” approach, looking to
whether the prior offense meets the generic, contemporary definition of the
enumerated offense, as it is understood in its ordinary, contemporary, and
common meaning. United States v. Castillo-Morales, 507 F.3d 873, 874-75 (5th
Cir. 2007), cert. denied, 128 S. Ct. 1106 (2008) (citations omitted). Under this
common–sense approach, burglary is the “unlawful or unprivileged entry into,
or remaining in, a building or other structure, with the intent to commit a
crime.” United States v. Ortega-Gonzaga, 490 F.3d 393, 394-95 (5th Cir. 2007),
cert. denied, 128 S. Ct. 410 (2007) (citation omitted). A dwelling for purposes of
§ 2L1.2 is defined as any structure, including a tent or vessel, used for human
habitation. Castillo-Morales, 507 F.3d at 875 (citation omitted).
      Although the parties dispute whether Montoya was convicted under
former Article 1389 or Article 1390 of the Texas Penal Code, both statutes
criminalize entering a house with the intent to commit a felony or theft. The
determinative question in this case is whether the structure at issue was a
dwelling. Under Texas law at the time, a house was defined as any building or
structure erected for public or private use, whether the property of the United
States, Texas, an individual, or private or public corporation or association. See
Robles v. State, 664 S.W.2d 91, 95 n.2 (Tex. Crim. App. 1984) (Clinton, J.,
concurring) (citing TEX. PENAL CODE ART. 1395 (Vernon 1953) (repealed)). Texas
courts have defined the term “house” to include structures such as a store,
church, barn, smokehouse, “and even a fruit stand.” Edwards v. Texas, 463
S.W.2d 733, 734-35 (Tex. Crim. App. 1971). It is plain from the foregoing that

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                                 No. 07-51410

the term “house” is broader than the term “dwelling.”         The Government
nevertheless argues that the language of the indictments, as recited in the
presentence report, demonstrates that the structure at issue was a private
residence. Those indictments each state that Montoya entered a house “situate
and occupied” by a specific individual with the intent to take that person’s
property. However, the fact that the structure was occupied by a person does not
necessarily mean that the structure was a dwelling as that term is defined.
Plainly, a structure that is not a dwelling may nevertheless be occupied by a
person. See, e.g., Bennett v. Texas, 455 S.W.2d 239, 241-42 (Tex. Crim. App.
1970).
      Given the foregoing, we conclude that Montoya’s prior convictions of
burglary of a house do not constitute the enumerated offense of burglary of a
dwelling under § 2L1.2. Accordingly, we VACATE the sentence and REMAND
this matter for further proceedings consistent with this opinion. We need not
reach any other arguments urged by the parties.




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