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

                                                 FILED
                                                                           August 4, 2009

                                       No. 07-51464                    Charles R. Fulbruge III
                                                                               Clerk

UNITED STATES OF AMERICA

                                                   Plaintiff - Appellee
v.

PEDRO RUIZ-SANTOS

                                                   Defendant - Appellant




                 Appeal from the United States District Court for
                          the Northern District of Texas
                         USDC No. 2:07-CR-00306-WWJ


Before JONES, Chief Judge, and PRADO and HAYNES, Circuit Judges.
PER CURIAM:*
       Defendant Pedro Ruiz-Santos, a citizen of Mexico, appeals the sentence
imposed by the district court after he pleaded guilty to illegal reentry in violation
of 8 U.S.C. § 1326(b). The sentence included a 16-level enhancement, which the
district court imposed after concluding that Ruiz-Santos’s prior Washington
conviction for attempted residential burglary constituted a “crime of violence”
under section 2L1.2 of the United States Sentencing Guidelines (U.S.S.G.).
Pretermitting the issue of whether Washington’s residential burglary statute is

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
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categorically a “crime of violence,” we conclude that the relevant Washington
documents show that Ruiz-Santos committed the “crime of violence” of “burglary
of a dwelling,” under U.S.S.G. § 2L1.2. We accordingly affirm the district court’s
judgment and sentence.
                                 I. BACKGROUND
      Ruiz-Santos is a Mexican citizen who has previously been deported from
the United States. After border patrol agents apprehended and arrested him in
Eagle Pass, Texas, Ruiz-Santos pleaded guilty to illegal reentry under § 1326(b).
The court applied a 16-level enhancement under U.S.S.G. § 2L1.2 after
determining that Ruiz-Santos’s prior conviction for attempted residential
burglary under W ASH. R EV. C ODE § 9A.52.025 constituted a “crime of violence.”
Ruiz-Santos objected to the treatment of his prior conviction as a “crime of
violence,” but the district court overruled his objection. Although this left Ruiz-
Santos with a guideline imprisonment range of 77-96 months, the court varied
downward and imposed a sentence of 46 months’ imprisonment. Ruiz-Santos
then filed this timely appeal.
                                 II. DISCUSSION
      Ruiz-Santos contends that the district court erred in concluding that his
conviction under Washington’s residential burglary statute qualifies as a
“burglary of a dwelling” under the sentencing guidelines’ definition of “crime of
violence.” See U.S.S.G. § 2L1.2 cmt. n.1(B)(iii). Because Ruiz-Santos objected
in a timely fashion to the district court’s decision to impose this enhancement,
our review is de novo. United States v. Medina-Anicacio, 325 F.3d 638, 643 (5th
Cir. 2003) (noting that appellate courts review a district court’s application of the
Guidelines de novo).
      Section 2L1.2 increases the offense level for unlawfully entering or
remaining in the United States by 16 levels if the defendant has a prior
conviction constituting a “crime of violence.” The Guidelines define “crime of

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violence” as “any offense under federal or state law, punishable by imprisonment
for a term exceeding one year, that . . . is burglary of a dwelling . . . or otherwise
involves conduct that presents a serious potential risk of physical injury to
another.” U.S.S.G. § 4B1.2(a)(2).1 An attempt to commit a “crime of violence”
is treated as a “crime of violence.” U.S.S.G. § 4B1.2 cmt. n.1.
       To determine whether Ruiz-Santos’s conviction for attempted residential
burglary under § 9A.52.025 constitutes a “crime of violence,” we employ the two-
step approach outlined by the United States Supreme Court in Taylor v. United
States, 495 U.S. 575 (1990). See United States v. Murillo-Lopez, 444 F.3d 337,
341-42 (5th Cir. 2006) (discussing Taylor). Under this approach, we first ask
whether the state statute criminalizes only that conduct that constitutes a crime
of violence under § 4B1.2(a)(2). See Taylor, 495 U.S. at 602; Murillo-Lopez, 444
F.3d at 341. To make this determination, we compare the scope of the state
statute with the common, contemporary, and ordinary meaning of the
enumerated crime of violence, in this case burglary of a dwelling. Murillo-Lopez,
444 F.3d at 344. If the state statute criminalizes only that conduct falling under
the contemporary meaning of the enumerated “crime of violence,” a conviction
under that statute is categorically a “crime of violence.” See id. at 342 (noting
that this circuit employs Taylor’s categorical approach to determine whether a
state statute falls within the scope of the Guidelines).
       Even in the absence of a categorical match, however, a prior state
conviction can still constitute a “crime of violence” if the record includes
sufficient evidence to conclude that the defendant was convicted of the elements
of the generically defined crime. See United States v. Castillo-Morales, 507 F.3d
873, 875 (5th Cir. 2007), cert. denied, 128 S. Ct. 1106 (2008).                     Under this
modified categorical approach, our review of the record is “generally limited to

       1
          The prong of the “crime of violence” definition that requires “use . . . of force” is not
at issue here.

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the charging document, written plea agreement, transcript of the plea colloquy,
and any explicit factual findings by the trial judge to which the defendant
assented.” United States v. Gonzalez-Chavez, 432 F.3d 334, 337-38 (5th Cir.
2005) (citation and internal quotation omitted).
      The district court concluded that Ruiz-Santos’s conviction under §
9A.52.025 constituted a “crime of violence.” Under that statute, “[a] person is
guilty of residential burglary if, with intent to commit a crime against a person
or property therein, the person enters or remains unlawfully in a dwelling other
than a vehicle.”   W ASH. R EV. C ODE § 9A.52.025.      Washington law defines
“dwelling” as “any building or structure, though movable or temporary, or a
portion thereof, which is used or ordinarily used by a person for lodging[.]” Id.
§ 9A.04.110(7). A “building” 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).
      In United States v. Wenner, 351 F.3d 969 (9th Cir. 2003), the Ninth Circuit
concluded that § 9A.52.025 is not categorically a “crime of violence” because
“[s]ome things that are dwellings under Washington law (e.g., fenced areas,
railway cars, and cargo containers) are not buildings or structures under federal
law, and so cannot support a conviction for generic ‘burglary . . . .’” Wenner, 351
F.3d at 972. To define generic burglary, the Ninth Circuit relied on the Supreme
Court’s decision in Taylor, which construed the term “burglary” under the Armed
Career Criminal Act.      Id.   Taylor defined “burglary” as “an unlawful or
unprivileged entry into, or remaining in, a building or other structure, with
intent to commit a crime.” 495 U.S. at 598 (emphasis added).
      Like the Ninth Circuit, we have adopted Taylor’s definition of “burglary”
“when defining the ‘burglary’ part of ‘burglary of a dwelling’ under the
Guidelines.” United States v. Oretga-Gonzaga, 490 F.3d 393, 395 (5th Cir. 2007).
But unlike our sister circuit, we have not limited the “of a dwelling” element of

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“burglary of a dwelling” to Taylor’s requirement of a “building or other
structure.” Compare Ortega-Gonzalez, 490 F.3d 395, with Wenner, 351 F.3d at
972-73.”   Instead, we have recognized that “burglary of a dwelling” can
encompass different structures than “burglary.” Ortega-Gonzalez, 490 F.3d at
395. Thus, for example, in Murillo-Lopez, we concluded that “‘burglary of a
dwelling’ includes the elements of generic burglary as stated in Taylor but it also
includes, at a minimum, tents or vessels used for human habitation.” 444 F.3d
at 345. In Castillo-Morales, we arguably went further, defining a “dwelling” as
“any structure, including a tent or vessel, that is used for human habitation.”
507 F.3d at 875.
      It is unnecessary to determine in this case whether our broader definition
of “dwelling” dictates a different result than that reached by the Ninth Circuit
in Wenner. Under the modified categorical approach, the relevant Washington
documents contain sufficient evidence to conclude that, in this specific case,
Ruiz-Santos was convicted of the elements of generic “burglary of dwelling” as
defined by this circuit.
      Ruiz-Santos pleaded guilty to a Washington information for “Attempted
Residential Burglary” alleging that:
      on or about OCTOBER 28, 2002, with intent to commit a crime
      against a person or property therein, [Ruiz-Santos] did attempt to
      enter or remain unlawfully in a dwelling other than a vehicle
      located at 106 FERN STREET NW, ROYAL CITY, WA, and
      committed an act, to-wit: REMOVED A WINDOW SCREEN AND
      WAS CAUGHT ATTEMPTING TO PRY OPEN A WINDOW, which
      was a substantial step toward that crime.
Under the modified categorical approach, our task is to compare the content of
this charging document with our circuit’s definition of generic “burglary of a
dwelling” to see whether Ruiz-Santos was convicted of that crime. See Castillo-
Morales, 507 F.3d at 874-75.     Ruiz-Santos’s guilty plea to this information
unambiguously encompasses the “unlawful or unprivileged entry into, or

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remaining in” and the “with intent to commit a crime” elements of generic
burglary. Taylor, 495 U.S. at 598; Oretga-Gonzaga, 490 F.3d at 395 (adopting
these elements of Taylor). Thus, the only issue here is whether the “dwelling”
element of the generic crime was established by Ruiz-Santos’s guilty plea. Ruiz
Santos contends that it was not because the information’s reference to a
“dwelling” located at “106 FERN STREET NW, ROYAL CITY, WA” leaves open
the possibility that he pleaded guilty to burgling a fenced area, a railway car, or
a cargo container.       But fenced areas do not contain windows and, under
Washington law, a cargo container or railway car that doubles as a “dwelling”
is necessarily a structure used for lodging.2 Thus, the content of the information
comports with this circuit’s generic definition of “dwelling.”
       Ruiz-Santos nevertheless contends that the information makes it
impossible to show whether he burgled an inhabited residence or merely a
vacant building because the information uses the disjunctive language, “with
intent to commit a crime against a person or the property therein.” (emphasis
added). But the information also uses the term “dwelling” which Washington
defines as a place “used or ordinarily used by a person for lodging.” §
9A.04.110(7). This limitation on the scope of the information is consistent with
this circuit’s requirement that generic burglary include a “structure . . . used for
human habitation.” Castillo-Morales, 507 F.3d at 875; see also B LACK’S L AW
D ICTIONARY 546 (8th ed. 2004) (defining “dwelling house” as a “space that is used
or intended for use as a human habitation.”).




       2
         Both cargo containers and railway cars are “structures” as that term is used in
Murillo-Lopez and Castillo-Morales. The information also uses the term “dwelling.” Under
Washington law, a “dwelling” is a place “used or ordinarily used by a person for lodging.” §
9A.04.110(7). Because neither a cargo container nor a railway car is ordinarily used as a place
of lodging, Ruiz-Santos could only have been convicted under this statute of burglarizing one
of these structures if it was being used by a person for lodging.

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       Ruiz-Santos also argues that it is possible he could have pleaded to a
subsequent indictment instead of the information referenced above. But no such
indictment is contained in the record and the judgment and bill of information
previously discussed bear the same case number and report the same date for
the crime. In light of this evidence, the mere speculative possibility that a
subsequent indictment might exist is not sufficient to overcome the powerful
inference that Ruiz-Santos pleaded guilty to the information in this record. See
United States v. Fernandez-Cusco, 447 F.3d 382, 386-87 (5th Cir. 2006) (finding
no record support for defendant’s argument that he pleaded guilty to a charge
other than that in his indictment). As such, we conclude that Ruiz-Santos’s
Washington conviction for attempted residential burglary encompassed the
elements of generic “burglary of a dwelling,” including the requirement of a
“structure . . . used for human habitation.” Castillo-Morales, 507 F.3d at 875.3
                                  III. CONCLUSION
       For these reasons, the district court’s judgment and sentence are
AFFIRMED.




       3
         Ruiz-Santos also argues that the district court improperly referenced the presentence
report in concluding that he committed a “crime of violence.” But having concluded under our
de novo review that the permitted documents establish that Ruiz-Santos was convicted of the
generic crime of “burglary of a residence,” the documents considered by the district court are
no longer of consequence.

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