                                                                    United States Court of Appeals
                                                                             Fifth Circuit
                                                                            F I L E D
                         REVISED JULY 17, 2007
                 IN THE UNITED STATES COURT OF APPEALS                       June 25, 2007
                         FOR THE FIFTH CIRCUIT
                                                                         Charles R. Fulbruge III
                                                                                 Clerk

                                  No. 06-41426


UNITED STATES OF AMERICA,

                                              Plaintiff-Appellee,

versus

JUAN JOSE HERRERA-MONTES,

                                              Defendant-Appellant.

                         --------------------
             Appeal from the United States District Court
                  for the Southern District of Texas
                         USDC No. 1:06-CR-257
                         --------------------

Before HIGGINBOTHAM, DAVIS, and WIENER, Circuit Judges.

PATRICK E. HIGGINBOTHAM, Circuit Judge:

     Defendant       Juan    Jose       Herrera-Montes     pleaded        guilty     to

reentering the United States following deportation.                 In sentencing

Herrera, the district court levied a 16-level increase after

concluding    that     Ortega’s     previous      Tennessee       conviction        for

aggravated burglary, TENN. CODE ANN. § 39-14-403, was a “crime of

violence”    under     U.S.S.G.     §    2L1.2.       Herrera    challenges        that

conclusion,    which    we   review      de   novo.     See     United     States    v.

Dominguez-Ochoa, 386 F.3d 639, 641 (5th Cir. 2004).

     U.S.S.G. § 2L1.2 provides for a 16-level increase if the

defendant was deported following a “crime of violence.”                             The

commentary to § 2L1.2 defines “crime of violence” as either an
                             No. 06-41426
                                  -2-

enumerated felony, including “burglary of a dwelling,” or a felony

that “has as an element the use, attempted use, or threatened use

of physical force against the person of another.”               As they did

below, the parties contest only whether Ortega’s prior conviction

was the enumerated felony of “burglary of a dwelling” under the

categorical approach. See Dominguez-Ochoa, 386 F.3d at 642-46. In

answering that question, we look to the “generic, contemporary”

meaning of burglary of a dwelling, employing a “common sense

approach.”   See United States v. Santiesteban-Hernandez, 469 F.3d

376, 378-79 (5th Cir. 2006).

     Here, Herrera was convicted of “aggravated burglary,” which is

“burglary”   as   defined   in   TENN.   CODE   ANN.   §   39-14-402,   of   a

“habitation.”     § 39-14-403.   Section 39-14-402 provides that:

     (a) A person commits burglary who, without the effective
     consent of the property owner:

          (1) Enters a building other than a habitation (or
          any portion therefore) not open to the public, with
          intent to commit a felony, theft or assault;

          (2) Remains concealed, with the intent to commit a
          felony, theft or assault, in a building;

          (3) Enters a building and commits or attempts to
          commit a felony, theft, or assault; or

          (4)   Enters   any  freight   or   passenger   car,
          automobile, truck, trailer, boat, airplane or other
          motor vehicle with intent to commit a felony, theft
          or assault or commits or attempts to commit a
          felony, theft or assault.

Herrera’s indictment charged that he “did unlawfully, feloniously,

and recklessly enter a habitation without the effective consent of

the property owner...and commit theft.”          Herrera argues that the
                                    No. 06-41426
                                         -3-

indictment tracks the language of (a)(3), which can be committed

even if, at the time of unlawful entry, he had no intent to commit

a crime.     The Government agrees.           And such an intent, he argues, is

required under United States v. Taylor, 495 U.S. 575 (1990), and is

consistent with the generic definition of burglary as attested to

by the Model Penal Code and Black’s Law Dictionary.

      As we more fully describe in our companion case, United States

v.   Ortega-Gonzaga,        ___    F.3d   ___     (5th   Cir.   2007),   Taylor's

definition of “burglary,” aside from the structures in which an

entry     can    occur,    controls     the   definition   of   “burglary    of   a

dwelling” under the Guidelines.                 And Taylor requires that the

defendant intend to commit a crime at the time of unlawful entry or

remaining in, as do the Model Penal Code § 221.1 and BLACK’S LAW

DICTIONARY      197-98    (6th    ed.   1990).1      Consequently,   under    the

categorical approach, Herrera's prior conviction was not “burglary

of a dwelling,” thus not a crime of violence, because his statute

of conviction did not require such intent.2              For example, teenagers


      1
        See United States v. Bonat, 106 F.3d 1472, 1475 (9th Cir. 1997)
(concluding that a burglary statute covering someone who enters a store and
only then decides to shoplift is broader than Taylor “burglary” because the
intent must exist during the entry) (that statute also covered lawful entry,
another reason it was broader than Taylor “burglary,” see Ortega-Gonzaga, ___
F.3d at ___ & n.5). Of course, if the intent could be formed anytime, then
every crime committed after an unlawful entry or remaining in would be
burglary. Relatedly, one who lawfully enters a building does not “unlawfully
remain” just because he later commits a crime, parlaying the crime into
burglary because now intent and unlawful remaining coincide - a shoplifter,
for instance, who enters lawfully but intending to steal does not “unlawfully
remain” when he commits the theft.
      2
        The plain text of § 39-14-402(a)(3) does not require such intent, as a
Tennessee court has recognized. See State v. Wesemann, 1995 WL 605442, at *2
(Tenn. Crim. App. Oct. 16, 1995) (holding that § 39-14-402(a)(3) “requires
only that a [crime] be committed or attempted once the perpetrator enters the
building....Criminal intent does not have to occur either prior to or
                               No. 06-41426
                                    -4-

who unlawfully enter a house only to party, and only later decide

to commit a crime, are not common burglars.3

      The Government argues that this court’s opinion in United

States v. Garcia-Mendez, 420 F.3d 454 (5th Cir. 2005), controls

here.     In Garcia-Mendez, we concluded that the Texas burglary

statute, TEX. PENAL CODE § 30.02, which is in relevant part identical

to the Tennessee statute here, proscribed “burglary of a dwelling.”

Garcia-Mendez, however, was charged and convicted under TEX. PENAL

CODE § 30.02(a)(1), which requires entry with an intent to commit

a crime, as the court in Garcia-Mendez recognized.4              It did not

address § 30.02(a)(3), which requires no such intent, see Flores v.

State, 902 S.W.2d 618, 620 (Tex. App. - Austin 1995).                   Hence

Garcia-Mendez never addressed the issue here, and the Government

points to no cases where § 30.02(a)(3) was at issue.

      SENTENCE VACATED AND CASE REMANDED FOR RESENTENCING.




simultaneous with the entry....”).
      3
        One could argue that the teenagers intended, by entering, to commit
the crime of trespass, but that bootstrapping is not countenanced in the
common meaning of “burglary.” A better example, albeit one where the entry
was not unlawful: in Wesemann, the defendant argued that the victim always
brought him something to drink when he was moving her lawn, but that because
she was away once when he mowed her lawn, she left him a note telling him to
go inside the house to get a drink. Once inside, intending only to get a
drink, he continued, he saw some rings and stole them. The court affirmed the
sentence, but only because § 39-14-402(a)(3) required no intent to commit a
crime at the time of entry.
      4
        The record in Garcia-Mendez shows that the defendant was indicted with
entry with an intent to commit sexual assault and plead guilty to entry with
an intent to assault.
