                  FOR PUBLICATION
  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,              
                 Plaintiff-Appellee,
                v.                           No. 06-50169
MICHAEL LEE SNELLENBERGER, aka                D.C. No.
                                           CR-05-00064-AHS
Michael Lee Cutter, Michael Lee
Davidson, Robert Eugene Frehly,               OPINION
Cutter Snellenberger, “Cutter,”
              Defendant-Appellant.
                                       
       Appeal from the United States District Court
           for the Central District of California
      Alicemarie H. Stotler, District Judge, Presiding

                   Argued and Submitted
            June 25, 2008—Pasadena, California

                   Filed October 28, 2008

 Before: Alex Kozinski, Chief Judge, Stephen Reinhardt,
        Pamela Ann Rymer, Andrew J. Kleinfeld,
Michael Daly Hawkins, Sidney R. Thomas, Susan P. Graber,
William A. Fletcher, Ronald M. Gould, Richard C. Tallman,
         and Milan D. Smith, Jr., Circuit Judges.

                    Per Curiam Opinion;
               Concurrence by Judge Graber;
            Dissent by Judge Milan D. Smith, Jr.




                            14997
15000          UNITED STATES v. SNELLENBERGER


                        COUNSEL

Gail Ivens, Deputy Public Defender, Los Angeles, California,
for the defendant-appellant.

Anne C. Gannon, Assistant United States Attorney, Santa
Ana, California, and Michael J. Raphael, Assistant United
States Attorney, Los Angeles, California, for the plaintiff-
appellee.

Steven F. Hubachek, Federal Defenders of San Diego, Inc.,
San Diego, California, for the amicus curiae.


                        OPINION

PER CURIAM:

  We must decide whether a court may consider a clerk’s
minute order when applying the modified categorical
approach of Taylor v. United States, 495 U.S. 575 (1990).

                           Facts

   Michael Snellenberger walked into a bank with a threaten-
ing note and walked out with a small sum of money. He was
quickly arrested and eventually pleaded guilty to unarmed
bank robbery. The district court calculated a Sentencing
Guidelines range of 151 to 188 months and sentenced Snel-
lenberger to 151 months. On appeal, he challenges the calcu-
lation of the sentencing range.
                UNITED STATES v. SNELLENBERGER            15001
                           Analysis

   [1] 1. Snellenberger’s sentencing range was greatly ele-
vated when the district court determined that he was a career
offender. To qualify as a career offender, a defendant must be
convicted of a crime of violence or a drug offense after hav-
ing previously committed two such crimes. U.S.S.G.
§ 4B1.1(a). Snellenberger’s crime of conviction, bank rob-
bery, is a crime of violence; one of his prior convictions, sale
of methamphetamine, is a drug offense. Under dispute is his
other prior: burglary in violation of California Penal Code
§ 459.

   [2] A “crime of violence,” as defined in U.S.S.G.
§ 4B1.2(a), includes (among other things) “burglary of a
dwelling.” If Snellenberger’s prior conviction qualifies as bur-
glary of a dwelling, it’s a crime of violence. There are two
possible reasons why it might not qualify: First, California’s
burglary statute is broader than the generic definition of bur-
glary adopted by the Supreme Court as the benchmark in Tay-
lor. Generic burglary is limited to entry into a “building or
other structure,” 495 U.S. at 598, whereas California burglary
covers entry into all manner of other places—tents, railroad
cars, automobiles, aircraft, mines, even outhouses. Second,
the Sentencing Guidelines are even narrower than the generic
definition of burglary; whereas generic burglary may be com-
mitted in a commercial building, only burglaries of dwellings
qualify as crimes of violence.

   [3] When the statute of conviction is broader than the
generic definition, we can’t tell categorically whether the
prior conviction qualifies as a strike. Rather, we must use the
so called modified categorical approach, which requires us to
determine—if we can—whether the conduct for which the
defendant was convicted fits within the federal definition of
the offense. Id. at 602. As applied to Snellenberger, we must
figure out whether the conduct to which he pleaded guilty was
burglary of a building or other structure (as Taylor requires)
15002           UNITED STATES v. SNELLENBERGER
and further whether the burglary was of a dwelling (as the
Sentencing Guidelines require). If we can tell both of these
things with reasonable certainty, the prior conviction counts
and Snellenberger is a career criminal.

   [4] The Supreme Court in Shepard v. United States, 544
U.S. 13 (2005), listed the types of documents we may con-
sider in applying the modified categorical approach: “the stat-
utory definition, charging document, written plea agreement,
transcript of plea colloquy, and any explicit factual finding by
the trial judge to which the defendant assented.” Id. at 16. We
have the charging document—here an information—but it
charges two burglaries. Count 1 charges burglary of a “dwell-
ing house,” but count 2 charges burglary of a vehicle. Other
than the statutory definition, the record contains none of the
documents to which the Supreme Court refers in Shepard.
How can we tell, then, whether Snellenberger pleaded guilty
to count 1 (which would count as a strike against him) or
count 2 (which wouldn’t)?

   The district court relied on the state court clerk’s minute
order. California Penal Code § 1207 provides that “[w]hen
judgment upon a conviction is rendered, the clerk must enter
the judgment in the minutes, stating briefly the offense for
which the conviction was had . . . . A copy of the judgment
of conviction shall be filed with the papers in the case.”

   The minute order is a printed form bearing the name of the
court at the top, followed by the case caption. The body con-
sists of numbered lines, each calling for some information to
be inserted by checking a box or writing in a blank. Line 56
starts with a box through which an “X” has been drawn; it
reads “Defendant personally withdraws plea of not guilty to
count(s) _ _ _ _ _ _,” and “1” is written in the blank. Line 57
also starts with a box through which an “X” has been drawn,
and indicates a plea of nolo contendere to count 1.

  Together, these lines establish that Snellenberger pleaded
nolo contendere to count 1, which charged him with “enter-
                UNITED STATES v. SNELLENBERGER             15003
[ing] an inhabited dwelling house and trailer coach and inhab-
ited portion of a building occupied by Peter MacPherson, with
the intent to commit larceny and any felony.” Because the
three noun phrases are connected by “and” rather than “or,”
the charging document and minute order, if consulted, estab-
lish that Snellenberger committed burglary of a dwelling.

   [5] Snellenberger challenges the district court’s reliance on
the minute order, arguing that it isn’t among the documents
listed by the Court in Shepard. But that list was illustrative;
documents of equal reliability may also be considered. See
Shepard, 544 U.S. at 26 (permitting use of “comparable” judi-
cial records). The clerk’s minute order easily falls within the
category of documents described: It’s prepared by a court
official at the time the guilty plea is taken (or shortly after-
ward), and that official is charged by law with recording the
proceedings accurately. The clerk presumably exercises that
duty as faithfully and diligently as, for example, court report-
ers, upon whose transcripts we regularly depend. Indeed, the
Shepard list expressly references the transcript of the plea col-
loquy as a document we may properly rely on, even though
the transcript itself (as opposed to the reporter’s notes on
which it is based) is generally prepared days or weeks—and
sometimes years—after the in-court proceedings.

   [6] Snellenberger also complains that the minute order is
not something that is approved, or even seen, by the parties,
so he shouldn’t be held responsible for its contents. It’s not
clear from the record whether parties to a criminal case in
California are given copies of the clerk’s minute order at the
time it is placed in the case file, but there is certainly no sug-
gestion that it’s a secret document. A defendant can always
check the case file and ensure that any materials placed there
accurately reflect the proceedings; presumably, doing so is
part of every criminal defense lawyer’s professional obliga-
tion. In any event, by analogy to transcripts, it’s enough that
the minute order was prepared by a neutral officer of the
court, and that the defendant had the right to examine and
15004           UNITED STATES v. SNELLENBERGER
challenge its content, whether or not he actually did. Having
failed to challenge or correct the minute order in state court—
perhaps because there wasn’t a basis for doing so—
Snellenberger is now bound by what it says: He pleaded nolo
contendere to the burglary of a dwelling, satisfying this aspect
of the generic definition of the crime for purposes of U.S.S.G.
§ 4B1.1(a).

  [7] We therefore hold that district courts may rely on clerk
minute orders that conform to the essential procedures
described above in applying the modified categorical
approach. United States v. Diaz-Argueta, 447 F.3d 1167,
1169 (9th Cir. 2006), which suggested the contrary, is to that
extent overruled.

   2. In the district court, Snellenberger unsuccessfully argued
that, even if the minute order were considered, his conviction
wasn’t a generic burglary within the meaning of Taylor. On
appeal, he didn’t make that argument in his opening brief. See
Def.’s Supp. Br. to Rh’g En Banc 4 & n.4 (Snellenberger “has
not previously challenged the application of the career
offender guideline to his case on the . . . basis” "that Califor-
nia burglary is missing the element of unprivileged entry”).
We therefore decline to reach the issue. See, e.g., United
States v. Ankeny, 502 F.3d 829, 835 n.3 (9th Cir. 2007); Leon
v. IDX Sys. Corp., 464 F.3d 951, 957 n.3 (9th Cir. 2006).

   [8] No special circumstances justify our raising the ques-
tion sua sponte. The fact that Snellenberger made this argu-
ment in the district court demonstrates that the absence of the
later-decided Navarro-Lopez v. Gonzales, 503 F.3d 1063 (9th
Cir. 2007) (en banc), didn’t deter him from making the argu-
ment in the first place. Nothing prevented him from appealing
the district court’s adverse ruling on that issue. We therefore
express no opinion on the application of Navarro-Lopez to the
facts of this case.

  AFFIRMED.
UNITED STATES v. SNELLENBERGER   15005
15006           UNITED STATES v. SNELLENBERGER
GRABER, Circuit Judge, with whom RYMER, KLEINFELD,
HAWKINS, GOULD, and TALLMAN, join, concurring:

   I join fully in the court’s opinion but write briefly to
respond to the dissent, which asserts that we should reach the
question whether Navarro-Lopez v. Gonzales, 503 F.3d 1063
(9th Cir. 2007) (en banc), would counsel reversal.

   Even if we were to consider this unraised issue, we would
have to do so using a “plain error” analysis. See United States
v. Beng-Salazar, 452 F.3d 1088, 1092 (9th Cir. 2006) (“We
review unpreserved errors for plain error.” (citing Fed. R.
Crim. P. 52(b)); see also United States v. Olano, 507 U.S.
725, 732 (1993) (“[T]he authority created by Rule 52(b) is
circumscribed. There must be an error that is plain and that
affect[s] substantial rights.” (internal quotation marks omit-
ted) (second alteration in original)). There is no plain error
here.

   As the opinion properly notes, Defendant Snellenberger
pleaded nolo contendere to “enter[ing] an inhabited dwelling
house and trailer coach and inhabited portion of a building
occupied by Peter MacPherson, with the intent to commit lar-
ceny and any felony.” Majority op. at 15002-03 (internal quo-
tation marks omitted) (alteration in original). Whether or not
that conduct counts as “generic burglary” under the peculiari-
ties of California law, the act described “involves conduct that
presents a serious potential risk of physical injury to another,”
U.S.S.G. § 4B1.2(a)(2), to wit, MacPherson. For that reason,
we would still have to affirm Snellenberger’s conviction.



M. SMITH, Circuit Judge, with whom Chief Judge Kozinski
and Judges Reinhardt and Thomas join, dissenting:

  Though we rarely review arguments not raised in the open-
ing brief, we acknowledge an exception to the waiver rule
               UNITED STATES v. SNELLENBERGER            15007
when there has been an intervening change in the law. See,
e.g., Ball v. Rodgers, 492 F.3d 1094, 1102 (9th Cir. 2007).
Navarro-Lopez v. Gonzales, 503 F.3d 1063, 1073 (9th Cir.
2007) (en banc), constitutes such a change.

   We recently observed in Kawashima v. Mukasey that prior
to Navarro-Lopez, we

    applied the modified categorical approach in cases
    where the statute of conviction prohibits a broader
    range of conduct than the generic offense, regardless
    of whether the former lacks a particular element of
    the latter. See, e.g., United States v. Parker, 5 F.3d
    1322 (9th Cir. 1993) (applying the modified categor-
    ical approach to determine whether a jury found the
    defendant guilty of generic burglary even though the
    statute under which the defendant was convicted did
    not require unlawful entry, a necessary element of
    the generic definition); United States v. Alvarez, 972
    F.2d 1000 (9th Cir. 1992) (per curiam) (same). In
    Navarro-Lopez, we did not explicitly overrule these
    precedents . . . Nevertheless, Navarro-Lopez’s state-
    ment that the modified categorical approach never
    applies when “the crime of conviction is missing an
    element of the generic crime altogether,” 503 F.3d at
    1073, is plain and clear. And, because such state-
    ment is irreconcilable with our precedents that have
    held otherwise, we must conclude that they have
    been impliedly overruled.

530 F.3d 1111, 1116 (9th Cir. 2008). Accordingly, I do not
believe that we are free in this case to ignore the new law set
forth in Navarro-Lopez, which addresses the threshold issue
of whether we may use the modified categorical approach at
all. If the modified categorical approach never applies under
a particular statute, we should not reach the issue of whether
a minute order could satisfy the modified categorical
15008           UNITED STATES v. SNELLENBERGER
approach, and I respectfully suggest that we are remiss in
doing so.

   Nevertheless, since the panel has decided to reach the issue,
I believe it important to clarify that the facts one may consider
reliably established by a California minute order are limited
by the minute order’s function, i.e., to record the statute of
conviction and the count in the information or indictment to
which the defendant pleaded guilty or nolo contendere. By its
nature, a minute order cannot be used to establish the underly-
ing facts of the crime committed. Cf. United States v.
Navidad-Marcos, 367 F.3d 903, 908-09 (9th Cir. 2004).

   Because I would address Navarro-Lopez’s impact on this
case, I would overrule United States v. Aguila-Montes De
Oca, 523 F.3d 1071 (9th Cir. 2008), to the extent it concludes
that Navarro-Lopez permits use of the modified categorical
approach in applying a conviction under California Penal
Code § 459. I would also explicitly overrule pre-Navarro-
Lopez cases such as United States v. Rodriguez-Rodriguez,
393 F.3d 849, 857-58 (9th Cir. 2005), that apply the modified
categorical approach to convictions under California Penal
Code § 459. Navarro-Lopez clearly states our new rule that

    “[t]he modified categorical approach . . . only
    applies when the particular elements in the crime of
    conviction are broader than the generic crime. When
    the crime of conviction is missing an element of the
    generic crime altogether, we can never find that ‘a
    jury was actually required to find all the elements of’
    the generic crime.”

Navarro-Lopez, 503 F.3d at 1073 (quoting Li v. Ashcroft, 389
F.3d 892, 899-901 (9th Cir. 2004) (Kozinski, J. concurring)).
Because California burglary is missing a generic element, the
                   UNITED STATES v. SNELLENBERGER                     15009
district court’s application of the modified categorical
approach is plain error.1

   The generic definition for federal burglary requires an “un-
lawful or unprivileged entry.” Taylor v. United States, 495
U.S. 575, 598 (1990). The Court in Taylor noted that its defi-
nition of burglary approximated that adopted by the drafters
of the Model Penal Code wherein a person commits burglary
“if he enters a building . . . with purpose to commit a crime
therein, unless the premises are at the time open to the public
or the actor is licensed or privileged to enter,” implying that
“unlawful” means unconsented. Id. at 598 n.8 (quoting Model
Penal Code § 221.1 (1980)) (emphasis added).2 The Court
observed that some states have eliminated the requirement
that the entry be unlawful. Id. at 599.

   California is one of the states where only “entry” is
required. Under California law, one can commit residential
burglary even if the entry into the home is consensual and not
a trespass. People v. Frye, 959 P.2d 183, 212-13 (Cal. 1998).
Specifically, under CALJIC 14.50, the only elements that
must be proven to convict under California Penal Code § 459
are that:
  1
     Snellenberger did not argue at the district court level that the modified
categorical approach never applies under the California Penal Code § 459;
therefore, the correct standard of review is plain error. “[W]here the law
at the time of trial was settled and clearly contrary to the law at the time
of appeal — it is enough that an error be ‘plain’ at the time of appellate
consideration.” Johnson v. United States, 520 U.S. 461, 468 (1997). Erro-
neous application of a sentencing enhancement affects the defendant’s
substantial rights and “affect[s] both the fairness and integrity of our judi-
cial system.” United States v. Portillo-Mendoza, 273 F. 3d 1224, 1228 (9th
Cir. 2001).
   2
     I acknowledge that one could consider entry into a structure for the
purpose of committing a crime to be “unlawful” in a general sense, but
that type of unlawfulness is explicitly distinguished from the “unlawful or
unprivileged entry” included by the Supreme Court in Taylor as an ele-
ment of generic burglary.
15010          UNITED STATES v. SNELLENBERGER
    1.   A person entered a [building] [________]; and

    2.   At the time of the entry, that person had the spe-
         cific intent to steal and take away someone
         else’s property, and intended to deprive the
         owner permanently of that property;

Id. at 212. In contrast, the Supreme Court indicated that

    the generic, contemporary meaning of burglary con-
    tains at least the following elements: an unlawful or
    unprivileged entry into, or remaining in, a building
    or other structure, with intent to commit a crime.

Taylor, 495 U.S. at 598 (emphasis added). The Supreme
Court has clarified that

    an offense constitutes ‘burglary’ for purposes of . . .
    sentence enhancement if either its statutory defini-
    tion substantially corresponds to ‘generic’ burglary,
    or the charging paper and jury instructions actually

    required the jury to find all the elements of generic
    burglary in order to convict the defendant.

Taylor, 495 U.S. at 602 (emphasis added). Taylor does not
permit the conflation of the element of unlawful or unprivi-
leged entry with the element of entry with the intent to com-
mit a crime. Rather, the jury is required to find both elements
independently in order to convict the defendant.

   Under the standard set out in Taylor, we cannot establish
that a conviction for California burglary meets the require-
ments for a federal enhancement for “burglary of a dwelling.”
Even where the information or indictment alleges that the
defendant did “unlawfully enter,” as occurred in this case, no
jury would ever be “actually required to find all the elements
of generic burglary” in order to convict the defendant because
                 UNITED STATES v. SNELLENBERGER              15011
the type of entry need not be proven and is simply unneces-
sary to the conviction. See Taylor, 495 U.S. at 602; Frye, 959
P.2d at 212.

   Furthermore, given the peculiarities of California law, Cali-
fornia’s burglary statute does not satisfy the residual clause as
an offense that “otherwise involves conduct that presents a
serious potential risk of physical injury to another.” U.S.S.G.
§ 4B1.2(a)(2). We continue to employ the categorical
approach when analyzing the applicability of the residual
clause. Because California burglary is similar to “burglary of
a dwelling,” the relevant inquiry is whether the risk posed by
California residential burglary is similar to that posed by fed-
eral burglary of a dwelling. See James v. United States, 127
S. Ct. 1586, 1594 (2007) (analyzing attempted burglary).

   In conducting this inquiry, we are not required to find that
every conceivable California burglary would pose a serious
potential risk of physical injury to another, but rather that, in
the ordinary case, California burglary would satisfy the resid-
ual clause. Id. at 1597. “ ‘It requires a realistic probability, not
a theoretical possibility, that the State would apply its statute
to conduct that falls outside the generic definition of a
crime.’ ” Id. (quoting Gonzales v. Duenas-Alvarez, 127 S. Ct.
815, 822 (2007)).

   California has created an entire class of burglaries that no
longer fits the description of a “prototypically violent” crime.
For example, a review of California burglary prosecutions
reveals that California courts have upheld burglary convic-
tions for defendants who entered a home with consent and
with the intent to sell fraudulent securities. See, e.g., People
v. Cole, 67 Cal. Rptr. 3d 526, 540 (Ct. App. 2007); People v.
Salemme, 3 Cal. Rptr. 2d 398, 402-03 (Ct. App. 1992).
Admittedly, a slim possibility exists in such a case that a vic-
tim who discovers the fraudulent scheme would confront the
defendant, but the residual clause requires “serious potential
risk,” not merely a faint possibility.
15012           UNITED STATES v. SNELLENBERGER
   Due to the broad interpretation of burglary adopted by the
California courts, it appears that the risk of injury to another
comes not from the perpetrator’s unconsented entry, but from
the victims’ reaction to the felony intended to be committed
therein. The Supreme Court has identified the main risk of
burglary as arising “from the possibility of a face-to-face con-
frontation between the burglar and a third party.” James, 127
S. Ct. at 1594. Logically, such a risk arises in a situation of
unconsented entry, not one in which the burglar has been per-
mitted to enter. In light of the breadth of California prosecu-
tions, I cannot conclude that an “ordinary case” of California
burglary is a crime of violence merely because a felony
occurred, or was intended to occur, in a residence. To so con-
clude, one would have to assume that a victim will react dif-
ferently to a felony that occurs in his home than to one that
occurs in a commercial building or on the street, associating
the probability of violence with the location of the crime, not
the nature of the crime or the means by which it is committed.

   In applying the residual clause to the specific conduct to
which the defendant pleaded rather than the statutory ele-
ments of the state burglary offense, Judge Graber’s concur-
rence improperly employs the modified categorical approach.
Concurrence at 15006. Our Circuit has repeatedly “expressed
doubt as to whether the modified categorical approach applies
to the catchall clause” at all. United States v. Jennings, 515
F.3d 980, 990 (9th Cir. 2008) (citing United States v. Kelly,
422 F.3d 889, 895 (9th Cir. 2005); United States v. Fish, 368
F.3d 1200, 1204 & n. 4 (9th Cir. 2004); United States v. Par-
ker, 5 F.3d 1322, 1325-26 (9th Cir. 1993)). Notably, the
Supreme Court in James applied only the categorical
approach in its analysis of the residual clause. 127 S. Ct. at
1593-94.

   The Ninth Circuit panel in Jennings concluded that “gener-
ally the modified categorical approach may be applied in
determining whether a conviction qualifies as a violent felony
under § 924(e)(2)(B)(ii)’s ‘otherwise’ clause (sometimes
                UNITED STATES v. SNELLENBERGER             15013
termed the catchall clause).” 515 F.3d at 990. However, Jen-
nings clarified that Navarro-Lopez precludes application of
the modified categorical approach to the residual clause when
the statute of conviction “does not require proof of any actual
or potential risk of harm to others for a conviction.” Id. at
992. In the case before us, the California burglary statute, like
the Washington statute at issue in Jennings, “ ‘is missing an
element of the generic crime’ — here, the actual or potential
risk of harm to another — ‘altogether.’ A jury would not have
to find that such a risk was posed for any conviction . . . it
simply is not an element of the crime.” Id. at 993 (internal
citations omitted).

   Under Navarro-Lopez, we may not apply the modified cat-
egorical approach to determine whether a state statute falls
under the residual clause unless the state offense includes the
element of potential risk of harm. California’s burglary statute
contains no such element, and therefore the modified categor-
ical approach is unavailable.

   I sympathize with my colleagues who would like to find a
way to fit convictions under California Penal Code § 459 into
“burglary of a dwelling” or the residual clause. The peculiari-
ties of California law, however, have left federal courts
unable to use it as a predicate offense under USSG § 4B1.1.
The goal of nationwide uniformity driving the Sentencing
Guidelines is not well-served when we apply an enhancement
for all burglaries in one state but none in California, our most
populous state. But neither is it served when we apply an
enhancement for conduct in California that would not trigger
the enhancement in others. Navarro-Lopez and the Supreme
Court’s insistence on a categorical analysis mandates that we
reach the under-inclusive result.

   For the foregoing reasons, I would apply our en banc rule
in Navarro-Lopez and reverse the district court.
