                       PUBLISHED


UNITED STATES COURT OF APPEALS
             FOR THE FOURTH CIRCUIT


UNITED STATES OF AMERICA,             
                Plaintiff-Appellee,
               v.                         No. 11-4765
FRANCISCO BONILLA,
            Defendant-Appellant.
                                      
       Appeal from the United States District Court
        for the District of Maryland, at Baltimore.
          William D. Quarles, Jr., District Judge.
                 (1:10-cr-00772-WDQ-1)

                  Argued: May 18, 2012

                  Decided: July 17, 2012

   Before TRAXLER, Chief Judge, and GREGORY and
               DIAZ, Circuit Judges.



Affirmed by published opinion. Judge Diaz wrote the major-
ity opinion, in which Judge Gregory joined. Chief Judge
Traxler wrote a dissenting opinion.
2                  UNITED STATES v. BONILLA
                         COUNSEL

ARGUED: Paresh S. Patel, OFFICE OF THE FEDERAL
PUBLIC DEFENDER, Greenbelt, Maryland, for Appellant.
Benjamin M. Block, OFFICE OF THE UNITED STATES
ATTORNEY, Baltimore, Maryland, for Appellee. ON
BRIEF: James Wyda, Federal Public Defender, Baltimore,
Maryland, for Appellant. Rod J. Rosenstein, United States
Attorney, Baltimore, Maryland, for Appellee.


                          OPINION

DIAZ, Circuit Judge:

   After he pleaded guilty to illegal reentry, Francisco Bonilla
received an enhanced sentence based on his prior Texas con-
viction for burglary of a habitation. Bonilla argues that the
district court erred in applying the enhancement because his
state conviction under Texas Penal Code section
30.02(a)(3)—which provides that "[a] person commits [bur-
glary] if, without the effective consent of the owner, the per-
son . . . enters a building or habitation and commits or
attempts to commit a felony, theft, or an assault"—does not
satisfy the definition of generic burglary under Taylor v.
United States, 495 U.S. 575 (1990). We disagree and affirm
the judgment of the district court.

                               I.

   Bonilla pleaded guilty to a one-count indictment charging
him with knowingly entering the United States without the
consent of the Attorney General of the United States after
having been previously excluded, deported, or removed, in
violation of 8 U.S.C. § 1326. The presentence report ("PSR")
noted that Bonilla’s base offense level of eight should be
increased by sixteen levels, "[s]ince [Bonilla] ha[d] previ-
                      UNITED STATES v. BONILLA                           3
ously been convicted of a crime of violence," pursuant to U.S.
Sentencing Guidelines Manual § 2L1.2(b)(1)(A). J.A. 120.
The offense triggering the enhancement was Bonilla’s May 8,
1992 conviction in Texas state court for burglary of a habitation.1

   Bonilla objected to the sentencing enhancement, contend-
ing that his Texas conviction did not qualify as a crime of vio-
lence because it did not satisfy the elements of generic
burglary required by Taylor. Specifically, Bonilla argued that
because he did not have "the requisite intent to commit a
crime" "at the time" that he illegally entered the dwelling, he
did not commit generic burglary. Id. 65.

   The district court rejected Bonilla’s argument. Bonilla, the
court found, was convicted under section 30.02(a)(3) of the
Texas Penal Code, which provides that "[a] person commits
[burglary] if, without the effective consent of the owner, the
person . . . enters a building or habitation and commits or
attempts to commit a felony, theft, or an assault." Looking to
the charging document—which specified that Bonilla "know-
ingly and intentionally enter[ed] a habitation without the
effective consent of . . . the owner, and therein attempted to
commit and committed theft," J.A. 36—the court noted that
"theft or attempted theft would require intent," id. 77, and that
the intent "has to be formed at some point before leaving the
habitation, because the charge is within the habitation," id. 80.
Thus, the court concluded that Bonilla’s conviction met the
elements of generic burglary under Taylor and qualified as a
crime of violence under § 2L1.2(b)(1)(a). Applying the
sixteen-level sentencing enhancement, the court calculated an
advisory Guidelines range of thirty-seven to forty-six months,
and sentenced Bonilla to thirty-seven months’ imprisonment.2
Bonilla timely appealed.
  1
     As detailed in the judgment from the Texas conviction, Bonilla pleaded
guilty to this offense.
   2
     The district court also rejected Bonilla’s argument for a downward
variance based on his personal history and circumstances, but this decision
is not challenged on appeal.
4                     UNITED STATES v. BONILLA
                                   II.

   Whether a prior conviction qualifies as a "crime of vio-
lence" is a legal question we review de novo. United States
v. Jenkins, 631 F.3d 680, 682 (4th Cir. 2011). Under U.S.
Sentencing Guidelines Manual § 2L1.2(b)(1)(A), a defendant
convicted of illegal reentry is subject to a Guidelines enhance-
ment if prior to his removal or deportation he had been con-
victed of a "crime of violence." Application note 1(B)(iii) to
§ 2L1.2 defines a "crime of violence" as one of several enu-
merated offenses, including "burglary of a dwelling," or an
offense "that has as an element the use, attempted use, or
threatened use of physical force against the person of
another."

                                   A.

   In Taylor, the Supreme Court sought to provide "some uni-
form definition [of burglary] independent of the labels
employed by the various States’ criminal codes." 495 U.S. at
592. Specifically, the Court considered the meaning of "bur-
glary" under the Armed Career Criminal Act ("ACCA"), 18
U.S.C. § 924(e). The ACCA provides a sentencing enhance-
ment for a conviction for unlawful possession of a firearm
under 18 U.S.C. § 922(g) if the defendant "has three previous
convictions . . . for a violent felony or a serious drug offense."
18 U.S.C. § 924(e)(1). A "violent felony," in turn, includes
"any crime punishable by imprisonment for a term exceeding
one year . . . that . . . is burglary, arson, or extortion, involves
use of explosives, or otherwise involves conduct that presents
a serious potential risk of physical injury to another." Id.
§ 924(e)(2)(B)(ii) (emphasis added).3
    3
   Although Taylor considered whether a conviction qualified as a "vio-
lent felony" under the ACCA, we apply its analysis to the "crime of vio-
lence" definition as well—with the additional requirement that a burglary
qualifying as a "crime of violence" must involve a dwelling. See United
States v. Herrera-Montes, 490 F.3d 390, 392 (5th Cir. 2007) ("Taylor’s
                        UNITED STATES v. BONILLA                              5
   Taylor’s search for a uniform definition of "burglary"
stemmed from Congress’s deletion of the same in 1986 from
the ACCA. In the Armed Career Criminal Act of 1984, "bur-
glary" was defined as "any felony consisting of entering or
remaining surreptitiously within a building that is property of
another with intent to engage in conduct constituting a Fed-
eral or State offense." Taylor, 495 U.S. at 581 (internal quota-
tions omitted). Without explanation, Congress in 1986
excised this definition, while retaining burglary as a predicate
offense under the ACCA.

   Faced with this legislative hole, the Court in Taylor noted
that Congress had "singled out burglary (as opposed to other
frequently committed property crimes such as larceny and
auto theft) for inclusion as a predicate offense . . . because of
its inherent potential for harm to persons." Id. at 588. As the
Court explained, "[t]he fact that an offender enters a building
to commit a crime often creates the possibility of a violent
confrontation between the offender and an occupant, care-
taker, or some other person who comes to investigate." Id.
"And the offender’s own awareness of this possibility," the
Court added, "may mean that he is prepared to use violence
if necessary to carry out his plans or to escape." Id. Further,
because "Congress apparently thought that all burglaries seri-
ous enough to be punishable by imprisonment for more than
a year . . . shared this potential for violence and . . . were
likely to be committed by career criminals," Congress did not
"limit the predicate offense to some special subclass of bur-
glaries that might be especially dangerous, such as those
where the offender is armed, or the building is occupied, or
the crime occurs at night." Id.

definition of ‘burglary,’ . . . controls the definition of ‘burglary of a dwell-
ing’ under the Guidelines."); United States v. Wenner, 351 F.3d 969, 973
(9th Cir. 2003) ("[T]he most logical and sensible reading of the Guidelines
. . . is to construe ‘burglary of a dwelling’ as the Taylor definition of bur-
glary, with the narrowing qualification that the burglary occur in a dwell-
ing").
6                  UNITED STATES v. BONILLA
   Finding it "implausible" that Congress would have left the
meaning of "burglary" under § 924(e) to the variances of the
states’ criminal codes, id. at 590, the Court concluded that
"burglary" "must have some uniform definition" separate
from the idiosyncrasies of the state codes, id. at 592. In its
search for uniformity, the Court rejected a definition of bur-
glary tied to the common law, noting that the "contemporary
understanding" of burglary was far removed from its common
law counterpart. Id. at 593. That is, although " ‘[b]urglary was
defined by the common law to be the breaking and entering
of the dwelling house of another in the nighttime with the
intent to commit a felony’," id. at 580 n.3 (citation omitted),
most states had long since "expanded this definition to include
entry without a ‘breaking,’ structures other than dwellings,
offenses committed in the daytime, entry with intent to com-
mit a crime other than a felony, etc.," id. at 593.

   Next, the Court rejected a definition that required "intent to
engage in conduct constituting a Federal or State offense that
has as an element . . . conduct that presents a serious risk of
physical injury to another." Id. at 596 (internal quotations
omitted). The Court determined that if Congress intended to
reach only this "subclass" of burglaries, the inclusion of "bur-
glary" in § 924(e)(2)(B)(ii) was superfluous, as the statute
separately included any offense that " ‘involves conduct that
presents a serious potential risk of physical injury to
another.’ " Id. at 597 (quoting 18 U.S.C. § 924(e)(2)(B)(ii)).

   A more rational explanation for specifically and separately
including burglary as a predicate offense, said the Court, was
that "Congress thought that certain general categories of prop-
erty crimes—namely burglary, arson, extortion, and the use of
explosives—so often presented a risk of injury to persons, or
were so often committed by career criminals, that they should
be included" even though the statutory elements of such
offenses do not "necessarily involve the use or threat of force
against a person." Id. Moreover, the lack of qualifying lan-
guage in § 924(e)(2)(B)(ii) suggested that Congress was con-
                   UNITED STATES v. BONILLA                  7
cerned "not only [with] aggravated burglaries, but also run-of-
the-mill burglaries involving an unarmed offender, an unoccu-
pied building, and no use or threat of force." Id.

   In sum, the Court declined to limit the term "burglary" to
"a special subclass of burglaries, either those that would have
been burglaries at common law, or those that involve espe-
cially dangerous conduct." Id. at 598. Rather, the Court deter-
mined that Congress intended the offense to match in "the
generic sense" the way "the term is now used in the criminal
codes of most States." Id. And, it concluded that "[a]lthough
the exact formulations vary, the generic, contemporary mean-
ing of burglary contains at least the following elements: an
unlawful or unprivileged entry into, or remaining in, a build-
ing or other structure, with intent to commit a crime." Id.
(emphasis added).

   The Court stated that if the defendant was convicted of bur-
glary in a state "where the generic definition has been
adopted, with minor variations in terminology, then the trial
court need find only that the state statute corresponds in sub-
stance to the generic meaning of burglary." Id. at 599 (empha-
sis added). Thus, the Court held that "an offense constitutes
‘burglary’ for purposes of a § 924(e) sentence enhancement if
. . . its statutory definition substantially corresponds to
‘generic’ burglary." Id. at 602 (emphasis added).

  It is against this backdrop that we consider Bonilla’s
appeal.

                              B.

  Texas Penal Code section 30.02(a) provides as follows:

    A person commits an offense if, without the effec-
    tive consent of the owner, the person:
8                     UNITED STATES v. BONILLA
        (1) enters a habitation, or a building (or any portion
        of a building) not then open to the public, with intent
        to commit a felony, theft, or an assault; or

        (2) remains concealed, with intent to commit a fel-
        ony, theft, or an assault, in a building or habitation;
        or

        (3) enters a building or habitation and commits or
        attempts to commit a felony, theft, or an assault.

   Bonilla was convicted of violating section (a)(3) of the stat-
ute, which, Bonilla concedes, includes all of the Taylor ele-
ments—unlawful entry, of a building or other structure, and
the requisite intent to commit a felony or other predicate crime.4
Bonilla notes, however, and we agree, that section (a)(3) does
not require that the intent exist at entry. According to Bonilla,
this quirk as to the timing element is fatal under Taylor. With
that, however, we cannot agree.

   In adopting a generic definition of "burglary," Taylor
repeatedly emphasized that a precise lining up of the elements
is not required, but rather that "the exact formulations vary."
495 U.S. at 598 (emphasis added). And in offering guidance
to courts as to how to apply the definition, Taylor added that
"where the generic definition has been adopted, with minor
variations in terminology, then the trial court need find only
that the state statute corresponds in substance to the generic
meaning of burglary." Id. at 599 (emphasis added).
    4
    Under the modified categorical approach, see generally Shepard v.
United States, 544 U.S. 13 (2005), we confirm, as did the district court,
that Bonilla entered a habitation. Thus, the requirement that Bonilla was
convicted of "burglary of a dwelling," thereby supporting the "crime of
violence" sentencing enhancement, is satisfied. See U.S. Sentencing
Guidelines Manual § 2L1.2 cmt. n.1(B)(iii). Bonilla does not challenge
this finding on appeal.
                   UNITED STATES v. BONILLA                   9
   Because section (a)(3) requires an unlawful entry, of a
building or habitation, and the separate intent to commit a fel-
ony, theft, or assault, we find that it corresponds "in sub-
stance" to Taylor’s generic definition of burglary. See id. As
the government notes, "[b]ecause the Texas statute applies
only where a defendant’s entry or remaining in a building is
unlawful, proof of a completed or attempted felony necessar-
ily requires proof that the defendant formulated the intent to
commit a crime either prior to his unlawful entry or while
unlawfully remaining in the building." Appellee’s Br. 7-8
(emphasis added).

   We also agree with the government that while sections
(a)(1) and (2) of the Texas statute cover, respectively, situa-
tions where it is clear that the intent "existed prior to the
unlawful entry, such as when a defendant is caught with bur-
glary tools," or where a defendant "lawfully enter[s] a store
and then conceal[s] himself until after closing with intent to
steal," section (a)(3) "fills a gap in the statutory scheme for
cases in which it is unclear whether the necessary intent
existed at the time of an unlawful entry or was formed subse-
quent[ly]." Id. 13-14. For example, "remaining in" cases could
be charged under section (a)(3), "either because the state can-
not prove when the defendant formed the intent to commit a
subsequent felony or because there is insufficient proof that
the defendant ‘concealed’ himself." Id. 14.

   In arguing that section (a)(3) does not satisfy Taylor
because it does not require intent at the moment of entry,
Bonilla offers the example of a homeless person who unlaw-
fully enters a home only to seek warmth, but while inside,
forms an intent to steal property. Framing the subsequent theft
as a "crime of opportunity," rather than one resulting from
planning or plotting, Bonilla argues that the homeless man
presents less of a risk than the person who enters a home after
plotting to commit a crime.

  That argument is flawed. Taylor does not distinguish
between burglaries based on their comparative level of risk,
10                  UNITED STATES v. BONILLA
but rather is concerned with a defendant’s (1) unlawful pres-
ence, (2) in a building or structure, (3) with the intent to com-
mit a crime—all of which are required under section (a)(3).
We therefore hold that Bonilla’s conviction under Texas
Penal Code section 30.02(a)(3) substantially corresponds to
the elements of generic burglary as outlined in Taylor and
therefore qualifies as a "crime of violence" for sentencing
purposes.

                                C.

   The Fifth Circuit has held, and our dissenting colleague
urges, that "a burglary conviction under § 30.02(a)(3) of the
Texas Penal Code is not a generic burglary under the Taylor
definition because it does not contain an element of intent to
commit a felony, theft, or assault at the moment of entry."
United States v. Constante, 544 F.3d 584, 587 (5th Cir. 2008)
(per curiam). In support, the court noted that although section
(a)(3) requires that a defendant intentionally or knowingly
enter the building, "he would not have to intend to commit a
felony . . . at that time" and "[o]nly this latter type of specific
intent is relevant to the Taylor definition of generic burglary."
Id. at 586 n.3.

   With respect, we think this reading of Taylor too rigid,
given that a defendant convicted under section (a)(3) neces-
sarily developed the intent to commit the crime while remain-
ing in the building, if he did not have it at the moment he
entered. The critical question is whether section (a)(3) of the
Texas statute "corresponds in substance to the generic mean-
ing of burglary," Taylor, 495 U.S. at 599. Bonilla pleaded
guilty to an offense under Texas law that required proof of (1)
an unlawful entry, (2) into a building or habitation, and (3) the
intent to commit a felony, theft, or assault. We hold that these
elements satisfy Taylor’s description of generic burglary, not-
withstanding that Bonilla might not have formulated his intent
prior to the unlawful entry.
                  UNITED STATES v. BONILLA                 11
                             III.

  For the foregoing reasons, we affirm the district court’s
judgment.

                                                 AFFIRMED

TRAXLER, Chief Judge, dissenting:

   Under Taylor v. United States, 495 U.S. 575 (1990), a prior
conviction is a burglary conviction for sentence-enhancement
purposes if the underlying offense, "regardless of its exact
definition or label, ha[s] the basic elements of unlawful or
unprivileged entry into, or remaining in, a building or struc-
ture, with intent to commit a crime." Id. at 599. While there
are offenses under Texas law that meet this definition, the
statute under which Bonilla was convicted does not contain
the intent element required by Taylor. I therefore do not
believe that Bonilla’s prior conviction is a crime of violence
under U.S.S.G. § 2L1.2, and I respectfully dissent from the
affirmance of Bonilla’s sentence.

                              I.

                             A.

   The Sentencing Guidelines provide for a 16-level increase
in the offense level if the defendant was deported after being
convicted of a "crime of violence" that receives criminal his-
tory points. U.S.S.G. § 2L1.2(b)(1)(A)(ii). The Guideline
defines "crime of violence" to include "burglary of a dwell-
ing," id. cmt. n.1(B)(iii), but it does not define "burglary."

   In Taylor, the Supreme Court considered the scope of the
similarly undefined reference to a prior conviction for bur-
glary contained in 18 U.S.C. § 924(e). Although the Court
recognized that burglary has a well-defined meaning at com-
mon law—"a breaking and entering of a dwelling at night,
12                 UNITED STATES v. BONILLA
with intent to commit a felony," Taylor, 495 U.S. at 592, the
Court observed that the contemporary understanding of "bur-
glary" had evolved far from its common-law roots and that
"[t]he arcane distinctions embedded in the common-law defi-
nition have little relevance to modern law enforcement con-
cerns," id. at 593. The Court thus rejected the argument that
"burglary" as used in § 924(e) was common-law burglary, see
id. at 594, and instead concluded that the statute referred to
burglary in "the generic sense in which the term is now used
in the criminal codes of most States," id. at 598. "Although
the exact formulations vary, the generic, contemporary mean-
ing of burglary contains at least the following elements: an
unlawful or unprivileged entry into, or remaining in, a build-
ing or other structure, with intent to commit a crime." Id.

                               B.

  The Texas statute under which Bonilla was convicted pro-
vides that:

     A person commits an offense if, without the effec-
     tive consent of the owner, the person:

        (1) enters a habitation, or a building (or any por-
     tion of a building) not then open to the public, with
     intent to commit a felony, theft, or an assault; or

        (2) remains concealed, with intent to commit a fel-
     ony, theft, or an assault, in a building or habitation;
     or

        (3) enters a building or habitation and commits or
     attempts to commit a felony, theft, or an assault.

Tex. Penal Code Ann. § 30.02(a). As is apparent from the
face of the statute, "with intent to commit a felony, theft, or
assault" is an element of the offenses set out in § 30.02(a)(1)
and § 30.02(a)(2). Bonilla, however, was charged with and
                    UNITED STATES v. BONILLA                   13
pleaded guilty to a violation of § 30.02(a)(3), which replaces
the with-intent element with the requirement that the defen-
dant committed or attempted to commit the specified crimes.

   Bonilla argues on appeal that Taylor’s intent-to-commit-a-
crime element requires contemporaneous intent — intent that
accompanies or coincides with the commission of the other
elements. Because § 30.02(a)(3) only requires that the defen-
dant unlawfully enter and thereafter commit or attempt to
commit a felony, the intent necessary for conviction under
§ 30.02(a)(3) need not have existed at the moment of entry.
Bonilla thus contends that his conviction under § 30.02(a)(3)
is not a conviction for generic burglary as defined by Taylor.

   For its part, the government argues that § 30.02(a)(3) in
substance prohibits the same conduct as generic burglary,
which is all that Taylor requires. See Taylor, 495 U.S. at 602
("[A]n offense constitutes ‘burglary’ for purposes of a
§ 924(e) sentence enhancement if . . . its statutory definition
substantially corresponds to ‘generic’ burglary. . . ." (empha-
sis added)). The government notes that because Taylor
defines generic burglary to include offenses involving unlaw-
ful "remaining" on the premises, generic burglary necessarily
encompasses offenses where the intent to commit a crime is
formed while the defendant remained in the building. The
government thus contends that, contrary to Bonilla’s asser-
tion, generic burglary does not require that the intent exist at
the moment of entry. And because proof of the completed or
attempted crime required by § 30.02(a)(3) necessarily shows
that the defendant formulated the requisite intent either before
entering the building or while he remained in the building, the
government asserts that the crime set out in § 30.02(a)(3) sub-
stantially corresponds to generic burglary.

                               II.

   Before addressing the merits of the parties’ arguments, I
think it will be helpful to clarify the nature of the issue before
14                 UNITED STATES v. BONILLA
the court. Generic burglary as defined in Taylor is "a crime
consisting of three necessary elements: 1) an unlawful or
unprivileged entry or remaining in; 2) a building or other
structure; 3) with intent to commit a crime." United States v.
Bowden, 975 F.2d 1080, 1083 (4th Cir. 1992). The alternate
phrasing of the first element means that generic burglary can
be committed in two ways: by unlawfully entering a building
or structure with intent to commit a crime, or by unlawfully
remaining in a building or structure with intent to commit a
crime. But whether the crime is committed by unlawfully
entering or by unlawfully remaining, the intent to commit a
crime remains a separate element. See United States v.
Ortega-Gonzaga, 490 F.3d 393, 395 (5th Cir. 2007) (under
Taylor’s definition of generic burglary, unlawful entry and
intent to commit a crime are separate elements).

   As noted above, the government’s argument focuses pri-
marily on Taylor’s inclusion of "remaining-in" offenses in the
definition of generic burglary. This focus on the remaining-in
language, however, obscures a critical point—remaining-in
offenses are not included in the statute under which Bonilla
was convicted. Section 30.02(a)(3) prohibits unlawful entries,
not unlawful remaining. See Tex. Penal Code Ann.
§ 30.02(a)(3) ("A person commits an offense if, without the
effective consent of the owner, the person . . . enters a build-
ing or habitation and commits or attempts to commit a felony,
theft, or an assault." (emphasis added)). And in accordance
with the terms of the statute, Bonilla was charged with and
pleaded guilty to unlawful entry only; he was neither charged
with nor convicted of unlawfully remaining.

   When Bonilla’s argument is considered in light of the stat-
ute under which he was actually indicted and convicted, it is
clear that Bonilla does not contend that generic burglary
always requires that the intent to commit a crime exist at the
moment of entry. Instead, Bonilla argues that the intent
required by Taylor must be contemporaneous with the prohib-
ited act, whether that act is unlawful entry or unlawful remain-
                      UNITED STATES v. BONILLA                         15
ing.1 Because he was charged with and convicted of unlawful
entry under a statute that does not require the unlawful entry
to be accompanied by an intent to commit a crime, Bonilla
argues that he was not convicted of generic burglary.

   It thus seems to me that the question to be answered here
is not, as the government contends, whether the intent
required for generic burglary must always and in every case
exist at the moment of entry; Taylor’s inclusion of unlawful-
remaining offenses makes it clear the answer to that question
is "No." Instead, the question is whether a conviction under
a statute proscribing unlawful entries without requiring con-
temporaneous intent amounts to a conviction for generic bur-
glary. In my view, Taylor makes it clear that the answer to
that question likewise is "No."

                                   A.

   Although the Taylor Court had no need to elaborate on the
point, there is no doubt that for an offense to constitute bur-
glary at common law, the intent to commit a crime must have
existed at the time of the breaking and entering. Contempora-
neous intent was the essence of burglary at common law, as
it was the element that distinguished the offense from tres-
pass. See 3 Wayne R. LaFave, Substantive Criminal Law
§ 21.1(e) (2d. ed.) ("To have committed the offense of bur-
glary at common law, one must have intended to commit a
felony while fulfilling the other requirements." (emphasis
added));2 4 William Blackstone, Commentaries on the Laws
  1
     In fact, Bonilla acknowledges that if he had been charged and con-
victed under subsection (a)(2) of the Texas statute, which prohibits "re-
main[ing] concealed" with intent to commit a crime, see Tex. Penal Code
Ann. § 30.02(a)(2), the conviction would be for generic burglary. See
Brief of Appellant at 22; Reply Brief at 3.
   2
     The Court in Taylor relied extensively on a criminal-law treatise co-
authored by Professor LaFave and its discussion of burglary’s evolution
from its common-law roots to its modern statutory form. See Taylor, 495
U.S. at 580 n.3 (quoting W. LaFave & A. Scott, Substantive Criminal Law
§ 8.13 at 464 (1986)); id. at 588 n.4; id. at 593; id. at 598.
16                 UNITED STATES v. BONILLA
of England (1769) ("As to the intent; it is clear, that breaking
and entry must be with a felonious intent, otherwise it is only
a trespass." (second emphasis added)).

   In my view, generic burglary as defined by Taylor retains
the common-law requirement of contemporaneous intent.
This conclusion is compelled by the plain language of the
intent requirement itself — "with intent to commit a crime"
can only be understood as requiring the intent to accompany
the other elements. See Webster’s Encyclopedic Unabridged
Dictionary of the English Language at 2183 (2001) (defining
"with" as "accompanied by; accompanying"); cf. Harris v.
State, 20 Tex. App. 652, 1886 WL 4656 at *3 (Tex. Ct. App.
1886) ("[T]o constitute burglary . . . , the party must enter the
house with intent to commit theft. This intent must accompany
— prompt—the entering." (emphasis added)). The Court’s
with-intent-to-commit phrasing of the element mirrors the
typical phrasing at common law, and I do not believe the
Court could have been unaware of the significance of its cho-
sen language.

   Moreover, the Taylor Court noted that its formulation of
generic burglary "approximates that adopted by the drafters of
the Model Penal Code." Taylor, 495 U.S. at 598 n.8. And as
defined by the Model Penal Code, burglary requires contem-
poraneous intent. See Model Penal Code § 221.1 (1980) ("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, unless the premises
are at the time open to the public or the actor is licensed or
privileged to enter." (emphasis added)).

   The Taylor Court fashioned its definition of generic bur-
glary to reflect the modern, prevailing view of the crime. See
Taylor, 495 U.S. at 598. There is little doubt that a defen-
dant’s intent to commit a crime remains central to the modern
offense. See, e.g., State v. Chatelain, 220 P.3d 41, 45 (Or.
2009) ("Since the time of Blackstone, the defendant’s intent
                       UNITED STATES v. BONILLA                          17
to commit a crime in the building has been the characteristic
distinguishing burglary from mere trespass. And, under cur-
rent Oregon law, intent to commit a crime is required to com-
mit any degree of burglary; it continues to be the primary
element distinguishing burglary from criminal trespass." (cita-
tion omitted)); People v. Maggette, 747 N.E.2d 339, 349 (Ill.
2001) ("The gist of the offense is the defendant’s felonious
intent with which he or she enters the dwelling . . . ."); Keady
v. State, 687 S.W.2d 757, 760 (Tex. Crim. App. 1985) ("The
conduct that is the gist of the offense of burglary is the entry
with the requisite intent, not the physical act of entering.").

   "Unlawful remaining" was not a basis for a burglary con-
viction at common law,3 but I find nothing in Taylor’s analy-
sis to suggest that the inclusion of remaining-in offenses
eliminated or fundamentally altered the contemporaneous-
intent requirement. Instead, it seems to me that the inclusion
of remaining-in offenses simply means that if a defendant is
charged with unlawful remaining, the intent must exist at the
time of the unlawful remaining. See United States v. Herrera-
Montes, 490 F.3d 390, 392 (5th Cir. 2007) ("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).");
see also 3 LaFave, Substantive Criminal Law § 21.1(b) (under
a statute prohibiting unlawful remaining, "the requisite intent
   3
     Burglary at common law required a "breaking" and an entry. Most
states now have eliminated the breaking requirement, and most have
placed qualifiers (e.g., unlawful, unprivileged) on the type of entry
required. See 3 LaFave, Substantive Criminal Law § 21.1(b). While many
states still limit burglary to unlawful entries, it is now "far more common"
for states to define burglary to include unlawful entry or unlawful remain-
ing in the premises, id., which permits burglary convictions in cases where
the initial entry may have been lawful. See id. ("This common statutory
expansion in the definition of burglary makes great sense. A lawful entry
does not foreclose the kind of intrusion burglary is designed to reach, as
is illustrated by the case of a bank customer who hides in the bank until
it closes and then takes the bank’s money.").
18                 UNITED STATES v. BONILLA
to commit a crime within need only exist at the time the
defendant unlawfully remained within"); Hernandez v. State,
190 S.W.3d 856, 863 (Tex. App. 2006) ("If a defendant is
charged with burglary under [Tex. Penal. Code § 30.02] (a)(1)
or (a)(2), the State is required to prove the defendant’s intent
to commit a felony or theft at the time the defendant entered
or remained concealed in a habitation or building." (emphasis
added)); Pushruk v. State, 780 P.2d 1044, 1048 (Alaska Ct.
App. 1989) ("[T]o find a defendant guilty of burglary, the
state must show the defendant had the intent to commit an
additional crime at the time his presence on the premises first
became unlawful, i.e., at the time that he first trespassed,
entered or remained unlawfully on the premises.")

  Accordingly, I believe that under Taylor’s definition of
generic burglary, a defendant’s intent to commit a crime must
exist contemporaneously with the unlawful entry or the
unlawful remaining.

                              B.

   Bonilla was charged with and pleaded guilty to entering a
dwelling without consent of the owner and committing a theft
in the dwelling, in violation of Texas Penal Code
§ 30.02(a)(3). Intent to commit a crime is a necessary element
of generic burglary, see Taylor, 495 U.S. at 599, but "‘intent
to commit a felony or theft’ is not an element of the offense
proscribed by § 30.02(a)(3)," DeVaughn v. State, 749 S.W.2d
62, 65 n.4 (Tex. Crim. App. 1988) (en banc). It thus seems
clear to me Bonilla was not convicted of generic burglary as
defined by Taylor. See United States v. Constante, 544 F.3d
584, 587 (5th Cir. 2008) (per curiam) ("[A] burglary convic-
tion under § 30.02(a)(3) of the Texas Penal Code is not a
generic burglary under the Taylor definition because it does
not contain an element of intent to commit a felony, theft, or
assault at the moment of entry.").

   The government, of course, argues that § 30.02(a)(3)’s
attempted-or-committed-crime element substantially corre-
                   UNITED STATES v. BONILLA                  19
sponds to generic burglary’s intent element because generic
burglary can be committed by unlawfully remaining, and "the
fact of attempted or completed theft ‘necessarily implies’ that
such intent was formed while the Defendant unlawfully
remained in the premises." Brief of Respondent at 13. Tay-
lor’s determination that generic burglary encompasses
offenses involving unlawful entry and offenses involving
unlawful remaining, however, does not give this court license
to read unlawful remaining into a burglary statute that only
prohibits unlawful entry. Bonilla was charged and convicted
of unlawful entry, the only act proscribed by § 30.02(a)(3).
The commission of a crime after entry might establish that the
defendant formed the intent to commit the crime while he
remained on the premises, but it does not establish that the
intent was contemporaneous with the unlawful entry. See
DeVaughn, 749 S.W.2d at 65 (§ 30.02(a)(3) "includes as bur-
glary the conduct of one who enters without effective consent
but, lacking intent to commit any crime upon his entry, subse-
quently forms that intent and commits or attempts a felony or
theft" (emphasis added; internal quotation marks omitted)).

   The government’s argument, in essence, is that Bonilla’s
conduct could have supported a conviction under a remaining-
in statute. Under Taylor’s categorical approach, however, we
must focus on the elements of the underlying offense of con-
viction, not the conduct that led to the conviction. See Taylor,
495 U.S. at 600. That is, whether Bonilla was convicted of
generic burglary is a determination to be made "not by com-
paring the defendant’s prior conduct with the generic offense,
but rather by comparing the elements of the crime of convic-
tion with the generic offense." United States v. Peterson, 629
F.3d 432, 436 (4th Cir. 2011) (emphasis added). Bonilla was
charged and convicted of violating § 30.02(a)(3), which pro-
scribes unlawful entries but does not require the entry to be
accompanied by an intent to commit a crime. See DeVaughn,
749 S.W.2d at 65. The elements of § 30.02(a)(3) thus do not
substantially correspond to the elements of generic burglary,
see Constante, 544 F.3d at 587, and Bonilla’s conviction
20              UNITED STATES v. BONILLA
should not have been used to enhance his sentence under
U.S.S.G. § 2L1.2(b)(1)(A)(ii).

   Accordingly, I respectfully dissent from the judgment
affirming Bonilla’s sentence.
