     Case: 09-40236     Document: 00511002010          Page: 1    Date Filed: 01/12/2010



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

                                                                             FILED
                                                                          January 12, 2010
                                     No. 09-40236
                                   Summary Calendar                    Charles R. Fulbruge III
                                                                               Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff-Appellee

v.

GREGORIO CRUZ-ALONZO,

                                                   Defendant-Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                            USDC No. 5:08-CR-1620-1


Before KING, STEWART and HAYNES, Circuit Judges.
PER CURIAM:*
        Gregorio Cruz-Alonzo (Cruz) appeals the sentence imposed by the district
court upon his guilty-plea conviction for reentering the United States following
deportation. See 8 U.S.C. § 1326. Cruz asserts that the district court plainly
erred when it increased his offense level pursuant to U.S.S.G. § 2L1.2(b)(1)(A)(ii)
(2008) based on his previous Utah conviction for second degree burglary. He
argues that second degree burglary in Utah does not constitute the enumerated
offense of burglary as defined in Taylor v. United States, 495 U.S. 575 (1990) and


        *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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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                                 No. 09-40236

thus is not a crime of violence for purposes of the sentencing enhancement
provided in § 2L1.2(b)(1)(A)(ii).
      Cruz concedes that our review is for plain error only. We “find plain error
only if: (1) there was error; (2) the error was clear and obvious; and (3) the error
affected the defendant’s substantial rights.” United States v. Garcia-Mendez,
420 F.3d 454, 456 (5th Cir. 2005) (internal quotation marks and citation
omitted).   “When these elements are present, this Court may exercise its
discretion to correct the error only if it seriously affects the fairness, integrity,
or public reputation of judicial proceedings.”        Id. (internal citations and
quotation marks omitted).
      Section § 2L1.2 authorizes 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 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.”           § 2L1.2,
comment. (n.(1)(B)(iii)). The Government concedes that Utah’s second degree
burglary offense does not have as an element the use of physical force against
another person and that the issue on appeal is whether Cruz’s prior conviction
was the enumerated felony of “burglary of a dwelling.”
      Because § 2L1.2 does not define the enumerated offense “burglary of a
dwelling,” federal courts must do so. See United States v. Dominguez-Ochoa, 386
F.3d 639, 642-43 (5th Cir. 2004). To arrive at a definition, this court uses the
categorical approach set forth in Taylor, 495 U.S. at 592-98. See Dominguez-
Ochoa, 386 F.3d at 642-46. Under that approach, federal courts are to determine
the generic, contemporary meaning of an enumerated offense irrespective of the
label placed on the offense by state criminal codes. See Taylor, 495 U.S. at 592,
598-99. In Taylor, the Supreme Court considered the meaning of the term
“burglary” under the firearms statute, 18 U.S.C. § 924(e). See id. at 577. The
Court determined that “the generic, contemporary meaning of burglary contains

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                                 No. 09-40236

at least the following elements: an unlawful or unprivileged entry into, or
remaining in, a building or other structure, with the intent to commit a crime.”
Id. at 598. Taylor’s definition of burglary controls when defining the burglary
part of burglary of a dwelling under the Guidelines. United States v. Ortega-
Gonzaga, 490 F.3d 393, 395 (5th Cir. 2007).
      Cruz argues that Utah’s burglary statute permits the formation of the
requisite criminal intent after the trespass has occurred and been completed.
He argues that it is therefore outside of the “generic, contemporary definition”
of burglary as set forth in Taylor.
      At the time that Cruz was sentenced, the law on this issue was not settled.
Thus, any error in the district court’s assessment of the 16-level enhancement
based on Cruz’s prior Utah conviction for burglary of a dwelling was not clear or
obvious. See United States v. Garcia-Rodriguez, 415 F.3d 452, 455 (5th Cir.
2005).
      AFFIRMED.




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