                                                                        F I L E D
                                                                  United States Court of Appeals
                                                                          Tenth Circuit
                   UNITED STATES COURT OF APPEALS
                                                                          OCT 9 2002
                               TENTH CIRCUIT
                                                                    PATRICK FISHER
                                                                              Clerk

 UNITED STATES OF AMERICA,

             Plaintiff - Appellee,

 v.                                                    No. 02-4048
                                                 (D.C. No. 1:01-CR-51-B)
 LORENZO CRUZ-SANCHEZ aka                               (D. Utah)
 Ramiro Diaz-Sanchez aka Ramiro
 Cruz-Sanchez,

             Defendant - Appellant.


                          ORDER AND JUDGMENT *


Before KELLY, McKAY, and MURPHY, Circuit Judges.


      After examining the briefs and appellate record, this panel has determined

unanimously to honor the parties’ request for a decision on the briefs without oral

argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore

submitted without oral argument.

      Defendant appeals his sentence for illegal reentry following deportation in

violation of 8 U.S.C. § 1326(a) entered after Defendant pleaded guilty to the


      *
       This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
charge. Defendant was sentenced to 57 months of imprisonment to be followed

by a term of 36 months of supervised release. In the presentence report,

Defendant’s sentence was calculated from a guideline base offense level of 8,

increased 16 levels for being previously deported after conviction for a crime of

violence, and decreased 3 levels for acceptance of responsibility, for a net offense

level of 21. Defendant filed an objection to the presentence report arguing that he

was not subject to the 16-level enhancement for a conviction for a crime of

violence because his previous conviction for attempted aggravated burglary

involved the burglary of a business rather than a dwelling. The district court

rejected Defendant’s argument. Defendant appeals to this court.

      We review de novo the determination of whether a particular state felony

conviction constitutes a crime of violence. United States v. Moyer, 282 F.3d

1311, 1315 (10th Cir. 2002). A crime of violence is defined as “an offense under

. . . state . . . law that has as an element the use, attempted use, or threatened use

of physical force against the person of another; and includes . . . burglary of a

dwelling.” U.S.S.G. § 2L1.2(b)(1)(A), Application Note 1(B)(ii). Defendant

concedes that his “prior conviction does meet the first requirement for qualifying

as a crime of violence.” Aplt. Br. at 6. Therefore, the only question before us is

whether Application Note 1(B)(ii) limits the availability of the enhancement for

burglary convictions specifically to burglaries of dwellings regardless of the


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aggravated nature of a non-dwelling burglary.

      Defendant argues that “the guidelines limit the scope of offenses which are

crimes of violence by defining the phrase as including only those prior offenses

which include an element of the use of force and which are among a number of

crimes specifically listed.” Aplt. Br. at 3. We cannot agree with this strained

reading of U.S.S.G. § 2L1.2(b)(1)(A). The list following the use of the word

“includes” is not exhaustive. The Application Note does not state, as Defendant

proffers, “includes only.” If the list were exhaustive, the first part of the

definition would be unnecessary. The second part of the definition provides

specific offenses which are per se crimes of violence not requiring an examination

of the particular elements.

      We agree with the district court that Defendant’s attempted aggravated

burglary conviction was a crime of violence as contemplated by U.S.S.G. §

2L1.2(b)(1)(A) because “it is an offense under . . . state . . . law that has as an

element the use, attempted use, or threatened use of physical force against the

person of another.” Rec., Vol. III, at 7.

      AFFIRMED.

                                                  Entered for the Court



                                                  Monroe G. McKay
                                                  Circuit Judge

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