                                                                        F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                   UNITED STATES COURT OF APPEALS
                                                                         JAN 8 2001
                               TENTH CIRCUIT
                                                                    PATRICK FISHER
                                                                               Clerk


UNITED STATES OF AMERICA,

             Plaintiff-Appellee,
                                                       No. 00-3068
v.
                                                    (District of Kansas)
                                               (D.C. No. 99-CR-20026-KHV)
JUAN MOISES TORRES-
GONZALEZ,

             Defendant-Appellant.




                          ORDER AND JUDGMENT *


Before BRORBY, KELLY, and MURPHY, Circuit Judges.



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

unanimously that oral argument would not materially assist the determination of

this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is

therefore ordered submitted without oral argument.




      *
       This order and judgment is not binding precedent, except under the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.
      Appellant, Juan Moises Torres-Gonzalez (“Torres”), pleaded guilty to one

count of illegal reentry after deportation for an aggravated felony, in violation of

8 U.S.C. § 1326(a) and (b)(2). The district court concluded that Torres had

previously been deported after conviction for an aggravated felony and,

consequently, increased Torres’ offense level by sixteen levels pursuant to §

2L1.2(b)(1)(A) of the United States Sentencing Guidelines (“U.S.S.G.”). Torres

was sentenced to a term of seventy-seven months’ incarceration. Torres appeals

the sentence imposed by the district court. Exercising jurisdiction pursuant to 28

U.S.C. § 1291 and 18 U.S.C. § 3742(a), this court   affirms .

      On December 3, 1996, in the Superior Court of San Bernardino County,

California, Torres pleaded guilty to one count of commercial burglary and was

sentenced to sixteen months’ imprisonment. Torres was deported on November

26, 1997. On May 17, 1999, Torres pleaded guilty to one count of illegal reentry

after deportation for an aggravated felony in violation of 8 U.S.C. § 1326(a) and

(b)(2). Pursuant to U.S.S.G. § 2L1.2, Torres’ base offense level was calculated

at eight. Torres’ offense level was then increased by sixteen levels pursuant to

U.S.S.G. § 2L1.2(b)(1)(A) which provides:

      (1) If the defendant previously was deported after a criminal
      conviction, or if the defendant unlawfully remained in the United
      States following a removal order issued after a criminal conviction,
      increase as follows (if more than one applies, use the greater):



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             (A)    If the conviction was for an aggravated felony, increase
                    by 16 levels.

The term “aggravated felony” is defined by reference to 8 U.S.C. § 1101(a)(43).

See U.S.S.G. § 2L1.2, cmt. n.1. An aggravated felony is defined,     inter alia , as “a

theft offense . . . or burglary offense for which the term of imprisonment [is] at

least one year.” 8 U.S.C. § 1101(a)(43)(G). The district court concluded that

Torres’ California burglary conviction fell within the definition of aggravated

felony and, thus, imposed the sixteen-level increase.

      The sole issue raised by Torres in this appeal is that the district court erred

in increasing his offense level pursuant to U.S.S.G. § 2L1.2(b)(1)(A). Torres

contends that the prior crime upon which the increase was based was not a

burglary offense under 8 U.S.C. § 1101(a)(43)(G) and, thus, is not an aggravated

felony for purposes of § 2L1.2(b)(1)(A). This court reviews questions of law

related to the application of the Sentencing Guidelines   de novo . See United

States v. Gomez-Arrellano , 5 F.3d 464, 465 (10th Cir. 1993).

      Torres contends that the California statutory definition of burglary is

significantly broader than the generic definition of burglary adopted by the

Supreme Court in Taylor v. United States , 495 U.S. 575, 599 (1990).

Accordingly, Torres argues that the California burglary conviction is not a

“burglary offense” under 8 U.S.C. § 1101(a)(43)(G) and, thus, is not an

“aggravated felony” under U.S.S.G. § 2L1.2(b)(1)(A). The government first

                                           -3-
argues that Taylor is inapplicable because the generic definition of burglary was

adopted by the Court solely for the purpose of determining whether a defendant’s

prior conviction constitutes a crime of violence thereby justifying a sentencing

enhancement pursuant to 18 U.S.C. § 924(e).        But see Ye v. INS , 214 F.3d 1128,

1131 (9th Cir. 2000) (applying the    Taylor definition of burglary for purposes of §

1101(a)(43)(G)); Lopez-Elias v. Reno , 209 F.3d 788, 791-92 (5th Cir. 2000)

(same); Solorzano-Patlan v. INS , 207 F.3d 869, 874-75 (7th Cir. 2000) (same).

In the alternative, the government argues that this court should apply the narrow

exception to the categorical approach adopted in     Taylor . See Taylor , 495 U.S. at

599-602 (holding that under narrow circumstances a sentencing court can look

beyond the state statutory definition of burglary and examine the charging

instrument and jury instructions to determine whether the defendant was actually

convicted of generic burglary). Because we conclude that Torres’ California

burglary conviction qualifies as an aggravated felony under the     Taylor approach,

it is unnecessary to address the government’s first argument.

       In Taylor , the Court defined generic burglary as a crime having “the basic

elements of unlawful or unprivileged entry into, or remaining in, a building or

structure, with intent to commit a crime.”     Id. at 599. Under the categorical

approach adopted in Taylor , the sentencing court must first determine whether

“the state statute corresponds in substance to the generic meaning of burglary.”


                                             -4-
Id. California Penal Code section 459, the statute under which Torres was

convicted, defines burglary as follows:

       Every person who enters any house, room, apartment, tenement,
       shop, warehouse, store, mill, barn, stable, outhouse or other
       building, tent, vessel, . . . floating home, . . . railroad car, locked or
       sealed cargo container, whether or not mounted on a vehicle, trailer
       coach, . . . any house car, . . . inhabited camper, . . . vehicle as
       defined by the Vehicle Code, when the doors are locked, aircraft . . .
       , or mine or any underground portion thereof, with intent to commit
       grand or petit larceny or any felony is guilty of burglary.

The Ninth Circuit Court of Appeals has held that this statutory definition of

burglary “is far too sweeping to satisfy the Taylor definition of generic burglary.”

United States v. Franklin , No. 99-10515, 2000 WL 1854832, at * 3 (9th Cir. Dec.

20, 2000). We will assume, without deciding, that the California statutory

definition of burglary does not correspond in substance with the generic

definition of burglary set forth in   Taylor . Consequently, Torres’ California

burglary conviction does not automatically constitute a burglary offense under 8

U.S.C. § 1101(a)(43)(G).      See id. at 599.

       When the state’s statutory definition of burglary is broader than the generic

definition set forth in   Taylor , “the sentencing court may look to the underlying

indictment or information and the text of the guilty plea to determine whether the

defendant was charged with and admitted conduct which falls without question

within the ambit of Taylor ’s generic definition.”   United States v. Barney , 955



                                            -5-
F.2d 635, 639 (10th Cir. 1992). The court, however, may not consider the

particular facts underlying the conviction.         See Taylor , 495 U.S. at 600-02.

       In this case, Torres attached a copy of the felony complaint filed in the

California burglary case to the Memorandum in Support of Defendant’s Motion

for Departure that he filed with the district court. In the complaint, Torres was

charged with, “willfully and unlawfully enter[ing] a commercial building . . .

with the intent to commit larceny and any felony.” The government read from

the complaint at the sentencing hearing, and the district court relied on it to reach

the conclusion that Torres had pleaded guilty to conduct that fell within the

generic definition of burglary adopted in      Taylor .

       It is clear from our review of the California felony complaint       1
                                                                                that Torres

was convicted of a crime containing all the elements of generic burglary as set

forth in Taylor . Thus, the district court properly used Torres’ California burglary

conviction to increase his offense level by sixteen levels pursuant to U.S.S.G. §

2L1.2(b)(1)(A). Accordingly, the sentence imposed by the district court is hereby

affirmed .




       Torres argued at the sentencing hearing that the California conviction did
       1

not meet the generic definition of burglary because the building which he entered
was open to the public and therefore his entry was not unlawful or unprivileged.
We do not address this argument both because Torres does not raise it in this
appeal, and also because it would require this court to look beyond the fact of
conviction to Torres’ underlying conduct.

                                              -6-
ENTERED FOR THE COURT



Michael R. Murphy
Circuit Judge




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