     Case: 15-20308      Document: 00513794910      Page: 1   Date Filed: 12/13/2016




          IN THE UNITED STATES COURT OF APPEALS
                   FOR THE FIFTH CIRCUIT

                                                                   United States Court of Appeals

                                     No. 15-20308
                                                                            Fifth Circuit

                                                                          FILED
                                                                   December 13, 2016
UNITED STATES OF AMERICA,                                            Lyle W. Cayce
                                                                          Clerk
               Plaintiff–Appellee,

v.

CESAR BERNEL-AVEJA, also known as Cesar Areja, also known as Cesar
Aveja, also known as Cesar B. Aveja, also known as Cesar Bernel Aveja, also
known as Cesar Bernal Aveja, also known as Raul Luviano,

               Defendant–Appellant.




                   Appeal from the United States District Court
                        for the Southern District of Texas


Before HIGGINBOTHAM, SMITH and OWEN, Circuit Judges.
PRISCILLA RICHMAN OWEN, Circuit Judge:
      Cesar Bernel-Aveja was convicted under 8 U.S.C. § 1326(a) and (b)(2) of
illegal reentry after deportation and appeals his sentence. He contends that
his prior 1996 Ohio conviction for burglary does not qualify as “burglary of a
dwelling,” a specifically enumerated “crime of violence” under United States
Sentencing Guideline § 2L1.2, 1 and therefore that the district court erred in




      1   U.S. SENTENCING GUIDELINES MANUAL § 2L1.2 (U.S. SENTENCING COMM’N 2014).
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                                  No. 15-20308
applying a 12-level sentence enhancement.           We vacate his sentence and
remand for resentencing.
                                        I
      Bernel-Aveja pleaded guilty without a plea agreement to illegal reentry
after deportation subsequent to an aggravated felony conviction, which was a
violation of 8 U.S.C. § 1326(a) and (b)(2).        The presentence report (PSR)
recommended      a   base   offense   level   of   8   pursuant    to   Sentencing
Guideline § 2L1.2(a), and a 12-level “crime of violence” enhancement pursuant
to § 2L1.2(b)(1)(A)(ii), concluding that Bernel-Aveja’s 1996 Ohio conviction for
third-degree burglary constituted a “crime of violence” for which Bernel-Aveja
received no criminal history points. After applying a 3-level reduction for
acceptance of responsibility, the PSR calculated a total offense level of 17. With
a recommended criminal history category of III, the PSR calculated Bernel-
Aveja’s advisory Guidelines sentencing range to be 30 to 37 months of
imprisonment.
      Bernel-Aveja filed written objections to the PSR’s designation of his prior
conviction as a “crime of violence.” Pertinent to this appeal, Bernal argued
that the Ohio offense did not qualify as the enumerated offense of “burglary of
a dwelling” because Ohio permits conviction “even though the defendant forms
the intent to commit a crime only after the trespass.”
      Without specifically addressing Bernel-Aveja’s argument respecting the
timing of intent for purposes of generic burglary, the district court applied the
crime of violence enhancement and imposed a within-Guidelines sentence of
37 months of imprisonment, followed by a three-year term of supervised
release. Bernel-Aveja has appealed.
                                        II
      The Sentencing Guidelines provision applicable to Bernal-Aveja’s
conviction for illegal reentry after deportation was the version of § 2L1.2 in
                                        2
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                                       No. 15-20308
effect in June 2015, when he was sentenced. It directed that the offense level
should be increased by 12 if the defendant was previously convicted of a felony
described in subsection (b)(1)(A) that did not receive criminal history points
under Chapter Four of the Guidelines. 2 A “crime of violence” was among the
qualifying felony offenses described in that subsection, 3 and the definition of
“crime of violence” included “burglary of a dwelling.” 4
      The sole issue in this appeal is whether the district court erred in
concluding that Bernel-Aveja’s 1996 Ohio burglary conviction constituted
“burglary of a dwelling,” within the meaning of § 2L1.2 of Guidelines in effect




      2See U.S. SENTENCING GUIDELINES MANUAL § 2L1.2(b)(1)(A) (U.S. SENTENCING
COMM’N 2014), which provided:

      (b)    Specific Offense Characteristic
             (1) Apply the Greatest:

                If the defendant previously was deported, or unlawfully remained in
                the United States, after—
                (A) a conviction for a felony that is (i) a drug trafficking offense for
                    which the sentence imposed exceeded 13 months; (ii) a crime of
                    violence; (iii) a firearms offense; (iv) a child pornography offense;
                    (v) a national security or terrorism offense; (vi) a human
                    trafficking offense; or (vii) an alien smuggling offense, increase
                    by 16 levels if the conviction receives criminal history points
                    under Chapter Four or by 12 levels if the conviction does not
                    receive criminal history points. . . .
      3 See id.
      4 See id. cmt. 1(B)(iii):
      “Crime of violence” means any of the following offenses under federal, state, or
      local law: murder, manslaughter, kidnapping, aggravated assault, forcible sex
      offenses (including where consent to the conduct is not given or is not legally
      valid, such as where consent to the conduct is involuntary, incompetent, or
      coerced), statutory rape, sexual abuse of a minor, robbery, arson, extortion,
      extortionate extension of credit, burglary of a dwelling, or any other offense
      under federal, state, or local law that has as an element the use, attempted
      use, or threatened use of physical force against the person of another.

                                               3
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                                       No. 15-20308
when he was sentenced. 5 “We review a district court’s interpretation and
application of the guidelines de novo” 6 when, as here, there was an objection in
the district court that preserved the issue for appeal.
       The judgment of conviction regarding Bernel-Aveja’s 1996 offense
establishes that he pleaded guilty to burglary in the third degree under Ohio
Revised Code section 2911.12. 7 The Ohio legislature amended section 2911.12
after Bernel-Aveja committed the offense in 1996 but prior to the entry of his
guilty plea. However, that amendment is irrelevant to the questions before us,
and both parties agree that we should consider the statute prior to its
amendment. When Bernel-Aveja committed the 1996 offense, section 2911.12
provided in pertinent part:
       (A) No person, by force, stealth, or deception, shall do any of the
       following:

            (1) Trespass in an occupied structure . . . with purpose to
            commit therein any theft offense or any felony;

            (2) Trespass in a permanent or temporary habitation of any
            person when any person is present or likely to be present, with
            purpose to commit in the habitation any misdemeanor that is
            not a theft offense;




       5  Id. In two unpublished opinions, this court has held that other Ohio burglary
provisions that prohibit trespass into an “occupied structure,” which is by statutory definition
not limited to structures used for human habitation, see OHIO REV. CODE ANN. § 2909.01(C)
(West 2006 & Supp. 2016), do not categorically qualify as burglary of a dwelling. See United
States v. Ramirez, 344 F. App’x 962, 963-64 (5th Cir. 2009) (per curiam) (vacating a sentence
enhancement based on a prior conviction under OHIO REV. CODE ANN. § 2911.11(A)(1));
United States v. Rees, 233 F. App’x 362, 363-64 (5th Cir. 2007) (per curiam) (vacating a
sentence enhancement based on a prior conviction under OHIO REV. CODE ANN. §
2911.12(A)(3)). Bernel-Aveja’s statute of conviction lacks the “occupied structure” term and
instead proscribes trespass of a “permanent or temporary habitation.” Bernel-Aveja does not
argue that a “permanent or temporary habitation” applies to non-dwelling structures and is
therefore broader than the “dwelling” element. Rather, he appears to concede the issue.
       6 United States v. Bonilla, 524 F.3d 647, 651-52 (5th Cir. 2008).
       7 OHIO REV. CODE ANN. § 2911.12 (West 1990) (amended July 1, 1996).

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                                      No. 15-20308
           (3) Trespass in a permanent or temporary habitation of any
           person when any person is present or likely to be present.

              ....

       (C) Whoever violates this section is guilty of burglary. A violation
       of division (A)(1) is an aggravated felony of the second degree. A
       violation of division (A)(2) of this section is a felony of the third
       degree. A violation of division (A)(3) of this section is a felony of
       the fourth degree. 8

       Bernel-Aveja and the Government agree that he was convicted under
subsection (2) of section 2911.12 because the Ohio judgment of conviction
reflected that his offense was a third degree felony.              The term “trespass”
obtains its meaning from Ohio’s criminal trespass statute, which provides: “(A)
No person, without privilege to do so, shall do any of the following:                   (1)
Knowingly enter or remain on the land or premises of another . . . .” 9
       After incorporating the elements of “criminal trespass” into section
2911.12, the Ohio burglary statute at issue provides:
       (A) No person, by force, stealth, or deception, shall . . .

            (2) [without privilege to do so, knowingly enter or remain on
            the land or premises of another] in a permanent or temporary
            habitation of any person when any person is present or likely
            to be present, with purpose to commit in the habitation any
            misdemeanor that is not a theft offense.

       Bernel-Aveja contends that “burglary of a dwelling,” as used in the
Guidelines, requires the defendant to have the intent to commit a crime when
unlawfully entering the dwelling. Because the Supreme Court of Ohio has




       8Id.
       9OHIO REV. CODE ANN. § 2911.21; see also State v. Clelland, 615 N.E.2d 276, 287 (Ohio
Ct. App. 1992) (explaining that the term “trespass” in section 2911.12 is defined in section
2811.21).
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                                       No. 15-20308
construed language in another statute 10 that is virtually identical to the
language at issue in section 2911.12 to mean that the intent to commit a crime
may be formed at any time during the trespass, 11 Bernal-Aveja contends that
section 2911.12 is overly broad and criminalizes conduct that the generic
offense of burglary does not. Therefore, he contends, his conviction was not for
a “crime of violence” under § 2L1.2 of the Guidelines.
                                             III
       One of the Government’s arguments is that when Bernel-Aveja was
convicted in 1996, the Ohio intermediate courts of appeals were divided on the
issue of when a defendant must form the requisite intent under section
2911.12. 12 The Government submits that we should therefore rely on the law
prevailing in 1996 in the Tenth District of Ohio, the district in which Bernel-
Aveja was convicted. The Tenth District Court of Appeals had held that “the
intent with which a person forcibly trespasses in an occupied structure is that
which he had in mind at the time of the entry, not one which he may have
formed later.” 13 However, this authority—State v. Flowers—was expressly
overruled by the Ohio Supreme Court in State v. Fontes. 14
       The Ohio Supreme Court’s decision in Fontes did not change the law; it
construed an existing Ohio statute. The Fontes decision resolved a conflict
among Ohio intermediate appellate courts. As the Supreme Court of Ohio has
explained, “[t]he general rule is that a decision of a court of supreme



       10  See OHIO REV. CODE ANN. § 2911.11(A)(1).
       11  See State v. Fontes, 721 N.E.2d 1037, 1040 (Ohio 2000) (construing OHIO REV. CODE
ANN. § 2911.11(A)).
        12 See Clelland, 615 N.E.2d at 285-86 & n.3 (collecting cases); see also In re L.D., 626

N.E.2d 709, 709 (Ohio Ct. Com. Pl. 1993) (observing that Ohio courts are “inexplicably split
in their resolution” of the timing-of-intent issue).
        13 State v. Flowers, 475 N.E.2d 790, 792 (Ohio Ct. App. 1984).
        14 See Fontes, 721 N.E.2d at 1040 (holding that “it therefore follows that we are not

persuaded by the judgment[] of the court[] of appeals in . . . [State v.] Flowers”).
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                                       No. 15-20308
jurisdiction overruling a former decision is retrospective in its operation, and
the effect is not that the former was bad law, but that it never was the law.” 15
The elements of Bernel-Aveja’s offense are determined by consulting the
statute, as construed by the Supreme Court of Ohio. 16
       The Government’s position would also produce the anomalous result that
for convictions pre-dating Fontes, the crime-of-violence enhancement would
depend on which Ohio court was the court of conviction. A defendant that
pleaded guilty in the Tenth District of Ohio before Fontes issued may receive
the 12-level enhancement at issue in this case, while a defendant that pleaded
guilty in an adjacent district would not.
       In Fontes, the defendant was convicted of rape and aggravated
burglary. 17    Though the facts were disputed, there was evidence that the
defendant, who was acquainted with the victim, entered her unlocked
apartment uninvited while the victim was sleeping under the influence of pain
medication, and the defendant performed nonconsensual oral sex upon her. 18
The jury was instructed that the defendant “need not possess the purpose to
commit a criminal offense prior to trespassing into an occupied structure but
could form the purpose to commit a criminal offense while the trespass is in
progress.” 19 The Ohio Supreme Court upheld the conviction, holding that “a
defendant may form the purpose to commit a criminal offense at any point




       15 Peerless Elec. Co. v. Bowers, 129 N.E.2d 467, 468 (Ohio 1955) (per curiam).
       16 See, e.g., Johnson v. United States, 559 U.S. 133, 136-38 (2010) (relying on a Florida
Supreme Court decision which post-dated the conviction at issue to define the elements of a
Florida offense); see also Mathis v. United States, 136 S. Ct. 2243, 2256 (2016); cf. Johnson v.
Fankell, 520 U.S. 911, 916 (1997) (“Neither this Court nor any other federal tribunal has any
authority to place a construction on a state statute different from the one rendered by the
highest court of the State.”).
       17 Fontes, 721 N.E.2d at 1038.
       18 Id.
       19 Id. at 1039.

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during the course of a trespass.” 20 The Ohio Supreme Court has subsequently
reiterated that “[o]ur cases make clear that the state was required to show that
[the defendant] invaded the dwelling for the purpose of committing a crime or
that he formed that intent during the trespass.” 21
       Though Fontes and the subsequent Ohio Supreme Court decision
concerned convictions under Ohio Revised Code section 2911.11, 22 it is
undisputed that the holdings in those cases regarding the timing of intent
apply to section 2912.12 as well because both statutes use the defined term of
“trespass” and include similar intent elements. 23
       We must determine whether section 2911.12 is overly inclusive and does
not come within the generic meaning of “burglary of a dwelling” since under
that section, the intent to commit a crime may be formed during the trespass
and not necessarily at the time of entry.
                                            IV
       The Guidelines do not define the offense denominated in §2L1.2 as
“burglary of a dwelling.” We determine the elements of an offense enumerated
in a Guidelines provision that is not expressly defined by ascertaining its
generic, contemporary meaning. 24            When we have determined the generic
elements of an offense, we generally employ the “categorical” approach to



       20 Id. at 1040.
       21 State v. Gardner, 889 N.E.2d 995, 1002 (Ohio 2008) (citing Fontes, 721 N.E.2d 1037).
       22 See Gardner, 889 N.E.2d at 998-99; Fontes, 721 N.E.2d at 1037.
       23 Compare OHIO REV. CODE ANN. § 2911.11(A) (West 2006) (“No person, by force,

stealth, or deception, shall trespass in an occupied structure . . . , when another person other
than an accomplice of the offender is present, with purpose to commit in the structure . . . any
criminal offense . . . .”) with OHIO REV. CODE ANN. § 2911.12(A)(2) (West 1990) (“No person,
by force, stealth, or deception, shall . . . (2) Trespass in a permanent or temporary habitation
of any person when any person is present or likely to be present, with purpose to commit in
the habitation any misdemeanor that is not a theft offense.”); see also State v. Evett, No.
14CA0008-M, 2015 WL 4069588, at *3 (Ohio Ct. App. July 6, 2015) (applying Fontes to a
conviction under § 2911.12(A)(1)).
       24 See, e.g., United States v. Ortega-Gonzaga, 490 F.3d 393, 394 (5th Cir. 2007).

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                                       No. 15-20308
compare the elements of the state offense to the elements of the generic
offense. 25 As the Supreme Court has often explained, “[u]nder this approach
we look ‘not to the facts of the particular prior case,’ but instead to whether
‘the state statute defining the crime of conviction’ categorically fits within the
‘generic’ federal definition of a corresponding” offense. 26 “Because we examine
what the state conviction necessarily involved, not the facts underlying the
case, we must presume that the conviction ‘rested upon [nothing] more than
the least of th[e] acts’ criminalized, and then determine whether even those
acts are encompassed by the generic federal offense.” 27 However, this “is not
an invitation to apply ‘legal imagination’ to the state offense; there must be ‘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.’” 28
       We held in United States v. Herrera-Montes that the generic definition of
burglary arrived upon by the Supreme Court in United States v. Taylor
“requires that the defendant intend to commit a crime at the time of unlawful
entry or remaining in.” 29 Our decision in Herrera-Montes, and our subsequent




       25  See, e.g., United States v. Pascacio-Rodriguez, 749 F.3d 353, 358 (5th Cir. 2014).
       26  Moncrieffe v. Holder, 133 S. Ct. 1678, 1684 (2013) (quoting Gonzales v. Duenas-
Alvarez, 549 U.S. 183, 186 (2007)); see also Mathis v. United States, 136 S. Ct. 2243, 2248
(2016).
        27 Moncrieffe, 133 S. Ct. at 1684 (quoting Johnson v. United States, 559 U.S. 133, 137

(2010)).
        28 Id. at 1684-85 (quoting Duenas-Alvarez, 549 U.S. at 193).
        29 490 F.3d 390, 392 (5th Cir. 2007); see also United States v. Fambro, 526 F.3d 836,

850 (5th Cir. 2008) (noting in dicta in a case involving the Armed Career Criminal Act
(ACCA), 18 U.S.C. § 924(e), that “[w]e have held that ‘Taylor requires that the defendant
intend to commit a crime at the time of unlawful entry or remaining in’”) (quoting Herrera-
Montes, 490 F.3d at 392); United States v. Constante, 544 F.3d 584, 586, 587 (5th Cir. 2008)
(per curiam) (in a case arising under the ACCA, holding that conviction for “enter[ing] a
building or habitation and commit[ing] or attempt[ing] to commit a felony, theft, or an
assault,” under TEX. PENAL CODE ANN. § 30.02(a)(3), was not generic burglary because it did
not contain the element of intent to commit a crime “at the moment of entry”) (citing Herrera-
Montes, 490 F.3d at 392).
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                                       No. 15-20308
decision in United States v. Constante, 30 govern this case.                The statutory
subsections under consideration in Herrera-Montes and Constante were not
“remaining in” provisions, 31 while the Ohio statute under which Bernel-Aveja
was convicted was a “remaining in” statute. Nevertheless, our statements in
Herrerra-Montes and in Constante—which note that when a conviction is for
burglary committed by unlawful entry, the intent to commit a crime on the
premises must be formed by the time of entry—were not dicta and are binding
on this court because they were essential to the holdings in those cases. 32
       The Tennessee statutory provision under which the defendant in
Herrerra-Montes had previously been convicted defined the offense of
conviction as follows:       “(a) A person commits burglary who, without the
effective consent of the property owner . . . (3) [e]nters a building and commits
or attempts to commit a felony, theft, or assault . . . .” 33 We held that because
this provision did not require intent “to commit a crime at the time of unlawful
entry or remaining in” the offense was not a crime of violence under § 2L1.2. 34
Though we did not expressly say so, the commission or attempted commission
of “a felony, theft, or assault” constituted the “intent” aspect of the Tennessee
offense, since intent must be formed at least by the time the person “commits
or attempts to commit” one of the offenses enumerated in the Tennessee
statute.    The Herrera-Montes decision offered as a hypothetical example



       30  544 F.3d at 586-87.
       31  See id. at 585 (addressing TEX. PENAL CODE ANN. § 30.02(a)(3)); Herrera-Montes,
490 F.3d at 391 (addressing TENN. CODE ANN. § 39-14-402(a)(3)).
        32 See United States v. Segura, 747 F.3d 323, 328 (5th Cir. 2014) (“A statement is

dictum if it could have been deleted without seriously impairing the analytical foundations
of the holding and being peripheral, may not have received the full and careful consideration
of the court that uttered it. A statement is not dictum if it is necessary to the result or
constitutes an explication of the governing rules of law.”) (internal quotation marks omitted)
(quoting Int’l Truck & Engine Corp. v. Bray, 372 F.3d 717, 721 (5th Cir. 2004)).
        33 TENN. CODE ANN. § 39-14-402(a)(3).
        34 Herrera-Montes, 490 F.3d at 392.

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                                     No. 15-20308
“teenagers who unlawfully enter a house only to party, and only later decide to
commit a crime,” opining that they “are not common burglars” in such a
scenario. 35 Because the Tennessee statute did not require intent to commit a
crime to have been formed at the time of entry, this court vacated the sentence
and remanded for resentencing. 36
       In Constante we held that a particular Texas burglary offense “is not a
generic burglary under the Taylor definition because it does not contain an
element of intent to commit a [crime] at the moment of entry.” 37 The Texas
offense at issue was set forth in Texas Penal Code § 30.02(a)(3), which
criminalized “enter[ing] a building or habitation and commit[ting] or
attempt[ing] to commit a felony, theft, or an assault.” 38 We held that this
offense was not a “violent felony” under the ACCA. 39
      In the present case, the elements of the Ohio offense for which Bernal-
Aveja was convicted are found in two separate statutes. 40 The “remaining in”
alternative to “entry” is partially set forth within the definition of “trespass,”
found in section 2911.21(A). 41 These statutes do not appear to define two
separate offenses, such that entering without privilege is necessarily a
separate offense from remaining without privilege, and jury unanimity would
be required as to whether unlawful entry or unlawful remaining in, or both,
occurred. 42 In any event, there is no indication in the record before us that



      35  Id.
      36  Id.
       37 United States v. Constante, 544 F.3d 584, 587 (5th Cir. 2008) (per curiam).
       38 Id. at 585 (construing TEX. PENAL CODE ANN. § 30.02(a)(3)).
       39 Id. 587.
       40 OHIO REV. CODE ANN. § 2911.12 (West 1990) (amended July 1, 1996), and §

2911.21(A)(1).
       41 Id. § 2911.21(A)(1) (“No person, without privilege to do so, shall do any of the

following: (1) [k]nowingly enter or remain on the land or premises of another . . . .”).
       42 See Mathis v. United States, 136 S. Ct. 2243, 2249 (2016) (explaining how to

determine if a statute is divisible, which means that it sets forth more than one offense).
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                                     No. 15-20308
Bernal-Aveja was convicted of unprivileged “remaining in” rather than
unprivileged entry. Therefore, we must assume that Bernal-Aveja could have
been convicted of unlawful entry, rather than unlawful “remaining in.” 43 Ohio
law permits the factfinder to find that the defendant unlawfully entered a
dwelling and thereafter formed the intent to commit a crime. 44 Therefore,
based on the holding in Herrera-Montes, the Ohio offense is overly broad
because it is not congruent with generic burglary.
      The fact that we recognized in Herrera-Montes that the generic definition
of burglary could have a “remaining in” alternative does not affect the actual
holding in that case or its applicability to the present case. We said in Herrera-
Montes that “Taylor requires that the defendant intend to commit a crime at
the time of unlawful entry into or remaining in.” 45 We did not clearly indicate
what we considered the elements of a “remaining in” generic burglary to be.
Conceivably, the offense of burglary by unlawfully “remaining in” may occur
after unlawfully entering or after lawfully entering. A classic example of
lawful entry but unlawful remaining in would be when a person enters a bank
during regular hours then conceals himself with the intent to commit theft
after the bank closes. As noted, our decision in Herrera-Montes is not clear as
to how we would define a “remaining in” generic burglary offense, though there
was a discussion in Herrera-Montes of “remaining in” statutes in a footnote and
a reference to a discussion in Herrera-Montes’s companion case, Ortega-
Gonzaga. 46 But even if we were to confine the definition of a “remaining in”
generic burglary to situations in which entry was lawful and only the
remaining in was unlawful, the Ohio statute at issue does not appear to require


      43  See Moncrieffe v. Holder, 133 S. Ct. 1678, 1684 (2013).
      44  See State v. Fontes, 721 N.E.2d 1037, 1040 (Ohio 2000).
       45 United States v. Herrera-Montes, 490 F.3d 390, 392 (5th Cir. 2007).
       46 See Herrera-Montes, 490 F.3d at 392 n.1 (citing United States v. Ortega-Gonzaga,

490 F.3d 393, 396 & n.5 (5th Cir. 2007)).
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                                       No. 15-20308
the factfinder to choose between two alternative offenses of unlawful entry or
lawful entry but unlawfully remaining in. For example, it appears that under
the Ohio definition of trespass, some jurors could find that a person unlawfully
entered while others could find he lawfully entered but unlawfully remained
on the premises. Similarly, unanimity as to when the intent to commit a crime
while on the premises does not appear to be required under Ohio law. 47
Therefore, the Ohio offense for which Bernel-Aveja was convicted could have
consisted of unlawful entry with the intent to commit a crime on the premises
formed after that unlawful entry.            This offense does not come within the
“generic” definition of burglary as we articulated that definition in Herrera-
Montes.
                                      *       *        *
       Accordingly, we VACATE Bernel-Aveja’s sentence and REMAND for
resentencing.




       47 See Fontes, 721 N.E.2d at 1039, 1040 (approving a trial court’s instruction to a jury
that “in order to be convicted of aggravated burglary, appellant need not possess the purpose
to commit a criminal offense prior to trespassing into an occupied structure but could form
the purpose to commit a criminal offense while the trespass is in progress”).
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                                  No. 15-20308
PATRICK E. HIGGINBOTHAM, Circuit Judge, concurring in the judgment:

      Today our Court is urged to tread a path that defies the overarching
purpose of congressionally authorized enhancements of criminal sentences in
federal court. Congress authorizes enhancement of a sentence if the defendant
has prior convictions of certain crimes, including state-court convictions. These
enhancements lie in a larger matrix of sentencing guidelines. The guidelines
form a large pattern of sentencing regulation whose very structure was born of
the effort to achieve sentencing fairness among defendants by assuring that
the conduct made criminal had equal weight across all defendants. When a
sentencing court looks at prior criminal conduct captured in state-court
convictions, varied labels among the states for the same criminal conduct
challenge its effort. The fix was to adopt a generic federal metric—here, for
burglary. And to assure that all defendants were treated the same for the same
conduct, a state-court label of a crime would not control. For example, a state
opting to expand its definition of burglary to include a petty theft committed
while trespassing, as it is free to do, would create disparities in sentencing
defendants who have engaged in quite different conduct.
      All this is rote. But much follows from these basic principles of
evenhanded sentencing and their deploy in the effort to mitigate the corrosive
bite of disparity into the reality and presentment of an evenhanded judiciary.
It is apparent that the effort is ill-served by gathering as many states as
possible under a common label. That our federal template is not met by all
states is no failure. To the contrary, sweeping all state definitions of “burglary”
into the federal rule is a pursuit for a “uniformity” that defies the central
purpose of assigning similar weight in sentencing to similar conduct. Stated
directly, it confounds the congressional purpose. These realities must inform
our reading of the Supreme Court’s generic formulation.


                                        14
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                                      No. 15-20308
       The federal circuits differ over the meaning of the phrase “remaining in”
in the Supreme Court’s generic definition of burglary. 1 Broadly speaking,
circuits offer two competing views. The first view is that the act of “remaining
in” a building for purposes of generic burglary “is a discrete event that occurs
at the moment when a perpetrator, who at one point was lawfully present,
exceeds his license and overstays his welcome.” 2 The oft-given example is the
bank customer who enters during business hours, then hides until after
closing, so that when the bank is empty, he can take the bank’s money. 3 Under
this view, the act of “remaining in” occurs at a discrete point in time, and to
constitute burglary, the perpetrator must have intended to commit a further
crime at that discrete point. 4
       The competing view interprets “remaining in” to be a continuous
undertaking or condition that exists for the entire duration that a perpetrator
is inside of a building. 5 Under this view, if at any point during a trespass the
perpetrator forms the intent to commit a further crime, he converts his
presence from a trespass into a full-blown burglary because the intent to
commit a further crime was formed “while remaining in.” 6 By this view, the
perpetrator need not have had criminal intent at the time the trespass began,
he need only have developed it at some point during the trespass—even




       1 See Taylor v. United States, 495 U.S. 575, 598 (1990) (“[T]he generic, contemporary
meaning of burglary contains 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.”).
       2 United States v. McArthur, 836 F.3d 931, 944 (8th Cir. 2016).
       3 3 WAYNE R. LAFAVE, SUBSTANTIVE CRIMINAL LAW § 21.1(b) (2d ed.).
       4 Id. (“This means, of course, that the requisite intent to commit a crime within need

only exist at the time the defendant unlawfully remained within.”).
       5 See United States v. Bonilla, 687 F.3d 188, 193-94 (4th Cir. 2012).
       6 Id. at 194 (emphasis added).


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                                     No. 15-20308
immediately prior to committing the further crime inside the building. 7 As the
Ohio Supreme Court explains its state law, “a person . . . is continuing a
criminal trespass so long as he is there without permission. Thus, if during the
course of this trespass a defendant forms the purpose to commit a felony
offense, the crime of aggravated burglary is committed at that time.” 8 This
view criminalizes conduct more broadly.
       We must decide which of the two views the Supreme Court intended to
encapsulate when it included “remaining in” as an alternative to “entry” in its
generic definition of burglary. The answer has relevance because a minority of
states have given the phrase “remaining in” in their burglary statutes the
broad interpretation—the survey of the special concurrence supposedly
identifies fourteen. All else equal, those states’ burglary convictions fall within
generic burglary only if the Supreme Court’s “remaining in” language in the
generic definition is given the same, broad construction. Additionally, two
states have enacted “burglary” provisions that criminalize no more than
unlawful entry and subsequent commission of a crime; 9 burglary convictions
under those provisions similarly come within generic burglary only through
the “remaining in” alternative construed broadly.
      We took the narrower approach to generic burglary’s “remaining in”
language in United States v. Herrera-Montes. 10 There, we were confronted with
whether the Tennessee statute cited above, which is labeled “burglary” but
criminalizes nothing more than committing a crime while being a trespasser,


      7   See, e.g., State v. Fontes, 721 N.E.2d 1037, 1038-40 (Ohio 2000) (trespasser who
spontaneously decided to rape inhabitant upon discovering her sleeping became a burglar
under Ohio law as a result).
        8 Id. at 1039-40.
        9 TENN. CODE ANN. § 39-14-402(a)(3) (“A person commits burglary who, without the

effective consent of the property owner: . . . Enters a building and commits or attempts to
commit a felony, theft or assault.”); TEX. PENAL CODE § 30.02(a)(3) (similar).
        10 490 F.3d 390 (5th Cir. 2007).


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                                       No. 15-20308
was generic burglary for the purposes of the Sentencing Guidelines. 11 That
Tennessee provision could have come within generic burglary only under a
broad reading of “remaining in” in the generic definition. We rejected that
broad reading, explaining disapprovingly that “if the intent could be formed
anytime, then every crime committed after an unlawful entry or remaining in
would be burglary.” 12 A contrary holding would have swept too broadly, giving
the same weight to criminal conduct having in common only the label of
burglary.
       The special concurrence calls Herrera-Montes’s discussion of the
“remaining in” alternative of generic burglary “offhanded,” “entirely
gratuitous,” and “entirely unnecessary” dicta. Yet, the very cases that it
advocates this circuit follow acknowledge that statutes like Tennessee’s can be
generic burglary only under the remaining-in alternative. 13 The special
concurrence’s conclusion that Herrera-Montes opined on an issue not before it,
which focuses only on the fact that the Tennessee statute does not contain the
words “remaining in,” is therefore erroneous.
       That precedent disposes of this appeal. Bernel-Aveja’s statute of
conviction, Ohio third-degree burglary, incorporates the phrase “remaining in,”
and the Ohio Supreme Court has ascribed to it the broader reading such that
it criminalizes conduct every bit as broadly as the Tennessee provision in




       11 Id. at 391 (citing TENN. CODE ANN. § 39-14-402(a)(3)).
       12 Herrera-Montes, 490 F.3d at 392 n.1.
       13 See United States v. Priddy, 808 F.3d 676, 685 (6th Cir. 2015) (“And, burglary under

[Tenn. Code Ann.] § 39–14–402(a)(3) is also a “remaining-in” variant of generic burglary
because someone who enters a building or structure and, while inside, commits or attempts
to commit a felony will necessarily have remained inside the building or structure to do so.”
(emphasis added)); Bonilla, 687 F.3d at 194 (“[A] defendant convicted under [Tex. Penal
Code] section [30.02](a)(3) necessarily developed the intent to commit the crime while
remaining in the building, if he did not have it at the moment he entered.” (emphasis added)).
                                             17
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                                      No. 15-20308
Herrera-Montes. 14 Both statutes of conviction are broader than generic
burglary, and cannot support a sentencing enhancement as the enumerated
crime of “burglary of a dwelling.”
       The special concurrence calls for en banc departure from this precedent,
preferring the broad reading of “remaining in” burglary. It faults the narrow
view for failing to include all such state “burglary” convictions within the
generic definition. That position confounds the purpose of evenhanded
sentencing sought after by the Sentencing Guidelines and related statutes. It
also fouls the mandate of Taylor itself.
       The Supreme Court’s discussion in Taylor undermines the special
concurrence’s misplaced emphasis on not allowing any states to be “left out” of
burglary sentencing enhancements. The Court was clear to the point of
redundancy that “the meaning of ‘burglary’ for purposes of [the ACCA]” does
not “depend on the definition adopted by the State of conviction.” 15 The Court
specifically cited multiple examples of states that it believed defined burglary
too broadly to come within the generic definition. 16 It concluded that “‘burglary’
in [the ACCA] must have some uniform definition independent of the labels
employed by the various States’ criminal codes.” 17 The Court recently
reaffirmed that “the label a State assigns to a crime—whether ‘burglary,’
‘breaking and entering,’ or something else entirely—has no relevance to
whether that offense is an ACCA predicate.” 18




       14 See Fontes, 721 N.E.2d at 1040 (“Accordingly, we hold that for purposes of defining
the offense of aggravated burglary pursuant to R.C. 2911.11, a defendant may form the
purpose to commit a criminal offense at any point during the course of a trespass.”).
       15 Taylor, 495 U.S. at 590.
       16 Id. at 591.
       17 Id. at 592.
       18 Mathis v. United States, 136 S. Ct. 2243, 2251 (2016).


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                                     No. 15-20308
       The Court declined to incorporate the state definitions of burglary into
the ACCA primarily because “[t]hat would mean that a person convicted of
unlawful possession of a firearm would, or would not, receive a sentence
enhancement based on exactly the same conduct, depending on whether the
State of his prior conviction happened to call that conduct ‘burglary.’” 19 The
position advocated by the special concurrence leads to precisely that
undesirable result: teenagers who remain in a house beyond their invitation
intending only to party, then later decide to steal, earn themselves a burglary
conviction in (among other states) Ohio, Texas, and Tennessee, but not in the
majority of states. Under the special concurrence’s view, whether those
identical perpetrators who conducted themselves identically have committed
“violent felonies” under the ACCA and Sentencing Guidelines would depend
entirely on the jurisdiction of conviction—an arbitrary distinction that the
Court found it “implausible” for Congress to have intended. 20
       That a small number of states’ burglary convictions might be excluded
from the generic definition of burglary for purposes of sentencing enhancement
is not an alarming result. To the contrary, it is a desired by-product of Taylor.
The Supreme Court contemplated that some state burglary convictions would
fall outside of its generic definition due to the various idiosyncrasies and
vagaries of state burglary statutes. 21 The select few states who interpret their
burglary statutes as nothing more than “a location enhancement for what
might otherwise be petty theft” 22 need not, and should not, frustrate Taylor’s




       19Taylor, 495 U.S. at 590-91.
       20Id. at 590.
      21 See Taylor, 495 U.S. at 590-92.
      22 Helen A. Anderson, From the Thief in the Night to the Guest who Stayed Too Long:

The Evolution of Burglary in the Shadow of the Common Law, 45 IND. L. REV. 629, 647 (2012).
                                            19
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                                      No. 15-20308
effort to fend off disparate federal sentencing from the want of common
meaning in labeling criminal conduct by the states.
       The reading of generic burglary proffered by the special concurrence
strains common sense, an elusive element in federal sentencing today. The
Supreme Court made clear that generic burglary requires “an unlawful or
unprivileged entry into, or remaining in, a building or other structure, with
intent to commit a crime.” 23 “Remaining in” is used as an alternative means to
“entry,” and the two are set in parallel with one another. A natural reading
suggests that both refer to the initiation of the trespass, and the use of the
dependent clause “with intent to commit a crime” suggests that the intent must
exist contemporaneously with that initiation. Instead, the special concurrence
would have us read “remaining in” to reach every crime committed while
trespassing inside a building, regardless when intent to commit that crime was
formed. Indeed, the special concurrence’s reading of “remaining in” renders
“entry” superfluous in the Court’s generic definition because under that view,
every unlawful entry becomes unlawful remaining in immediately on entry. 24
       The circuits that have been persuaded to adopt the broad reading of
“remaining in” generic burglary have done so because the Supreme Court, in
announcing the categorical approach, instructed courts that “the exact
formulations may vary” and to look whether the statute “corresponds in
substance to the generic meaning.” 25 I do not take that to be a charge to
dispense with the most fundamental character of burglary: that the
perpetrator trespass while already harboring intent to commit a further crime.
Rather, the language was to disavow any reliance on formal labels. The Court’s


       23  Taylor, 495 U.S. at 598 (emphasis added).
       24  McArthur, 836 F.3d at 944.
        25 See Priddy, 808 F.3d at 685 (citing Taylor, 495 U.S. at 602); Bonilla, 687 F.3d at

194 (citing Taylor, 495 U.S. at 599).
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                                      No. 15-20308
categorical approach is quite exacting, as has recently been iterated. 26 Indeed,
slight expansion beyond generic burglary takes a statute of conviction outside
the definition. 27 Surely so crimes lacking the fundamental character of
burglary.
       Contemporary burglary statutes have developed significantly from their
common law roots; the Court’s generic definition recognizes as much. 28 But
however states may elect to define burglary, the federal generic definition must
in a discernable way present as kindred of the common law crime of burglary,
albeit shed of strictures such as nighttime and occupied dwelling—something
that the interpretation being urged in the special concurrence fails to do. It is
entirely each state’s prerogative how broadly to construe its burglary statute,
but the generic metric of burglary should not be read to invite similar
treatment for dissimilar offenders. And a shoplifter is a world apart from one
who enters or remains in a building with intent to steal—different enough, at
least, that Congress focused its efforts to enhance sentences on the wave of
professional criminals whose main financial support rests on burglary. 29
       Assuming the accuracy of the survey undertaken by the special
concurrence, fourteen states have given the phrase “remaining in” in their
burglary statutes the broad construction. Which side of the instant debate one
prefers only has the potential to affect whether those fourteen state burglary
statutes are included as generic burglary; the special concurrence seeks to
include them all, and the view expressed here may have the effect of excluding
them. Some of them may already be excluded from generic burglary for a


       26 See Mathis, 136 S. Ct. at 2248-50.
       27 Id. at 2250 (Iowa burglary not generic burglary because it includes unlawful entry
into vehicles, not just buildings); Taylor, 495 U.S. at 591 (California burglary not generic
burglary because it supports a conviction even when entry was lawful).
       28 See Taylor, 495 U.S. at 592-96.
       29 Id. at 584-85.


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                                   No. 15-20308
different reason entirely. It is nigh impossible to determine in a prospective
manner the subtle contours of what every state burglary provision requires.
This is precisely the reason that the Supreme Court sought to free federal
courts from the burden of undertaking extensive state surveys.
      I must disagree with my colleague’s special concurrence and with the
suggestions in the panel majority’s opinion that this circuit’s precedent is in
error. I concur in the judgment.




                                       22
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                                       No. 15-20308
PRISCILLA RICHMAN OWEN, Circuit Judge, concurring:
       Even though amendments to the Sentencing Guidelines effective
November 1, 2016 eliminated “burglary of a dwelling” as an enumerated,
predicate     offense    in   determining       whether      a   Sentencing      Guidelines
enhancement applies, 1 how courts define generic burglary continues to be of
importance. “Burglary” is an enumerated predicate offense in the Armed
Career Criminal Act (ACCA), 2 and the definition of “aggravated felony” for
purposes of immigration laws includes “burglary.” 3
       Because of the importance of the issue, I am taking the unusual step of
filing a concurring opinion with the opinion I have written on behalf of the
panel, after coming to the conclusion that dicta in our decision in United States
v. Herrera-Montes 4 defined generic burglary in a way that is not supported by
the Supreme Court’s opinion in Taylor v. United States 5 or the elements of
burglary set forth in statutes adopted by a majority of the States at the time
the ACCA was enacted. 6 Although the statute at issue in Herrera-Montes
criminalized only unlawful entry and was not a “remaining in” statute, the
opinion in Herrera-Montes said that the intent to commit a crime upon the
premises, which is an element of generic burglary, must exist “at the time of
unlawful entry or remaining in.” 7 This timing aspect of the formation of intent
with regard to “remaining in” is not found in Taylor.



       1  See U.S. SENTENCING GUIDELINES MANUAL app. C, amend. 802, at 149-50 (U.S.
SENTENCING COMM’N 2016).
        2 18 U.S.C. § 924(e).
        3 See 8 U.S.C. § 1101(a)(43)(G).
        4 490 F.3d 390 (5th Cir. 2007).
        5 495 U.S. 575, 599 (1990) (“We conclude that a person has been convicted of burglary

for purposes of a § 924(e) enhancement if he is convicted of any crime, regardless of its exact
definition or label, having the basic elements of unlawful or unprivileged entry into, or
remaining in, a building or structure, with intent to commit a crime.”).
        6 See infra Part III.
        7 See Herrera-Montes, 490 F.3d at 391-92.

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                                       No. 15-20308
       We should have said in Herrera-Montes that when a statute of conviction
criminalizes only unlawful entry, the intent to commit a crime on the premises
must exist at the time of entry. We should not have expressed an opinion as
to when such an intent must be formed when a “remaining in” burglary offense
is at issue. Both Taylor’s generic definition of burglary and a majority of the
States’ burglary statutes include unlawful entry or “remaining in” in defining
burglary. 8 However, “remaining in” statutes diverge as to when intent to
commit another crime on the premises must be formed, and there is no
indication that when the ACCA was enacted, the criminal codes of most States
agreed that intent to commit a crime on the premises must have been formed
at or before the moment of unlawfully remaining in.
       With great respect, JUDGE HIGGINBOTHAM’s concurring opinion in the
present case, mounting a defense of the opinion he authored in Herrera-
Montes, obscures the focus of the inquiry as to what “generic” burglary requires
with respect to the timing of intent. It goes without saying that a particular
State’s definition of burglary is not controlling. 9 Instead, the Supreme Court
reasoned in Taylor that the generic approach to ascertaining the elements of
an offense takes account of the elements of the offense shared in common
among a majority of States’ formulations. 10 The Supreme Court has confirmed
in subsequent opinions that to determine a generic offense’s elements, the
criminal codes and statutes of the states must be examined to see which



       8 See infra Parts III and IV.
       9 See, e.g., Taylor v. United States, 495 U.S. 575, 592 (1990) (“We think that ‘burglary’
in § 924(e) must have some uniform definition independent of the labels employed by the
various States’ criminal codes.”).
       10 See id. at 598 (“Congress meant by ‘burglary’ the generic sense in which the term is

now used in the criminal codes of most States.”); see also id. at 589 (“[T]he 1984 definition of
burglary shows that Congress, at least at that time, had in mind a modern ‘generic’ view of
burglary, roughly corresponding to the definitions of burglary in a majority of the States’
criminal codes.”).
                                              24
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                                       No. 15-20308
elements appear in “most” of them. 11             JUDGE HIGGINBOTHAM’s concurring
opinion, and the dicta in Herrera-Montes, advocate a definition of burglary
committed by unlawfully remaining in that has been adopted by approximately
five (5) state statutes, 12 and there is no indication that at the time the Supreme
Court set forth the elements of generic burglary in Taylor, most States had
enacted a definition of burglary congruent with the concurring opinion’s
definition. JUDGE HIGGINBOTHAM’s formulation is decidedly not the majority
view of when intent must be formed during the commission of burglary by
unlawfully remaining in a building.
       I do not advocate that generic burglary must include “all” state burglary
statutes or that no state burglary statute should be “left out,” as JUDGE
HIGGINBOTHAM’s concurring opinion asserts. 13 I advocate only that this court
adhere to the elements of generic “remaining in” burglary as expressed in
Taylor. When Taylor was decided, it appears that some States required that
intent to commit a crime while unlawfully remaining in a building must be
formulated at or before the time of trespass, while other States permitted such
intent to be formed during the time the defendant unlawfully remained in the
building. There is no indication that the weight of authority supported one
view over the other. The generic definition of burglary is just that, generic.
Generic burglary does not specify when intent to commit a crime on the
premises must be formed.




       11  See, e.g., Gonzales v. Duenas-Alvarez, 549 U.S. 183, 190, 195-96 (2007) (listing
States’ statutes to confirm the generic meaning of theft); Scheidler v. National Organization
for Women, Inc., 537 U.S. 393, 410 (2003) (“In Taylor, . . . we concluded that in including
‘burglary’ as a violent crime in 18 U.S.C. § 924(e)’s sentencing enhancement provision for
felons’ possessing firearms, Congress meant ‘burglary’ in ‘the generic sense in which the term
is now used in the criminal codes of most States.’” (quoting Taylor, 495 U.S. at 598)).
        12 See infra Part IV.
        13 See ante at p. __.

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                                     No. 15-20308
      There is a split among the Circuit Courts as to whether generic burglary
requires intent to commit a crime to be formed at or before the time that the
presence on the property first becomes unlawful. 14 The Fifth Circuit should
join the Fourth 15 and Ninth 16 Circuits in concluding that when a statute
permits burglary to be committed while unlawfully remaining in a building,
intent to commit a crime while within can be formed before or after the trespass
initially occurs.
                                            I
      Ascertaining whether a prior conviction qualifies as a “crime of violence”
under the Guidelines requires application of the “categorical approach,” with
which federal sentencing and appellate courts have wrestled for many years. 17


      14  See infra Part V.
      15  See United States v. Bonilla, 687 F.3d 188, 192-93 (4th Cir. 2012).
       16 See United States v. Reina-Rodriguez, 468 F.3d 1147, 1155-56 (9th Cir. 2006),

overruled on other grounds by United States v. Grisel, 488 F.3d 844 (9th Cir. 2007) (citing
Taylor v. United States, 495 U.S. 575, 598 (1990)).
       17 See U.S. SENTENCING GUIDELINES MANUAL app. C, amend. 802, at 155 (U.S.

SENTENCING COMM’N 2016)
               First, the Commission has received significant comment over
               several years from courts and stakeholders that the ‘categorical
               approach’ used to determine the particular level of enhancement
               under the existing guideline is overly complex and resource-
               intensive and often leads to litigation and uncertainty. The
               existing guideline’s single specific offense characteristic provides
               for enhancements of between 4 levels and 16 levels, based on the
               nature of a defendant’s most serious conviction that occurred
               before the defendant was ‘deported’ or ‘unlawfully remained in
               the United States.’ Determining whether a predicate conviction
               qualifies for a particular level of enhancement requires
               application of the categorical approach to the penal statute
               underlying the prior conviction. See generally United States v.
               Taylor, 495 U.S. 575 (1990) (establishing the categorical
               approach). Instead of the categorical approach, the amendment
               adopts a much simpler sentence-imposed model for determining
               the applicability of predicate convictions. The level of the
               sentencing enhancement for a prior conviction generally will be
               determined by the length of the sentence imposed for the prior
               offense, not by the type of offense for which the defendant had
               been convicted.
                                            26
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                                  No. 15-20308
The present case arises under the version of § 2L1.2 of the Guidelines that was
in effect in June 2015, when Bernel-Aveja was sentenced. His base offense
level was increased by 12 because of a 1996 Ohio conviction for burglary that
the district court determined was a “crime of violence.” At that time, the
Guidelines included “burglary of a dwelling” as a “crime of violence.” 18
         The 1996 judgment of conviction establishes that Bernel-Aveja pleaded
guilty to burglary in the third degree, a violation of Ohio Revised Code
section 2911.12. 19 He was sentenced to two years of imprisonment, suspended,
and two years of probation; however, his probation was revoked in 1999, and
after receiving credit for time served, he was sentenced to serve 353 days in
prison.
         When Bernel-Aveja committed the 1996 offense, section 2911.12 of the
Ohio Code provided in pertinent part:
   (A)    No person, by force, stealth, or deception, shall do any of the
      following:
      (1) Trespass in an occupied structure . . . with purpose to commit
          therein any theft offense or any felony;
      (2) Trespass in a permanent or temporary habitation of any
      person when any person is present or likely to be present, with
      purpose to commit in the habitation any misdemeanor that is not
      a theft offense;




        U.S. SENTENCING GUIDELINES MANUAL § 2L1.2(b)(1)(A) cmt. n.1(B)(iii) (U.S.
         18

SENTENCING COMM’N 2014)
            ‘Crime of violence’ means any of the following offenses under
            federal, state, or local law: murder, manslaughter, kidnapping,
            aggravated assault, forcible sex offenses (including where
            consent to the conduct is not given or is not legally valid, such as
            where consent to the conduct is involuntary, incompetent, or
            coerced), statutory rape, sexual abuse of a minor, robbery, arson,
            extortion, extortionate extension of credit, burglary of a
            dwelling, or any other offense under federal, state, or local law
            that has as an element the use, attempted use, or threatened use
            of physical force against the person of another.
     19 OHIO REV. CODE ANN. § 2911.12 (West 1990) (amended July 1, 1996).

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                                  No. 15-20308
       (3) Trespass in a permanent or temporary habitation of any person
       when any person is present or likely to be present.
                    ....
   (C)     Whoever violates this section is guilty of burglary. A violation
       of division (A)(1) of this section is an aggravated felony of the
       second degree. A violation of division (A)(2) of this section is a
       felony of the third degree. A violation of division (A)(3) of this
       section is a felony of the fourth degree. 20

      As Bernel-Aveja notes, it is “apparent” that he was convicted under
subsection (2) of section 2911.12 because the Ohio judgment of conviction
reflected that his offense was a third degree felony.          A person commits
“criminal trespass” under Ohio law when he or she, “without privilege to do
so, . . . knowingly enter[s] or remain[s] on the land or premises of another.” 21
      After incorporating the elements of “criminal trespass” into section
2911.12, the Ohio burglary statute at issue provides:
      (A) No person, by force, stealth, or deception, shall . . .

           (2) [without privilege to do so, knowingly enter or remain on
           the premises of another] in a permanent or temporary
           habitation of any person when any person is present or likely
           to be present, with purpose to commit in the habitation any
           misdemeanor that is not a theft offense.

                                        II
      The definition of “crime of violence” in § 2L1.2 of the Guidelines in 2015
included “burglary of a dwelling” as an enumerated offense, but “burglary” was
not defined. 22 We have held, however, with exceptions not relevant here, that
“we see no reason to create a separate, parallel federal common-law definition
for ‘burglary’’’ and that “Taylor’s definition of ‘burglary’ controls when defining



      20Id.
      21Id. § 2911.21(A)(1).
     22  U.S. SENTENCING GUIDELINES MANUAL § 2L1.2 cmt. n.1(1)(B)(iii) (U.S.
SENTENCING COMM’N 2014).
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                                         No. 15-20308
the ‘burglary’ part of ‘burglary of a dwelling’” under § 2L1.2 of the Guidelines. 23
To determine whether a prior conviction constitutes “burglary,” courts utilize
the categorical approach set forth in Taylor. 24
       In Taylor, the Supreme Court construed the ACCA 25 and held that
Congress intended the term “burglary” in that legislation to mean the “generic”
crime of burglary. 26         After extensive analysis, the Court concluded that
“[a]lthough the exact formulations vary, the generic, contemporary meaning of
burglary contains 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.” 27      The Court observed that a California offense that defined
“burglary” “so broadly as to include shoplifting and theft of goods from a ‘locked’
but unoccupied automobile” would not constitute generic burglary. 28                          The
Court confirmed in subsequent decisions that an offense that “criminalized
entering a location . . . [lawfully] with the intent to steal” would not constitute
“generic burglary because” it would “encompass[] mere shoplifting.” 29
Accordingly, though intent to commit a crime is a necessary element of generic



       23  United States v. Ortega-Gonzaga, 490 F.3d 393, 395 (5th Cir. 2007) (referring to
Taylor v. United States, 495 U.S. 575 (1990), but recognizing that in United States v. Murillo-
Lopez, 444 F.3d 337, 344 (5th Cir. 2006), it “ma[de] sense” to “extend[] the definition of
‘burglary of a dwelling’ under the Guidelines to include things like tents, which the Court in
Taylor implicitly excluded in defining ‘burglary’ . . . given that the court in Murillo-Lopez was
called to define the ‘of a dwelling’ part of ‘burglary of a dwelling’”).
        24 See United States v. Hernandez-Hernandez, 817 F.3d 207, 212 (5th Cir. 2016) (citing

Taylor, 495 U.S. at 602).
        25 18 U.S.C. § 924(e).
        26 Taylor, 495 U.S. at 598 (“We believe that Congress meant by ‘burglary’ the generic

sense in which the term is now used in the criminal codes of most States.”).
        27 Id.; see also id. at 599 (“We conclude that a person has been convicted of

burglary . . . if he is convicted of any crime, regardless of its exact definitions or label, having
the basic elements of unlawful or unprivileged entry into, or remaining in, a building or
structure, with intent to commit a crime.”).
        28 Id. at 591.
        29 Mathis v. United States, 136 S. Ct. 2243, 2248-49 (2016) (citing Descamps v. United

States, 133 S. Ct. 2276, 2283-84 (2013)).
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                                  No. 15-20308
burglary, there must be an element of unlawfulness about the presence of the
defendant in the building, or in our case, in the dwelling.
      It is clear from Taylor and its progeny that if a statute criminalized only
unlawful or unprivileged entry into a building with intent to commit another
crime, then such an offense would be “generic burglary” under Taylor’s
definition of “burglary.” However, neither Taylor nor subsequent Supreme
Court decisions have had occasion to decide definitively when, for purposes of
generic burglary, intent must be formed if the offense was “unlawful or
unprivileged . . . remaining in . . . a building or other structure, with intent to
commit a crime.” 30
      Bernel-Aveja’s conviction under Ohio law included the elements of
“without privilege to do so . . . knowingly enter[ing] or remain[ing]” in a
“habitation . . . with purpose to commit in the habitation any misdemeanor
that is not a theft offense.” 31 The Government does not contend that the Ohio
statute of conviction sets forth two separate crimes, one having as an element
“enter[ing]” the habitation without privilege to do so, and the other having as
an element “remain[ing in]” the habitation without privilege to do so. The Ohio
conviction accordingly implicates the “remaining in” aspect of the Supreme
Court’s formulation of generic burglary because a jury could apparently convict
under the Ohio statute if some jurors found that the entry was not privileged
while others found that the remaining in was not privileged.
      Neither the Supreme Court nor this court has been called upon to
examine when the requisite intent to commit a crime must be formed if a
statute criminalizes “entry into, or remaining in, a building or other structure,




      30Taylor, 495 U.S. at 598.
      31 OHIO REV. CODE ANN. § 2911.12 (West 1990) (amended July 1, 1996), and id. §
2911.21(A)(1).
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                                        No. 15-20308
with intent to commit a crime.” 32 If only the words of the generic definition of
burglary in Taylor are consulted (“an unlawful or unprivileged entry into, or
remaining in, a building or other structure, with intent to commit a crime” 33),
there are several possibilities as to when intent might be formed. A defendant
might form the intent to commit a crime on the premises: (1) before lawfully
entering, (2) after lawfully entering, (3) before unlawfully entering, (4) after
unlawfully entering, (5) before unlawfully “remaining in,” or (6) while
unlawfully “remaining in.”
       The Supreme Court of Ohio has construed one of Ohio’s burglary
statutes 34 to mean that “a defendant may form the purpose to commit a
criminal offense at any point during the course of a trespass.” 35 The parties in
this case agree that this construction of when the intent to commit a crime may
be formed applies equally to the requisite intent in another Ohio burglary
statute, under which Bernel-Aveja was convicted. 36 It would therefore appear
that the Ohio statute at issue would encompass fact patterns, among others,
in which the defendant unlawfully entered a dwelling but did not form the
intent to commit a crime on the premises until after that unlawful entry, or
formed the intent after lawfully entering but while unlawfully “remaining in.”




       32 Taylor, 495 U.S. at 598.
       33 Id.
       34 OHIO REV. CODE ANN. § 2911.11(A) (West 2006 & Supp. 2016).
       35 State v. Fontes, 721 N.E.2d 1037, 1040 (Ohio 2000).
       36 Compare OHIO REV. CODE ANN. § 2911.11(A)(1) (West 2006 & Supp. 2016) (“No

person, by force, stealth, or deception, shall trespass in an occupied structure . . . when
another person other than an accomplice of the offender is present, with purpose to commit
in the structure . . . any criminal offense . . . .”) with OHIO REV. CODE ANN. § 2911.12(A)(2)
(West 1990) (“No person, by force, stealth, or deception, shall . . . (2) Trespass in a permanent
or temporary habitation of any person when any person is present or likely to be present,
with purpose to commit in the habitation any misdemeanor that is not a theft offense.”); see
also State v. Evett, No. 14CA0008—M, 2015 WL 4069588, at *3 (Ohio Ct. App. 2015) (applying
Fontes to a conviction under § 2911.12(A)(1)).
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                                      No. 15-20308
       Though the Supreme Court’s decision in Taylor does not answer the
question of when intent to commit a crime must be formed when a “remaining
in” statute was the basis of a prior conviction, the Court’s analysis of how and
why it arrived upon its generic definition of burglary provides some guidance.
The Court began its interpretive process by considering the language of
§ 924(e), as originally enacted in 1984, and two years later, when it was
amended in 1986. 37 In its original iteration, the statute defined “burglary” 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 Federal or State offense.” 38 The 1986 amendment replaced “any
felony” in that definition with “any crime punishable by a term of
imprisonment exceeding one year.” 39 Five months later, the statute was again
amended, and though “burglary” was retained as a predicate offense for
enhancing the sentence of an armed career criminal, the express definition of
burglary was deleted or omitted from the statute. 40 The Supreme Court drew
three “observations” 41 from its analysis of this history.
       First, the Supreme Court concluded from the 1984 and 1986 statutory
definitions and the legislative history of the subsequent 1986 amendment
effectuated by the Career Criminals Act of 1986 that “Congress singled out
burglary (as opposed to other frequently committed property crimes such as
larceny and auto theft) for inclusion . . . because of its inherent potential for




       37 Taylor v. United States, 495 U.S. 575, 581-82 (1990) (citing Armed Career Criminal
Act of 1984, Pub. L. 98-473, § 180, 398 Stat. 2185 (repealed 1986) and Firearms Owners’
Protection Act, Pub. L. 99-308, § 104, 100 Stat. 458 (1986)).
       38 Id. at 581 (quoting § 1803, 98 Stat. at 2185 (repealed 1986)).
       39 See id. at 582 (quoting § 104, 100 Stat. at 458).
       40 See id. (citing Career Criminals Amendment Act of 1986, Pub. L. 99-570, § 1402,

100 Stat. 3207-39).
       41 Id. at 588.

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                                        No. 15-20308
harm to persons.” 42 The Court reasoned, “[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, caretaker, or some other
person who comes to investigate.” 43 The Court also concluded that “Congress
apparently thought that all burglaries serious enough to be punishable by
imprisonment for more than a year constituted a category of crimes that shared
this potential for violence and that were likely to be committed by career
criminals.” 44 The Court reasoned, “[t]here never was any proposal to limit the
predicate offense to some special subclass of burglaries that might be especially
dangerous, such as those where the offender is armed, or the building is
occupied, or the crime occurs at night.” 45
       Second, the Court concluded that “the enhancement provision always
has embodied a categorical approach to the designation of predicate offenses.” 46
The Court reasoned that “Congress intended that the enhancement provision
be triggered by crimes having certain specified elements, not by crimes that
happened to be labeled ‘robbery’ or ‘burglary.’” 47
       “Third,” the Supreme Court said, “the 1984 definition of burglary shows
that Congress, at least at that time, had in mind a modern ‘generic’ view of
burglary, roughly corresponding to the definitions of burglary in a majority of
the States’ criminal codes.” 48         The Court deduced that “[i]n adopting this
definition, Congress both prevented offenders from invoking the arcane



       42 Id.
       43 Id.
       44 Id.
       45 Id.
       46 Id.
       47 Id.; cf. Descamps v. United States, 133 S. Ct. 2276, 2287 (2013) (“Congress . . . meant

[the ACCA] to function as an on-off switch, directing that a prior crime would qualify as a
predicate offense in all cases or in none.”).
       48 Taylor, 495 U.S. at 589 (1990).

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                                  No. 15-20308
technicalities of the common-law definition of burglary to evade the sentence-
enhancement provision, and protected offenders from the unfairness of having
enhancement depend upon the label employed by the State of conviction.” 49
      The Supreme Court then concluded that “there is nothing in the history
to show that Congress intended in 1986 to replace the 1984 ‘generic’ definition
of burglary with something entirely different. Although the omission of a pre-
existing definition of a term often indicates Congress’ intent to reject that
definition . . . we draw no such inference here.” 50
      The Supreme Court rejected use of the common-law definition of
burglary as the definition of that term in § 924(e) for several reasons. “Most
. . . States have expanded this [common-law] definition to include entry
without a ‘breaking,’ structures other than dwellings, offenses committed in
the daytime, entry with intent to commit a crime other than a felony, etc.” 51
The Court observed that these “statutory development[s] . . . [have] resulted in
a modern crime which has little in common with its common-law ancestor
except for the title of burglary,” and that “[t]he arcane distinctions embedded
in the common-law definitions have little relevance to modern law enforcement
concerns.” 52
      After considering the history of § 924(e), and rejecting the adoption of
the common-law definition of burglary, the Court concluded that “Congress
meant by ‘burglary’ the generic sense in which the term is now used in the
criminal codes of most States.” 53 It then articulated the generic definition,
quoting W. LaFave & A. Scott’s Substantive Criminal Law for the propositions
that modern statutes “generally require that the entry be unprivileged” and


      49 Id.
      50 Id. at 590.
      51 Id. at 593.
      52 Id.
      53 Id. at 598.

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                                          No. 15-20308
“typically describe the place as a ‘building’ or ‘structure,’” and that “[t]he
prevailing view in the modern codes is that an intent to commit any offense
will do.” 54 The Court also stated that its generic definition “approximates that
adopted by the drafters of the Model Penal Code,” 55 which provided: “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.” 56           The Court additionally stated that its generic
meaning of burglary “is practically identical to the 1984 definition that, in
1986, was omitted from the enhancement provision.” 57 The Court reiterated
that though that definition was omitted in the 1986 amendments, “there is
simply no plausible alternative that Congress could have had in mind.” 58 The
Court also reiterated that Congress “did not wish to specify an exact
formulation that an offense must meet,” and concluded that “a person has been
convicted of burglary . . . if he is convicted of any crime, regardless of its exact
definition or label, having the basic elements of unlawful or unprivileged entry
into, or remaining in, a building or structure, with intent to commit a crime.” 59
          If we were writing on a clean slate, we would consider the Ohio burglary
statute at issue in light of these teachings of the Supreme Court when
presented with a “remaining in” statute.




          54   Id. (quoting W. LAFAVE & A. SCOTT, SUBSTANTIVE CRIMINAL LAW § 8.13(a), (c), (e)
(1986).
          55 Id. at n.8.
          56 MODEL PENAL CODE § 221.1 (AM. LAW. INST. 1980).
          57 Taylor, 495 U.S. at 598.
          58 Id.
          59 Id. at 599.

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                                   No. 15-20308
                                         III
      If the generic definition of burglary in Taylor does not require that the
intent to commit a crime be formulated before or at the time of initially
remaining in a building unlawfully, then the 1996 Ohio statute has each of the
elements of generic burglary formulated in Taylor, as modified by the
Guideline’s inclusion of the offense of “burglary of a dwelling.” Those elements
are “an unlawful or unprivileged entry into, or remaining in, a [dwelling 60],
with intent to commit a crime.” 61 The question raised by this appeal is what
the generic offense requires regarding the timing of the intent to commit a
crime.
      Because the Supreme Court concluded in Taylor that there was no
indication “that Congress intended . . . to replace” the ACCA’s 1984 statutory
definition of “generic” burglary, 62 and because the Supreme Court observed
that its generic definition of burglary “is practically identical to the [ACCA’s]
1984 definition,” 63 it is instructive to compare the offense defined in the Ohio
statute, section 2911.12, with the ACCA’s 1984 definition.
      The ACCA defined burglary 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 Federal or State offense.” 64 Bernal-
Aveja’s Ohio offense was a felony. The Ohio offense was committed when a
defendant “by force, stealth, or deception” and without privilege knowingly
entered or remained in a habitation of any person “with purpose to commit in




      60  U.S. SENTENCING GUIDELINES MANUAL § 2L1.2 cmt. n.1(B)(iii) (U.S. SENTENCING
COMM’N 2014).
       61 Taylor, 495 U.S. at 598.
       62 Id. at 590.
       63 Id. at 598.
       64 Armed Career Criminal Act of 1984, Pub. L. No. 98-473, § 1803, 98 Stat. 2185

(repealed 1986).
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                                        No. 15-20308
the habitation any misdemeanor.” 65                It would seem that use of force to
accomplish the crime of burglary would be at least as culpable as, if not more
culpable than, surreptitiously entering into or remaining on property. The
Ohio offense is substantially the same as the ACCA’s 1984 definition. With
regard to when intent was formed, as a grammatical matter, it would appear
that the 1984 ACCA’s phrase “with intent to engage” would modify “remaining
surreptitiously within” such that intent could be formed after entry while
remaining in.
       The Supreme Court concluded in Taylor that in the present version of
the ACCA, “Congress meant by ‘burglary’ the generic sense in which the term
is now used in the criminal codes of most States,” 66 and therefore it is also
instructive to consider how “most states” defined burglary. The Taylor decision
cited the 1986 edition of Professor LaFave’s treatise on substantive criminal
law as authoritative, 67 and that treatise concluded not only that “remaining
in” statutes had been adopted by many states but that “[t]his means, of course,
that the requisite intent to commit a crime within need only exist at the time
the defendant unlawfully remained within.” 68 The 1986 version of LaFave’s
treatise listed twenty-four states that had adopted “remaining in” burglary
statutes. 69 Ohio was not among them, but it is clear that the Ohio burglary
statute at issue in the present case has a “remaining in” alternative means of
committing burglary. 70        The most recent edition of LaFave’s treatise lists




       65 OHIO REV. CODE ANN. § 2911.12 (West 1990) (amended July 1, 1996).
       66 Taylor, 495 U.S. at 598.
       67 Id. at 598 & n.8.
       68 W. LAFAVE & A. SCOTT, SUBSTANTIVE CRIMINAL LAW § 8.13(b) (1986).
       69 Id. n.44.
       70 See OHIO REV. CODE ANN. § 2911.21(A)(1) (West 1990) (amended July 1, 1996)

(providing that a person commits “criminal trespass” under Ohio law when she, “without
privilege to do so, . . . [k]nowingly enter[s] or remain[s] on the land or premises of another”).
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                                     No. 15-20308
twenty-nine states that have adopted “remaining in” statutes, 71 though it
likewise failed to list the Ohio burglary statute. Professor LaFave explained,
with regard to the adoption of “remaining in” statutes by so many states, that
            [t]his 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. Moreover, this expansion
      forecloses any argument by a defendant found in premises then
      closed that he had entered earlier when they were open. 72
      At least one other academic has concluded that since the time the Model
Penal Code was promulgated, “the requirement of entry has become the
minority approach. At least twenty-nine jurisdictions have modified the
statutory    entry    requirement       to    include     ‘remaining    unlawfully’     or
‘remaining.’” 73 This commentator, Professor Helen Anderson, concluded that
“where the statute includes ‘remaining’ as an alternative to entry, the criminal
intent may be formed at any time while the defendant remains on the premises
and need not have been formed at the time of entry.” 74




      71  3 W. LAFAVE, SUBSTANTIVE CRIMINAL LAW § 21.1(b) n.47 (2d ed.) (2016) (citing
ALA.CODE § 13A-7-5; ALASKA STAT. § 11.46.300; ARIZ. REV. STAT. ANN. § 13-1506; ARK. CODE
ANN. § 5-39-201; COLO. REV. STAT. ANN. § 18-4-202; CONN. GEN. STAT. ANN. § 53a-101; DEL.
CODE ANN. tit. 11, § 824; FLA. STAT. ANN. § 810.02; GA. CODE ANN. § 16-7-1; HAW. REV. STAT.
§ 708-810; 720 ILL. COMP. STAT. ANN. 5/19-1; IOWA CODE ANN. § 713.1; KAN. STAT. ANN. § 21-
5807; KY. REV. STAT. ANN. § 511.020; ME. REV. STAT. ANN. tit. 17-A, § 401; MO. ANN. STAT.
§ 569.160; MONT. CODE ANN. § 45-6-204; N.H. REV. STAT. ANN. § 635.1; N.J. STAT. ANN.
§ 2C:18-2; N.D. CENT. CODE § 12.1-22-02; OR. REV. STAT. § 164.215; S.D. CODIFIED LAWS
§ 22-32-1; TENN. CODE ANN. § 39-14-402; TEX. PENAL CODE ANN. § 30.02; UTAH CODE ANN.
§ 76-6-202; VT. STAT. ANN. tit. 13, § 1201; VA. CODE ANN. § 18.2-89; WASH. REV. CODE
§ 9A.52.020; WYO. STAT. ANN. § 6-3-301).
       72 W. LAFAVE & A. SCOTT, SUBSTANTIVE CRIMINAL LAW § 8.13(b) (1986).
       73 Helen A. Anderson, From the Thief in the Night to the Guest Who Stayed Too Long:

The Evolution of Burglary in the Shadow of the Common Law, 45 IND. L. REV. 629, 645 &
n.113 (2012).
       74 Id. at 646.

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                                      No. 15-20308
        Professor LaFave’s 1986 treatise expressed the view that “remaining in”
statutes should not “cover certain other situations in which the unlawful
remaining ought not be treated as burglary,” and therefore “it is best to limit
the    remaining-within       alternative     to   where     that    conduct     is   done
surreptitiously.” 75 An example offered of conduct that “ought not be treated as
burglary” was “where a visitor in one’s home becomes involved in an argument
with his host, threatens to punch him in the nose and is asked to leave, and
then after he does not leave continues his threats.” 76 The treatise listed Model
Penal Code § 221.1 and Florida and New Jersey statutes as examples with
such a limitation. 77 Model Penal Code § 221.1 did not include “remaining in,” 78
so it differs from the twenty-four states that, according to LaFave’s treatise,
have adopted “remaining in” burglary statutes. The New Jersey statute cited
by Professor LaFave does not appear, necessarily, to provide that the
defendant must form the intent to commit a crime when he initially remains
surreptitiously in a structure. 79
        Similarly, Professor Anderson observed more recently that “a consensual
visit that turns ugly might be prosecuted as a burglary” under a statute that



        75W. LAFAVE & A. SCOTT, SUBSTANTIVE CRIMINAL LAW § 8.13(b) (1986).
        76Id. n.47.
       77 Id. n.48 (citing MODEL PENAL CODE § 221.1 (AM. LAW INST. 1980); FLA. STAT. ANN.

§ 810.02; N.J. STAT. ANN. 2C:18-2).
       78 See MODEL PENAL CODE § 221.1 (AM. LAW INST. 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.”).
       79 N.J. STAT. ANN. § 2C:18-2 (West 1981), which provided:

       A person is guilty of burglary if, with purpose to commit an offense therein he:
               (1) Enters a structure, or a separately secured or occupied portion
               thereof, unless the structure was at the time open to the public or the
               actor is licensed or privileged to enter; or
               (2) Surreptitiously remains in a structure or a separately secured or
               occupied portion thereof knowing that he is not licensed or privileged to
               do so.
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                                      No. 15-20308
includes “remaining in” as an alternative to entry because “the criminal intent
may be formed at any time while the defendant remains on the premises and
need not have been formed at the time of entry.” 80                This outcome would
apparently be permissible under statutes in twenty-two of the twenty-nine
jurisdictions listed by Professor Anderson, since, according to Professor
Anderson’s analysis, only seven states having “remaining in” statutes have
required that the remaining be “surreptitious” or “concealed.” 81 But in any
event, the seven state statutes including the “surreptitious” or “concealed”
exceptions do not necessarily require the defendant to form the intent to
commit a crime prior to entry.
       A conclusion that the generic offense of burglary requires that intent to
commit a crime exist at the time of entry appears to be out of step with the
twenty-nine “remaining in” statutes listed by Professor Anderson, and the
twenty-four “remaining in” statutes listed by Professor LaFave at the time of
the decision in Taylor, as well as the five other statutes more recently
identified in LaFave’s treatise. If, as the Supreme Court concluded in Taylor,
“burglary” is “the generic sense in which the term is now [in 1990] used in the
criminal codes of most States,” 82 then generic burglary does not require intent
to commit a crime at the time of entry if the statute of conviction is a


       80  Helen A. Anderson, From the Thief in the Night to the Guest Who Stayed Too Long:
The Evolution of Burglary in the Shadow of the Common Law, 45 IND. L. REV. 629, 646 &
n.122 (2012) (citing People v. Leonard, 921 N.Y.S.2d 337, 340 (App. Div. 2011) (holding, in a
case in which the father of a child was admitted by the mother of the child for a visit, that
“[a]s for defendant's conviction for burglary in the second degree, the People were required
to present evidence establishing that, after defendant was admitted into the mother's home,
he remained there unlawfully with the intent to commit a crime and used or threatened to
use a dangerous instrument (see Penal Law § 140.25[1][c] )”) and State v. Morton, 768 N.E.2d
730, 734, 737-38 (Ohio Ct. App. 2002) (affirming conviction of defendant who was admitted
to apartment by occupant but when asked to leave, engaged in a physical altercation and a
struggle over a firearm during which the apartment owner’s eyes were gouged out of their
sockets and his ear was bitten off by the defendant)).
        81 Id. 645-46, 645 n.113, 646 nn.114 & 116.
        82 Taylor v. United States, 495 U.S. 575, 598 (1990).

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                                     No. 15-20308
“remaining in” statute. Intent to commit a crime formed while “remaining in”
suffices.
      JUDGE HIGGINBOTHAM’s concurring opinion asserts that “the act of
‘remaining in’ occurs at a discrete point in time, and to constitute burglary, the
perpetrator must have intended to commit a further crime at that discrete
point.” 83 To hold otherwise, that opinion posits, “strains common sense,” 84
would “confound[] the purpose of evenhanded sentencing sought after by the
Sentencing Guidelines and related statutes,” and “fouls the mandate of Taylor
itself.” 85 As to the mandate of Taylor, the concurring opinion’s elements of
“remaining in” burglary are not elements that were found “in the criminal
codes of most States” 86 in 1990, and therefore, those elements are not the
elements of generic burglary. With regard to evenhanded sentencing and
common sense, under the concurring opinion’s rationale, a person who enters
lawfully, but secrets himself with the intent of committing theft during the
night would receive a sentencing enhancement, but such an enhancement
would not apply to a person who unlawfully breaks into and enters a dwelling
he thinks is unoccupied to “party,” sees that an occupant is asleep in her
bedroom, and sexually assaults her.
      It is not the prerogative of federal courts to make value judgments as to
what elements a generic offense should have. It is the obligation of federal
courts to ascertain from all of the States’ statutes the elements that are
expressed in most of those States’ statutes as part of the process of distilling
the elements of a generic offense. 87 The Supreme Court stated in Taylor that
it had undertaken such an analysis with respect to burglary, concluding that


      83 See ante at p. __.
      84 See ante at p. __.
      85 See ante at p. __.
      86 See Taylor, 495 U.S. at 598.
      87 See Gonzales v. Duenas-Alvarez, 549 U.S. 183, 190 (2007).

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                                     No. 15-20308
it defined that offense in “the generic sense in which the term is now used in
the criminal codes of most States.” 88 It cannot be said that most of the States’
criminal codes defined “remaining in” burglary as JUDGE HIGGINBOTHAM’s
concurring opinion insists it must be defined.            Accordingly, that opinion’s
formulation is not generic “remaining in” burglary.


                                           IV
      The commentators’ conclusions that a majority of the States had adopted
unlawful “remaining in” statutes and that States having only unlawful entry
offenses were in the minority remain accurate with respect to current-day
burglary offenses. An analysis of the States’ current statutes, and state court
decisions construing them, reflects that the number of States that have
offenses generally falling within a broad (though not necessarily generic)
category of “burglary” and that define such an offense only with reference to
“entry” onto a premises is slightly in the minority. Other States’ criminal
statutes have both unlawful entry and unlawful “remaining in” in the
definition of burglary, and some States consider “remaining in” to be a separate
offense.
      An examination of the States’ burglary offenses that define that crime
solely with reference to unlawful “entry” reflects that a majority of these
statutes require intent to commit a crime other than trespass on the premises
at the time of unlawful entry. These statutes include:
      IND. CODE ANN. § 35-43-2-1 (West 2012 & Supp. 2016) 89




      88 Taylor, 495 U.S. at 598.
      89 See Richards v. State, 681 N.E.2d 208, 212 (Ind. 1997) (explaining that “the State
had to prove that when [the defendant] entered the building he had the intent to commit
rape”).
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                                       No. 15-20308
       LA. STAT. ANN. § 14:62 (2016) 90
       MD. CODE ANN., CRIM. LAW § 6-202 (LexisNexis 2012 & Supp.
       2016) 91
       MASS. GEN. LAWS ch. 266, § 14 (2008) 92
       MICH. COMP. LAWS § 750.110; § 750.110a (2004 & Supp. 2016) 93
       MINN. STAT. ANN. § 609.582 (West 2009) 94
       MISS. CODE. ANN. § 97-17-23 (2014) 95
       NEB. REV. ST. § 28-507 (2008) 96
       NEV. REV. STAT. § 205.060; § 205.065 (2015) 97


       90  See State v. Jones, 426 So. 2d 1323, 1325 (La. 1983) (“The defendant must have had
the specific intent to commit either a felony or a theft at the time of his unauthorized entry,
both for the crimes of simple burglary and attempted simple burglary.”).
        91 See Walls v. State, 142 A.3d 631, 652 (Md. Ct. Spec. App. 2016) (“Maryland's

statutory offense of burglary in the first degree is ‘akin to common law burglary, without the
element of in the nighttime.’ It requires proof that a defendant (1) broke into the dwelling of
another; and (2) did so with the intent to commit theft or a crime of violence.”) (citations
omitted).
        92 See Commonwealth v. Negron, 967 N.E.2d 99, 105 (Mass. 2012) (“The elements of

aggravated burglary are: (1) the defendant broke into and entered the dwelling of another;
(2) the breaking and entering occurred at night; (3) at the time of the breaking and entering
the defendant intended to commit a felony . . . .”).
        93 See People v. Cornell, 646 N.W.2d 127, 141 (Mich. 2002) (“The elements of breaking

and entering with intent to commit larceny are: (1) the defendant broke into a building, (2)
the defendant entered the building, and (3) at the time of the breaking and entering, the
defendant intended to commit a larceny therein.”).
        94 The statute provides: “Whoever enters a building without consent and with intent

to commit a crime, or enters a building without consent and commits a crime while in the
building, either directly or as an accomplice, commits burglary in the first degree.” (emphasis
added). See also State v. Davis, 864 N.W.2d 171, 177 (Minn. 2015) (agreeing that when the
defendant did not commit the underlying crime, a jury instruction was erroneous when it
“permitted the jury to find him guilty of felony murder if the jury determined that he formed
an intent to commit the theft after entering the building, even if he did not actually commit
a theft”).
        95 See Cortez v. State, 876 So. 2d 1026, 1030 (Miss. Ct. App. 2003) (“The State seldom

has direct and positive testimony expressly showing the specific intent of an intruder at the
time he unlawfully breaks into a dwelling house; however, such testimony is not essential to
establish the intent to commit a crime.”).
        96 The statute provides: “A person commits burglary if such person willfully,

maliciously, and forcibly breaks and enters any real estate or any improvements erected
thereon with intent to commit any felony or with intent to steal property of any value.” See
also State v. Carter, 288 N.W.2d 35, 36 (Neb. 1980) (“The crime of burglary is complete when
there is a breaking and entering with a requisite intent, in this instance, to steal.”).
        97 Though section 205.060 does not require an unlawful entry, section 205.065

provides for an inference of felonious intent at the time of entry if the entry is unlawful. See
Sheriff, Clark Cty. v. Stevens, 630 P.2d 256, 257 (Nev. 1981) (“The offense of burglary is
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                                        No. 15-20308
              N.J. STAT. ANN. § 2C:18-2(1) (West 2015) 98
              N.M. STAT. ANN. § 30-16-3 (2004) 99
              N.C. GEN. STAT. § 14-51 (2015) 100
              OKLA. STAT. tit. 21, § 1431 (2015) 101
              18 PA. STAT. AND CONS. STAT. ANN. § 3502 (West 2015) 102
              11 R.I. GEN. LAWS § 11-8-1 (2002) 103
              S.C. CODE ANN. § 16-11-312 (2015) 104
              TENN. CODE ANN. § 39-14-402(a)(1) (2014)



complete when the house or other building is entered with the specific intent to commit
larceny or any felony therein.”).
        98 See N.J. STAT. ANN. § 2C:18-2 (West 2015):

                A person is guilty of burglary if, with purpose to commit an offense
                therein or thereon he:
                (1) Enters a research facility, structure, or a separately secured or
                    occupied portion thereof unless the structure was at the time open
                    to the public or the actor is licensed or privileged to enter; . . . .
See also State v. Jijon, 624 A.2d 1029, 1030 (N.J. 1993) (“It is now well established that
burglary is complete upon entry with purpose of committing an offense.”), aff’d, 640 A.2d
1152 (N.J. 1994).
        99 See State v. Jennings, 691 P.2d 882, 885 (N.M. Ct. App. 1984) (“Burglary is a specific

intent crime. It requires an unauthorized entry with the intent to commit any felony or theft
therein. . . . An unauthorized presence in a structure is evidence from which a jury could
reasonably infer the necessary intent to commit a felony or theft therein.”) (citations omitted).
        100 See State v. Montgomery, 461 S.E.2d 732, 739 (N.C. 1995) (“If at the time of a

breaking and entering a person does not possess the intent to commit a felony therein, he
may only properly be convicted of misdemeanor breaking or entering, a lesser included
offense of first-degree burglary.”).
        101 See Rowland v. State, 817 P.2d 263, 265-66 (Okla. Crim. App. 1991) (“To warrant

conviction for Burglary in the First Degree . . . it is necessary for the [defendant] to have the
intent to commit a crime at the time of his unlawful entry of the dwelling.”).
        102 See Commonwealth v. Russell, 460 A.2d 316, 321 (Pa. Super. Ct. 1983) (“In order

to be convicted of burglary, the defendant must have formed the intent to commit a crime
when he entered the victim’s residence, not after he entered. . . . The entry must be
contemporaneous with the intent to commit a crime therein.”) (citation omitted). A recently
enacted revision of the statute does not alter the intent requirement. See 2016 Pa. Legis.
Serv. Act 2016-158 (S.B. 1062).
        103 See State v. Contreras-Cruz, 765 A.2d 849, 852 (R.I. 2001) (holding that this

provision “incorporates the common law definition of the crime,” which “is the breaking and
entering the dwelling-house of another in the nighttime with the intent to commit a felony
therein, whether the felony be actually committed or not.”) (quoting State v. Hudson, 165 A.
649, 650 (1933)).
        104 See Pinckney v. State, 629 S.E.2d 367, 369 (S.C. 2006) (“Further, there is no

requirement that the intent element is satisfied only by proving an intent to commit the
specific crime that is charged in the indictment as an aggravating circumstance. The only
requirement is that there be intent to commit any crime at the time of entry.”).
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                                       No. 15-20308
              TEX. PENAL CODE ANN. § 30.02(a)(1) (West 2011) 105
              WIS. STAT. ANN. § 943.10 (West 2005) 106

       Some of the foregoing offenses may not constitute “generic” burglary
because they are overly inclusive as to the type of premises on which a generic
burglary may occur. For example, the Louisiana offense cited above includes
theft from a vehicle, 107 and the Nebraska offense includes “any real estate or
any improvements erected thereon.” 108              But ascertaining what generic
burglary requires regarding intent to commit a crime on the premises would
entail an examination of all state statutes, even those that might be over-
inclusive in the final analysis, to arrive upon the “generic” definition of an
offense.
       A few state statutes define a burglary offense as involving only “entry”
with intent to commit a crime at the time of entry or the commission of a
crime after entry, but they do not require unlawful or unprivileged entry.
They therefore do not appear to include generic burglary. Such statutes
include:
       CAL. PENAL CODE § 459 (West 2010) 109
       IDAHO CODE § 18-1401 (2016) 110


       105 See Devaughn v. State, 749 S.W.2d 62, 65 (Tex. Crim. App. 1988) (en banc) (“It is
well settled that the intent to commit a felony or theft must exist at the moment of the entry
or there is no offense under § 30.02(a)(1).”).
       106 See Levesque v. State, 217 N.W.2d 317, 319 (Wis. 1974) (“To constitute the crime of

burglary under sec. 943.10(1)(a), one must enter the building without the consent of the
person in possession. Concurrently with the entry he must have the intention to steal or
commit a felony.”).
       107 See LA. STAT. ANN. § 14:62 (2016).
       108 See NEB. REV. ST. § 28-507 (2008).
       109 See Taylor v. United States, 495 U.S. 575, 591 (1990) (noting that “California

defines ‘burglary’ so broadly as to include shoplifting and theft of goods from a ‘locked’ but
unoccupied automobile”).
       110 The statute provides: “Every person who enters any [enumerated structure] with

intent to commit any theft or any felony, is guilty of burglary.” See also State v. Rawlings,
363 P.3d 339, 342 (Idaho 2015) (burglary requires only “entry with the intent to steal
anything he finds that he might desire to appropriate”).
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                                       No. 15-20308
       NEV. REV. STAT. § 205.060 (2015) 111
       11 R.I. GEN. LAWS § 11-8-3 (2002) 112
       W. VA. CODE ANN. § 61-3-11 (LexisNexis 2014) 113

       A few other state burglary offenses are defined as involving “entry”
without consent, but they do not require intent to commit another crime at the
time of entry. Intent to commit a crime may be formed after unlawful entry,
and therefore they do not constitute generic burglary. These statutes appear
to include:
       MINN. STAT. ANN. § 609.582 (West 2009) 114
       TENN. CODE ANN. § 39-14-402(a)(3) (2014) 115
       TEX. PENAL CODE ANN. § 30.02(a)(3) (West 2011) 116

       Some state “unlawful entry or ‘remaining in’” statutes appear to have
been construed to set forth two divisible offenses and, when only unlawful
entry is charged, to require intent at the time of unlawful entry. If we treat



       111  See Sheriff, Clark Cty. v. Stevens, 630 P.2d 256, 257 (Nev. 1981) (“The offense of
burglary is complete when the house or other building is entered with the specific intent to
commit larceny or any felony therein.”).
        112 The statute provides: “Every person who, with intent to commit [an enumerated

felony], shall enter any dwelling house or apartment at any time of the day or night, or who
with such intent shall, during the daytime, enter any other building, or ship or vessel, shall
be [punished by fine and/or imprisonment].”
        113 The statute provides: “If any person shall, in the nighttime, break and enter, or

enter without breaking, or shall, in the daytime, break and enter, the dwelling house, or an
outhouse adjoining thereto or occupied therewith, of another, with intent to commit a crime
therein, he shall be deemed guilty of burglary.” (emphasis added).
        114 The statute provides: “Whoever enters a building without consent and with intent

to commit a crime, or enters a building without consent and commits a crime while in the
building, either directly or as an accomplice, commits burglary in the first degree.” (emphasis
added).
        115 The statute provides: “A person commits burglary who, without the effective

consent of the property owner: . . . Enters a building and commits or attempts to commit a
felony, theft or assault.”
        116 The statute provides: “A person commits an offense 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.” See also Rivera v. State, 808 S.W.2d 80, 92 (Tex. Crim.
App. 1991) (en banc) (“The State need neither plead nor prove a burglar’s intent to commit a
felony or theft upon entry under (a)(3) . . . .”).
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                                        No. 15-20308
these statutes as setting forth separate offenses, then they should logically be
included in the analysis of “entry” offenses. These statues appear to include:
       CONN. GEN. STAT. ANN. § 53a-101 (West 2012) 117
       720 ILL. COMP. STAT. 5/19-1 (West 2003) 118
       N.Y. PENAL LAW § 140.20 (McKinney 2010) 119


       But the focus of the present case is what “generic” burglary requires
regarding intent when the statute of conviction was an unlawful entry or
remaining in statute. An examination of the State offenses, at least in their
current iterations, reflects that many of them do not appear to set forth two
divisible offenses, 120 i.e. unlawful entry and unlawful remaining in, and there
is no “majority” view as to timing of intent, though a majority of “remaining


       117  See State v. Edwards, 524 A.2d 648, 652-53 (Conn. App. 1987) (holding that failure
to instruct the jury that it needed to agree on whether defendant entered unlawfully or
unlawfully remained would have been error if the state had presented evidence of unlawful
remaining and unlawful entry (i.e. that entry had been lawful) because the two types of
burglary recognized are conceptually different actions); State v. Belton, 461 A.2d 973, 976
(Conn. 1983) (explaining that “to remain unlawfully contemplates an initial legal entry which
becomes unlawful at the time that the actor's right, privilege or license to remain is
extinguished”).
        118 See People v. Boose, 487 N.E.2d 1088, 1090 (Ill. App. 1985) (overturning a conviction

when the defendant, who entered a store during business hours, fell asleep, awoke after
hours, and was in possession of store merchandise, was charged only with illegal entry,
explaining that “the statute states the offense in the alternative: a defendant commits
burglary of a building either by illegal entry or by illegally remaining” and when the state
charges only burglary by illegal entry, “the State has the burden of showing that Boose
entered [the building] both without authority and with the intent to steal”); People v. Boone,
577 N.E.2d 788, 789 (Ill. App. 1991) (“To sustain a conviction for burglary, the State is
required to prove either (1) the defendant entered the building without authority and with
the intent to commit a felony or theft, or (2) he remained within the building without
authority and with the intent to commit a felony or theft.”).
        119 See People v. Gaines, 546 N.E.2d 913, 914 (N.Y. 1989) (addressing whether, in a

case of unlawful entry, “the jury should have been instructed that they must find defendant’s
intent to commit a crime in the building existed at the time of the entry,” or whether such an
instruction was unnecessary “because the ‘remains unlawfully’ element of the statute means
that such an intent may be formed after defendant’s unlawful entry” and concluding that the
New York statute “requires that intent to commit a crime in the building exist at the time of
the unlawful entry”).
        120 See Mathis v. United States, 136 S. Ct. 2243, 2249-2250 (2016) (explaining the

difference between “divisible” statutes and “alternative means” statutes).
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                                       No. 15-20308
in” offenses do not appear to require the intent to commit a crime on the
premises to have been formed at or before the time the unlawful remaining in
occurs. State “unlawful entry or remaining in” statutes that have either been
construed to permit intent to be formed during the trespass (including after
deciding to remain in unlawfully) or are not considered divisible statutes, such
that the jury does not have to be unanimous as to when intent was formed
include:
       ALA. CODE § 13A-7-5 (2008 & Supp. 2012) 121
       COLO. REV. STAT. ANN. § 18-4-202 (West 2013) 122
       FLA. STAT. ANN. § 810.02(1)(b)(2) (West 2007 & Supp. 2016) 123




       121  See Gratton v. State, 456 So. 2d 865, 872 (Ala. Crim. App. 1984) (observing that a
jury instruction that intent must be formed at the time of entry was properly refused as an
incomplete statement of current Alabama law, explaining that while “[p]rior to the adoption
of Alabama's new Criminal Code, the statutory crime of burglary in the first degree (§ 13–2–
40) required that the intent to steal or to commit a felony be concurrent with the breaking
and entering,” under the current code, “the intent to commit a crime may be concurrent with
the unlawful entry or it may be formed after the entry and while the accused remains
unlawfully”).
        122 The statute provides:    “A person commits first degree burglary if the person
knowingly enters unlawfully, or remains unlawfully after a lawful or unlawful entry, in a
building or occupied structure with intent to commit therein a crime . . . .” See also People v.
Bondurant, 296 P.3d 200, 214 (Colo. App. 2012) (holding that, under current law “to commit
first degree burglary a person had to “knowingly enter[ ] unlawfully, or remain[ ] unlawfully
after a lawful or unlawful entry, in a building or occupied structure with intent to commit
therein a crime” and overruling a prior case that had “require[d] proof that the defendant
intended to commit a crime inside at the moment he first became a trespasser”) (citing Cooper
v. People, 973 P.2d 1234, 1241 (Colo. 1999)); id. (“We agree with other divisions of this court
that the 1999 amendments legislatively overruled Cooper with respect to the intent element
of burglary.”) (citing People v. Oram, 217 P.3d 883, 892 (Colo. App. 2009) (“Intent to commit
a crime against another person or property while in the dwelling can be formed either before
or after the unlawful entry”), aff'd on other grounds, 255 P.3d 1032 (Colo. 2011); People v.
Larkins, 109 P.3d 1003, 1004 (Colo. App. 2004); People v. Wartena, 296 P.3d 136, 140 (Colo.
App. 2012)).
        123 State v. Herron, 70 So. 3d 705, 707 (Fla. Dist. Ct. App. 2011) (affirming burglary

conviction even though defendant had not entered unlawfully but was asked to leave and
refused, and only subsequently formed intent to commit assault, reasoning that “[a]lthough
at first [the defendant] only remained in the apartment with a mere suspicion that [the
occupant]'s boyfriend was in the apartment, once [the defendant] opened the closet door his
suspicion was met and he remained in the apartment and fought”).
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       GA. CODE ANN. § 16-7-1 (2011 & Supp. 2016) 124
       720 ILL. COMP. STAT. 5/19-1 (West 2003) 125
       IOWA CODE ANN. § 713.1 (West 2016) 126
       KAN. STAT. ANN. § 21-5807 (2007 & Supp. 2015) 127
       KY. REV. STAT. ANN. § 511.020 (LexisNexis 2014) 128


       124  See Williams v. State, 601 S.E.2d 833, 836 (Ga. App. 2004) (upholding a conviction
in a case in which the defendant both entered and remained in without consent, reasoning
that “[b]ecause the evidence supported the jury's conclusion that [the defendant] assaulted
Markell with a knife in Allen's house, it was authorized to determine that at some point
before he entered the house or while he remained in it, he intended to commit the aggravated
assault”) (internal quotation omitted) (footnote omitted); see also id. at 836 (“The intent
necessary for commission of burglary . . . need not be formed at the precise moment of entry,
but can be formed thereafter while the perpetrator is remaining on the premises.”) (internal
quotation omitted) (footnote omitted).
        125 See People v. Boose, 487 N.E.2d 1088, 1090 (Ill. App. 1985) (suggesting in a case in

which the defendant was charged only with illegal entry, that conviction could have been
upheld had he been charged under the “remaining in” prong of the statute, even if there was
no evidence that his intent to steal merchandise from a store was formed before he awoke in
a closet after the store had closed, observing that while “[a] criminal intent formulated after
a lawful entry will satisfy the offenses of larceny (retail theft) or burglary by illegally
remaining, [it] will not . . . satisfy the offense of burglary by illegal entry”).
        126 See State v. Dible, 538 N.W.2d 267, 270-71 (Iowa 1995) (rejecting the defendant’s

argument that the decision to remain over and the formation of an intent to assault had to
occur contemporaneously, explaining that that the defendant’s “decision to remain may have
begun when he refused to comply with [the occupants’] request that he leave, but it remained
intact from the time he returned to the kitchen up until the time he left [the occupants’]
home” and that “[b]ecause he also formed an intent to assault when he returned to the
kitchen, [he] satisfied the statute's contemporaneous intent requirement: he was remaining
over and doing so with the intent to commit an assault” and citing with approval JOHN L.
YEAGER & RONALD L. CARLSON, 4 IOWA PRACTICE, CRIMINAL LAW & PROCEDURE § 294 (1979)
(“[W]ill the [S]tate have to prove that [the defendant] formed the necessary intent at the time
his presence in the place became unlawful, or will it be sufficient to prove that at some time
while he was unlawfully present he formed the intent . . . to commit an assault? The
[statutory] language suggests the latter.”)).
        127 See State v. Gutierrez, 172 P.3d 18, 22 (Kan. 2007) (“Remaining within refers to a

defendant's presence in the building's interior after any entering into, authorized or
unauthorized, has been accomplished.”); id. at 23 (“[T]he intent to commit a felony and the
unauthorized entering into or remaining within must at some point in time coexist.”)
(emphasis added); State v. Frierson, 319 P.3d 515, 522 (Kan. 2014) (holding that unanimity
of the jury as to the means, entering or remaining within, by which the crime is committed
is not required, but the state must present sufficient evidence to permit a jury to find each
means beyond a reasonable doubt).
        128 See McCarthy v. Commonwealth, 867 S.W.2d 469, 471 (Ky. 1993) (holding, in a case

in which the defendant unlawfully entered by kicking down the door after being denied entry
but argued he entered the house only to “confer with his wife,” and did not intend an assault
upon entry, that the defendant “may be convicted of the crime of burglary providing the jury
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       ME. REV. STAT. ANN. tit. 17-A, § 401 (2006 & Supp. 2015) 129
       MO. REV. STAT. § 569.160 (2016) 130
       OHIO REV. CODE ANN. §§ 2911.12, 2911.21(A)(1) (West 2006 &
       Supp. 2016) 131
       UTAH CODE ANN. § 76-6-202 (LexisNexis 2012) 132




finds that he knowingly entered the building with intent to commit a crime or that he
remained unlawfully in the building with intent to commit a crime” and that “even if one
believes that appellant did not have the requisite intent as he entered the house, one could
surely believe he subsequently formed the intent necessary to be guilty of the crime of
burglary”).
        129 See State v. Harding, 392 A.2d 538, 541 n.2 (Me. 1978) (concluding, in a case

involving only unlawful entry, that there was no obvious error in an instruction to the jury
that “[i]f a person surreptitiously remains, once having gained entrance, . . . knowing he is
not licensed to be there, and formulates the intent after surreptitiously remaining in
there, . . . he can have the intent at that time”).
        130 See State v. Rollins, 882 S.W.2d 314, 317-18 (Mo. Ct. App. 1994) (upholding

conviction of defendant charged only with unlawfully remaining in, despite concluding that
he also entered unlawfully by obtaining entrance through artifice, reasoning that “[s]ince
defendant was not licensed to enter the apartment [because he gained admission by artifice],
he was likewise not licensed to remain there”). Missouri has redrafted the statute effective
January 2017, but the changes are primarily cosmetic (changing “crime” to “offense” and “he”
to “he or she.” The substance of the statute remains the same. MO. REV. STAT. § 569.160
(2016 & Supp. 2016).
        131 See State v. Fontes, 721 N.E.2d 1037, 1040 (Ohio 2000) (holding that “a defendant

may form the purpose to commit a criminal offense at any point during the course of a
trespass”).
        132 See State v. Rudolph, 970 P.2d 1221, 1228-29 (Utah 1998). The court rejected the

argument that the “remaining unlawfully” provision was only intended to reach “those cases
where the actor initially enters a building lawfully but then remains there after his or her
right to do so has expired for purposes of committing a crime,” stating that
        While this may be true, it does not necessarily follow that the “remaining
        unlawfully” provision is confined to those situations where the initial entry
        was lawful. We believe that such an interpretation would create an anomalous
        result. For instance, under Rudolph's interpretation of the statute, one who
        enters lawfully but then remains unlawfully and forms the intent to commit
        another felony, theft, or assault is guilty of burglary while one who enters
        unlawfully and thereafter forms that same intent is guilty only of trespass. We
        are unable to see the distinction between the two scenarios. In our view, the
        actor in the second scenario is at least as dangerous and culpable as the actor
        in the first. Therefore, we are not satisfied that our legislature intended such
        a result when it enacted our current burglary statute. . . . [W]e hold that a
        person is guilty of burglary . . . if he forms the intent to commit a felony, theft,
        or assault at the time he unlawfully enters a building or at any time thereafter
        while he continues to remain there unlawfully.
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                                       No. 15-20308
       WASH. REV. CODE § 9A.52.020 (2015) 133

       Another unlawful entry or remaining in statute permits a conviction for
burglary when the entry was unlawful but intent to commit a crime on the
premises was formed after the unlawful entry: S.D. CODIFIED LAWS § 22-32-1
(2006). 134
       Accordingly, at least fourteen States currently have “remaining in”
offenses that do not have as an element the timing requirement advocated by
JUDGE HIGGINBOTHAM’s concurring opinion. The state offenses that do have
such an element are few in number.
       At least one state statute provides that intent to commit a crime on the
premises must be present at the time of unlawful entry or at the time of lawful
entry if the person, with intent to commit a crime, remains on the premises
after the privilege to enter expires or the premises are no longer open to the
public: VT. STAT. ANN. tit. 13, § 1201 (2009 & Supp. 2016). State “remaining
in” statutes that appear to require intent to commit a crime at the time that
the defendant’s presence on the property first becomes unlawful include:
       ALASKA STAT. § 11.46.310 (2014) 135
       ARK. CODE ANN. § 5-39-201 (2013) 136



       133 See State v. Allen, 110 P.3d 849, 854 (Wash. Ct. App. 2005) (expressing agreement
with the Supreme Court of Utah’s analysis in Rudolph, 970 P.2d at 1229).
       134 See State v. DeNoyer, 541 N.W.2d 725, 732 (S.D. 1995) (holding, where evidence

indicated that defendant entered without permission and raped an occupant and where there
was no evidence of permission to enter, defendant was not entitled to an instruction “that in
order to be found guilty of burglary, he must have had the intent to rape the victim when he
entered her home” because “the current burglary statute simply requires that the person
remain in the structure after forming the intent to commit a crime”).
       135 See Pushruk v. State, 780 P.2d 1044, 1048 (Alaska Ct. App. 1989) (stating in dicta

when only unlawful entry was at issue that “to 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”).
       136 See Holt v. State, 384 S.W.3d 498, 505 (Ark. 2011) (observing that even if the

defendant had been invited into the dwelling, “he certainly was not privileged to remain there
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                                        No. 15-20308
       CONN. GEN. STAT. ANN. § 53a-101 (West 2012) 137
       HAW. REV. STAT. ANN. § 708-810 (LexisNexis 2016) 138
       N.Y. PENAL LAW § 140.20 (McKinney 2010) 139
       OR. REV. STAT. § 164.215 (2015) 140




once he began telling [the victim] ‘I told you I could get in anytime I wanted to’ and ‘if I can't
have you, no one can’ and stabbing her”).
         137 See State v. Edwards, 524 A.2d 648, 652-53 (Conn. App. Ct. 1987) (holding that

failure to instruct the jury that it needed to agree on whether defendant entered unlawfully
or unlawfully remained would have been error if the state had presented evidence of unlawful
remaining and unlawful entry because the two types of burglary recognized are conceptually
different actions); State v. Belton, 461 A.2d 973, 976 (Conn. 1983) (explaining that “to remain
unlawfully contemplates an initial legal entry which becomes unlawful at the time that the
actor's right, privilege or license to remain is extinguished”); see also State v. Brooks, 868
A.2d 778, 782 n.2 (Conn. App. Ct. 2005) (reasoning that even if entry had been “with implicit
consent, . . . ‘vicious assault’ . . . was clearly not within the scope of that consent,” and
therefore the defendant had remained unlawfully).
         138 State v. Mahoe, 972 P.2d 287, 293 (Haw. 1998) (“A perpetrator ‘remains unlawfully’

for the purposes of a burglary prosecution only in situations in which the individual makes
an initial lawful entry, that subsequently becomes unlawful.”); id. at 291 (“It would be an
unwarranted extension of Hawai’i’s modern burglary statute to expand the offense of
burglary to include situations in which the criminal intent develops after an unlawful entry
or remaining has occurred.”); id. at 289-90 (appearing to require jury unanimity as to the
conduct (entering or remaining) that underlies the burglary conviction).
         139 See People v. Gaines, 546 N.E.2d 913, 915-16 (N.Y. 1989) (concluding that in order

to be guilty of burglary for unlawful remaining, a defendant must have entered legally, but
remain for the purpose of committing a crime after authorization to be on the premises
terminates, explaining: “[b]y the words ‘remains unlawfully’ the Legislature sought to
broaden the definition of criminal trespass, not to eliminate the requirement that the act
constituting criminal trespass be accompanied by contemporaneous intent to commit a
crime. . . . In either [unlawful entry or unlawful remaining], contemporaneous intent is
required.”).
         140 See State v. White, 147 P.3d 313, 321 (Or. 2006) (“[T]he legislature included the

‘remains unlawfully’ wording in the burglary statute solely to clarify that burglary could
occur by remaining unlawfully after an initial lawful entry. It did not intend to provide that
a defendant who commits burglary by entering a building unlawfully commits an additional,
separate violation of the burglary statute by remaining in the dwelling thereafter.”); In re
JNS, 308 P.3d 1112, 1117 (Or. Ct. App. 2013) (“[W]e hold that second-degree burglary may
be committed in two alternative ways: (1) entering a building unlawfully with the intent to
commit a crime therein; or (2) entering a building lawfully, but then remaining unlawfully—
viz., failing to leave after authorization to be present expires or is revoked—with the intent
to commit a crime therein.”); id. at 1118 (“If the trespass begins when a defendant remains
in a building after authorization has expired or has been revoked, then we ask whether the
defendant possessed the requisite criminal intent at the time of the unlawful remaining.”).
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                                        No. 15-20308
       Of these seven state offenses, only five come within the parameters
advocated by JUDGE HIGGINBOTHAM’s concurring opinion as “generic”
“remaining in” burglary.           That is because the Arkansas and Connecticut
offenses have been construed to encompass those who lawfully enter and whose
presence becomes unlawful only because of the commission of a crime on the
premises. 141 The commission of the crime is considered to have implicitly
revoked, or exceeded the limits of, the permission to enter. 142 Such an offense
is no different from an analytical perspective than the example in JUDGE
HIGGINBOTHAM’s concurring opinion of “teenagers who remain in a house
beyond their invitation intending only to party, then later decide to steal.” 143
The Arkansas and Connecticut offenses also do not fit within the requirement
espoused by JUDGE HIGGINBOTHAM’s concurring opinion that “the perpetrator
trespass while already harboring intent to commit a further crime.” 144
Similarly, though the violent crimes considered to have revoked permission to
be on the premises in the Arkansas and Connecticut decisions construing
“remaining in” are different in degree from shoplifting, the legal principles are
the same: commission of a crime after lawful entry. It appears that only five
state statutes actually embody what JUDGE HIGGINBOTHAM’s concurring
opinion describes as the “narrower approach to generic burglary’s ‘remaining
in’ language” 145 with respect to the timing of intent to commit a crime on the



       141  See Holt v. State, 384 S.W.3d 498, 505 (Ark. 2011) (observing that even if the
defendant had been invited into the dwelling, “he certainly was not privileged to remain there
once he began telling [the victim] ‘I told you I could get in anytime I wanted to’ and ‘if I can't
have you, no one can’ and stabbing her”); State v. Brooks, 868 A.2d 778, 782 n.2 (Conn. App.
2005) (reasoning that even if entry had been with implicit consent, “vicious assault . . . was
clearly not within the scope of that consent” and “[t]hus, the defendant unlawfully remained
within the meaning of the statute”).
        142 See id.
        143 See ante at p. __.
        144 See ante at p. __.
        145 See ante at p.__.

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                                        No. 15-20308
premises. There is no indication that the number of states that had adopted
statutes embodying the “narrower approach” was any greater when Taylor was
decided.
       “Remaining in” statutes that appear to be broader than generic burglary
because a shoplifter can be convicted include:
       ARIZ. REV. STAT. ANN. § 13-1507 (2010) 146
       VA. CODE ANN. § 18.2-90 (2014) 147
       It is unclear what certain other “remaining in” statutes require
regarding the timing of intent because the state courts have not yet addressed
the question:
       DEL. CODE ANN. tit. 11, § 824 (2015)
       MONT. CODE ANN. § 45-6-204 (2014) 148
       N.H. REV. STAT. ANN. § 635:1 (2016)
       N.D. CENT. CODE § 12.1-22-02 (2012)
       TENN. CODE ANN. § 39-14-402(a)(2) (2014)
       TEX. PENAL CODE ANN. § 30.02(a)(2) (West 2011)
       WYO. STAT. ANN. § 6-3-301 (2015)

       Analysis of the current state “remaining in” burglary statutes reflects
that very few of them require that intent to commit a crime on the premises



       146  See State v. Belcher, 776 P.2d 811, 812 (Ariz. Ct. App. 1989) (upholding a burglary
conviction when jeans were stolen from a store during business hours, reasoning “[t]he
requisite intent to commit burglary may be formed after a person enters a store in all
innocence”).
        147 See Clark v. Commonwealth, 472 S.E.2d 663, 663 (Va. 1996), on reh'g, 481 S.E.2d

495 (Va. 1997) (affirming burglary conviction when defendant entered store at night while it
was open for business and committed theft while what appeared to be the butt of a gun was
showing from his pocket; the court reasoned “[w]e hold that under Code § 18.2-90, a person
who enters a store intending to commit robbery therein, enters the store unlawfully.”); id. at
677 (“We reiterate our holding in Johns that ‘[i]t would be an impeachment of the common
sense of mankind to say that . . . a thief who enters the store with intent to steal does so with
the owner's consent and upon his invitation.’”) (quoting Johns v. Commonwealth, 392 S.E.2d
487, 489 (Va. 1990)).
        148 See State v. Manthe, 641 P.2d 454, 456 (Mont. 1982) (holding that evidence was

sufficient to support a finding of either unlawful entry or unlawful remaining in, but it is not
clear what jury was instructed regarding timing of intent to commit another crime on the
premises).
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                                       No. 15-20308
be formed prior to or at the time of the unlawful remaining in the premises. It
also cannot be said that a majority of the States have adopted “remaining in”
statutes that require a jury to decide unanimously whether the defendant
entered unlawfully or remained unlawfully.
                                            V
       The Sixth and Eighth Circuits have held, without discussing the timing
of intent, that violations of the same Tennessee statute at issue in Herrera-
Montes 149 constitute generic burglary. 150 Our decision in Herrera-Montes is
therefore in direct conflict with other Circuit Court decisions. More broadly,
the Circuit Courts are in conflict as to when generic burglary requires intent
to commit a crime to be formed.
       In United States v. Bonilla, the Fourth Circuit held that a conviction
under Texas Penal Code section 30.02(a)(3) qualified as “burglary of a
dwelling” under § 2L1.2 of the Guidelines. 151 The Texas statute provided that
“[a] person commits an offense 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.” 152 The Fourth Circuit agreed with the
defendant that this offense “does not require that the intent exist at entry.” 153
But the court did not agree that “this quirk as to the timing element is fatal
under Taylor,” 154 concluding that intent at entry is not an element of generic




       149 United States v. Herrera-Montes, 490 F.3d 390 (5th Cir. 2007).
       150 See United States v. Pledge, 821 F.3d 1035, 1037 (8th Cir. 2016); United States v.
Priddy, 808 F.3d 676, 684 (6th Cir. 2015); United States v. Eason, 643 F.3d 622, 624 (8th Cir.
2011); United States v. Nance, 481 F.3d 882, 887-88 (6th Cir. 2007); United States v.
Anderson, 923 F.2d 450, 454 (6th Cir. 1991).
       151 United States v. Bonilla, 687 F.3d 188, 190, 193 (4th Cir. 2012).
       152 Id. at 192 (internal quotation marks omitted) (quoting TEX. PENAL CODE ANN.

§ 30.02 (West 2011)).
       153 Id. at 192-93.
       154 Id. at 193.

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                                        No. 15-20308
burglary, even if the statute of conviction is an unlawful “entry” statute and
does not include “remaining in.” 155
       In Bonilla, The Fourth Circuit also considered the defendant’s argument
that “a homeless person who unlawfully enters a home only to seek warmth,
but while inside, forms an intent to steal” would present less of a risk than a
person who enters after plotting to commit a crime. 156 That argument is
similar to the trespassing-teenagers hypothetical discussed in Herrera-
Montes. 157 But the Fourth Circuit concluded such arguments are “flawed” and
convictions for such offenses qualify as generic burglary because “Taylor does
not distinguish between burglaries based on their comparative level of risk,
but rather is concerned with a defendant’s (1) unlawful presence, (2) in a
building or structure, (3) with the intent to commit a crime.” 158                The Fourth
Circuit recognized that its holding conflicted with our court’s decision in United
States v. Constante, 159 but concluded that the Fifth Circuit’s “reading of Taylor
[is] too rigid.” 160 The Texas statute at issue in Bonilla was virtually identical
to the Tennessee statute at issue in Herrera-Montes, and accordingly, our
decision in the latter case also conflicts with a Fourth Circuit decision.
       The Sixth Circuit has held that a conviction under the Tennessee
statute 161 at issue in Herrera-Montes qualifies as generic burglary, contrary to
our holding. 162 The Tennessee statute at issue in Priddy defined four different


       155 Id.
       156 Id.
       157 Unites States v. Herrera-Montes, 490 F.3d 390, 392 (5th Cir. 2007).
       158 Bonilla, 687 F.3d at 193.
       159 544 F.3d 584 (5th Cir. 2008) (per curiam).
       160 Bonilla, 687 F.3d at 194.
       161 TENN. CODE ANN. § 39-14-402(a)(3).
       162 See United States v. Priddy, 808 F.3d 676, 684 (6th Cir. 2015); see also United States

v. Nance, 481 F.3d 882, 887-88 (6th Cir. 2007) (observing in a case under the ACCA that “the
weight of authority indicates that Tennessee’s aggravated burglary statute is generic” and
holding that because an aggravated burglary under Tennessee law occurs when an individual
enters a habitation without effective consent of the property owner and intends to commit a
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                                       No. 15-20308
burglary offenses, including the offense that occurs when, “without[] the
effective consent of the property owner,” a defendant “[e]nters a building and
commits or attempts to commit a felony or theft,” 163 the offense at issue in
Herrera-Montes. 164 The Sixth Circuit did not expressly discuss the timing of
when the intent to commit a crime must be formed, but it did not identify
timing as an element in concluding that the Tennessee statute was congruent
with Taylor. 165 It is notable that Tennessee is within the Sixth Circuit’s
jurisdiction, and as this court observed in Herrera-Montes, at least one
Tennessee state court has held that the offense at issue in both Herrera-
Montes, and the Sixth Circuit’s decision in Priddy, Tennessee Code section 39-
14-402(a)(3), does not require intent to commit a crime on the premises to have
been formed at the time of entry. 166
       Decisions from the Eighth Circuit appear to conflict with one another, 167
though only one discusses when a defendant charged with burglary must have
formed the intent to commit a crime on the premises. 168 In United States v.
McArthur, a case arising under the ACCA, the Eighth Circuit held that a
Minnesota burglary conviction was not for generic burglary because the offense



felony, it is generic burglary); United States v. Anderson, 923 F.2d 450, 454 (6th Cir. 1991)
(holding in a case under the ACCA that an enhanced sentence was proper because “Anderson
was convicted of violating Tennessee’s burglary statute,” which, as the court noted, “contains
all of the[] elements” outlined in Taylor).
        163 Priddy, 808 F.3d at 684 (quoting TENN. CODE ANN. § 39-14-402(a)(3) (1990)).
        164 See Unites States v. Herrera-Montes, 490 F.3d 390, 391 (5th Cir. 2007).
        165 See Priddy, 808 F.3d at 684.
        166 See Unites States v. Herrera-Montes, 490 F.3d 390, 392 n.2 (5th Cir. 2007)

(observing that “[t]he plain text of § 39-14-402(a)(3) does not require such intent, as a
Tennessee court has recognized). See State v. Wesemann, 1995 WL 605442, at *2 (Tenn.
Crim. App. Oct. 16, 1995) (holding that § 39-14-402(a)(3) “requires only that a felony be
committed or attempted once the perpetrator enters the building. Criminal intent does not
have to occur either prior to or simultaneous with the entry. ”) (citations omitted).
        167 Compare United States v. McArthur, 836 F.3d 931, 943-44 (8th Cir. 2016), with

United States v. Pledge, 821 F.3d 1035, 1037 (8th Cir. 2016), and United States v. Eason, 643
F.3d 622, 624 (8th Cir. 2011).
        168 See McArthur, 836 F.3d at 931, 943-44.

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                                      No. 15-20308
did “not require that the defendant have formed the ‘intent to commit a crime’
at the time of the nonconsensual entry or remaining in.” 169 The Minnesota
statute at issue provided that “[w]hoever . . . enters a building without consent
and steals or commits a felony or gross misdemeanor while in the building”
commits burglary, 170 and another Minnesota statute defined “enters a building
without consent” to include either entering or remaining in a building without
the owner’s consent. 171 The Government argued that a person convicted under
this statute for entering a building without consent and then committing one
of the listed offenses “meets the ‘remaining in’ aspect of Taylor’s definition” of
burglary “because he must have developed the requisite intent at some point
while ‘remaining in’ the building.” 172            The Eighth Circuit rejected this
argument. It concluded that “‘remaining in’ . . . is a discrete event that occurs
at the moment when a perpetrator, who at one point was lawfully present,
exceeds his license and overstays his welcome.” 173 The court held that “[i]f the
defendant does not have the requisite intent at the moment he ‘remains,’ then
he has not committed the crime of generic burglary.” 174               Accordingly, the
Eighth Circuit concluded that a conviction under the Minnesota statute “does
not require that the defendant have formed the ‘intent to commit a crime’ at
the time of the nonconsensual entry or remaining in” and therefore that “it
does not qualify as a violent felony” under the ACCA. 175
      The Eighth Circuit’s decision in McArthur seems to conflict with a
decision from that Circuit four months earlier in United States v. Pledge, which




      169 Id. at 944 (citing MINN. STAT. § 609.582, subdiv. 3).
      170 Id. at 942 (quoting § 609.582, subdiv. 3).
      171 Id. (citing § 609.581, subdiv. 4).
      172 Id. at 943.
      173 Id. at 944.
      174 Id.
      175 Id.

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                                          No. 15-20308
also involved the ACCA, 176 and with United States v. Eason, which involved
Sentencing Guideline § 4B1.1(b). 177 Neither Pledge nor Eason discussed when
intent to commit a crime on the premises must be formed. But the court held
in Pledge that “[a] burglary under TENN. CODE ANN. § 39-14-403 qualifies as a
generic burglary offense and is categorically a violent felony.” 178 Aggravated
burglary under section 39-14-403 is “burglary of a habitation as defined in
§§ 39-14-401 and 39-14-402.” 179              Section 39-14-402 includes the following
offense: “A person commits burglary who, without the effective consent of the
property owner . . . [e]nters a building and commits or attempts to commit a
felony, theft or assault.” 180 In Eason, the Eighth Circuit held that this same
Tennessee offense “plainly” contained “the elements of generic burglary as
defined by the Supreme Court in Taylor.” 181 This Tennessee offense is very
similar to the entry aspect of the Minnesota offense that the Eighth Circuit
held in McArthur was not generic burglary.
          In Pledge and Eason, the Eighth Circuit considered the same Tennessee
statutes that were at issue in our court’s decision in Herrera-Montes. 182 The
Eighth Circuit’s conclusion that the Tennessee aggravated burglary offense
was generic burglary is contrary to the conclusion in Herrera-Montes that it is
not.




          176 821 F.3d 1035, 1037 (8th Cir. 2016).
          177 643 F.3d 622, 623 (8th Cir. 2011).
          178 Pledge, 821 F.3d at 1037 (citing United States v. Priddy, 808 F.3d 676, 684 (6th Cir.

2015)).
           TENN. CODE ANN. § 39-14-403 (2014).
          179

           Id. § 39-14-402(a)(3).
          180
       181 Eason, 643 F.3d at 624.
       182 Pledge, 821 F.3d at 1037 (examining TENN. CODE ANN. § 39-14-403, which refers

to § 39-14-402 for elements); Eason, 643 F.3d at 624 (examining TENN. CODE ANN. § 39-14-
402); United States v. Herrera-Montes, 490 F.3d 390, 391 (5th Cir. 2007) (examining TENN.
CODE ANN. § 39-14-403, which refers to § 39-14-402 for elements).
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                                     No. 15-20308
      The Ninth Circuit has held that “Taylor allows for burglary convictions
so long as the defendant formed the intent to commit a crime while unlawfully
remaining on the premises, regardless of the legality of the entry.” 183 That
court reasoned that “[t]o hold otherwise would render Taylor's ‘remaining in’
language surplusage.” 184          The elements of the Utah offense under
consideration were that an actor “‘enters or remains unlawfully in a building’
that constitutes a ‘dwelling’ with intent to commit a crime.” 185 The Ninth
Circuit observed that “the Utah Supreme Court held that to be convicted of
burglary ‘the actor must commit or form the intent to commit another crime at
the time he enters or while he remains unlawfully in the building.’” 186 The
Ninth Circuit held that the Utah offense constituted “burglary of a dwelling”
under § 2L1.2 of the Guidelines. 187
      As can be seen, there is a division among the Circuit Courts as to the
elements of generic burglary. There is no unanimity as to when the intent to
commit a crime on the premises must be formed.
                                           VI
      Bernel-Aveja contends that this court’s decision in Herrera-Montes 188
governs this case, and in our decision today, we have concluded that it does.
We said in Herrera-Montes that Taylor’s generic burglary definition 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




      183  United States v. Reina-Rodriguez, 468 F.3d 1147, 1155 (9th Cir. 2006), overruled
on other grounds by United States v. Grisel, 488 F.3d 844 (9th Cir. 2007) (en banc) (citing
Taylor v. United States, 495 U.S. 575, 598 (1990)).
       184 Id.
       185 Id. (citing UTAH CODE ANN. § 76-6-202(1)-(2)).
       186 Id. at 1156 (quoting State v. Rudolph, 970 P.2d 1221, 1229 (Utah 1998)).
       187 Id. at 1157.
       188 490 F.3d 390 (5th Cir. 2007).

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                                         No. 15-20308
DICTIONARY 197-98 (6th ed. 1990).” 189                 We stated that, “[f]or example,
teenagers who unlawfully enter a house only to party, and only later decide to
commit a crime, are not common burglars.” 190 However, the Model Penal Code
is not a “remaining in” provision, it has not been widely adopted, and as
discussed above, many states had adopted “remaining in” statutes when Taylor
was decided. It also appears, as discussed above, that such statutes do not
require the intent to commit another crime to have been formed at the time of
entry.
         Another decision of our court, though unpublished, observed that when
a “remaining in” statute is at issue, requiring intent to commit a crime at the
time of entry would be inconsistent with Taylor’s formulation of generic
burglary. 191 That opinion said specifically: the “conclu[sion] that the definition
of generic burglary requires that a defendant form the intent to commit a crime
before entering a structure . . . would be inconsistent with the ‘remaining in’
aspect of Taylor’s definition.” 192 The panel in that case did not have to resolve
the issue, however, since the standard of review was plain error, and the law
was unclear in our circuit. 193 That unpublished opinion concluded that the
Herrera-Montes panel was not called upon “to reconcile the ‘remaining in’
aspect of Taylor with a requirement for intent at the time of entry.” 194 Today,
our panel has to confront that question, and we have concluded that because
Herrera-Montes held broadly that intent at the time of entry is an element of
generic burglary, we must follow Herrera-Montes.




         189 Herrera-Montes, 490 F.3d at 392.
         190 Id.
         191 United States v. Davis, 339 F. App’x 359, 360 (5th Cir. 2009) (per curiam).
         192 Id.
         193 Id. at 361.
         194 Id.

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                                      No. 15-20308
       However, to be clear, we did not have a “remaining in” statue before us
in Herrera-Montes. The statute criminalized only unlawful entry, providing:
“A person commits burglary who, without the effective consent of the property
owner . . . [e]nters a building and commits or attempts to commit a felony,
theft, or assault.” 195 Nor did the Herrera-Montes opinion characterize this
Tennessee statute as a “remaining in” statute. To have done so would have
been incorrect.        The opinion did, however, offhandedly and entirely
gratuitously address burglary by “remaining in” in dicta in one footnote. 196
That discussion was entirely unnecessary to the holding in the case. It should
also be noted that part of that footnote discussed remaining in after lawful
entry. 197 The Tennessee statute actually at issue criminalized only unlawful
entry and as already discussed, had no “remaining in” component.
       Today, JUDGE HIGGINBOTHAM’s concurring opinion implies, if not states,
that the statute before us in Herrera-Montes was a “remaining in” statute. 198
That is demonstrably incorrect. JUDGE HIGGINBOTHAM’s concurring opinion
also states that the statute at issue in Herrera-Montes “could have come within
generic burglary only under a broad reading of ‘remaining in’ in the generic
definition.” 199 But we did not, and were not required to, opine as to the
meaning of “remaining in” to resolve the case. The fact that a single opinion
from the Sixth Circuit, which refused to follow Herrera-Montes, observed that



       195 United States v. Herrera-Montes, 490 F.3d 390, 391 (5th Cir. 2007) (quoting TENN.
CODE ANN. § 39-14-402(a)(3)).
       196 See id. at 392 n.1 (“Of course, if the intent could be formed anytime, then every

crime committed after an unlawful entry or remaining in would be burglary. Relatedly, one
who lawfully enters a building does not ‘unlawfully remain’ just because he later commits a
crime, parlaying the crime into burglary because now intent and unlawful remaining
coincide—a shoplifter, for instance, who enters lawfully but intending to steal does not
‘unlawfully remain’ when he commits the theft.”).
       197 See id.
       198 See ante at __.
       199 See ante at __.

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                                           No. 15-20308
the Tennessee statute at issue was “also a ‘remaining-in’ variant of generic
burglary,” 200 is not dispositive as to whether that statute actually sets forth a
“remaining in” offense, as JUDGE HIGGINBOTHAM’s concurring opinion
suggests. 201 The Tennessee statute did not contain the words “remaining-in”
or their equivalent. It defined the offense only with reference to entry. The
Herrera-Montes opinion’s errant discussion of “remaining in” burglary was
nothing more than an unnecessary and erroneous declaration.
                                       *        *         *
      Only the Supreme Court can resolve the split among the Circuit Courts
as to when formation of intent for purposes of generic burglary must occur.
But until the Supreme Court speaks, whether a conviction under Ohio’s
unlawful entry or remaining in statute is a generic burglary offense, and
relatedly, what the generic offense of burglary by unlawfully remaining in
requires with regard to when intent must be formed, are important questions
that our court should decide en banc.




      200   See United States v. Priddy, 808 F.3d 676, 684 (6th Cir. 2015).
      201   See ante at __.
                                               63
