United States v. Bernel-Aveja

PRISCILLA RICHMAN OWEN, Circuit Judge

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, and therefore that the district court erred in applying a 12-level sentence enhancement. We vacate his sentence and remand for resentencing.

U.S. SENTENCING GUIDELINES MANUAL § 2L1.2 (U.S. SENTENCING COMM'N 2014).

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 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. A "crime of violence" was among the qualifying felony offenses described in that subsection, and the definition of "crime of violence" included "burglary of a dwelling."

See 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. . . .

See id.

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.

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 when he was sentenced. "We review a district court's interpretation and application of the guidelines de novo" when, as here, there was an objection in the district court that preserved the issue for appeal.

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.

United States v. Bonilla, 524 F.3d 647, 651-52 (5th Cir. 2008).

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. 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:

OHIO REV. CODE ANN. § 2911.12 (West 1990) (amended July 1, 1996).

(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;

(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.

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 . . . ."

OHIO 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).

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 construed language in another statute 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, 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.

See OHIO REV. CODE ANN. § 2911.11(A)(1).

See State v. Fontes, 721 N.E.2d 1037, 1040 (Ohio 2000) (construing OHIO REV. CODE ANN. § 2911.11(A)).

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. 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." However, this authority—State v. Flowers—was expressly overruled by the Ohio Supreme Court in State v. Fontes.

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).

State v. Flowers, 475 N.E.2d 790, 792 (Ohio Ct. App. 1984).

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").

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 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." The elements of Bernel-Aveja's offense are determined by consulting the statute, as construed by the Supreme Court of Ohio.

Peerless Elec. Co. v. Bowers, 129 N.E.2d 467, 468 (Ohio 1955) (per curiam).

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.").

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. 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. 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." The Ohio Supreme Court upheld the conviction, holding that "a defendant may form the purpose to commit a criminal offense at any point during the course of a trespass." 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."

Fontes, 721 N.E.2d at 1038.

Id.

Id. at 1039.

Id. at 1040.

State v. Gardner, 889 N.E.2d 995, 1002 (Ohio 2008) (citing Fontes, 721 N.E.2d 1037).

Though Fontes and the subsequent Ohio Supreme Court decision concerned convictions under Ohio Revised Code section 2911.11, 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.

See Gardner, 889 N.E.2d at 998-99; Fontes, 721 N.E.2d at 1037.

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)).

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. When we have determined the generic elements of an offense, we generally employ the "categorical" approach to compare the elements of the state offense to the elements of the generic offense. 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. "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." 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.'"

See, e.g., United States v. Ortega-Gonzaga, 490 F.3d 393, 394 (5th Cir. 2007).

See, e.g., United States v. Pascacio-Rodriguez, 749 F.3d 353, 358 (5th Cir. 2014).

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).

Moncrieffe, 133 S. Ct. at 1684 (quoting Johnson v. United States, 559 U.S. 133, 137 (2010)).

Id. at 1684-85 (quoting Duenas-Alvarez, 549 U.S. at 193).

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." Our decision in Herrera-Montes, and our subsequent decision in United States v. Constante, govern this case. The statutory subsections under consideration in Herrera-Montes and Constante were not "remaining in" provisions, 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.

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).

544 F.3d at 586-87.

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)).

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)).

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 . . . ." 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. 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 "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. 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.

TENN. CODE ANN. § 39-14-402(a)(3).

Herrera-Montes, 490 F.3d at 392.

Id.

Id.

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." 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." We held that this offense was not a "violent felony" under the ACCA.

United States v. Constante, 544 F.3d 584, 587 (5th Cir. 2008) (per curiam).

Id. at 585 (construing TEX. PENAL CODE ANN. § 30.02(a)(3)).

Id. 587.

In the present case, the elements of the Ohio offense for which Bernal-Aveja was convicted are found in two separate statutes. The "remaining in" alternative to "entry" is partially set forth within the definition of "trespass," found in section 2911.21(A). 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. In any event, there is no indication in the record before us that 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." Ohio law permits the factfinder to find that the defendant unlawfully entered a dwelling and thereafter formed the intent to commit a crime. Therefore, based on the holding in Herrera-Montes, the Ohio offense is overly broad because it is not congruent with generic burglary.

OHIO REV. CODE ANN. § 2911.12 (West 1990) (amended July 1, 1996), and § 2911.21(A)(1).

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 . . . .").

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).

See Moncrieffe v. Holder, 133 S. Ct. 1678, 1684 (2013).

See State v. Fontes, 721 N.E.2d 1037, 1040 (Ohio 2000).

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." 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. 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 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. 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.

United States v. Herrera-Montes, 490 F.3d 390, 392 (5th Cir. 2007).

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)).

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").

* * *

Accordingly, we VACATE Bernel-Aveja's sentence and REMAND for resentencing. 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.

The federal circuits differ over the meaning of the phrase "remaining in" in the Supreme Court's generic definition of burglary. 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." 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. 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.

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.").

United States v. McArthur, 836 F.3d 931, 944 (8th Cir. 2016).

3 WAYNE R. LAFAVE, SUBSTANTIVE CRIMINAL LAW § 21.1(b) (2d ed.).

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.").

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. 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." 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 immediately prior to committing the further crime inside the building. 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." This view criminalizes conduct more broadly.

See United States v. Bonilla, 687 F.3d 188, 193-94 (4th Cir. 2012).

Id. at 194 (emphasis added).

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).

Id. at 1039-40.

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; burglary convictions under those provisions similarly come within generic burglary only through the "remaining in" alternative construed broadly.

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).

We took the narrower approach to generic burglary's "remaining in" language in United States v. Herrera-Montes. 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, was generic burglary for the purposes of the Sentencing Guidelines. 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." A contrary holding would have swept too broadly, giving the same weight to criminal conduct having in common only the label of burglary.

490 F.3d 390 (5th Cir. 2007).

Id. at 391 (citing TENN. CODE ANN. § 39-14-402(a)(3)).

Herrera-Montes, 490 F.3d at 392 n.1.

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. 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.

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)).

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 Herrera-Montes. Both statutes of conviction are broader than generic burglary, and cannot support a sentencing enhancement as the enumerated crime of "burglary of a dwelling."

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.").

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." The Court specifically cited multiple examples of states that it believed defined burglary too broadly to come within the generic definition. It concluded that "'burglary' in [the ACCA] must have some uniform definition independent of the labels employed by the various States' criminal codes." 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."

Taylor, 495 U.S. at 590.

Id. at 591.

Id. at 592.

Mathis v. United States, 136 S. Ct. 2243, 2251 (2016).

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.'" 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.

Taylor, 495 U.S. at 590-91.

Id. at 590.

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. The select few states who interpret their burglary statutes as nothing more than "a location enhancement for what might otherwise be petty theft" need not, and should not, frustrate Taylor's effort to fend off disparate federal sentencing from the want of common meaning in labeling criminal conduct by the states.

See Taylor, 495 U.S. at 590-92.

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).

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." "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.

Taylor, 495 U.S. at 598 (emphasis added).

McArthur, 836 F.3d at 944.

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." 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 categorical approach is quite exacting, as has recently been iterated. Indeed, slight expansion beyond generic burglary takes a statute of conviction outside the definition. Surely so crimes lacking the fundamental character of burglary.

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).

See Mathis, 136 S. Ct. at 2248-50.

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).

Contemporary burglary statutes have developed significantly from their common law roots; the Court's generic definition recognizes as much. 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.

See Taylor, 495 U.S. at 592-96.

Id. at 584-85.

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 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. 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, how courts define generic burglary continues to be of importance. "Burglary" is an enumerated predicate offense in the Armed Career Criminal Act (ACCA), and the definition of "aggravated felony" for purposes of immigration laws includes "burglary."

See U.S. SENTENCING GUIDELINES MANUAL app. C, amend. 802, at 149-50 (U.S. SENTENCING COMM'N 2016).

18 U.S.C. § 924(e).

See 8 U.S.C. § 1101(a)(43)(G).

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 defined generic burglary in a way that is not supported by the Supreme Court's opinion in Taylor v. United States or the elements of burglary set forth in statutes adopted by a majority of the States at the time the ACCA was enacted. 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." This timing aspect of the formation of intent with regard to "remaining in" is not found in Taylor.

490 F.3d 390 (5th Cir. 2007).

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.").

See infra Part III.

See Herrera-Montes, 490 F.3d at 391-92.

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. 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.

See infra Parts III and IV.

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. 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. 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 elements appear in "most" of them. 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, 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.

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.").

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.").

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)).

See infra Part IV.

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. 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.

See ante at p. ___.

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. The Fifth Circuit should join the Fourth and Ninth 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.

See infra Part V.

See United States v. Bonilla, 687 F.3d 188, 192-93 (4th Cir. 2012).

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)).

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. 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."

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.

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

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. 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.

OHIO REV. CODE ANN. § 2911.12 (West 1990) (amended July 1, 1996).

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;

(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.

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."

Id. § 2911.21(A)(1).

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. 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 the 'burglary' part of 'burglary of a dwelling'" under § 2L1.2 of the Guidelines. To determine whether a prior conviction constitutes "burglary," courts utilize the categorical approach set forth in Taylor.

U.S. SENTENCING GUIDELINES MANUAL § 2L1.2 cmt. n.1(1)(B)(iii) (U.S. SENTENCING COMM'N 2014).

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'").

See United States v. Hernandez-Hernandez, 817 F.3d 207, 212 (5th Cir. 2016) (citing Taylor, 495 U.S. at 602).

In Taylor, the Supreme Court construed the ACCA and held that Congress intended the term "burglary" in that legislation to mean the "generic" crime of burglary. 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." 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. 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." Accordingly, though intent to commit a crime is a necessary element of generic burglary, there must be an element of unlawfulness about the presence of the defendant in the building, or in our case, in the dwelling.

18 U.S.C. § 924(e).

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.").

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.").

Id. at 591.

Mathis v. United States, 136 S. Ct. 2243, 2248-49 (2016) (citing Descamps v. United States, 133 S. Ct. 2276, 2283-84 (2013)).

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."

Taylor, 495 U.S. at 598.

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." 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.

OHIO REV. CODE ANN. § 2911.12 (West 1990) (amended July 1, 1996), and id. § 2911.21(A)(1).

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, with intent to commit a crime." 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"), 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."

Taylor, 495 U.S. at 598.

Id.

The Supreme Court of Ohio has construed one of Ohio's burglary statutes to mean that "a defendant may form the purpose to commit a criminal offense at any point during the course of a trespass." 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. 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."

OHIO REV. CODE ANN. § 2911.11(A) (West 2006 & Supp. 2016).

State v. Fontes, 721 N.E.2d 1037, 1040 (Ohio 2000).

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)).

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. 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." The 1986 amendment replaced "any felony" in that definition with "any crime punishable by a term of imprisonment exceeding one year." 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. The Supreme Court drew three "observations" from its analysis of this history.

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)).

Id. at 581 (quoting § 1803, 98 Stat. at 2185 (repealed 1986)).

See id. at 582 (quoting § 104, 100 Stat. at 458).

See id. (citing Career Criminals Amendment Act of 1986, Pub. L. 99-570, § 1402, 100 Stat. 3207-39).

Id. at 588.

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 harm to persons." 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." 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." 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."

Id.

Id.

Id.

Id.

Second, the Court concluded that "the enhancement provision always has embodied a categorical approach to the designation of predicate offenses." 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.'"

Id.

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.").

"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." The Court deduced that "[i]n adopting this definition, Congress both prevented offenders from invoking the arcane 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."

Taylor, 495 U.S. at 589 (1990).

Id.

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."

Id. at 590.

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." 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."

Id. at 593.

Id.

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." 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 "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." The Court also stated that its generic definition "approximates that adopted by the drafters of the Model Penal Code," 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." 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." 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." 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."

Id. at 598.

Id. (quoting W. LAFAVE & A. SCOTT, SUBSTANTIVE CRIMINAL LAW § 8.13(a), (c), (e) (1986).

Id. at n.8.

MODEL PENAL CODE § 221.1 (AM. LAW. INST. 1980).

Taylor, 495 U.S. at 598.

Id.

Id. at 599.

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.

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], with intent to commit a crime." The question raised by this appeal is what the generic offense requires regarding the timing of the intent to commit a crime.

U.S. SENTENCING GUIDELINES MANUAL § 2L1.2 cmt. n.1(B)(iii) (U.S. SENTENCING COMM'N 2014).

Taylor, 495 U.S. at 598.

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, and because the Supreme Court observed that its generic definition of burglary "is practically identical to the [ACCA's] 1984 definition," it is instructive to compare the offense defined in the Ohio statute, section 2911.12, with the ACCA's 1984 definition.

Id. at 590.

Id. at 598.

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." 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 the habitation any misdemeanor." 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.

Armed Career Criminal Act of 1984, Pub. L. No. 98-473, § 1803, 98 Stat. 2185 (repealed 1986).

OHIO REV. CODE ANN. § 2911.12 (West 1990) (amended July 1, 1996).

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," 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, 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." The 1986 version of LaFave's treatise listed twenty-four states that had adopted "remaining in" burglary statutes. 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. The most recent edition of LaFave's treatise lists twenty-nine states that have adopted "remaining in" statutes, 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

Taylor, 495 U.S. at 598.

Id. at 598 & n.8.

W. LAFAVE & A. SCOTT, SUBSTANTIVE CRIMINAL LAW § 8.13(b) (1986).

Id. n.44.

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").

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).

[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.

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.'" 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."

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).

Id. at 646.

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." 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." The treatise listed Model Penal Code § 221.1 and Florida and New Jersey statutes as examples with such a limitation. Model Penal Code § 221.1 did not include "remaining in," 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.

W. LAFAVE & A. SCOTT, SUBSTANTIVE CRIMINAL LAW § 8.13(b) (1986).

Id. n.47.

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).

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.").

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.

Similarly, Professor Anderson observed more recently that "a consensual visit that turns ugly might be prosecuted as a burglary" under a statute that 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." 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." 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.

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)).

Id. 645-46, 645 n.113, 646 nn.114 & 116.

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," then generic burglary does not require intent to commit a crime at the time of entry if the statute of conviction is a "remaining in" statute. Intent to commit a crime formed while "remaining in" suffices.

Taylor v. United States, 495 U.S. 575, 598 (1990).

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." To hold otherwise, that opinion posits, "strains common sense," would "confound[] the purpose of evenhanded sentencing sought after by the Sentencing Guidelines and related statutes," and "fouls the mandate of Taylor itself." 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" 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.

See ante at p. ___.

See ante at p. ___.

See ante at p. ___.

See Taylor, 495 U.S. at 598.

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. The Supreme Court stated in Taylor that it had undertaken such an analysis with respect to burglary, concluding that it defined that offense in "the generic sense in which the term is now used in the criminal codes of most States." 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.

See Gonzales v. Duenas-Alvarez, 549 U.S. 183, 190 (2007).

Taylor, 495 U.S. at 598.

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) LA. STAT. ANN. § 14:62 (2016) MD. CODE ANN., CRIM. LAW § 6-202 (LexisNexis 2012 & Supp. 2016) MASS. GEN. LAWS ch. 266, § 14 (2008) MICH. COMP. LAWS § 750.110; § 750.110a (2004 & Supp. 2016) MINN. STAT. ANN. § 609.582 (West 2009) MISS. CODE. ANN. § 97-17-23 (2014) NEB. REV. ST. § 28-507 (2008) NEV. REV. STAT. § 205.060; § 205.065 (2015) N.J. STAT. ANN. § 2C:18-2(1) (West 2015) N.M. STAT. ANN. § 30-16-3 (2004) N.C. GEN. STAT. § 14-51 (2015) OKLA. STAT. tit. 21, § 1431 (2015) 18 PA. STAT. AND CONS. STAT. ANN. § 3502 (West 2015) 11 R.I. GEN. LAWS § 11-8-1 (2002) S.C. CODE ANN. § 16-11-312 (2015) TENN. CODE ANN. § 39-14-402(a)(1) (2014)
TEX. PENAL CODE ANN. § 30.02(a)(1) (West 2011)WIS. STAT. ANN. § 943.10 (West 2005)

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, and the Nebraska offense includes "any real estate or any improvements erected thereon." 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.

See LA. STAT. ANN. § 14:62 (2016).

See NEB. REV. ST. § 28-507 (2008).

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) IDAHO CODE § 18-1401 (2016) NEV. REV. STAT. § 205.060 (2015) 11 R.I. GEN. LAWS § 11-8-3 (2002) W. VA. CODE ANN. § 61-3-11 (LexisNexis 2014)

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) TENN. CODE ANN. § 39-14-402(a)(3) (2014) TEX. PENAL CODE ANN. § 30.02(a)(3) (West 2011)

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 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) 720 ILL. COMP. STAT. 5/19-1 (West 2003) N.Y. PENAL LAW § 140.20 (McKinney 2010)

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, i.e. unlawful entry and unlawful remaining in, and there is no "majority" view as to timing of intent, though a majority of "remaining 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:

See Mathis v. United States, 136 S. Ct. 2243, 2249-2250 (2016) (explaining the difference between "divisible" statutes and "alternative means" statutes).

ALA. CODE § 13A-7-5 (2008 & Supp. 2012) COLO. REV. STAT. ANN. § 18-4-202 (West 2013) FLA. STAT. ANN. § 810.02(1)(b)(2) (West 2007 & Supp. 2016) GA. CODE ANN. § 16-7-1 (2011 & Supp. 2016) 720 ILL. COMP. STAT. 5/19-1 (West 2003) IOWA CODE ANN. § 713.1 (West 2016) KAN. STAT. ANN. § 21-5807 (2007 & Supp. 2015) KY. REV. STAT. ANN. § 511.020 (LexisNexis 2014) ME. REV. STAT. ANN. tit. 17-A, § 401 (2006 & Supp. 2015) MO. REV. STAT. § 569.160 (2016) OHIO REV. CODE ANN. §§ 2911.12, 2911.21(A)(1) (West 2006 & Supp. 2016) UTAH CODE ANN. § 76-6-202 (LexisNexis 2012) WASH. REV. CODE § 9A.52.020 (2015)

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).

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").

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) ARK. CODE ANN. § 5-39-201 (2013) CONN. GEN. STAT. ANN. § 53a-101 (West 2012) HAW. REV. STAT. ANN. § 708-810 (LexisNexis 2016) N.Y. PENAL LAW § 140.20 (McKinney 2010) OR. REV. STAT. § 164.215 (2015)

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. The commission of the crime is considered to have implicitly revoked, or exceeded the limits of, the permission to enter. 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." 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." 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" with respect to the timing of intent to commit a crime on the 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.

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").

See id.

See ante at p. ___.

See ante at p. ___.

See ante at p.___.

"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) VA. CODE ANN. § 18.2-90 (2014)

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)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 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 constitute generic burglary. 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.

United States v. Herrera-Montes, 490 F.3d 390 (5th Cir. 2007).

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).

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. 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." The Fourth Circuit agreed with the defendant that this offense "does not require that the intent exist at entry." But the court did not agree that "this quirk as to the timing element is fatal under Taylor," concluding that intent at entry is not an element of generic burglary, even if the statute of conviction is an unlawful "entry" statute and does not include "remaining in."

United States v. Bonilla, 687 F.3d 188, 190, 193 (4th Cir. 2012).

Id. at 192 (internal quotation marks omitted) (quoting TEX. PENAL CODE ANN. § 30.02 (West 2011)).

Id. at 192-93.

Id. at 193.

Id.

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. That argument is similar to the trespassing-teenagers hypothetical discussed in Herrera-Montes. 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." The Fourth Circuit recognized that its holding conflicted with our court's decision in United States v. Constante, but concluded that the Fifth Circuit's "reading of Taylor [is] too rigid." 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.

Id.

Unites States v. Herrera-Montes, 490 F.3d 390, 392 (5th Cir. 2007).

Bonilla, 687 F.3d at 193.

544 F.3d 584 (5th Cir. 2008) (per curiam).

Bonilla, 687 F.3d at 194.

The Sixth Circuit has held that a conviction under the Tennessee statute at issue in Herrera-Montes qualifies as generic burglary, contrary to our holding. The Tennessee statute at issue in Priddy defined four different 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," the offense at issue in Herrera-Montes. 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. 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.

TENN. CODE ANN. § 39-14-402(a)(3).

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 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).

Priddy, 808 F.3d at 684 (quoting TENN. CODE ANN. § 39-14-402(a)(3) (1990)).

See Unites States v. Herrera-Montes, 490 F.3d 390, 391 (5th Cir. 2007).

See Priddy, 808 F.3d at 684.

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).

Decisions from the Eighth Circuit appear to conflict with one another, though only one discusses when a defendant charged with burglary must have formed the intent to commit a crime on the premises. 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 did "not require that the defendant have formed the 'intent to commit a crime' at the time of the nonconsensual entry or remaining in." 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, and another Minnesota statute defined "enters a building without consent" to include either entering or remaining in a building without the owner's consent. 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." 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." 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." 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.

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).

See McArthur, 836 F.3d at 931, 943-44.

Id. at 944 (citing MINN. STAT. § 609.582, subdiv. 3).

Id. at 942 (quoting § 609.582, subdiv. 3).

Id. (citing § 609.581, subdiv. 4).

Id. at 943.

Id. at 944.

Id.

Id.

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 also involved the ACCA, and with United States v. Eason, which involved Sentencing Guideline § 4B1.1(b). 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." Aggravated burglary under section 39-14-403 is "burglary of a habitation as defined in §§ 39-14-401 and 39-14-402." 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." 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." 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.

821 F.3d 1035, 1037 (8th Cir. 2016).

643 F.3d 622, 623 (8th Cir. 2011).

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).

Id. § 39-14-402(a)(3).

Eason, 643 F.3d at 624.

In Pledge and Eason, the Eighth Circuit considered the same Tennessee statutes that were at issue in our court's decision in Herrera-Montes. 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.

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).

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." That court reasoned that "[t]o hold otherwise would render Taylor's 'remaining in' language surplusage." 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." 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.'" The Ninth Circuit held that the Utah offense constituted "burglary of a dwelling" under § 2L1.2 of the Guidelines.

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)).

Id.

Id. (citing UTAH CODE ANN. § 76-6-202(1)-(2)).

Id. at 1156 (quoting State v. Rudolph, 970 P.2d 1221, 1229 (Utah 1998)).

Id. at 1157.

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 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 DICTIONARY 197-98 (6th ed. 1990)." 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." 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.

490 F.3d 390 (5th Cir. 2007).

Herrera-Montes, 490 F.3d at 392.

Id.

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. 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." 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. 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." 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.

United States v. Davis, 339 F. App'x 359, 360 (5th Cir. 2009) (per curiam).

Id.

Id. at 361.

Id.

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." 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. 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. The Tennessee statute actually at issue criminalized only unlawful entry and as already discussed, had no "remaining in" component.

United States v. Herrera-Montes, 490 F.3d 390, 391 (5th Cir. 2007) (quoting TENN. CODE ANN. § 39-14-402(a)(3)).

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.").

See id.

Today, JUDGE HIGGINBOTHAM's concurring opinion implies, if not states, that the statute before us in Herrera-Montes was a "remaining in" statute. 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." 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 the Tennessee statute at issue was "also a 'remaining-in' variant of generic burglary," is not dispositive as to whether that statute actually sets forth a "remaining in" offense, as JUDGE HIGGINBOTHAM's concurring opinion suggests. 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.

See ante at ___.

See ante at ___.

See United States v. Priddy, 808 F.3d 676, 684 (6th Cir. 2015).

See ante at ___. --------

* * *

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.