United States v. Rees , 233 F. App'x 362 ( 2007 )

United States Court of Appeals
Fifth Circuit
F I L E D
UNITED STATES COURT OF APPEALS
May 24, 2007
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
No. 06-40955
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
STAVROULA REES,
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of Texas
(06-CR-130)
Before DAVIS, BARKSDALE, and BENAVIDES, Circuit Judges.
PER CURIAM:*
Stavroula Rees, a citizen of Greece, challenges the district
court’s application of a 16-level sentencing enhancement, arguing
that her 2002 Ohio conviction for burglary was not a crime of
violence under the Sentencing Guidelines. We vacate the sentence
and remand for resentencing.
*
Pursuant to 5th Cir. R. 47.5, the Court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5th Cir. R. 47.5.4.
I. BACKGROUND AND STANDARD OF REVIEW
Stavroula Rees pleaded guilty to one count of illegal reentry
after deportation and having previously been convicted of an
aggravated felony. The presentence report (PSR) assigned Rees a
base offense level of eight. The PSR increased Rees’ base offense
level 16 levels under section 2L1.2(a) of the Guidelines because
her deportation occurred following her 2002 Ohio conviction for
burglary, a crime of violence. According to the PSR, Rees was also
convicted in Ohio of two counts of burglary in 2003. After a
three-level reduction for acceptance of responsibility, the PSR set
Rees’ total offense level at 21. That offense level, combined with
a criminal history category of IV, yielded a recommended sentencing
guidelines range of 57 to 71 months imprisonment.
Rees objected to the PSR, challenging the 16-level
enhancement, and repeated her objection at sentencing. The
district court overruled Rees’ objection, finding that her prior
convictions constituted crimes of violence, and sentenced Rees to
57 months imprisonment and a two-year term of supervised release.
Rees timely appealed.
We review the district court’s application of the Sentencing
Guidelines de novo, and its findings of fact for clear error.
United States v. Vargas-Duran, 356 F.3d 598, 602 (5th Cir. 2004)
(en banc); see also United States v. Villanueva, 408 F.3d 193, 202,
203 n.9 (5th Cir. 2005) (holding that, post-Booker, this Court
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continues to use same standards of review when considering district
court’s application of Guidelines).
II. DISCUSSION
Rees argues that her prior Ohio burglary convictions do not
qualify as crimes of violence under the Guidelines. Section
2L1.2(b)(a)(A)(ii) of the Guidelines provides for a 16-level
increase to a defendant’s base offense level if she was previously
deported after being convicted of a crime of violence. The
Application Notes define a “crime of violence” as (1) any of the
specific enumerated offenses, which include “burglary of a
dwelling,” or (2) “any 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.” § 2L1.2, comment.
“In determining whether a prior offense is equivalent to an
enumerated offense that is not defined in the Guidelines, like
‘burglary of a dwelling,’” we define “the enumerated offense
according to its ‘generic, contemporary meaning’” and rely “on a
uniform definition, regardless of the labels employed by the
various States’ criminal codes.” United States v. Murillo-Lopez,
444 F.3d 337, 339 (5th Cir. 2006). This Court uses a “common sense
approach” to determine whether a defendant’s prior conviction
qualifies as “an enumerated offense as that offense is understood
in its ordinary, contemporary, and common meaning.” Id. “[T]he
generic, contemporary meaning of burglary contains at least . . .
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an unlawful or unprivileged entry into, or remaining in, a building
or other structure, with intent to commit a crime.” Taylor v.
United States, 495 U.S. 575, 600-02 (1990). “[B]urglary of a
dwelling” also includes, at a minimum, tents or vessels used for
human habitation.” Murillo-Lopez, 444 F.3d at 345.
Rees was convicted of third-degree felony burglary of an
occupied structure under the Ohio burglary statute. The Ohio
statute’s definition of “occupied structure” includes structures
that are not dwellings, such as “any building, outbuilding, . . .
railroad car, truck, trailer, . . . or other structure” if “[a]t
the time, any person is present or likely to be present in it.”
OHIO REV. CODE § 2909.01(B)(7)(C). Therefore, as Rees contends, and
as the government concedes, her prior state court convictions for
burglary do not qualify as the enumerated offense of “burglary of
a dwelling.” See United States v. Mendoza-Sanchez, 456 F.3d 479,
482 (5th Cir. 2006)(finding that Arkansas statute defining burglary
as entering or remaining unlawfully in “an occupiable structure of
another person” included structures that were not dwellings,
precludes qualifying as enumerated offense).
When determining whether an offense has as an element the use,
attempted use, or threatened use of physical force against the
person of another, this Court adopts the categorical approach and
“examines the elements of the offense, rather than the facts
underlying the conviction.” Mendoza-Sanchez, 456 F.3d at 482. The
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Ohio statute under which Rees was convicted does not have as an
element the use, attempted use, or threatened use of physical force
against the person of another. Indeed, a burglary under the Ohio
statute can be committed against property, rather than a person.
See § 2911.12(A)(3). As with the enumerated offense definition,
the government concedes that Rees’ convictions do not meet this
alternative definition of a crime of violence.
Rees also challenges the constitutionality of section
1326(b)’s treatment of prior felony and aggravated felony
convictions as sentencing factors rather than elements of the
offense that must be found by a jury in light of Apprendi v. New
Jersey, 530 U.S. 466 (2000). As Rees concedes, this argument is
foreclosed by Almendarez-Torres v. United States, 523 U.S. 224, 235
(1998), and was only raised here to preserve it for further review.
See United States v. Garza-Lopez, 410 F.3d 268, 276 (5th Cir.),
cert. denied, 126 S. Ct. 298 (2005)(“This court has repeatedly
rejected arguments like [this] one . . . and has held that
Alemendarez-Torres remains binding despite Apprendi.”).
For the foregoing reasons, we VACATE Rees’ sentence, and
REMAND for resentencing.
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