United States v. Aguila-Montes De Oca ( 2008 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee, No. 05-50170
v.
 D.C. No.
CR-04-02175-RTB
GUILLERMO AGUILA-MONTES DE
OCA, OPINION
Defendant-Appellant.

Appeal from the United States District Court
for the Southern District of California
Roger T. Benitez, District Judge, Presiding
Argued February 9, 2006
Submitted February 29, 2008
Pasadena, California
Filed April 28, 2008
Before: David R. Thompson, Thomas G. Nelson, and
Ronald M. Gould, Circuit Judges.
Opinion by Judge Thompson
4579
UNITED STATES v. AGUILA-MONTES 4581
COUNSEL
Vincent J. Brunkow, San Diego, California, for the appellant.
Steven E. Stone, Assistant United States Attorney, San Diego,
California, for the appellee.
4582 UNITED STATES v. AGUILA-MONTES
OPINION
THOMPSON, Senior Circuit Judge:
Guillermo Aguila-Montes De Oca (“Aguila-Montes”)
appeals the sentence imposed upon him for attempting to
reenter the United States following deportation, in violation of
8 U.S.C. § 1326. Aguila-Montes challenges the district court’s
sixteen-level sentence enhancement resulting from the court’s
determination that his prior conviction for first degree resi-
dential burglary, in violation of section 459 of the California
Penal Code, constituted a crime of violence under section
2L1.2(b)(1)(A) of the United States Sentencing Guidelines
Manual (“Guidelines”).1 We have jurisdiction under 28
U.S.C. § 1291 and 18 U.S.C. § 3742(a). We hold that Aguila-
Montes’s prior California burglary conviction constituted a
crime of violence under the Guidelines, and affirm his sen-
tence with the sixteen-level sentence enhancement.
I. Background
Aguila-Montes, a Mexican citizen, queued up at the San
Ysidro Point of Entry on July 5, 2004. Customs and Border
Protection officers arrested him after verifying by computer
that he was a deported alien. The government charged him
with violating 8 U.S.C. § 1326 by attempting to reenter the
United States. A jury convicted him, and the district court
sentenced him to 120 months in prison and two years of
supervised release.
During sentencing, the district court concluded that Aguila-
Montes had previously been convicted of a crime of violence
1
Although Aguila-Montes also raises a constitutional challenge to his
sentence, and appeals the underlying conviction, this opinion addresses
only the district court’s decision to apply the sixteen-level sentence
enhancement. We consider the other appellate issues in a separate memo-
randum disposition filed with this opinion.
UNITED STATES v. AGUILA-MONTES 4583
as defined by section 2L1.2 of the Guidelines, and for that
reason enhanced his sentence sixteen levels. The prior convic-
tion was from 1988, when Aguila-Montes pleaded guilty to
first degree residential burglary in violation of section 459 of
the California Penal Code. Aguila-Montes argues that because
this 1988 state conviction could have been based upon crimi-
nal liability for aiding and abetting or for other conduct not
included within the definition of burglary of a dwelling in sec-
tion 2L1.2 of the Guidelines, the district court erred in apply-
ing the sixteen-level sentence enhancement.
II. Discussion
A. Legal Framework
Section 2L1.2 of the Guidelines addresses sentencing for
the crime of unlawfully entering or remaining in the United
States. It provides sentencing enhancements based on prior
convictions for other offenses. Subsection (b)(1) lists the
predicate offenses and their corresponding enhancements. It
provides a sixteen-level enhancement for a prior “crime of
violence.” U.S. Sentencing Guidelines Manual § 2L1.2(b)
(1)(A) (2006). The Guidelines’ application notes specifically
state that “burglary of a dwelling” constitutes a crime of vio-
lence. Id. § 2L1.2 cmt. n.1(B)(iii).
Aguila-Montes disputes the district court’s determination
that his 1988 conviction for first degree residential burglary
constituted burglary of a dwelling, a crime of violence under
the Guidelines.
“The sentencing judge’s application of the Sentencing
Guidelines, including whether a prior conviction is a ‘crime
of violence’ . . . for the purposes of U.S.S.G. § 2L1.2, is
reviewed de novo.” United States v. Rodriguez-Rodriguez,
393 F.3d 849, 856 (9th Cir. 2005) (citing United States v.
Bonilla-Montenegro, 331 F.3d 1047, 1049 (9th Cir. 2003)).
To determine whether Aguila-Montes’s prior conviction qual-
4584 UNITED STATES v. AGUILA-MONTES
ifies as burglary of a dwelling under the Guidelines, we use
the analytical approach outlined in Taylor v. United States,
495 U.S. 575 (1990). See United States v. Wenner, 351 F.3d
969, 972 (9th Cir. 2003) (citing United States v. Becker, 919
F.2d 568, 570 (9th Cir. 1990)).
A Taylor analysis requires a comparison between the
defendant’s prior conviction (in this case, California residen-
tial burglary) and the offense incorporated into the Guidelines
(burglary of a dwelling); if the elements of the two match,
sentencing enhancement is proper. See id.
Under the categorical approach, we examine California’s
statutory definition of first degree residential burglary to
determine if all convictions under that statute constitute bur-
glary of a dwelling under the Guidelines. See id. Under the
modified categorical approach, we additionally consider “the
‘charging document, written plea agreement, transcript of plea
colloquy, and any explicit factual finding by the trial judge to
which the defendant assented’ ” to determine whether Aguila-
Montes’s conviction constituted burglary of a dwelling under
the Guidelines. See United States v. Almazan-Becerra, 482
F.3d 1085, 1088 (9th Cir. 2007) (quoting Shepard v. United
States, 544 U.S. 13, 16 (2005)); Wenner, 351 F.3d at 972.
Because burglary of a dwelling under the Guidelines is the
object of comparison in both approaches, its definition is criti-
cal to the analysis. See United States v. Corona-Sanchez, 291
F.3d 1201, 1204 (9th Cir. 2002) (en banc).
[1] As a starting point in defining burglary of a dwelling,
we know that the Guidelines do not simply incorporate the
convicting state’s formulation of that offense or any other. See
id. at 1205 (citing Taylor, 495 U.S. at 590-91). Instead, “when
Congress described predicate offenses, it meant to incorporate
‘the generic sense in which the term is now used in the crimi-
nal codes of most States.’ ” Id. (quoting Taylor, 495 U.S. at
598). Thus, burglary of a dwelling under the Guidelines takes
UNITED STATES v. AGUILA-MONTES 4585
on its generic, contemporary meaning, and includes the fol-
lowing elements: the “ ‘unlawful or unprivileged entry into, or
remaining in, a building or other structure [that is a dwelling],
with intent to commit a crime.’ ” See Rodriguez-Rodriguez,
393 F.3d at 852 (quoting Taylor, 495 U.S. at 598; Wenner,
351 F.3d at 973).
[2] The Supreme Court recently considered how aiding and
abetting liability fits into the generic definitions of predicate
offenses. In Gonzales v. Duenas-Alvarez, 549 U.S. ___, 127
S. Ct. 815 (2007), the Court held that the generic term “theft
offense” in the Immigration and Nationality Act includes the
crime of aiding and abetting a theft offense. Id., 549 U.S. at
___, 127 S. Ct. at 820. The Court concluded that because the
distinction between the liability of first-degree principals,
second-degree principals, and accessories before the fact has
been abolished in all American jurisdictions, “ ‘the generic
sense in which’ the term ‘theft’ ‘is now used in the criminal
codes of most States,’ covers such ‘aiders and abettors’ as
well as principals.” Id. (quoting Taylor, 495 U.S. at 598).
Therefore, the Court held that “the criminal activities of . . .
aiders and abettors of a generic theft must . . . fall within the
scope of the term ‘theft’ in the federal statute.” Id.
[3] In the Guidelines context—as opposed to the immigra-
tion context—it is also important to note that the Sentencing
Commission added the following application note to section
2L1.2 of the post-2001 Guidelines: “Prior convictions of
offenses counted under subsection (b)(1) include the offenses
of aiding and abetting, conspiring, and attempting, to commit
such offenses.” U.S. Sentencing Guidelines Manual § 2L1.2
cmt. n.5 (2006). It is therefore clear that, at least since this
amendment to the post-2001 Guidelines, generic offenses
under section 2L1.2(b) of the Guidelines, such as burglary of
a dwelling, include a predicate state conviction that resulted
from aiding and abetting conduct.
4586 UNITED STATES v. AGUILA-MONTES
B. Categorical Approach
[4] As with all California crimes, first degree residential
burglary encompasses aiders and abettors. See Cal. Penal
Code §§ 31, 971 (West 1985 & 1999) (providing equal culpa-
bility for traditional principals and traditional aiders and abet-
tors). If, however, the California offense includes broader
liability than its generic Guidelines counterpart, the two will
not categorically match. See Wenner, 351 F.3d at 972 (“If the
state statute criminalizes conduct that is not a crime of vio-
lence under [the Guidelines], then [the] conviction is not a
categorical match.”).
“In the course of the 20th century, . . . American jurisdic-
tions eliminated the distinction” between first-degree princi-
pals, second-degree principals, and accessories before the
fact. Duenas-Alvarez, 549 U.S. at ___, 127 S. Ct. at 820 (cit-
ing Standefer v. United States, 447 U.S. 10, 16-19 (1980);
Nye & Nissen v. United States, 336 U.S. 613, 618 (1949)).
Most states recognize, however, that a person who first
becomes involved with a crime after its completion cannot be
considered a principal or aider and abettor, but may instead
qualify for a less-culpable status whose title varies among
states (e.g., “accessory after the fact” or “obstructor” of jus-
tice). See id. (recognizing that an accessory after the fact is
the only category of liability that remains separate from the
others); 1 Charles E. Torcia, Wharton’s Criminal Law § 35
(15th ed. 2006). Most states also recognize that, assuming all
other elements are met, burglary is completed upon the perpe-
trator’s entry. See 3 Charles E. Torcia, Wharton’s Criminal
Law § 324 (15th ed. 2006). Therefore, generically, an aider
and abettor to burglary must be involved prior to or contem-
poraneous with the perpetrator’s entry, whereas a person who
first becomes involved afterwards constitutes an accessory
after the fact or the like.
[5] California follows the typical rule that a person who
first becomes involved with a crime after its completion can-
UNITED STATES v. AGUILA-MONTES 4587
not be considered an aider and abettor, but may instead qual-
ify for the less-culpable status of accessory after the fact. See
People v. Montoya, 874 P.2d 903, 909-10 & n.7 (Cal. 1994)
(quoting People v. Cooper, 811 P.2d 742 (Cal. 1991)) (addi-
tional citations omitted). Prior to Montoya, California also fol-
lowed the typical rule that burglary is completed upon the
perpetrator’s entry. See People v. Farley, 53 Cal. Rptr. 2d
702, 709 (Cal. Ct. App. 1996). With Montoya, however, the
California Supreme Court broadened the duration of the crime
of burglary beyond entry. The court held that “for the purpose
of assessing the liability of an aider and abettor, a burglary is
considered ongoing during the time the perpetrator remains
inside the structure . . . .” Montoya, 874 P.2d at 913. The court
explained that
if an individual happens upon a scene in which a per-
petrator unlawfully has entered with intent to com-
mit a felony or theft, and, upon learning of that
circumstance, forms the intent to facilitate the perpe-
trator’s illegal purpose in entering, that individual
incurs the liability of an aider and abettor, commen-
surate with the liability of the perpetrator.
Id.
Before Montoya, the “individual” described in the above
excerpt (the one who “happens upon a scene”) would have
been guilty only as an accessory after the fact to burglary, not
as an aider and abettor. See Farley, 53 Cal. Rptr. 2d at 708
(“[U]nder pre-Montoya law, defendant’s version of events, if
believed, rendered him liable for . . . being an accessory to
burglary. . . . [U]nder Montoya, the same conduct rendered
him liable as a principal for first degree burglary.”). With
Montoya, California’s liability for aiding and abetting bur-
glary became broader than its generic counterpart in the
Guidelines by encompassing what would generically be liabil-
ity for acting as an accessory after the fact.
4588 UNITED STATES v. AGUILA-MONTES
[6] Nevertheless, this may not preclude determining that
residential burglary under California law is categorically con-
gruent with generic burglary of a dwelling. The vehicle theft
statute considered by the Supreme Court in Duenas-Alvarez
included liability for “ ‘an accessory,’ ” but the Court still
concluded that the California crime of vehicle theft categori-
cally constituted a generic theft crime. Duenas-Alvarez, 549
U.S. at ___, 127 S. Ct. at 819-20 (quoting Cal. Veh. Code
Ann. § 10851(a) (West 2000)); see Cal. Penal Code § 32
(West 1999) (defining “accessory” as a “person who, after a
felony has been committed, harbors, conceals or aids a princi-
pal in such felony”) (emphasis added). This was true, despite
the Court’s recognition of the fact than an accessory after the
fact is the only category of criminal liability still distinct from
principal criminal liability. Duenas-Alvarez, 549 U.S. at ___,
127 S. Ct. at 820. This issue need not be decided, however,
because another aspect of California’s first degree residential
burglary statute makes it broader than generic burglary of a
dwelling: the California statute does not require that the entry
be “unlawful or unprivileged.” Rodriguez-Rodriguez, 393
F.3d at 857. Consequently, a California conviction for first
degree residential burglary cannot categorically constitute a
conviction for the generic Guidelines offense of burglary of
a dwelling.
C. Modified Categorical Approach
[7] In the absence of a categorical match, we next consider
whether certain documents in the record or judicially notice-
able facts show that Aguila-Montes’s prior California convic-
tion constituted generic burglary of a dwelling under the
Guidelines.2 Because Aguila-Montes’s prior California con-
2
In a recent en banc decision of our court, we declined to apply a modi-
fied categorical approach because the crime of conviction lacked an ele-
ment of the general crime. United States v. Navarro-Lopez, 503 F.3d 1063,
1073 (9th Cir. 2007) (holding that “[t]he crime of conviction can never be
narrowed to conform to the generic crime because the jury is not required
UNITED STATES v. AGUILA-MONTES 4589
viction resulted from a guilty plea, we must determine
whether he necessarily pleaded guilty to all elements of the
generic Guidelines offense. See Shepard, 544 U.S. at 26
(phrasing the inquiry as “whether a plea of guilty to burglary
defined by a nongeneric statute necessarily admitted elements
of the generic offense”). As stated above, generic burglary of
a dwelling under the Guidelines requires the unlawful or
unprivileged entry into, or remaining in, a building or other
structure that is a dwelling, with intent to commit a crime.
[8] In the present case, the California court’s Certificate
and Order of Magistrate establishes that Aguila-Montes was
read the complaint charging him with first degree residential
burglary and he pleaded guilty to that offense as charged in
that document. The state court judge certified that Aguila-
Montes and counsel “appeared before [the judge] in open
court; [the judge] read the said complaint to said defendant;
and that [the judge] then asked the said defendant whether he
pleaded guilty to the offense(s) charged in said complaint. . . .
[T]he said defendant pleaded guilty to the following offen-
se(s) charged in said complaint, to wit: Burglary, in violation
of section 459, Penal Code, a felony.” (emphasis added).
Because Aguila-Montes was read the complaint and pleaded
guilty to the offense charged in that document, he admitted to
the allegations against him in the complaint.3 Those allega-
tions are:
— as Taylor mandates — to find all the elements of the generic crime.”).
Here, by contrast, both the crime of conviction and the generic crime have
the same basic elements. Compare People v. Davis, 958 P.2d 1083 (Cal.
1998) (citing Cal. Pen. Code § 459) (describing California statutory bur-
glary as (1) entry, (2) into any building or other listed structure (3) with
intent to commit larceny or any felony), with Shepard, 544 U.S. at 29 (cit-
ing Taylor, 495 U.S. at 598-99) (describing “three elements” of “generic”
burglary). However, as discussed above, generic burglary also requires
that the entry be “unlawful or unprivileged.” Shepard, 544 U.S. at 29. This
does not, however, create an additional element, but merely describes one
type of entry among many possible entries, including unprivileged, forc-
ible and unauthorized entries.
3
In another recent en banc decision of our court, the defendant Vidal did
not plead guilty “as charged.” United States v. Vidal, 504 F.3d 1072, 1087
4590 UNITED STATES v. AGUILA-MONTES
On or about January 4, 1988, in the county of Los
Angeles, the crime of RESIDENTIAL BUR-
GLARY, in violation of PENAL CODE SECTION
459, a Felony, was committed by GUILLERMO
AGUILA, who did willfully and unlawfully enter an
inhabited dwelling house and trailer coach and
inhabited portion of a building occupied by Jacinto
Padilla, with the intent to commit larceny and any
felony. It is further alleged that the above offense is
a serious felony within the meaning of Penal Code
Section 1192.7(c)(18). It is further alleged that the
above offense is a violation of Penal Code Section
462(a).
We have long held that a defendant who pleads guilty to a
count admits all facts alleged therein. See, e.g., Rodriguez-
Rodriguez, 393 F.3d at 857-58; United States v. Velasco-
Medina, 305 F.3d 839, 852 (9th Cir. 2002) (citing United
States v. Broce, 488 U.S. 563, 570 (1988)); United States v.
Harris, 108 F.3d 1107, 1109 (9th Cir. 1997); United States v.
Mathews, 833 F.2d 161, 164 (9th Cir. 1987)).
[9] It is therefore appropriate to accord Aguila-Montes’s
guilty plea its plain meaning. The count to which he pleaded
guilty is phrased exclusively in terms of Aguila-Montes’s
(9th Cir. 2007). As a result, our en banc court had “no way of knowing
what conduct Vidal admitted when he pled guilty to conduct that was not
identical to that charged in Count One of the Complaint.” Id. at 1088.
Here, by contrast, the Certificate and Order of Magistrate establishes that
Aguila-Montes was read the complaint and pleaded guilty to the offense
charged in that document. We place no significance on the absence of the
word “as” in the relevant language of the Certificate and Order of Magis-
trate. The Certificate states that the defendant pleaded guilty to the “fol-
lowing offense(s) charged in said complaint.” Even though that Certificate
does not use what the Vidal en banc court referred to as “the critical phrase
‘as charged in the Information,’ ” id. at 1087 (emphasis added), the Certif-
icate specifically states that the charge in the complaint was read to
Aguila-Montes and he pleaded guilty to it. That is sufficient.
UNITED STATES v. AGUILA-MONTES 4591
activity as a principal (i.e., “GUILLERMO AGUILA, who
did willfully and unlawfully enter”). By pleading guilty to that
count, Aguila-Montes admitted to having engaged in the
activity described in that document. Thus, he admitted to
“willfully and unlawfully enter[ing] an inhabited dwelling
house . . . with the intent to commit larceny and any felony.”4
This reveals that his entry was unlawful, that he entered a
dwelling house, and that he did so with the intent to commit
larceny or another felony. This satisfies the generic definition
of burglary of a dwelling described as a crime of violence
under section 2L1.2(b)(1)(A) of the Guidelines.
[10] Moreover, the complaint does not simply recite the
language of the statute. It also includes additional factual alle-
gations, including “On or about January 4, 1988, in the county
of Los Angeles . . . GUILLERMO AGUILA [our Aguila-
Montes] . . . unlawfully enter[ed] . . . [a] trailer coach and
inhabited portion of a building occupied by Jacinto Padilla
. . . .” This is sufficient to overcome our en banc court’s
admonition in Vidal that “an indictment that merely recites
the language of the statute . . . is insufficient to establish the
offense as generic for purposes of a modified categorical anal-
ysis.” Vidal, 504 F.3d at 1088.
We are satisfied that the record in this case discloses that
Aguila-Montes pleaded guilty to conduct that is narrow
enough to fit within the Guidelines’ “generic” definition of
burglary. As a result, Aguila-Montes’s California predicate
conviction of first degree residential burglary matches the
generic offense under the Guidelines.
4
“When a defendant pleads guilty . . . to facts stated in the conjunctive,
each factual allegation is taken as true.” United States v. Williams, 47 F.3d
993, 995 (9th Cir. 1995) (citing Mathews, 833 F.2d at 164). The count in
Aguila-Montes’s complaint to which he pleaded guilty stated that he
entered “an inhabited dwelling house and trailer coach and inhabited por-
tion of a building . . . .” Therefore, Aguila-Montes admitted to entering not
only a dwelling house, but also a trailer coach and the inhabited portion
of a building.
4592 UNITED STATES v. AGUILA-MONTES
III. Conclusion
Because California does not require that entry in the bur-
glary context be “unlawful or unprivileged,” California’s first
degree residential burglary statute is broader than the generic
definition of burglary of a dwelling incorporated into the
Guidelines. Nonetheless, using the modified categorical
approach, we conclude that Aguila-Montes specifically admit-
ted to the precise conduct described in count one of the com-
plaint to which he pleaded guilty. That accusatory pleading
specifically described every element of the Guidelines’
generic definition of burglary of a dwelling. Therefore,
Aguila-Montes’s state conviction of first degree residential
burglary is a prior conviction of a crime of violence under
section 2L1.2(b)(1)(A) of the Guidelines, and the district
court properly applied the sixteen-level sentence enhance-
ment.
AFFIRMED.