United States v. Samuel Navarro , 584 F. App'x 624 ( 2014 )

FILED
NOT FOR PUBLICATION AUG 21 2014
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 12-10607
Plaintiff - Appellee, D.C. No. 4:11-cr-03518-DCB-
DTF-1
v.
SAMUEL NAVARRO, AKA Samuel MEMORANDUM*
Narvarro,
Defendant - Appellant.
Appeal from the United States District Court
for the District of Arizona
David C. Bury, District Judge, Presiding
Argued and Submitted December 5, 2013
San Francisco, California
Before: GOULD and PAEZ, Circuit Judges, and EZRA, District Judge.**
Defendant and appellant Samuel Navarro appeals his 51 month sentence for
illegal reentry in violation of 8 U.S.C. § 1326(a). Navarro argues that the district
court erred when it concluded that Navarro’s 2004 conviction for second degree
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The Honorable David A. Ezra, District Judge for the U.S. District
Court for the Western District of Texas, sitting by designation.
burglary in violation of Arizona Revised Statutes § 13-1507 met the definition of
generic burglary of a dwelling and applied a 16-point sentencing enhancement
under U.S.S.G. § 2L1.2 for committing a crime of violence based on this burglary
conviction. We review de novo whether Navarro’s conviction qualifies as a crime
of violence. See United States v. Grajeda, 581 F.3d 1186, 1188 (9th Cir. 2009).
We conclude that the district court erred in applying the 16-point enhancement.
Accordingly, we reverse Navarro’s sentence and remand for re-sentencing.
A conviction under section 13-1507 does not qualify as generic burglary
under either the categorical or modified categorical approach. Under the
categorical approach, a court must “compare the elements of the statute forming
the basis of the defendant’s conviction with the elements of the ‘generic’
crime—i.e., the offense as commonly understood.” Descamps v. United States,
133 S. Ct. 2276, 2281 (2013). The government concedes that a conviction for
violating section 13-1507 does not qualify as generic burglary under the
categorical approach because: (1) generic burglary does not include burglary of
movable structures and, under section 13-1507, the structure can be either movable
or immovable, see Ariz. Rev. Stat. Ann. § 13-1501; United States v. Terrell, 593
F.3d 1084, 1092 (9th Cir. 2010), and (2) unlike generic burglary, a conviction for
second degree burglary may be obtained under section 13-1507 even where the
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intent to commit the crime was formed after the defendant entered the structure,
United States v. Bonat, 106 F.3d 1472, 1475 (9th Cir. 1997).
We cannot consider whether a conviction under section 13-1507 qualifies as
generic burglary under the modified categorical approach. The modified
categorical approach is only applicable when a statute is “divisible.” Descamps,
133 S. Ct. at 2281. A divisible statute is one that “sets out one or more elements of
the offense in the alternative—for example, stating that burglary involves entry
into a building or an automobile.” Id. Section 13-1507 is not divisible with
respect to whether the intent to commit the crime was formed after the defendant
entered the structure. The statute does not set forth, as separate alternatives,
circumstances where the intent was formed after the defendant entered the structure
and circumstances where the intent was formed before entry. See United States v.
Cabrera-Gutierrez, 12-30233, 2014 WL 998173, at *6-9 (9th Cir. Mar. 17, 2014).
Accordingly, the district court erred by concluding that Navarro’s conviction
qualified as generic burglary under the modified categorical approach and
enhancing Navarro’s sentence.
REVERSED and REMANDED.
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