United States v. Sandoval-Venegas

81 F. App'x 921

• Court: Court of Appeals for the Ninth Circuit
• Decided: November 20, 2003
• Docket: No. 02-50514
• Status: Published

Opinion

MEMORANDUM

*

Heriberto Sandoval-Venegas appeals his sentence and asserts that he is not a career offender¹ because a crime used in reaching the opposite conclusion was not a crime of violence.² We affirm.

Sandoval makes Daedalian arguments about whether burglary of a residence in California is true generic burglary.³ He suggests that he could have been a person who became an aider and abettor of a burglary after the principal had already unlawfully entered the residence with intent to commit a crime.⁴ He also asserts that one could conceivably commit a burglary in California without an unlawful or unprivileged entry.⁵ We need not resolve those questions because, as we see it, when Sandoval pled guilty to the unlawful entry of an inhabited dwelling house with the intent to commit larceny or a felony, he necessarily pled guilty to a crime “that presents a serious potential risk of physical injury to another.” See USSG § 4B1.2(a)(2); United States v. Williams, 47 F.3d 993, 995 (9th Cir.1995); United States v. Becker, 919 F.2d 568, 573 (9th Cir.1990). Therefore, Sandoval was convicted of a crime of violence.

AFFIRMED.

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3.

1 . USSG § 4B1.1. All references to the Guidelines are to the November 1, 2001, version.

2 . USSG § 4B1.2(a)(2); see also id. at comment. (n.1).

3 . See Taylor v. United States, 495 U.S. 575, 599, 110 S.Ct. 2143, 2158, 109 L.Ed.2d 607 (1990) (burglary is the "unlawful or unprivileged entry into, or remaining in, a building or structure, with intent to commit a crime.”)

4 . See People v. Montoya, 7 Cal.4th 1027, 1044-45, 874 P.2d 903, 913, 31 Cal.Rptr.2d 128, 138 (1994).

5 . In so doing, Sandoval appears to blur the difference between "consensual” and "unlawful” entries. Compare People v. Frye, 18 Cal.4th 894, 954, 959 P.2d 183, 212, 77 Cal.Rptr.2d 25, 54 (1998), and People v. Birks, 19 Cal.4th 108, 118 n. 8, 960 P.2d 1073, 1078 n. 8, 77 Cal.Rptr.2d 848, 853 n. 8, (1998), with People v. Sears, 62 Cal.2d 737, 746, 401 P.2d 938, 944, 44 Cal.Rptr. 330, 336 (1965), overruled on other grounds by, People v. Cahill, 5 Cal.4th 478, 853 P.2d 1037, 20 Cal.Rptr.2d 582 (1993). However, we need not clarify the distinction.