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Categorical, generic, or modified categorical: It may be confusing but Florida’s burglary of a dwelling offense is not a crime of violence

 

In this case Garcia Martinez pleaded guilty to reentry after deportation in violation of 8 U.S.C. Sec. 1326(a) and his guidelines sentence was enhanced 16 levels by the district court who found his Florida conviction for second degree burglary of a dwelling, for which he was deported, was a crime of violence. He appealed the district court’s conclusion arguing that the facts of the Florida conviction for burglary of a dwelling as set forth in the presentence report do not qualify for a 16- level increase in his guideline range.

The court of appeals reversed after determining that the Florida statute does not fall under the enumerated offense clause definition for crime of violence under the sentencing guidelines.

The court arrived at this decision by first determining that the generic definition of the enumerated offense of burglary requires the unlawful entry into a building or structure with intent to commit a crime. However, the sentencing guidelines specifies that the offense must be a burglary of a dwelling. This required the court to determine the generic definition of a dwelling. It concluded a generic dwelling is a building or portion thereof, a tent, a mobile home, a vehicle, or other enclosed space which is used or intended for use a s a human habitation.

Applying the categorical approach to the Florida statute for second degree burglary of a dwelling, the court determined that an unoccupied dwelling does not categorically qualify as a crime of violence under the enumerated offenses clause because Florida includes curtilage in its definition of a dwelling. Therefor the Florida definition is broader than the generic definition in the sentencing guidelines. The appellate court concluded that Florida’s inclusion of curtilage in its definition of dwelling makes its burglary of a dwelling offense non-generic because curtilage is not categorically used or intended for use as a human habitation, home or residence. It can include a yard or out buildings if they are located within the enclosure. Because Florida includes curtilage in its definition of dwelling, this makes its burglary of a dwelling offense non-generic.

Since state conviction is not categorically a crime of violence, the federal court had to determine whether the modified categorical approach determines whether Garcia-Martinez’s conviction was a generic burglary of a dwelling. For this the court had to determine if the Florida statute defining the crime of second degree burglary of a dwelling lists alternative elements making it divisible, or instead lists various factual means of committing a single element, making it indivisible.  The appellate court found that the Florida Supreme court had determined that the curtilage is not a separate location and entry onto the curtilage is for the purposes of the burglary statute entry into the structure or dwelling itself. They are not alternative elements and the Florida second degree burglary statute is non-generic. The appellate court concluded that the district court erred in applying the modified categorical approach to the federal criminal sentence by enhancing it for a prior crime of violence.