An important case regarding the categorical approach and defense counsel's concessions.

U.S. v. Ventura-Perez, 2012 WL 130716 (1/18/12) (Col.) (Published) - Here the issue was whether the defendant was convicted of burglary of a dwelling under § 2L1.2's definition of crime of violence. A statute may be "divisible" and therefore appropriate for applying the modified categorical approach when the statute contains statutory phrases that cover several crimes, some of which are crimes of violence and some of which are not, even when the phrases are not in separate sections, subsections or paragraphs. In this case, the burglary statute referring to burglary of structures adapted for overnight accommodation is divisible from the further phrase "and each structure appurtenant to or connected with the structure," which could include a shed far from the dwelling. Defense counsel's answer of "yes, but . . ." in response to the court's question; "was there evidence in his guilty plea or in the charge that the structure involved was an apartment?" was a concession that the defendant had admitted in the plea colloquy that he had burglarized an apartment, which qualifies as a dwelling under § 2L1.2. It doesn't matter that there were no documents before the d. ct. establishing the offense was a burglary of an apartment. It also doesn't matter that appellate counsel submitted documents showing counsel's supposed concession was inaccurate. The 10th never heard of a reversal of a judgment because the d. ct. relied on inaccurate statements of counsel. "Courts could not function properly if concessions by counsel cannot be relied upon." To top it all off, in a footnote, the 10th says, even if a defendant technically does not qualify for a crime-of-violence enhancement because of the fortuity of the details of a statute's language, a d. ct. can upwardly vary based on the real facts of the prior offense. And the defendant did not qualify for a downward variance for differences in fast-track policy among districts because he did not show he would be eligible for fast-track treatment in another district.