California burglary of a dwelling not a categorical crime of violence under USSG 2L1.2

U.S. v. Huizar, 2012 WL 3055930 (7/27/12) (Okl.) (Published) - The 10th, in an opinion by Judge Gorsuch, holds that California's burglary of a dwelling is not a crime of violence under § 2L1.2. Since the offense does not have unlawful entry in the generic sense as an element, it is not generic burglary. A defendant can commit burglary even if s/he is invited into the home. The 10th indicates it might be possible that a conviction of the offense might be for generic burglary if there is a finding of lack of consent of the owner. Here the defendant was charged with "unlawfully" entering the dwelling, but that could mean 1 of 2 things. It could mean that the defendant entered without the consent of the owner [there was no need to charge that, since that's not an element], or that the owner did not invite the defendant in knowing he would commit a crime [e.g., not entering to plan a fraud with the owner]. The government didn't prove which meaning applied. The 10th helpfully stresses the government has the burden to prove the offense "necessarily" qualifies as a generic burglary. the government didn't meet that burden here. In the course of its decision, the 10th notes a prior unpublished 10th decision holding an unlawfully entering California burglary charge established generic burglary, U.S. v. Torres-Gonzalez, did not matter because the issue in this case was not raised nor discussed there. The 10th makes clear the d. ct. was free to consider what the defendant actually did when he committed the burglary, i.e., if he really did burglarize the home in the generic sense, in fashioning an appropriate sentence.