Tuesday, October 23, 2012

"Roughly Similar" is Close Enough to Make California First-Degree Burglary Offense an ACCA Predicate

US v. Maldonado, -- F.3d --, 2012 WL 5192749 (10th Cir. 10/22/12) (NM) - The court holds that California's first-degree burglary offense should be considered an ACCA violent felony under the ACCA residual clause even though it can be committed without an unlawful or unprivileged entry into a building or structure and by one who enters a home by invitation. Despite acknowledging that the offense can be committed by acts that do not necessarily involve serious risk of violence, such as repair workers who engage in "home shoplifting" while providing services in their customers' homes, the Tenth has "no trouble concluding that the elements of California's first-degree burglary statute involve conduct that presents a serious potential risk of physical injury," relying on a Ninth Circuit decision to that effect. And the CA offense is "roughly similar" to the ACCA enumerated offense of generic burglary because it involves conduct that is "purposeful, violent, and aggressive."