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Click here for the full text of this decision FACTS:Alejandro Carbajal-Diaz, an alien, pleaded guilty of aggravated felony burglary and misdemeanor sexual misconduct in Missouri in 2001 and was deported in 2005. While on parole for the burglary offense in 2006, he illegally re-entered the United States and was arrested. He pleaded guilty of knowingly and unlawfully entering the United States after deportation for commission of an aggravated felony in violation of 8 U.S.C. �1326. The presentence report (PSR) began with a base offense level of eight, reduced by three levels for acceptance of responsibility. Based on the Missouri burglary conviction, the report added a 16-level enhancement for conviction of a crime of violence pursuant to U.S. Sentencing Guideline �2L1.2(b)(1)(A)(ii), resulting in an offense level of 21. Because of his convictions and deportation, Carbajal-Diaz had a criminal history category of IV. The offense level and criminal history category resulted in a sentencing guideline range of 57 to 71 months’ imprisonment. Adopting the PSR’s findings and considering the advisory guideline range and “the sentencing objectives of rehabilitation, incapacitation, retribution and deterrence,” the district court imposed a within-guideline sentence of 60 months. Carbajal-Diaz appealed his sentence, principally claiming that the court should not have treated his burglary conviction as a crime of violence. HOLDING:Affirmed. Under �2L1.2, a crime is a crime of violence if it has an element involving physical force or falls under one of a variety of specific enumerated offenses, one of which is burglary of a dwelling. The government did not contend that Carbajal-Diaz’s previous burglary conviction had an element involving physical force, so the sole issue before the court was whether the Missouri statute described the enumerated crime of burglary of a dwelling. The court stated that if a crime “fits the”generic, contemporary’ meaning of the enumerated offense, it constitutes a COV triggering sentence enhancement.” The Missouri statute under which Carbajal-Diaz was convicted defines burglary as entering or remaining in “a building or inhabitable structure,” and it defines “inhabitable structure” to include any structure “where any person lives or carries on business or other calling,” “where people assemble for purposes of business, government, education, religion, entertainment or public transportation” or “which is used for overnight accommodation.” Carbajal-Diaz, the court stated, correctly observed that Missouri’s statute sweeps broadly and includes structures such as businesses and other buildings that may not be considered “dwellings.” Nonetheless, the court noted that Carbajal-Diaz’s guilty plea constituted an admission that the specific structure he burglarized was “an apartment” that was “possessed by Veda R. Shoemake.” Thus, despite the broad sweep of the burglary statute, the court narrowed Carbajal-Diaz’s offense to burglary of an apartment possessed by an individual. The court dismissed Carbajal-Diaz’s argument that some businesses happen to be located in apartments, and thus his Missouri conviction remained broader than the enumerated offense of burglary of a dwelling. Accordingly, the court found that the enumerated offense of “burglary of a dwelling” encompasses Carbajal-Diaz’s prior crime, defined in narrowed terms as “burglary of an apartment.” Because the burglary indictment specified burglary of an apartment, and because the apartment in question was a dwelling, the district court did not err in applying the crime of violence enhancement. OPINION:Smith, J.; Reavley, Smith and Garza, JJ.

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