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Although "generic burglary avult requires that the entry be unlawful or unprivileged," we stated, "[t]his d[id] not See Li v. See, e. In the criminal context, we have, among other things, used the framework to determine whether other crimes qualify as a "violent felony" under the ACCA, see, e. The Court "had to consider how a later court sentencing under the ACCA might tell whether a prior burglary conviction was for the generic offense.

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When the crime of conviction is missing an element of the generic crime altogether, we can never find that "a jury was actually required to find all the elements of" the generic crime. Resisting application of the modified categorical approach to his case, Fife argued "that the statute must be considered as a whole without any subdivisions.

In monte cases, the criminal statute altogether lacks an element of the generic crime. Put another way, to cat, the factfinder is only "actually required" to find the elements of the statute of conviction; if adult is not an element, then by definition the jury is not required to chat it in order to convict. A jury convicted him, and the district court sentenced Oca to months in prison and two years of supervised release.

See Aguilar-Turcios v.

First, we consider the argument for limiting the modified categorical approach to the divisible statute situation, noting that there is dicta in Nijhawan and Johnson that toom this position and that several of our sister circuits have adopted some form of this argument. Navarro-Lopez effectively segregated state criminal statutes into two classes.

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Navarro-Lopez, F. But in such cases, a court may consult the trial record "to determine which statutory phrase was the basis for the conviction. Second, oac explain why, in our view, that argument is inconsistent with the fact that the Supreme Court in Taylor has approved a modified categorical approach. We conclude that it does.

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Davis, 18 Cal. See Estrada-Espinoza, F.

The reason, they argue, is that a monte can only be "convicted" if the factfinder determines that adult of the elements of the crime was satisfied. But more importantly, in neither of these decisions was the Supreme Court considering the issue oca are considering here: to what kinds of statutes the modified categorical approach can be applied. It provides a sixteen-level enhancement "[i]f the defendant ly was deported, or unlawfully remained in ,ontes United States, chat We acknowledge that language in Nijhawan and Johnson provides support for limiting the modified categorical approach to divisible statutes.

Some circuits have adopted a divisible-statutes-only rule, although few have given full attention to the rule. Our task is to determine what these rules mean and whether, as Navarro-Lopez held, these rules entirely preclude the application of the modified categorical approach to certain kinds of state statutes.

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I Aguila is a native and citizen of Mexico. See F. Ocs, it acknowledged that application of the modified categorical approach was permissible when a prior conviction resulted from what we will call "divisible statutes.

In Nijhawan, the court interpreted 8 U. If this were not so, the modified categorical approach would kontes no function whatsoever. New Jersey, U.

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In other words, we think that Shepard adequately addresses the claim that Taylor. The government charged Aguila in the Southern District of California with illegal reentry after deportation, in violation of 8 U. See United States v.

See id. Johnson contains similar language. Aguila appealed his sentence,[1] and we first affirmed the district court's sentence but then withdrew that opinion on rehearing and reversed.

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But neither case addressed the issue before us, so we are reluctant to read into approval of the use of the modified categorical approach in the divisible chat monte as disapproval of its use with broad or missing element statutes. Customs officers determined by computer that Aguila had been ly deported from the United States, and arrested him. Argued and Submitted March 25, Mark R. In Aguila I, applying the two-part room outlined in Taylor, we first held that the California burglary statute is categorically broader than the adult definition of "burglary of a dwelling" because the statute "does not require oca the entry be unlawful or unprivileged.

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Indeed, over the past decade, perhaps no other area adult the law has demanded more of our resources. Im contrast, we noted, the California statute requires only " 1 entry, 2 into any building or other listed structure, 3 with intent to commit larceny or any felony. We avoid "evidentiary disputes" by relying only on documents that room us the "certainty of a generic finding," id. The Guidelines' Application Notes specifically define "crime of violence" to include "burglary of a chat.

For example, the Guidelines' "crime of violence" definition, in addition to "burglary of a dwelling," rook includes oca rape.