Opinion
This panel unanimously finds this case suitable for decision without oral argument. See Fed. R.App. P. 34(a)(2).
NOT FOR PUBLICATION. (See Federal Rule of Appellate Procedure Rule 36-3)
Page 50.
Ronald C. Rachow, Asst. U.S. Atty., USRE-Office of the U.S. Attorney, Reno, NV, for Plaintiff-Appellee.
Michael K. Powell, FPDNV-Federal Public Defender's Office, Reno, NV, for Defendant-Appellant.
Appeal from the United States District Court for the District of Nevada; Larry R. Hicks, District Judge, Presiding.
Before KOZINSKI, W. FLETCHER and BYBEE, Circuit Judges.
This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3.
To qualify as "burglary of a dwelling" under U.S. S.G. § 4B1.2(a)(2) for purposes of sentence enhancement under id. § 2K2.1(a)(4)(A), Hubbard's prior conviction must, as a threshold matter, have been for "burglary" within the meaning of Taylor v. United States, 495 U.S. 575, 599, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990). See United States v. Wenner, 351 F.3d 969, 973 (9th Cir.2003). The Nevada burglary statute under which Hubbard was convicted is broader than burglary under Taylor, since the Nevada statute contemplates burglary of, among other things, a "vehicle" or "railroad car," which are not "building[s] or structure[s]" under Taylor. See Taylor, 495 U.S. at 599; Wenner, 351 F.3d at 972. Therefore, under a formal categorical approach, Hubbard's Nevada burglary conviction could not be used to enhance his sentence.
Under Taylor's modified categorical approach, Hubbard's conviction is likewise inadequate for sentence enhancement. Hubbard was charged with, and pleaded guilty to, burglarizing a "dwelling building," and he referred to burglarizing a "house" in his plea colloquy. Neither of these terms is defined under Nevada law, and we cannot say unequivocally that they are narrower than the defined term "dwelling house." A dwelling house includes "every building ... which has been usually occupied by a person lodging therein at night," see Nev.Rev.Stat. § 193.014, and Nevada law defines "building" to include, among other things, railway cars, see id. § 193.0125. Thus, someone who burglarized a dwelling building or house under Nevada law may have burglarized, for instance, a railway car occupied at night, which cannot be the object of a burglary within the meaning of Taylor and U.S. S.G. § 4B1.2(a)(2).
REVERSED.