United States Court of Appeals For the First Circuit

Nos. 11-2416, 11-2417

UNITED STATES OF AMERICA,

Appellee,

v.

RIGOBERTO RAMÍREZ,

Defendant, Appellant.

APPEALS FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS

[Hon. William G. Young, U.S. District Judge]

Before

Torruella, Howard, and Thompson, Circuit Judges.

Charles W. Rankin, with whom Audrey M. Grace and Rankin & Sultan were on brief, for appellant. Mark T. Quinlivan, Assistant United States Attorney, with whom Carmen M. Ortiz, United States Attorney, was on brief, for appellee.

February 27, 2013 THOMPSON, Circuit Judge. An investigation of gang-

related drug trafficking by the Federal Bureau of Investigation

("FBI") led to the arrest of Appellant Rigoberto Ramírez

("Ramírez"), a key supplier of crack cocaine in his community in

Chelsea, Massachusetts. Ramírez was indicted, pled guilty to one

count of conspiracy to distribute crack cocaine and two counts of

distribution of crack cocaine, and received a thirteen-year

sentence. Ramírez now challenges his sentence on both substantive

and procedural grounds, claiming that his prior felony conviction

did not warrant the career offender enhancement and that the

district court erred in denying his request for resentencing and

failing to adequately explain the reasons for his sentence. After

careful review, we remand to the district court for further

consideration.

BACKGROUND

The Drug Deals

Beginning sometime in 2009, an FBI gang task force began

investigating drug trafficking by suspected gang members operating

in Chelsea, Massachusetts. Ramírez and co-defendant Paul Rodriguez

became targets of that investigation. Ramírez, although not a gang

member himself, was considered a significant source of the crack

cocaine business in Chelsea and used gang members to facilitate it.

One of those gang members was Rodriguez, a member of "Neta," a

-2- violent prison gang whose members retain their allegiance after

release from prison.

There were two drug deals that eventually gave rise to

the federal charges against Ramírez. The first happened in June

2009 when Ramírez and Rodriguez sold 1.5 grams of crack cocaine to

a cooperating witness ("CW") in a Walgreens parking lot. The

second occurred the following month when Ramírez sold the same CW

three more grams of crack cocaine. During that transaction, the CW

handed the money used to purchase the drugs to a male passenger,

named "BR," who was under 18 years old and sitting in the front

passenger seat. BR counted the money to confirm it was the correct

amount for the drugs purchased.

The Indictment

In January 2010, a federal grand jury in Massachusetts

indicted Ramírez on one count of conspiracy to distribute cocaine

base, in violation of

(Count I), and two counts of

distribution of cocaine base, in violation of

(a)(1)

(Counts II & IV). Count IV of the indictment added that Ramírez

knowingly and intentionally employed, hired, used, persuaded,

induced and enticed a person under 18 years of age to violate §

841(a)(1). Following the indictment, Ramírez was arrested and

entered a plea of not guilty. A little over a year later, he pled

guilty to all charges (more on the change-of-plea hearing later).

-3- Sentencing

The pre-sentence report ("PSR") first determined that the

offense level was 15.1 That offense level, combined with Ramírez's

criminal history points (placing him in category V) would have set

the Sentencing Guidelines (the "Guidelines") range at 37 to 46

months. The PSR, however, further determined that Ramírez should

receive an enhanced sentence as a career offender under § 4B1.1.

The PSR based the career offender enhancement on two prior

convictions that -- according to the PSR -- satisfied the

definition of a "crime of violence" set forth in § 4B1.2(a): a

1993 Massachusetts conviction for manufacturing, distributing, or

dispensing a Class A substance in a drug-free school zone, and a

1997 Florida conviction for burglary of a dwelling. Applying the

enhancement, the PSR explained that § 4B1.1 directs the offense

level be determined by the statutory maximum for the offenses of

conviction and that the statutory maximum in this case was forty

years (or twice the otherwise applicable statutory maximum penalty

of twenty years) because Ramírez used a juvenile in violation of

. The career offender total offense level of 34 was

reduced by three levels under U.S.S.G. § 3E1.1(a) and (b) for

acceptance of responsibility resulting in a career offender total

1 Ramírez's base offense level ("BOL") was 18 under U.S.S.G. § 2D1.1(c)(11), but was reduced to 15 after factoring in the reduction of three levels under § 3E1.1(a) and (b) for acceptance of responsibility.

-4- offense level of 31. According to the PSR, a total offense level

of 31 and a career offender criminal history category of VI set the

guidelines range at 188 to 235 months.2

When it came time for sentencing, Ramírez objected that

burglary of a dwelling under Florida law did not qualify as a

"crime of violence" under the career offender guideline to warrant

a sentence enhancement. Ramírez further objected to any sentence

enhancement under

(b) for use of a person under 18

since he did not admit at the change-of-plea hearing that he knew

BR was a minor. Lastly, Ramírez claimed the crime of violence

provision's residual clause, § 4B1.2(a)(2), was unconstitutionally

vague.3

At sentencing, the district court concluded that

Ramírez's Florida burglary of a dwelling conviction qualified as a

"crime of violence" under § 4B1.1. The district court adopted the

2 Once a defendant is classified as a career offender under § 4B1.1(a), his "criminal history category in every case" is elevated to the highest category, Category VI. U.S.S.G. § 4B1.1(b). 3 As discussed further below, a prior conviction may qualify as a crime of violence under § 4B1.2(a) if it is an "offense under federal or state law, punishable by imprisonment for a term exceeding one year, that - (1) has as an element the use, attempted use, or threatened use of physical force against a person of another, or (2) is burglary of a dwelling, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another." U.S.S.G. § 4B1.2(a). We have referred to the clause after the enumerated offenses as the "residual" or "otherwise" clause. United States v. Holloway,

(1st Cir. 2011).

-5- PSR's calculations, finding that Ramírez's career offender total

offense level was 31 and his career offender criminal history

category was VI, resulting in a Guidelines sentencing range of 188

to 235 months. The district court sentenced him to thirteen years

imprisonment (or 156 months) and six years of supervised release.

Post-Sentencing

After sentencing, Ramírez moved to correct the judgment

and for resentencing, arguing that because the district court

credited Ramírez's statement at the change-of-plea hearing that he

did not know BR was a minor, the enhancement under

(b) should not apply. Without the enhancement, Ramírez argued,

the correct guidelines sentencing range was 151 to 188 months, the

term of supervised release should be reduced from six to three

years, and resentencing was warranted. The court agreed in part

with Ramírez. The district court reduced the term of supervised

release to three years, but ruled that "there is no need for

resentencing." With the exception of the reduction in the term of

supervised release, the sentence remained unchanged. Ramírez now

appeals.

DISCUSSION

Prior Offense as a "Crime of Violence"

Ramírez first contends that burglary of a dwelling does

not qualify as a "crime of violence" under § 4B1.2(a) of the

Guidelines. We review de novo the classification of a prior

-6- offense as a crime of violence under the Guidelines. United States

v. Small,

(1st Cir. 2011).

To determine whether a defendant's prior crime qualifies

as a crime of violence, we take a categorical approach. See, e.g.,

United States v. Jonas,

(1st Cir. 2012) (citing

Sykes v. United States, ___ U.S.___,

, 2272 (2011)).

Our focus is on "the legal definition of the crime and not the

defendant's particular conduct in committing the offense." United

States v. Davis,

(1st Cir. 2012). We first identify

the offense of conviction and look to see whether the statutory

definition of that offense meets the requirements of the

Guidelines' definition of a "crime of violence" under § 4B1.2(a).

Davis,

; United States v. Brown,

(1st Cir. 2011).

The career offender designation applies to one who, being

18 or older at the time of the offense, commits a felony that is

either a drug offense or a "crime of violence" and who has at least

two other such convictions. U.S.S.G. § 4B1.1(a). A "crime of

violence" is any offense "punishable by imprisonment for a term

exceeding one year, that- (1) has as an element the use, attempted

use, or threatened use of physical force against a person of

another, or (2) is burglary of a dwelling, arson, or extortion,

involves use of explosives, or otherwise involves conduct that

presents a serious potential risk of physical injury to another."

-7- Id. § 4B1.2(a). Thus, to qualify as a crime of violence, Ramírez's

prior offense must contain an element of the threat or use of

force, be one of the enumerated offenses, or fall within the

residual clause. See id.; United States v. Giggey,

(1st Cir. 2008) (en banc) ("Giggey I").

At the time of Ramírez's 1997 burglary of a dwelling

conviction, Florida defined "burglary" as "entering or remaining in

a dwelling, a structure, or a conveyance with the intent to commit

an offense therein, unless the premises are at the time open to the

public or the defendant is licensed or invited to enter or remain."

(1)(1997). "Dwelling" means "a building or

conveyance of any kind . . . whether such building or conveyance is

temporary or permanent, mobile or immobile, which has a roof over

it and is designed to be occupied by people lodging therein at

night, together with the curtilage thereof."

§ 810.011(3).

Because burlgary of a dwelling under Florida law has no

element related to the threat or use of physical force, it does not

qualify as a crime of violence under U.S.S.G. § 4B1.2(a)(1). We

thus turn to whether Ramírez's conviction can be classified as a

crime of violence under the enumerated "burglary of a dwelling"

offense under § 4B1.2(a)(2). While Ramírez does not dispute that

he was convicted of burglarizing a dwelling, he argues that

Florida's definition of burglary of a dwelling is broader than

-8- "generic burglary" as defined by the Supreme Court in Taylor v.

United States,

(1990).

Taylor interpreted the term "burglary" as it is used in

the enumerated offense clause of the "violent felony" provision

under the Armed Career Criminal Act ("ACCA"),

(e).

.4 The definition of "burglary," the Court said,

should not be derived from the common-law because the "contemporary

understanding of 'burglary' has diverged a long way from its

common-law roots."

. In the Court's view, "Congress

meant by 'burglary' the generic sense in which the term is now used

in the criminal codes of most States," but the term "must have some

uniform definition independent of labels employed by the various

States' criminal codes."

. The Court thus

concluded that "the generic, contemporary meaning of burglary" is

"the unlawful or unprivileged entry into, or remaining in, a

building or other structure, with intent to commit a crime."

. Taylor added that state burglary statutes which include

within their reach places "other than buildings," such as

automobiles cannot categorically be considered "generic burglary."

. The Court said that an overly broad statute could

4 We have repeatedly noted that the "substantial similarity" between the definition of "violent felony" for sentencing enhancement purposes under the ACCA and the definition of "crime of violence" under the Guidelines' career offender provision makes decisions "interpreting one phrase frequently . . . persuasive in interpreting the other [ ]." United States v. Winter,

, 18 n.3 (1st Cir. 1994).

-9- nonetheless trigger an enhancement under the violent felony

provision of the ACCA if the charging documents and certain other

records establish the defendant was convicted of generic burglary.

Id. at 602. Relying on Taylor, Ramírez argues that Florida's

inclusion of curtilage and conveyances which could include cars and

aircrafts in its definition of "dwelling,"

(3),

takes Florida's definition of burglary of a dwelling beyond

Taylor's definition of generic burglary and cannot therefore

constitute "burglary of a dwelling" under U.S.S.G. § 4B1.2(a)(2).

Instead of rebutting that argument, the government assumes Taylor's

definition applies.

We disagree that Taylor's strict definition of "generic

burglary" automatically dictates the Guidelines' definition of

"burglary of a dwelling." The Guidelines' definition of "crime of

violence" and the ACCA's definition of "violent felony" are nearly

identical, so authority construing one frequently informs the

construction of the other. United States v. Willings,

,

58 n.2 (1st Cir. 2009). That is not always true, however. As we

have emphasized, Taylor's interpretation of the term "burglary" as

it is used in the ACCA must be "put in context." Giggey I,

.5 Taylor involved a question of congressional intent,

5 Giggey I addressed Taylor's application to the Guidelines and held that whether a prior conviction for non-residential burglary is a "crime of violence" turns on the application of a categorical approach under § 4B1.2(a)(2)'s residual clause. Id. at 39-41.

-10- not the Commission's intent, and did not mandate the Commission

restrict the definition of "burglary of a dwelling," based on

Taylor's definition of "generic burglary" under the ACCA. Giggey

I,

. The Commission's decision to list the more

limited "burglary of a dwelling" as an enumerated offense "instead

of using the ACCA's broader term 'burglary' or even Taylor's

'generic burglary'" was "deliberate" and affects how we define

"burglary of a dwelling" under the Guidelines.

; see

United States v. Rivera-Oros,

(10th Cir. 2009)

(noting that "[a]t least with respect to burglary, the Commission

has reached a different conclusion than Congress did in enacting

the ACCA" in finding Taylor's definition did not apply to the term

"burglary of a dwelling" as used in the Guidelines); United States

v. Murillo-Lopez,

(5th Cir. 2006) (finding that

"Taylor interprets a federal statute" and "does not purport to

define 'burglary of a dwelling' [or] . . . purport to govern the

Guidelines," noting previous decisions interpreting "burglary of a

dwelling" under the Guidelines without citation or reliance upon

Taylor).6 Because Taylor's definition of generic burglary does not

strictly apply here, we must define "burglary of a dwelling" as the

6 The Ninth Circuit has chosen a different approach, construing "'burglary of a dwelling' as the Taylor definition of burglary, with the narrowing qualification that the burglary occur in a dwelling." United States v. Wenner,

(9th Cir. 2003). Like the Tenth Circuit, see Rivera-Oros,

, we disagree that Taylor's strict definition applies.

-11- term is used in the Guidelines.7 Only then may we consider whether

"the state statute corresponds in substance to the generic meaning

of [the enumerated offense]." See Taylor, 494 U.S. at 599.8

While we have not been called upon to define "burglary of

a dwelling" in the Guidelines' context, at least four circuits have

taken on that task. See Rivera-Oros,

;

Murillo-Lopez,

; United States v. McClenton,

(3d Cir. 1995); United States v. Graham,

The cases the government relies upon in assuming Taylor's definition of generic burglary controls, involved the violent felony provision under the ACCA which lists "burglary," not the Guidelines' more limited "burglary of a dwelling" as an enumerated offense. See, e.g., United States v. Farrell,

(1st Cir. 2012) (state statute's inclusion of ships or vessels in the statute's definition of burglary goes beyond the confines of "generic burglary" under Taylor); United States v. Sanchez-Ramírez,

, 82 n. 7 (1st Cir. 2009) (noting Florida's burglary statute's inclusion of curtilage brings it outside "generic burglary" as defined in Taylor and Shepard documents do not exclude "non-generic" burglary). 8 We, like many of our sister circuits, use Taylor's analytical framework to determine whether a prior state conviction falls within the generic definition of the enumerated offense to qualify as a crime of violence under the Guidelines. See, e.g., United States v. Peterson,

(4th Cir. 2011) (applying Taylor's categorical approach in defining generic "manslaughter" as used in § 4B1.2(a) cmt. 1); United States v. Marrero,

(3d Cir. 2012) (applying Taylor's framework in adopting the generic definition for "murder" under § 4B1.2(a) Application Note 1); United States v. Lockley,

(11th Cir. 2011) (employing Taylor's approach in determining that Florida's definition of robbery follows the generic definition of robbery under the Guidelines to justify the sentencing enhancement); United States v. Walker,

(2d Cir. 2010) (applying Taylor to determine whether a state's robbery offense "corresponds substantially to the 'generic meaning' of robbery" to qualify "categorically as a 'crime of violence' for Guidelines enhancement purposes").

-12- 315, 316 (8th Cir. 1992). Relying primarily on Black's Law

Dictionary's definition of "dwelling," these courts have concluded

that "dwelling" means an "enclosed space that is used or intended

for use as a human habitation." Rivera-Oros,

(looking to, inter alia, Black's Law Dictionary's definition of

"dwelling," and the Commission's "heightened concern for harms

associated with residential burglaries" in concluding "dwelling" is

not limited to permanent, immovable structures); Murillo-Lopez,

(considering the Model Penal Code, LaFave

treatise on criminal law, and Black's Law Dictionary); McClenton,

(applying Black's Law Dictionary "dwelling"

definition and case law); Graham,

(relying on

Black's Law Dictionary's "dwelling" definition); see also United

States v. McFalls,

(6th Cir. 2010) (requiring

human habitation in defining "dwelling")(citing Graham, McClenton

and Murillo-Lopez). We agree that the generic definition of

"dwelling" for the purposes of the enumerated "burglary of a

dwelling" offense under the Guidelines, specifically § 4B1.2(a),

must be an enclosed space for use or intended use for human

habitation. See Rivera-Oros,

(finding the

definition of "dwelling" includes any "enclosed space that is used

or intended for use as a human habitation"); Murrillo-Lopez,

(concluding "'burglary of a dwelling'" includes the

-13- elements of generic burglary" under Taylor "but it also includes,

at a minimum, tents and vessels used for human habitation").

We now turn to the Florida statute to determine whether

it roughly corresponds to the generic definition of burglary of a

dwelling. As previously mentioned, Florida's definition of

burglary includes the "entering or remaining in a dwelling . . .

with the intent to commit an offense therein."

(1)(1997). A "[d]welling," is any "building or conveyance .

. . [which] is temporary or permanent, mobile or immobile, which

has a roof over it and is designed to be occupied by people lodging

therein at night, together with the curtilage thereof."

§

810.011(2).9 The curtilage, however, need not be similarly

designed for human habitation at night. While the statute neglects

to define "curtilage," Florida courts have defined it as an area

surrounding a residence which has "some form of an enclosure."

State v. Hamilton,

(Fla. 1995). An enclosed

yard surrounding a residence, for instance, qualifies as curtilage

9 Florida's burglary statute does not define the term "lodging," but we may "use standard dictionary definitions to assist in determining the ordinary meaning of statutory language." Riva v. Mass.,

, 1008 n.4 (1st Cir. 1995). "Lodging" means "a place to live" or "sleeping accommodations." Merriam- Webster's Collegiate Dictionary (11th ed. 2003), available at www.meriam-webster.com/dictionary/lodging (defining "lodging" as "a place to live: dwelling" and "sleeping accommodations") (last visited February 25, 2013); The American Heritage Dictionary of the English Language(5th ed. 2011), available at www.ahdictionary.com/word/search.html?q=lodging (defining "lodging" as "a place to live" or "sleeping accommodations")(last visited February 25, 2013).

-14- in Florida. See

(finding victim's yard bounded only by

"several unevenly spaced trees" did not constitute the residence's

curtilage because it was not enclosed); Chambers v. State,

(Fla. Dist. Ct. App. 1997) (upholding burglary of a

dwelling conviction where wooden and chain link fence with a ten-to

fifteen-foot gap surrounding the yard was considered part of the

residence's curtilage); see also T.J.T. v. State,

(Fla. Dist. Ct. App. 1984) (upholding burglary conviction where

defendant attempted to remove a window from a residence with a

fenced-in yard as its curtilage).

Because Florida's definition of burglary of a dwelling

includes both burglary of a building or conveyance and burglary of

such building's or conveyance's curtilage, we cannot tell whether

Ramírez's burglary conviction involved the former, the latter, or

both. The parties agree the appropriate adjudicative documents do

not narrow it down. See United States v. Almenas,

(1st Cir. 2009) (examination of appropriate adjudicative records is

allowed where statutory definition is too broad to determine the

offense of conviction).10 The statute's inclusion of curtilage,

however, matters when comparing Florida's definition of burglary of

10 The parties discussed certain state court records at the sentencing hearing, but have not submitted those documents as part of the record on appeal. We have found none in the district court record. This, in the end, makes no difference since the parties agree that Ramírez was convicted of burglary of a dwelling and that the state court records provide no further information to help narrow down the offense of conviction.

-15- a dwelling with the generic meaning of the offense under the

Guidelines. Generic burglary of a dwelling requires the dwelling

be an enclosed space used or designed for human habitation. Under

Florida's definition of burglary of a dwelling, the building or

conveyance must be designed for lodging at night, but the curtilage

does not.

In United States v. Gomez-Guerra,

(5th Cir. 2007), the Fifth Circuit addressed head-on whether

Florida's burglary of a dwelling, and its inclusion of curtilage,

is categorically the equivalent of burglary of a dwelling under the

Guidelines and concluded it was not. Generic burglary of a

dwelling, the court said, does not cover the burglary of curtilage

-- "the grounds around the dwelling" -- it only prohibits the

unlawful entry into the dwelling itself.

. Because, in

the court's view, the inclusion of "curtilage" extends burglary of

a dwelling in Florida beyond its generic meaning, the court held

that the defendant's 1997 Florida burglary conviction was not a

crime of violence under § 2L1.2(b) of the Guidelines. Id.; accord

United States v. Rodriguez-Lopez,

(5th

Cir. 2012) (finding Florida's inclusion of curtilage in its

definition of dwelling renders the statute outside of the

contemporary meaning of the enumerated burglary of a dwelling crime

of violence under § 2L1.2).

-16- We agree with the Fifth Circuit and hold the inclusion of

"curtilage" makes Florida's definition of burglary of a dwelling

broader than the generic meaning of burglary of a dwelling under

the Guidelines.11 Human habitation is the sin qua non of a

"dwelling." In cases where courts found a particular state

statute's definition of burglary of a dwelling corresponded with

its generic definition under the Guidelines, each statute limited

"dwelling" to places of human habitation. And, the spaces at issue

in those cases -- tents and vessels in Murillo-Lopez,

, hotel guest rooms in McClenton,

, and the

unspecified structures used as "weekend fishing retreats" in

Graham,

, all satisfied the human-habitation test.

See, e.g., McClenton,

("hotel guest room is intended

for use as human habitation, albeit, in most circumstances, on a

transient or temporary basis"). None of the statutes at issue in

those cases broadened the definition of a dwelling to include the

area, surrounding the building or conveyance, which is not used or

intended to be used as a place where people stay or sleep. But

that is precisely the statute before us. See McFalls,

(finding state's burglary statute did not qualify as a an

enumerated crime of violence because of its broad definition of

11 Albeit based on their own reading of Taylor, the parties agree that Florida's definition of burglary is broader than "generic burglary," since Florida's definition of dwelling includes curtilage.

-17- "dwelling" which extends to uninhabitable structures as far as 200

yards from a dwelling house). Given the overbreadth of Florida's

definition of "dwelling," we cannot say burglary of a dwelling

under Florida law is categorically the equivalent to the enumerated

burglary of a dwelling offense under the Guidelines. Thus,

Ramírez's Florida burglary conviction does not constitute a crime

of violence under the enumerated offenses clause of U.S.S.G. §

4B1.2(a)(2). That does not end our analysis, however.

As the government argues, Ramírez's prior conviction may

still qualify as a crime of violence under § 4B1.2(a)(2)'s residual

clause -- if it "involves conduct that presents a serious potential

risk of physical injury to another."12 U.S.S.G. § 4B1.2(a)(2).

See, e.g., Brown,

(turning to the residual clause

and employing the categorical approach to determine whether the

predicate at issue was a crime of violence under § 4B1.2(a)(2)).

To qualify as a crime of violence under the residual

clause, the predicate offense must "in the ordinary case . . .

present[ ] a serious potential risk of physical injury to another,"

similar to the risk presented by the clause's enumerated offenses.

James v. United States,

(2007); Jonas,

Ramírez makes much of the fact that the government raises its residual clause argument for the first time on appeal. At the time of sentencing, however, Ramírez argued -- perhaps predicting the government's position -- that his Florida burglary conviction did not qualify as a crime of violence under that clause. He cannot now, therefore, claim any unfair surprise by the government's argument on appeal.

-18- at 86-87. "This determination hinges on a commonsense assessment

of the risk of violence that typically ensues during the commission

of the crime." Jonas,

(citing Sykes, 131 S.Ct. at

2273–74). The offense must also be "roughly similar in kind to the

enumerated offenses." Jonas,

; Sykes, 131 S.Ct. at

2272–74 (reiterating the relevant standards for evaluating whether

an offense is a crime of violence). An offense is similar in kind

to an enumerated offense if it typically "involves purposeful,

violent and aggressive conduct." Jonas,

; Farrell,

.

Ramírez does not dispute that his "burglary of a

dwelling" conviction is roughly similar in kind to the "burglary of

a dwelling" offense listed in the enumerated offenses clause. See

Brown,

(noting that burglary of a building is

"comparable in kind" to burglary of a dwelling)(emphasis in

original). We focus, therefore, on comparability of risk.

The serious potential risk of physical injury of entering

a building or conveyance "which has a roof over it and is designed

to be occupied by people lodging therein at night," or the

curtilage of such building or conveyance,

(2),

under Florida law is comparable to that presented when a generic

burglary of a dwelling occurs. The statute's requirement that the

conveyances or buildings be designed for lodging at night narrows

the types buildings and conveyances that may qualify as dwellings.

-19- A trailer, for instance, is designed for lodging at night, whereas

a car is not; it is designed for transporting people and things

from one location to another. "Dwellings," we have emphasized, are

intended to be "occupied at all hours by individuals." Brown,

. A structure or conveyance that has a roof over it and

is designed specifically for lodging at night has the same purpose.

Unlike buildings that tend to be "wholly unoccupied at night" which

might make "the threat of violence during the offense [ ] fairly

speculative,"

a structure or conveyance where people live or

sleep at night, "creates much of the same risk of physical

confrontation with a property owner, law enforcement official, or

other third party as one who attempts to enter the structure

itself." James,

. In both instances, the burglar

creates the risk "that an innocent person might appear while the

crime is in progress" and that a confrontation with police or

bystanders attempting to investigate might occur.

.

Indeed, the risk of a possible confrontation with a third party is

heightened here precisely because the building or conveyance must

be designed for a person to sleep there at night.

The same serious risk exists where a defendant breaches

the building's or conveyance's curtilage. As the Supreme Court

explained in James, inclusion of curtilage in Florida's definition

does not decrease the risk of physical confrontation to the extent

that it takes the offense outside of the residual clause.

at

-20- 213 (holding prior conviction qualified as a violent felony under

the ACCA's residual clause, despite the inclusion of curtilage in

Florida's burglary statute). The "curtilage adjacent to a

structure is typically enclosed 'to keep out unwanted vistors-

especially those with criminal motives.'" Sanchez-Ramírez,

-83 (quoting James,

). Thus, one who

attempts to enter the curtilage which surrounds the building or

conveyance must be within close "physical proximity to the

structure." James,

. In attempting to breach that

enclosure, the burglar "creates much the same risk of confrontation

. . . as [ ] one who attempts to enter the structure itself." Id.;

see United States v. Pakala,

(1st Cir. 2009)

(holding defendant's convictions of burglary of a dwelling in

Florida -- involving either a building or the curtilage thereof --

presented a serious risk of physical injury to another and

constituted violent felonies under the ACCA's residual clause); see

also Sanchez-Ramírez,

(holding the risks to third

parties identified in James were equally prevalent in the predicate

burglary of an unoccupied structure -- a church -- to constitute a

violent felony under the ACCA's residual clause).

While James and Pakala examined Florida's burglary

statute under the residual clause of the ACCA's violent felony

provision, the residual clause in the crime of violence provision

under the Guidelines is identical to it. See 18 U.S.C. §

-21- 924(e)(2)(B)(ii); U.S.S.G. § 4B1.2(a)(2). Our cases as well as

Supreme Court decisions interpreting whether a prior conviction

qualifies as a violent felony under the residual clause of

(e)(2)(B)(ii) are, therefore, highly persuasive in

deciding whether the conviction is a crime of violence under §

4B1.2(a)(2). See United States v. Grupee,

(1st Cir. 2012) (relying on circuit precedent that a conviction for

assault and battery of a police officer is a violent felony under

the residual clause of

(e)(2)(B)(ii) to conclude the

same was a crime of violence under "the identical residual clause"

of U.S.S.G. § 4B1.2(a)(2)). Listing the more limited "burglary of

a dwelling" in the enumerated offenses clause in U.S.S.G. §

4B1.2(a)(2), as Ramírez argues, does indeed affect how we interpret

whether burglary of a dwelling is a crime of violence under the

Guidelines' residual clause. Giggey I,

. It only

means, however, that we consider the Guidelines' more limited

enumerated burglary of a dwelling offense when comparing the degree

of risk between the enumerated offenses and Ramírez's prior

offense. And here, we find the degree of risk posed by the

enumerated burglary of a dwelling offense in the Guidelines

comparable to that presented by the burglary of a dwelling as

Florida has defined it.

Brown and Farrell, two cases upon which Ramírez heavily

relies to support his argument that burglary of a dwelling under

-22- Florida law is not a crime of violence under the residual clause,

dealt with breaking and entering into non-dwellings which do not

involve the same considerations of risk where, as here, dwellings,

and enclosed spaces surrounding them, are involved. Brown,

(night-time breaking and entering of a non-

dwelling building); Farrell,

(breaking and entering

into a non-structure, such as a vessel or ship). In fact, our

reasoning in Brown only further supports our conclusion that

burglary of a dwelling constitutes a crime of violence within the

meaning of the Guidelines' residual clause. There, we held

burglary of a building was not comparable in risk to burglary of a

dwelling under the Guidelines. Brown,

. We looked

to the Massachusetts breaking and entering statute at issue and saw

it covered a broad range of structures (including storage sheds and

detached garages) where "one might rarely encounter someone else at

night."

Unlike dwellings, we said, buildings are not intended

to be occupied by individuals at all hours, making the risk that

violence will occur during the offense at night speculative.

Here, the building or conveyance in the Florida statute must be

designed for occupation at night to constitute a dwelling which, as

we recognized in Brown, increases the serious potential risk of

injury to another. And, that risk is similarly heightened where an

enclosed area surrounding that building or conveyance is breached

by an unwelcomed visitor.

-23- In sum, we find that burglary of a dwelling under Florida

law is similar in kind and in risk to the enumerated burglary of a

dwelling offense to qualify as a crime of violence under the

Guidelines' residual clause.13 We therefore find no error in the

district court's application of the career offender enhancement.

Use-of-Juvenile Enhancement

Ramírez was sentenced to thirteen years imprisonment --

a downward departure from the lowest possible sentence in his

applicable Guidelines range. On appeal Ramírez avers the district

court's sentence was wrought with procedural error, arguing that

the court miscalculated his Guidelines range by applying

(b) despite its acknowledgment that Ramírez did not admit to

knowing that BR was a minor at the change-of-plea hearing, and that

the court's explanation for the sentence imposed was inadequate.

We tackle the former issue first, which in the end, leads us to

conclude remand is appropriate.

We generally review claims of procedural error in

sentencing for abuse of discretion. Gall v. United States,

(2007); United States v. Leahy,

(1st

Cir. 2012). Because Ramírez objected repeatedly to the sentencing

13 Ramírez all but abandons his alternative argument that the residual clause is unconstitutionally vague, recognizing that we have rejected vagueness challenges to the residual clause. United States v. Hart,

, 41 n.3 (1st Cir. 2012) (citing James,

n.6). As we have before, we reject his challenge here.

-24- enhancement under § 861(b) and the calculation of the Guidelines

range that resulted from applying it -- objections made prior to

sentencing and in a motion to correct after sentencing -- we review

Ramírez's claim for abuse of discretion.

As we all know, the Guidelines are no longer mandatory

after United States v. Booker,

(2005), but calculating

the correct Guidelines range remains the starting point for

determining a defendant's sentence. Gall, 552 U.S. at 49–51;

United States v. Gobbi,

(1st Cir. 2006). This

task is of such import that a calculation error will often require

resentencing. United States v. Rodriguez,

(1st

Cir. 2010) (emphasizing that "starting with the Guidelines'

framework - which gives judges an idea of the sentences imposed on

equivalent offenders elsewhere - helps promote uniformity and

fairness" as Congress intended). The sentence given may fall

inside or outside the advisory Guidelines range, provided that it

stays within the statutory range and considers the

(a) sentencing factors. See, e.g., Gall,

, 49–50

& n. 6; Booker, 543 U.S. at 259–60. When it falls below the bottom

of the Guidelines range, a defendant may still challenge the

incorrect Guidelines calculation. United States v. Paneto,

(1st Cir. 2011).

In this case, Ramírez challenges one aspect of the

district court's Guidelines calculation: the enhancement under 21

-25- U.S.C. § 861(b) for "knowingly or intentionally" using a person who

is a minor when committing the offense under § 841(a)(1). Ramírez

pled guilty to violating § 841(a)(1) which carries the penalties

under § 861(a)(1) when a person "at least eighteen years of age .

. . knowingly and intentionally . . . employ[s], hire[s], use[s] .

. . a person under eighteen years of age" in violating § 841(a)(1).

(a)(1). A defendant who knowingly and intentionally

uses a minor in violating § 841(a)(1) is "subject to twice the

maximum punishment otherwise authorized and at least twice any term

of supervised release" and "[e]xcept to the extent a greater

minimum sentence is otherwise provided," a mandatory minimum

sentence of one year imprisonment.

(b). The §

861(b) enhancement pushes Ramírez's Guidelines range from 151 to

188 (what Ramírez says it should have been) to 188 to 235 (what the

PSR and judgment say it is).

Ramírez argues that under § 861(a)(1), the government

must prove that he knew BR was a minor and because he did not admit

to knowing that at his change-of-plea hearing, no enhancement

applies. The government disagrees, claiming that no proof of

knowledge is necessary to apply the enhancement. Every circuit to

have considered the use-of-juvenile provision has concluded that

the government is not required to prove the defendant knew the

person used was underage. United States v. Frazier,

(7th Cir. 2000); United States v. Cook,

, 601

-26- (4th Cir. 1996); United States v. Chin,

(D.C. Cir. 1992) (R.B., Ginsburg, J.); United States v. Williams,

(11th Cir. 1991); United States v.

Valencia-Roldan,

(9th Cir. 1990); United States

v. Carter,

(8th Cir. 1988).

We need not decide whether we agree with our sister

circuits, as there is a more glaring problem: the record is

inconsistent as to whether the district court actually applied the

enhancement. Without knowing that, we cannot say whether the

district court got the Guidelines calculation right or wrong. As

further explained below, the record raises more questions than it

provides answers.

From the district judge's repeated statements at the

change-of-plea and sentencing hearings that Ramírez had not

admitted to knowing BR was a minor for sentencing purposes, it

appears the judge had decided that proof of knowledge (or admitting

knowledge) was required, which would indicate his disagreement with

our sister circuits on the issue. At the change-of-plea hearing,

Ramírez admitted to using BR in violating

, but

denied knowing BR was a minor. Turning to the parties, the judge

asked, "Well, he had to know he's a juvenile, doesn't he?" and

asked whether the statute required that Ramírez know that BR was a

minor or that he "turned out to be" a minor. The government had no

answer and indicated its willingness to brief the issue. The judge

-27- did not respond whether he would like any briefing. Instead, he

said that "when we come to sentencing, to the extent that this may

impact me, [Ramirez is] not admitting that" and that he would

"credit" Ramírez's denial for sentencing purposes.

At sentencing, when discussing the applicability of

U.S.S.G. § 3B1.4 -- which, like

, increases the

Guidelines range if the defendant uses a minor in the crime -- the

judge reiterated that Ramírez had not admitted to knowingly using

a minor at the plea hearing, stating that "if the government had

wanted that, I expect him to admit it at the time of the plea."

Going further, the judge said that Ramírez is "either going to

admit it or a jury's going to find it. I think that's what the

constitution requires." While he made no ruling on whether proof

of knowledge is required, at least on this record, the judge seemed

to be saying it was and that he had no intention of applying the

use-of-juvenile enhancement under § 861 to determine the offense

level and, consequently, the Guidelines range.

The initial judgment, however, turns that reading of the

record on its head. The judgment reflects the judge's acceptance

of the PSR's calculations of the Guidelines range and the

application of § 861(b). To recap, the PSR determined that the

career offender provision applied, that Ramírez's career offender

total offense level was 31 and his criminal history category was

VI, placing him in a Guidelines range of 188 to 235 months. To

-28- calculate the career offender total offense level, the PSR applied

the statutory maximum of forty years (under the § 861(b)

enhancement for Count IV) consistent with U.S.S.G. § 4B1.1(b)(2).

See U.S.S.G. § 4B1.1(b)(2)(offense statutory maximum of 25 years or

more yields an offense level of 34). By adopting the PSR's

calculations in the judgment, the judge had agreed to apply the

(a)(1)'s maximum penalty: forty years imprisonment

under § 861(b) and six years of supervised release for knowingly

using a minor.

Obviously confused by the inconsistency between the

sentence imposed and the judge's in-court statements, Ramírez moved

to correct the sentence. He argued that the judge mistakenly

determined the Guidelines range was 188 to 235 months when he

imposed the 156-month sentence. Ramírez averred that without the

§ 861(b) enhancement, the career offender total offense level

should have been 29, placing him in a Guidelines range of 151 to

188.14 Thus, in his view, the statutory maximum under Count IV

should have been twenty (not forty) years and the term of

supervised release should have been three (not six) years. By

14 If the enhanced statutory maximum of 40 years under § 861(b) did not apply, Ramírez's career offender total offense level would be 32 under U.S.S.G. § 4B1.1(b)(3), as the statutory maximum for his offense would be 20 years under

(b)(1)(B) and (C). The career offender total offense level of 32, after a reduction of 3 levels for acceptance of responsibility, would result in a career offender total offense level of 29 which, combined with his career offender criminal history category of VI, would yield an advisory Guidelines range of 151 to 188 months.

-29- reducing the term of supervised release from six to three years in

the corrected judgment, the judge seemed to agree with Ramírez on

the basis for the change: that the § 861 enhancement did not

apply. But, a close look at the amended judgment reveals that the

Guidelines range was left unchanged, as was the career offender

total offense level which remained at 31. That offense level,

however, could stay at 31 only by subjecting Ramírez to twice the

maximum punishment authorized under Count IV for his violations of

§ 841(a)(1) (Counts I and II). See

(b)(1)(B) &

(C), 861(b).15

The amended judgment does not clarify whether the judge

applied the enhancement. The record fares no better: the judge's

statements at the change-of-plea and sentencing hearings suggest no

enhancement would be applied; the judgment seems to apply the

enhancement; and the amended judgment may or may not have applied

it. And, despite being well-aware of the objection to any

enhancement for use of a minor, the judge never decided whether §

861(a)(1) requires proof of knowledge that the person being used is

a minor.16 Ramírez's argument that the judge erred in calculating

15 Under U.S.S.G. § 5D1.2(c), the term of supervised release is six years on Count IV (when doubling the three-year supervised release term from Counts I and II). See U.S.S.G. § 5D1.2(c). 16 Ramírez objected to the enhanced penalty for use of a minor under § 861 on at least three occasions: in his objections to the PSR's use of the enhanced penalty prior to sentencing, in his sentencing memorandum, and in his motion to correct the judgment and for resentencing.

-30- the Guidelines range, however, rests upon his assertion that the

government must prove (or the defendant must admit) to knowing the

person was a minor to trigger the § 861 sentencing enhancement. If

the judge's conclusion was that proof of knowledge was required and

he applied the § 861 enhancement, there is no record of his finding

that Ramírez had the requisite knowledge.

Given the ambiguity in the record and the absence of any

ruling by the judge about whether the § 861 enhancement applied,

remand is appropriate to allow the district court to clarify its

decision and make any adjustments it sees fit. United States v.

Levy,

(1st Cir. 1990) (noting that if the record

is ambiguous, a court of appeals may remand for clarification

purposes); see also United States v. Aker,

(1st

Cir. 1999) (vacating the sentence and remanding the case for

further clarification about its ruling on the defendant's request

for possible departure on grounds of significantly diminished

mental capacity). We express no opinion on the outcome at this

stage. See United States v. Quinones,

(1st Cir.

1994). In light of our decision to vacate and remand on these

grounds, we need not reach Ramírez's final argument that the judge

failed to adequately explain his sentence.

CONCLUSION

For the foregoing reasons, we vacate the sentence and

remand for further consideration consistent with this opinion.

-31-