U.S. v. Snellenberger, No. 06-50169 (10-28-08) (en banc). Defendant challenges a prior conviction that renders him a career offender. The prior was a burglary, but the issue was whether it fit under a Taylor analysis (California's burglary statute is overbroad). Here, though, there was a clerk's minute entry that had defendant pleading nolo to count 1, which stated that he entered an inhabited dwelling etc. Defendant argued that the minute entry was barred by Shepard, and was unreliable. "Not so" stated the 9th per curiam, finding Shepard's list of documents to be used in a modified categorical approach to be examples, and not definitive. A minute entry is prepared by a court official, at the time, and was analogized to a court reporter. Moreover, it should be checked by counsel, and is part of the professional responsibility. "We therefore hold that the district courts may rely on minute orders that conform to the essential procedures described above in applying the modified categorical approach."

The per curiam opinion sidesteps whether the conviction was a generic burglary because the state statute failed to have the element of "unprivileged entry." See U.S. v. Navarro-Lopez, 503 F.3d 1063 (9th Cir. 2007) (en banc). The defendant failed to raise the opinion in his opening brief. In a concurrence, Judges Graber, Rymer, Kleinfeld, Hawkins, Gould, and Tallman argue that under these facts, under a plain error analysis, the acts were still a burglary.

Dissenting, M. Smith (joined by Kozinski, Reinhardt, and Thomas) argue that under Navarro-Lopez, the missing of an "unprivileged entry" element removes California burglary from a Taylor generic burglary. The state only requires "entry." Yes, this precludes burglaries from the most populous state from being used to ratchet up crimes, and affects a national approach, but isn't federalism wonderful? The modified approach cannot be used where, as here, the state statute contains no element of the potential risk of harm.

Practice tip: under this per curiam opinion, the issue of Navarro-Lopez's applicability to the California burglary statute is still open.