under 18 U.S.C. § 16(b) because the crime of first-degree burglary as defined by California Penal Code § 459 involves a substantial risk of harm in the ordinary case. See, e.g., Park, 649 F.3d at 1179-80. Ramos argues that we should not consider ourselves bound by the decisions in Lopez-Cardona and Kwong because he presents a different argument than did the petitioners in those cases. In support of that proposition he cites Webster v. Fall, 266 U.S. 507, 511, 45 S.Ct. 148, 69 L.Ed. 411 (1925) (“Questions which merely lurk in the record, neither brought to the attention of the court nor ruled upon, are not to be considered as having been so decided as to constitute precedents.”). See also, e.g., Galam v. Carmel (In re Larry’s Apartment, L.L.C.), 249 F.3d 832, 839 (9th Cir. 2001) (<HOLDING>). The continuing vitality of Becker was not an
holding previous case when no one challenged the issue could not be precedent on the issue holding that claim preclusion did not apply even though the legal theory at issue in that case was addressed in a previous case because the case at issue was based on a different set of operative facts holding that a question lurked in the record of a previous case because we had no occasion to consider it holding it is a question of fact holding that the question of whether police had a reasonable basis for finding that a third party had authority to consent to search is a question of law