REVISED February 22, 2008
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
February 19, 2008
No. 06-50647
Summary Calendar Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA
Plaintiff-Appellee
v.
JOSE TELLEZ-MARTINEZ, also known as Jose Luz Tellez-Martinez
Defendant-Appellant
Appeal from the United States District Court
for the Western District of Texas
USDC No. 3:05-CR-2656-ALL
Before KING, HIGGINBOTHAM, and DAVIS, Circuit Judges.
PER CURIAM:
Jose Tellez-Martinez (Tellez) pleaded guilty to illegal reentry into the
United States after previously being deported, in violation of 8 U.S.C. § 1326.
The presentence report (PSR) assigned Tellez a base offense level of eight.
Because Tellez had a prior conviction for robbery in California, the PSR
increased the base offense level by 16 levels pursuant to U.S.S.G.
§ 2L1.2(b)(1)(A)(ii). After a three-level reduction for acceptance of responsibility,
Tellez’s total offense level was 21, his criminal history category was II, and his
guideline range was 41 to 51 months in prison.
No. 06-50647
As he did in the district court, Tellez argues that his prior California
robbery conviction is not a crime of violence within the meaning of
§ 2L1.2(b)(1)(A)(ii). Although robbery is an enumerated crime of violence under
the Guideline, Tellez argues that robbery under CAL. PENAL CODE § 211 does not
meet the generic, contemporary definition of robbery because the California
statute may be violated not only by the use of force but also by threats to
property. Thus, Tellez argues, the offense does not comport with the
contemporary meaning of the enumerated offense of robbery.
The district court’s characterization of a prior offense is a question of law
that this court reviews de novo. United States v. Santiesteban-Hernandez, 469
F.3d 376, 378 (5th Cir. 2006). Section 2L1.2 of the Guidelines provides that the
offense level for unlawfully entering or remaining in the United States shall be
increased by 16 levels if the defendant has a prior conviction for a “crime of
violence.” § 2L1.2(b)(1)(A)(ii). The commentary to § 2L1.2 defines “crime of
violence” as (1) any specific enumerated offense, including “robbery,” or (2) “any
offense under federal, state, or local law that has as an element the use,
attempted use, or threatened use of physical force against the person of
another.” § 2L1.2, comment. (n.1(B)(iii)).
When determining whether a state conviction constitutes a specifically
enumerated, but undefined, offense for purposes of § 2L1.2’s crime-of-violence
enhancement, this court uses a “common sense approach.” United States v.
Izaguirre-Flores, 405 F.3d 270, 274 (5th Cir. 2005). Under this approach, we
determine whether a violation of the underlying statute constitutes the
enumerated offense as the enumerated offense is understood in its “‘ordinary,
contemporary, [and] common’ meaning.” Id. at 275. If the underlying statute
encompasses prohibited behavior that is not within the plain, ordinary meaning
of the enumerated offense, the defendant’s sentence cannot be upheld. Id. at
276-77.
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No. 06-50647
In Santiesteban-Hernandez, 469 F.3d at 379-80, this court addressed
whether the Texas offense of robbery is a crime of violence under § 2L1.2. We
noted that the generic, contemporary meaning of an offense generally
corresponds to the definition in a majority of the States’ criminal codes; sources
of meaning also include the Model Penal Code, treatises, federal and state law,
dictionaries, and the Uniform Code of Military Justice. Id. at 379. We
concluded: “the generic form of robbery may be thought of as aggravated larceny,
containing at least the elements of misappropriation of property under
circumstances involving [immediate] danger to the person.” Id. at 380
(alteration in original) (internal quotation marks omitted). It is this “immediate
danger element [that] makes robbery deserving of greater punishment than that
provided for larceny and extortion . . . .” Id. (internal quotation marks omitted).
Such danger is inherently present when property is taken by force or putting in
fear. Id. at 380-81.
The California robbery statute proscribes “the felonious taking of personal
property in the possession of another, from his person or immediate presence,
and against his will, accomplished by means of force or fear.” CAL. PENAL CODE
§ 211. Fear is defined as either the “fear of an unlawful injury to the person or
property of the person robbed” or “fear of an immediate and unlawful injury to
the person or property of anyone in the company of the person robbed at the time
of the robbery.” CAL. PENAL CODE § 212.
Although Tellez maintains that a conviction under the California robbery
statute is not a crime of violence because the statute criminalizes threats to
property as well as persons, his assertion is based on a misunderstanding of the
essential language of the statute defining robbery as a crime committed:
(1) directly against the victim or in his presence; and (2) against his will. Like
the Texas statute at issue in Santiesteban-Hernandez, the California robbery
statute involves the misappropriation of property under circumstances involving
danger to the person. 469 F.3d at 380. Regardless of how the robbery occurs,
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No. 06-50647
that danger is inherent in the criminal act. Thus, even when the statute is
violated by placing the victim in fear of injury to property, the property has been
misappropriated in circumstances “involving [immediate] danger to the person.”
Id. (alteration in original).
Accordingly, robbery under § 211 of the California Penal Code falls within
the generic or contemporary meaning of robbery as understood by this court.
The § 2L1.2 enhancement was proper, and the district court properly calculated
the advisory guidelines range.
In light of Apprendi v. New Jersey, 530 U.S. 466 (2000), Tellez challenges
the constitutionality of § 1326(b)’s treatment of prior felony and aggravated
felony convictions as sentencing factors rather than elements of the offense that
must be found by a jury. This argument is foreclosed by Almendarez-Torres v.
United States, 523 U.S. 224, 235 (1995). United States v. Pineda-Arrellano, 492
F.3d 624, 625 (5th Cir. 2007), cert. denied, 2008 WL 59441 (Jan. 7, 2008) (No. 07-
6202).
For the foregoing reasons, the judgment of the district court is
AFFIRMED.
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