IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
February 15, 2008
No. 06-40309
Summary Calendar Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA
Plaintiff-Appellee
v.
TOMY ERNESTO RECINOS-DUARTE
Defendant-Appellant
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 5:05-CR-1927-ALL
Before WIENER, GARZA, and BENAVIDES, Circuit Judges.
PER CURIAM:*
Defendant-Appellant Tomy Ernesto Recinos-Duarte appeals following his
guilty-plea conviction for illegal reentry after deportation, pursuant to 8 U.S.C.
§ 1326. Recinos-Duarte challenges the district court’s determination that his
previous California robbery conviction was a crime of violence warranting a 16-
level adjustment to his offense level pursuant to U.S.S.G. 2L1.2(b)(1)(A). Our
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion
should not be published and is not precedent except under the limited
circumstances set forth in 5TH CIR. R. 47.5.4.
No. 06-40309
review of Recinos-Duarte’s contention is for plain error. See United States v.
Calverley, 37 F.3d 160, 162-64 (5th Cir. 1994) (en banc).
Although robbery is an enumerated crime of violence under § 2L1.2, the
Guideline, Recinos-Duarte 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, Recinos-Duarte 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.(B)(iii)).
When determining whether a state conviction constitutes a specifically
enumerated, but undefined, offense for purposes of § 2L1.2’s crime-of-violence
adjustment, 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. 06-40309
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 Recinos-Duarte 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
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how the robbery occurs, 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 adjustment was proper, and the district court properly calculated
the advisory guidelines range. Recinos-Duarte has failed to show error, plain or
otherwise.
In light of Apprendi v. New Jersey, 530 U.S. 466 (2000), Recinos-Duarte
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).
AFFIRMED.
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