* 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should not be published and is not precedent except under the limited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.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 06-40309

Summary Calendar

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

United States Court of Appeals

Fifth Circuit

F I L E D

February 15, 2008

Charles R. Fulbruge III

Clerk
No. 06-40309

2

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.
No. 06-40309

3

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 punishmentthan 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 ofthe person robbed atthe 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
No. 06-40309

4

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, 492F.3d 624, 625 (5th Cir. 2007), cert. denied, 2008 WL 59441

(Jan. 7, 2008) (No. 07-6202).

AFFIRMED.