IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 17-20644

UNITED STATES OF AMERICA,

Plaintiff - Appellee

v.

RODOLFO NUNEZ-MEDRANO,

Defendant - Appellant

Appeal from the United States District Court

for the Southern District of Texas 

USDC No. 4:17-CR-171-1

Before KING, ELROD, and HAYNES, Circuit Judges.

PER CURIAM:*

Rodolfo Nunez-Medrano challenges the length of his prison sentence. 

Following his guilty plea for reentering the United States without 

authorization after removal, the district court sentenced Nunez-Medrano to 

serve 84 months in prison. But Nunez-Medrano contends that the district court 

erroneously enhanced his sentence because it wrongly concluded that his prior 

deportation followed a conviction for a crime of violence.

 

* 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.

United States Court of Appeals

Fifth Circuit

FILED

October 17, 2018

Lyle W. Cayce

Clerk

 Case: 17-20644 Document: 00514685223 Page: 1 Date Filed: 10/17/2018
No. 17-20644

2

For the reasons explained below, we AFFIRM the district court’s 

judgment, but we REMAND for the district court to reform the judgment to 

reflect a conviction under 8 U.S.C. § 1326(b)(1), not § 1326(b)(2). 

I.

In 2005, a Texas state court convicted Nunez-Medrano, a Mexican 

national, of conspiracy to commit aggravated robbery. The state court 

sentenced Nunez-Medrano to 15 years in prison; he served about 4 years of his 

sentence before being paroled. Upon his parole, federal immigration officials 

deported Nunez-Medrano to Mexico. Nunez-Medrano returned to the United 

States in 2012 without authorization. A few months after returning to the 

United States, Texas officials arrested Nunez-Medrano on drug charges.

Federal authorities subsequently charged Nunez-Medrano with 

unlawfully reentering the United States following removal. See 8 U.S.C. 

§ 1326(a). Nunez-Medrano pleaded guilty. Applying the 2011 edition of the 

U.S. Sentencing Guidelines (the “Guidelines”), the U.S. Probation Department

(“Probation”) calculated Nunez-Medrano’s sentencing range as 77 to 96 months 

in prison. In reaching this result, Probation determined that Nunez-Medrano’s 

base offense level was 8. It then added a 16-level sentencing enhancement 

because it concluded his aggravated-robbery conviction qualified as a “crime of 

violence” under the Guidelines. See U.S. Sentencing Guidelines Manual 

§ 2L1.2(b)(1)(A) (U.S. Sentencing Comm’n 2011). It also reduced NunezMedrano’s offense level by 3 points for acceptance of responsibility, which 

brought his total offense level to 21. And it calculated Nunez-Medrano’s 

criminal-history score to be 14. Probation also determined that under 

§ 1326(b)(2), Nunez-Medrano was subject to a maximum sentence of 20 years 

in prison because his aggravated-robbery conviction constituted a conviction 

for an “aggravated felony” as used in that subsection.

 Case: 17-20644 Document: 00514685223 Page: 2 Date Filed: 10/17/2018
No. 17-20644

3

Nunez-Medrano objected to Probation’s presentence report. He argued 

that his aggravated-robbery conviction was not a crime-of-violence conviction 

because Texas’s robbery statute criminalizes conduct broader than the generic 

offense of robbery and does not require the use, attempted use, or threatened 

use of physical force to sustain a conviction. He also asserted that Texas 

aggravated robbery was not an aggravated felony under § 1326(b)(2) because 

(1) part of the definition of aggravated felony is unconstitutionally vague; and 

(2) the other part of the definition requires that the crime include as an element 

the use, attempted use, or threatened use of physical force and thus does not 

cover Texas aggravated robbery. The district court overruled Nunez-Medrano’s 

objections and sentenced him to serve 84 months in prison. Nunez-Medrano 

appeals.

II.

Although we review district courts’ ultimate sentencing decisions for 

abuse of discretion, we review their Guidelines calculations de novo. United 

States v. Klein, 543 F.3d 206, 213 (5th Cir. 2008).

Section 2L1.2(b)(1)(A) provides for a 16-level sentencing enhancement to 

defendants convicted of illegal reentry if their prior removal followed a 

conviction for “a crime of violence.” The Guidelines’ commentary defines “crime 

of violence” as one of several enumerated offenses—including robbery—or an 

offense “that has as an element the use, attempted use, or threatened use of 

physical force against the person of another.” § 2L1.2 cmt. n.1(B)(iii). Section 

2L1.2(b)(1)(A)’s enhancement applies equally to a conviction for conspiracy to 

commit a crime of violence as it does to a completed crime of violence. See 

§ 2L1.2 cmt. n.5.

In determining whether a defendant’s predicate conviction is a crime of 

violence, we employ the so-called categorical approach. See United States v. 

Herrera-Alvarez, 753 F.3d 132, 134 (5th Cir. 2014). Under this approach, 

 Case: 17-20644 Document: 00514685223 Page: 3 Date Filed: 10/17/2018
No. 17-20644

4

instead of looking to the specific conduct for which the defendant was 

previously convicted, “we inquire, based solely upon the elements of the statute 

forming the basis for the defendant’s prior conviction, whether the offense 

qualifies as a crime of violence.” Id.; see also Moncrieffe v. Holder, 569 U.S. 184, 

190-91 (2013) (specifying that we must focus on whether the “‘least of th[e] acts’

criminalized” by the predicate statute is categorically a crime of violence

(quoting Johnson v. United States, 559 U.S. 133, 137 (2010) (alteration in 

original)). Put as a counterfactual, a state offense is not a crime of violence if 

there is “a realistic probability . . . that the State would apply its statute to 

conduct that” does not fall within the Guidelines’ definition of crime of violence. 

Gonzales v. Duenas-Alvarez, 549 U.S. 183, 193 (2007).1

Under Texas law, a defendant is guilty of robbery if the defendant, “in 

the course of committing theft[2] . . . and with intent to obtain or maintain 

control of the property, . . . (1) intentionally, knowingly, or recklessly causes 

bodily injury to another; or (2) intentionally or knowingly threatens or places 

another in fear of imminent bodily injury or death.” Tex. Penal Code. 

§ 29.02(a). Aggravated robbery is robbery in which (1) the defendant “causes 

serious bodily injury to another”; (2) the defendant “uses or exhibits a deadly 

weapon”; or (3) the victim is elderly or disabled. Id. § 29.03(a).

Applying the categorical approach here, the district court’s Guidelines 

determination can be affirmed if these elements of aggravated robbery 

necessarily include either (1) the use, attempted use, or threatened use of 

 

1 We recently held that Texas aggravated robbery is divisible and we may thus employ 

the modified categorical approach under which we look to certain trial-court documents to 

ascertain the specific part of the statute the defendant was charged under. See United States 

v. Lerma, 877 F.3d 628, 634 (5th Cir. 2017). But the parties agree we may not employ the 

modified categorical approach in this case because the record does not contain the necessary 

trial-court documents for us to do so.

2 Texas law defines theft as “unlawful[] appropriat[ion] [of] property with intent to 

deprive the owner of property.” Tex. Penal Code § 31.03(a).

 Case: 17-20644 Document: 00514685223 Page: 4 Date Filed: 10/17/2018
No. 17-20644

5

physical force; or (2) the generic elements of robbery. We need not address the 

parties’ use-of-force arguments in these contexts because we conclude that 

Texas aggravated robbery is generic robbery for purposes of this Guidelines 

provision.

Whether Nunez-Medrano’s Texas conviction for conspiracy to commit 

aggravated robbery qualifies as a conviction for “robbery” under the Guidelines 

is a far more complicated inquiry than first blush would suggest. The Supreme 

Court has warned that we may not rely on the labels a state ascribes to its 

crimes. See Taylor v. United States, 495 U.S. 575, 590-92 (1990). Rather, we 

must determine whether robbery in Texas is identical to or narrower than the 

generic definition of robbery. See United States v. Montiel-Cortes, 849 F.3d 221, 

226 (5th Cir. 2017). If not, then despite Texas’s label, it is not “robbery” as used 

in the Guidelines. See id. at 228 (concluding Nevada robbery is broader than 

generic robbery because it criminalizes theft under threat of future—as 

opposed to just immediate—danger).

“[T]he generic, contemporary definition of robbery encompassed by the 

[G]uidelines corresponds to the definition found in a majority of states’

criminal codes and draws on the Model Penal Code, treatises, and other trusted 

authorities.” Id. at 226; see also Taylor, 495 U.S. at 589 (explaining that generic 

definition of burglary “roughly correspond[s] to the definitions of burglary in a 

majority of the [s]tates’ criminal codes”). We have previously held that Texas 

robbery falls within the generic definition of robbery. See United States v. 

Santiesteban-Hernandez, 469 F.3d 376, 381 (5th Cir. 2006), overruled in part 

on other grounds by United States v. Rodriguez, 711 F.3d 541 (5th Cir. 2013) 

(en banc). In Santiesteban-Hernandez, we concluded that “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) (quoting 

 Case: 17-20644 Document: 00514685223 Page: 5 Date Filed: 10/17/2018
No. 17-20644

6

Wayne R. LaFave, Substantive Criminal Law § 20.3 intro., (d)(2) (2d ed. 2003)). 

We noted that Texas deviates from most states in that it “focuses on the 

realization of the immediate danger rather than the means by which the 

immediate danger is created.” Id. at 381. But we concluded that these differing 

approaches “are two sides of the same coin.” Id. In our view, it was enough that 

both Texas robbery and generic robbery “involve theft and immediate danger 

to a person.” Id.

Nunez-Medrano argues that in the time since we decided SantiestebanHernandez, the Texas Court of Criminal Appeals (“TCCA”) has broadened 

Texas robbery such that it no longer fits within the generic definition of 

robbery. Specifically, Nunez-Medrano points to Howard v. State, 333 S.W.3d 

137 (Tex. Crim. App. 2011), in which the TCCA held that a defendant need not 

actually interact with the victim to commit robbery. In that case, the defendant 

entered a convenience store during business hours wearing a mask and 

brandishing a gun. Id. at 137. The only employee working at the time was in a

back office when the defendant came in, but he saw the defendant through a 

one-way mirror and on a security monitor. Id. at 137-38. The employee locked 

himself in the office and called 911; the defendant unsuccessfully tried to open 

the cash register, took the employee’s wallet from the front counter, and left.

Id. at 138. The TCCA held that the lack of interaction between the defendant 

and the victim did not turn the robbery into a theft as long as the defendant 

intentionally or knowingly placed the victim in fear of bodily injury. See id. at 

139. And it concluded that under the facts of the case, “[a] rational juror could 

have inferred from this evidence that the [defendant] was aware it was 

reasonably certain that his actions would place someone in fear of imminent 

bodily injury or death,” even though there was no evidence the defendant 

actually knew about the employee locked in the back office. Id. at 140. 

 Case: 17-20644 Document: 00514685223 Page: 6 Date Filed: 10/17/2018
No. 17-20644

7

Pointing us to the common-law requirement that a robbery defendant 

takes the property “from the person or presence of the victim,” Wayne R. 

LaFave, Substantive Criminal Law § 20.3(c) (3d ed. 2017), Nunez-Medrano 

asserts that Howard removes Texas robbery from the orbit of generic robbery.3

This argument suffers two flaws. First, in Santiesteban-Hernandez, we 

repudiated the notion that generic robbery specifically requires the defendant 

to take the property from the person or presence of another. See 469 F.3d at 

380. Rather, we explained that the two key features of generic robbery are (1) 

theft and (2) immediate danger to the victim. See id. And although we 

acknowledged that most states “implement[]” the immediate-danger element 

by “requir[ing] property to be taken from a person or a person’s presence by 

means of force or putting in fear,” we held that Texas sufficiently implements 

the immediate-danger element by requiring the defendant to cause or threaten 

bodily injury. Id. at 380-81. Accordingly, Nunez-Medrano seeks to define 

generic robbery too narrowly.

Second, even assuming Nunez-Medrano is correct that generic robbery 

does require the defendant to take the property from the presence of the victim, 

Howard’s holding is consistent with this requirement. True, the victim in 

Howard was in a different room when the defendant took his wallet. But 

robbery’s traditional presence requirement 

is not so much a matter of eyesight as it is one of proximity and 

control: the property taken in the robbery must be close enough to 

the victim and sufficiently under his control that, had the latter 

 

3 Nunez-Medrano refers interchangeably to generic robbery having an “interaction” 

requirement and “presence” requirement. To the extent he intends to argue that Texas 

robbery is not generic robbery because it lacks a presence requirement, his argument fails 

for the reasons explained below. To the extent he argues that Texas robbery lacks an 

“interaction” requirement separate from a “presence” requirement, he fails to cite any 

authority showing that generic robbery requires any “interaction” beyond the victim’s 

presence. 

 Case: 17-20644 Document: 00514685223 Page: 7 Date Filed: 10/17/2018
No. 17-20644

8

not been subjected to violence or intimidation by the robber, he 

could have prevented the taking.

LaFave (3d ed.), supra, at § 20.3(c); see also United States v. Edwards, 231 F.3d 

933, 936 (5th Cir. 2000) (holding that for purpose of federal carjacking statute, 

“property is in the presence of a person if it is so within his reach, observation 

or control, that he could if not overcome by violence or prevented by fear, retain 

his possession of it” (quoting United States v. Lake, 150 F.3d 269, 272 (3d Cir.

1998))); People v. Hayes, 802 P.2d 376, 406-07 (Cal. 1990) (citing cases from 11 

jurisdictions for the “generally accepted” proposition that “[a] thing is in the 

[immediate] presence of a person, in respect to robbery, which is so within his 

reach, inspection, observation or control, that he could, if not overcome by 

violence or prevented by fear, retain his possession of it” (alterations in 

original) (quoting Commonwealth v. Homer, 127 N.E. 517, 520 (Mass. 1920))). 

See generally United States v. Soler, 759 F.3d 226, 233 (2d Cir. 2014) 

(discussing development of common-law presence requirement). The TCCA did 

not discuss the presence requirement in Howard, but by all appearances, it 

was met: the victim testified that the sight of the armed and masked defendant 

frightened him; the victim locked himself in the office, leaving his wallet 

unattended; and the defendant was able to take the wallet without any 

resistance from the defendant. If the victim in Howard had “not been subjected 

to violence or intimidation,” he presumably could have confronted the 

defendant and retained his wallet. LaFave, supra, at § 20.3(c). 

Of course the text of Texas’s robbery statute does not actually 

incorporate a presence requirement. See § 29.02(a). But nothing in Howard

undermines our prior precedent that “the elements of the Texas statute 

substantially correspond to the basic elements of the generic offense.” 

Santiesteban-Hernandez, 469 F.3d at 381. Accordingly, we reaffirm that Texas 

 Case: 17-20644 Document: 00514685223 Page: 8 Date Filed: 10/17/2018
No. 17-20644

9

robbery is no broader than generic robbery.4 See Bustos v. Martini Club Inc., 

599 F.3d 458, 462–63 (5th Cir. 2010) (“We . . . apply panel precedent 

[interpreting state law] ‘absent a subsequent state court decision or statutory 

amendment which makes [the panel decision] clearly wrong.’” (second 

alteration in original) (quoting Hughes v. Tobacco Inst., Inc., 278 F.3d 417, 425 

(5th Cir. 2001))).

We therefore conclude that the district court properly enhanced NunezMedrano’s sentence pursuant to § 2L1.2(b)(1)(A).

III.

As a final matter, we address Nunez-Medrano’s contention that the 

judgment below erroneously reflects that he was sentenced for unauthorized 

reentry after removal subsequent to an aggravated-felony conviction under 

§ 1326(b)(2), which carries a maximum sentence of 20 years in prison. He 

insists that Texas aggravated robbery is not an aggravated felony within the 

meaning of § 1326(b)(2).5

We agree. Title 8 of the United States Code, Section 1101(a)(43) defines 

“aggravated felony,” inter alia,6 by incorporating 18 U.S.C. § 16’s definition of 

“crime of violence.” 8 U.S.C. § 1101(a)(43). Section 16, in turn, defines “crime 

of violence” as: 

(a) an offense that has as an element the use, attempted use, or 

threatened use of physical force against the person or property of 

another, or

 

4 To the extent Texas robbery is a crime of violence, “it follows that the offense of 

aggravated robbery . . . is also a crime of violence because it includes every element required 

for a conviction” for robbery. United States v. Sanchez-Lopez, 493 F. App’x 557, 558 (5th Cir. 

2012) (unpublished). Nunez-Medrano does not argue otherwise.

5 Within § 1326, § 1326(a) defines the substantive offense, while § 1326(b) enhances 

the maximum sentence available based on certain aggravating factors, including prior 

convictions.

6 The government does not argue that Texas aggravated robbery is “a theft offense.” 

§ 1101(a)(43)(G). We will not consider this question sua sponte.

 Case: 17-20644 Document: 00514685223 Page: 9 Date Filed: 10/17/2018
No. 17-20644

10

(b) any other offense that is a felony and that, by its nature, 

involves a substantial risk that physical force against the person 

or property of another may be used in the course of committing the 

offense. 

The Supreme Court recently held that § 16(b) is unconstitutionally vague. See 

Sessions v. Dimaya, 138 S. Ct. 1204, 1223 (2018). Thus, § 1326(b)(2) applies 

only if Texas aggravated robbery necessarily involves the use, attempted use, 

or threatened use of physical force.

The parties spend most of their opening briefs disputing this question. 

All this effort was for naught: after the close of briefing but before oral 

argument, another panel of this court held that Texas simple robbery is not a 

violent felony under the Armed Career Criminal Act’s (“ACCA”) substantially 

similar force clause. See United States v. Burris, 896 F.3d 320, 322 (5th Cir. 

2018). It necessarily follows from Burris that Texas simple robbery is not a 

crime of violence under § 16(a) either.

We generally interpret similarly worded force clauses identically. See 

United States v. Moore, 635 F.3d 774, 776 (5th Cir. 2011). The only difference 

between the ACCA’s force clause and § 16(a) is that § 16(a) includes force 

against the property of another as opposed to only the person of another. 

Compare § 16(b), with 18 U.S.C. § 924(e)(2)(B)(i). The government does not 

argue that the inclusion of force against property makes any difference in the 

force clause’s application to Texas aggravated robbery, and we see no reason 

why it would.

Further, that Nunez-Medrano was convicted of aggravated as opposed to 

simple robbery makes no difference in this case. Recall that two of the factors 

that transform simple robbery into aggravated robbery are the victim’s age and 

the victim’s disability. See § 29.03(a)(3). The victim’s status does not add a force 

requirement, and the government makes no argument to the contrary. True, 

 Case: 17-20644 Document: 00514685223 Page: 10 Date Filed: 10/17/2018
No. 17-20644

11

we have previously held that aggravated robbery under § 29.03(a)(2)—which 

defines aggravated robbery as simple robbery plus the use of a weapon—is a 

violent felony. See United States v. Lerma, 877 F.3d 628, 636 (5th Cir. 2017). 

But as discussed in note 1, supra, the government concedes that, unlike in 

Lerma, the modified categorical approach does not apply in this case. 

Accordingly, we must presume Nunez-Medrano was convicted for committing 

the least of the acts criminalized, see Moncrieffe, 569 U.S. at 190-91, which here 

would be simple robbery together with causing bodily injury to an elderly or 

disabled victim under § 29.03(a)(3).

The government makes no argument that—insofar as Burris controls 

this case—Nunez-Medrano’s conviction qualifies under § 16(a). Instead, it asks 

us to abate this case while we consider its petition for en banc rehearing in 

Burris. We decline the government’s invitation to await Burris’s final 

resolution. 

Therefore, Nunez-Medrano should have instead been sentenced under 

§ 1326(b)(1), which subjects those who reenter the United States following 

removal subsequent to a nonaggravated-felony conviction to a maximum 10-

year sentence. Nevertheless, we see no reason to remand for resentencing. 

Recall that the district court sentenced Nunez-Medrano to 84 months—or 7 

years—in prison. Nunez-Medrano’s sentence thus falls comfortably below 

§ 1326(b)(1)’s 10-year maximum and is within the Guidelines range, which 

does not depend on § 1326(b)’s enhancements. Accordingly, we instead remand 

this case to the district court with instructions that it reform the judgment to 

reflect a sentence pursuant to § 1326(b)(1). See United States v. Castro-Trevino, 

464 F.3d 536, 543 (5th Cir. 2006) (“When the facts support conviction of a 

lesser-included offense we can generally modify the judgment to reflect the 

lesser offense without detrimentally affecting the defendant’s rights.”).

 Case: 17-20644 Document: 00514685223 Page: 11 Date Filed: 10/17/2018
No. 17-20644

12

IV.

For the foregoing reason, we REMAND to the district court with 

instructions that it reform the judgment to reflect that Nunez-Medrano’s 

conviction and sentence arise from §§ 1326(a) and 1326(b)(1), and we otherwise 

AFFIRM.

 Case: 17-20644 Document: 00514685223 Page: 12 Date Filed: 10/17/2018