REVISED February 1, 2017

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 16-50074

UNITED STATES OF AMERICA, 

 Plaintiff - Appellee

v.

BRANDON GABRIEL MONTIEL-CORTES, also known as Brandon Gabriel 

Garcia-Co, also known as Brandon Gabriel Garcia-Cortez, 

 Defendant - Appellant

Appeal from the United States District Court

for the Western District of Texas

Before DAVIS, DENNIS, and SOUTHWICK, Circuit Judges.

PER CURIAM:

Brandon Gabriel Montiel-Cortes pleaded guilty to illegal reentry 

following deportation. At sentencing, the district court concluded that his 2013

Nevada conviction for robbery constituted a “crime of violence” within the 

meaning of United States Sentencing Guidelines § 2L1.2(b)(1)(A) (2015), thus 

triggering a 16-level increase to his offense level. Applying the enhancement 

over Montiel-Cortes’s objection, the district court sentenced him to 57 months 

in prison and three years of nonreporting supervised release. Montiel timely 

appealed. We affirm.

United States Court of Appeals

Fifth Circuit

FILED

January 30, 2017

Lyle W. Cayce

Clerk
No. 16-50074

2

I.

After Montiel-Cortes pleaded guilty without a plea agreement to illegal 

reentry following deportation, his presentence investigation report (“PSR”) 

determined that his total offense level was 21, which included, inter alia, a 16-

level increase for his 2013 Nevada conviction for robbery, in violation of Nev. 

Rev. Stat. Ann. § 200.380. The PSR included other state court documents 

relating to Montiel-Cortes’s Nevada conviction, including the charging 

document, his Alford plea,1 and the judgment of conviction.

The PSR concluded that Montiel-Cortes’s Nevada robbery conviction 

qualified as a “crime of violence” under U.S.S.G. § 2L1.2(b)(1)(A) (2015), which 

imposed a 16-level enhancement if the “defendant previously was deported, or 

unlawfully remained in the United States, after” a felony conviction for a crime 

of violence.2 The Application Notes defined “crime of violence” as either (1) any 

of the enumerated offenses, including robbery or extortion, or (2) “any other 

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.”3 The PSR further determined that Montiel-Cortes’s criminal history 

 

1 See North Carolina v. Alford, 400 U.S. 25 (1970). An Alford plea is one in which the 

defendant maintains his innocence but agrees to plead guilty. Id. at 37 (stating that a trial 

court may accept a plea of guilty “containing a protestation of innocence when . . . a defendant 

intelligently concludes that his interests require entry of a guilty plea and the record before 

the judge contains strong evidence of actual guilt”). 

2 U.S.S.G. § 2L1.2(b)(1)(A)(ii) (2015). 3 U.S.S.G. § 2L1.2, cmt. n.1(B)(iii) (2015). The Application Note stated in full: 

“Crime of violence” means any of the following offenses under federal, 

state, or local law: murder, manslaughter, kidnapping, aggravated 

assault, forcible sex offenses (including where consent to the conduct is 

not given or is not legally valid, such as where consent to the conduct is 

involuntary, incompetent, or coerced), statutory rape, sexual abuse of a 

minor, robbery, arson, extortion, extortionate extension of credit, 

burglary of a dwelling, or any other 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. 
No. 16-50074

3

category was IV and that his advisory guidelines range of imprisonment was 

57 to 71 months. 

Montiel-Cortes objected to the 16-level enhancement, arguing that the 

Nevada robbery offense was not a crime of violence because it encompassed 

conduct broader than the generic, contemporary definition of robbery. He 

argued that the Nevada offense, in contrast to generic robbery, did not require 

immediacy or a specific use of force. He also argued that the Supreme Court’s 

grant of a writ certiorari in Mathis v. United States, — U.S. —, 136 S. Ct. 2243, 

195 L. Ed. 2d 604 (2016), discussed below, might have some impact on his case.

The district court overruled Montiel-Cortes’s objection, holding that his

Nevada robbery conviction was necessarily a crime of violence—specifically, 

the generic crime of robbery—under the modified categorical approach, also 

discussed below. The court sentenced him to 57 months in prison and three 

years of nonreporting supervised release. He timely appealed.

II.

This appeal turns on whether the district court correctly interpreted the 

sentencing guidelines when it determined, under the modified categorical 

approach, that Montiel-Cortes’s 2013 Nevada robbery conviction necessarily 

constituted the generic crime of robbery. We review the district court’s 

interpretation of the sentencing guidelines de novo.4

At the outset, we agree with the parties that, under Mathis, the district 

court erred by applying the modified categorical framework and instead should 

have applied the categorical approach. We recently summarized these two 

 

Id.

4 United States v. Calderon-Pena, 383 F.3d 254, 256 (5th Cir. 2004) (en banc) (citing 

United States v. Medina-Anicacio, 325 F.3d 638, 643 (5th Cir. 2003)). 
No. 16-50074

4

approaches in United States v. Howell, 838 F.3d 489, 494 (5th Cir. 2016) as 

follows:

In determining if a prior conviction is for an offense enumerated or 

defined in a Guidelines provision, we generally apply the 

categorical approach and look to the elements of the offense 

enumerated or defined by the Guideline section and compare those 

elements to the elements of the prior offense for which the 

defendant was convicted. We do not consider the actual conduct of 

the defendant in committing the offense. If the offense is an 

enumerated offense, such as burglary, we first determine the 

elements contained in the generic, contemporary meaning of that 

offense.

In one of several decisions on the subject, the Supreme Court 

explained the application of the categorical approach in Descamps 

v. United States [––– U.S. ––––, 133 S. Ct. 2276, 2283, 186 L. Ed.

2d 438 (2013)]. The Supreme Court also explained in Descamps, as 

it had in prior opinions, that when a statute defines more than one 

crime, and not all of them constitute an enumerated generic 

offense, courts employ the “modified categorical approach” to 

“determine which crime formed the basis of the defendant's 

conviction.” Courts may consult certain records pertaining to the 

prior offense to ascertain if the conviction rested on the generic or 

defined crime or instead was an over-inclusive offense that could 

not support a sentence enhancement. But, if the statute of 

conviction is not divisible, “[t]he modified [categorical] 

approach . . . has no role to play.”5

In Mathis, the Supreme Court provided further guidance on how to 

determine whether a statute is divisible:

Though Mathis dealt with the ACCA [Armed Career Criminal Act], 

rather than the Guidelines, the methodology of determining 

whether a statute is divisible and therefore whether the modified 

categorical approach may be employed, is the same, unless the 

Guidelines were to specify otherwise. The Supreme Court 

explained that if a statute sets forth only various means of 

committing the offense, it is not divisible, but if the statute sets 

forth more than one offense by including alternative elements of 

 

5 838 F.3d at 494–95 (footnotes omitted).
No. 16-50074

5

each offense, then the statute is divisible. The test to distinguish 

means from elements is whether a jury must agree.6

In this case, both Montiel-Cortes and the Government agree that Nev. 

Rev. Stat. Ann. § 200.380 sets out alternative means of committing the crime 

of robbery, rather than alternative elements. Thus, under Mathis, Nev. Rev. 

Stat. Ann. § 200.380 is indivisible, and the district court erred by applying the 

modified categorical approach. More particularly, the district court erred by 

examining the state court documents to determine how, precisely, MontielCortes violated Nev. Rev. Stat. Ann. § 200.380.

Instead, under Mathis, we must determine whether Nev. Rev. Stat. Ann. 

§ 200.380, as an indivisible whole, categorically qualifies as a crime of violence 

such that any conduct criminalized by the Nevada robbery statute necessarily 

qualified as a crime of violence under U.S.S.G. § 2L1.2(b)(1)(A) (2015). If there 

is any conduct that would violate Nev. Rev. Stat. Ann. § 200.380 but would not

qualify as a crime of violence under U.S.S.G. § 2L1.2(b)(1)(A), then the Nevada 

statute cannot support the Guidelines enhancement under the categorical 

approach.7

 

6 Id. at 497 (footnotes omitted).

7 See, e.g., Moncrieffe v. Holder, ––– U.S. ––––, 133 S. Ct. 1678, 1684, 185 L. Ed. 2d 

727 (2013):

By “generic,” we mean the offenses must be viewed in the abstract, to 

see whether the state statute shares the nature of the federal offense 

that serves as a point of comparison. Accordingly, a state offense is a 

categorical match with a generic federal offense only if a conviction of 

the state offense “‘necessarily’ involved ... facts equating to [the] generic 

[federal offense].” Whether the noncitizen's actual conduct involved 

such facts “is quite irrelevant.”

Because we examine what the state conviction necessarily involved, not 

the facts underlying the case, we must presume that the conviction 

“rested upon [nothing] more than the least of th[e] acts” criminalized, 

and then determine whether even those acts are encompassed by the 

generic federal offense.

Id. (citations omitted, alteration in original).
No. 16-50074

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III. 

Given the above, we must determine whether conduct that violates Nev. 

Rev. Stat. Ann. § 200.380 necessarily qualifies as a “crime of violence,” as 

defined in the Application Notes to U.S.S.G. § 2L1.2(b)(1)(A)(ii) as follows: (1) 

any of the enumerated offenses, including robbery and extortion, or (2) “any 

other 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.”8

A. The Enumerated Offense of Robbery

The parties primarily argue about whether the Nevada robbery statute 

proscribes conduct that falls within the generic, contemporary meaning of 

robbery. Under the categorical framework, we compare the elements of the 

Nevada statute with the generic definition to determine whether conduct 

proscribed by the statute is broader than the generic definition.9 Here, MontielCortes argues that the Nevada statute is broader than the generic, 

contemporary meaning of robbery.

The Fifth Circuit has recognized that the generic, contemporary 

definition of robbery encompassed by the guidelines corresponds to the 

definition found in a majority of states’ criminal codes and draws on the Model

Penal Code, treatises, and other trusted authorities.10 We have held that 

“robbery may be thought of as aggravated larceny, containing at least the 

elements of misappropriation of property under circumstances involving 

 

8 U.S.S.G. § 2L1.2, cmt. n.1(B)(iii) (2015).

9 See Taylor v. United States, 495 U.S. 575 (1990); United States v. Calderon-Pena, 

383 F.3d 254, 257 (5th Cir. 2004) (en banc). 

10 United States v. Tellez-Martinez, 517 F.3d 813, 815 (5th Cir. 2008) (citing United 

States v. Santiesteban-Hernandez, 469 F.3d 376, 379 (5th Cir. 2006), abrogated on other 

grounds by United States v. Rodriguez, 711 F.3d 541, 547-63 (5th Cir. 2013) (en banc)). 
No. 16-50074

7

[immediate] danger to the person.”11 The immediate danger element “makes 

robbery deserving of greater punishment than that provided for larceny and 

extortion.”12

Montiel-Cortes was convicted under Nev. Rev. Stat. Ann. § 200.380, 

which provided in full: 

1. Robbery is the unlawful taking of personal property from the 

person of another, or in the person’s presence, against his or her 

will, by means of force or violence or fear of injury, immediate or 

future, to his or her person or property, or the person or property 

of a member of his or her family, or of anyone in his or her company 

at the time of the robbery. A taking is by means of force or fear if 

force or fear is used to:

(a) Obtain or retain possession of the property;

(b) Prevent or overcome resistance to the taking; or

(c) Facilitate escape.

The degree of force used is immaterial if it is used to compel 

acquiescence to the taking of or escaping with the property. A 

taking constitutes robbery whenever it appears that, although the 

taking was fully completed without the knowledge of the person 

from whom taken, such knowledge was prevented by the use of 

force or fear.

2. A person who commits robbery is guilty of a category B felony 

and shall be punished by imprisonment in the state prison for a 

minimum term of not less than 2 years and a maximum term of 

not more than 15 years.13

Montiel-Cortes argues that the Nevada statute described the offense 

more broadly than the generic definition. Under the Nevada statute, he argues, 

the phrase “force or violence or fear of injury, immediate or future” does not 

necessarily require immediate danger because a threat involving the future by 

 

11 Id. (quoting Santiesteban-Hernandez, 469 F.3d at 380). 

12 Id. (quoting Santiesteban-Hernandez, 469 F.3d at 380).

13 Nev. Rev. Stat. Ann. § 200.380 (2013).
No. 16-50074

8

definition cannot be “immediate.” The government argues that the immediacy 

element is inherently satisfied because the force or putting in fear must occur 

contemporaneously with the taking.

Neither the Supreme Court nor this court has considered whether, under 

the categorical approach, Nevada robbery constitutes the enumerated offense 

of robbery for purposes of the 16-level enhancement. Nevertheless, our

decisions addressing other state robbery statutes shows that this court has 

rejected arguments similar to the Government’s and generally requires that 

danger to the victim be “immediate” to constitute a generic robbery.

For example, in United States v. Alvarado-Rodriguez, 269 F. App’x 427

(5th Cir. 2008), this court held that a California robbery statute, Cal. Penal 

Code § 211, fell within the generic definition of robbery where it defined 

robbery as “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.”14 The “fear” mentioned in the statute 

was defined as either (1) “fear of an unlawful injury to the person or property 

of the person robbed, or of any relative of his or member of his family” or (2) 

“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.”15

The defendant argued that Cal. Penal Code § 211 was broader than the 

generic definition of robbery because the California statute criminalized

threats to property in addition to threats to persons.16 We rejected that

argument, finding that it misconstrued the essential language of Cal. Penal 

Code § 211 “defining robbery as a crime committed: (1) directly against the 

 

14 Cal. Penal Code § 211. 

15 Cal. Penal Code § 212.

16 Alvarado-Rodriguez, 269 F. App’x at 429. 
No. 16-50074

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victim or in his presence; and (2) against his will.”17 The Court also noted that 

“the California robbery statute involves the misappropriation of property 

under circumstances involving danger to the person” and that the danger to 

the person “is inherent in the criminal act.”18 Therefore, “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.”19 Thus, we held that Cal. Penal Code § 211 falls within 

the generic definition of robbery.20

In sum, although generic robbery may be broad enough to encompass a 

fear concerning injury to property in addition to personal injury, the danger 

must still be “immediate.” Because the Nevada statute covered not just 

immediate danger but also future danger, we conclude that it was broader than 

the generic, contemporary definition of robbery. In fact, as Montiel-Cortes 

points out, California courts distinguish Nevada robbery because it permits 

fear of a future injury.21

B. The Enumerated Offense of Extortion

That does not end our inquiry, however. The categorical framework 

requires us to determine whether the least culpable conduct would qualify as 

a “crime of violence” under the guidelines, not just a single one of the 

enumerated offenses. We must determine whether the least culpable conduct

(involving future danger), which does not qualify as the enumerated “crime of 

 

17 Id.; see also United States v. Tellez-Martinez, 517 F.3d 813, 815 (5th Cir. 2008) (per 

curiam) (holding that Cal. Penal Code § 211 does fall within the generic definition of robbery).

18 Id.

19 Id. (quoting Santiesteban-Hernandez, 469 F.3d at 380). 

20 Id.

21 See People v. McGee, 133 P.3d 1054, 1057 (Cal. 2007), abrogated on other grounds 

by Descamps, 133 S. Ct. at 2276 (noting that Nevada robbery, on its face, did not qualify as a 

serious felony in California because, unlike California robbery, Nevada permits “a taking 

accomplished by fear of future injury”)).
No. 16-50074

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violence” of robbery, nevertheless still qualifies as another “crime of violence.” 

We conclude that such conduct qualifies as generic extortion.

The generic, contemporary definition of extortion is “obtaining 

something of value from another with his consent induced by the wrongful use 

of force, fear, or threats.”22 Montiel-Cortes argues that the Nevada statute 

required that the taking be against the victim’s will, whereas the generic 

definition of extortion requires the victim’s consent. We disagree. The Nevada 

statute provided:

1. Robbery is the unlawful taking of personal property from the 

person of another, or in the person’s presence, against his or her 

will, by means of force or violence or fear of injury, immediate or 

future, to his or her person or property, or the person or property 

of a member of his or her family, or of anyone in his or her company 

at the time of the robbery. A taking is by means of force or fear if 

force or fear is used to:

(a) Obtain or retain possession of the property;

(b) Prevent or overcome resistance to the taking; or

(c) Facilitate escape.

The degree of force used is immaterial if it is used to compel 

acquiescence to the taking of or escaping with the property. A taking 

constitutes robbery whenever it appears that, although the taking 

was fully completed without the knowledge of the person from 

whom taken, such knowledge was prevented by the use of force or 

fear.23

Although the statute uses the phrase “against his or her will,” implying 

a lack of consent, it also emphasizes that the force be “used to compel 

acquiescence to the taking of or escaping with the property.” In other words, 

there is consent only in the narrowest sense, but that consent is only given 

 

22 Scheidler v. Nat’l Org. for Women, Inc., 537 U.S. 393, 409-10 (2003) (internal 

quotation marks omitted). 

23 Nev. Rev. Stat. Ann. § 200.380 (emphasis added).
No. 16-50074

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because of a threat. In a more general sense, the consent is against the victim’s 

will. Indeed, the Ninth Circuit has noted that “the ‘with consent’ element of 

generic extortion is not inconsistent with the ‘against the will’ element of a Cal.

Penal Code § 211 conviction for a taking involving threats to property,”24

quoting from a treatise in support:

It is sometimes said that robbery differs from statutory extortion 

in those states which require property acquisition in that in the 

former the taking of property must be “against the will” of the 

victim, while in the latter the taking must be “with the consent” of 

the victim, induced by the other’s unlawful threat; but, in spite of 

the different expressions, there is no difference here, for both 

crimes equally require that the defendant's threats induce the 

victim to give up his property, something which he would not 

otherwise have done.25

We agree and therefore conclude there is no meaningful distinction 

between the Nevada statute’s formulation and the generic, contemporary 

definition of extortion, at least with respect to a Nevada robbery involving a 

future danger.

IV. Conclusion.

In sum, we conclude that a conviction under the Nevada robbery statute, 

Nev. Rev. Stat. Ann. § 200.380, necessarily is a crime of violence under the 

categorical framework. Any Nevada robbery involving an immediate danger 

would satisfy the generic, contemporary definition of robbery, while any 

Nevada robbery involving a future danger would satisfy the generic, 

contemporary definition of extortion. We therefore agree with the Ninth 

Circuit’s statement, in United States v. Harris, 572 F.3d 1065 (9th Cir. 2009)

(per curiam), that “any conduct under Nev. Rev. Stat. § 200.380 that did not 

 

24 United States v. Becerril-Lopez, 541 F.3d 881, 892 n.9 (9th Cir. 2008). 25 Id. (quoting 3 W. LaFave, Substantive Criminal Law § 20.4(b) (2d ed. 2003) (footnote 

omitted)).
No. 16-50074

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satisfy the generic definition of robbery . . . would satisfy the generic definition 

of extortion.”26 Montiel-Cortes has pointed to no conduct proscribed by the 

Nevada statute that did not also qualify as a crime of violence under the 

guidelines. Thus, we conclude that Montiel-Cortes’s conviction for Nevada 

robbery, in violation of Nev. Rev. Stat. Ann. § 200.380, constituted a crime of 

violence under the guidelines, triggering the 16-level enhancement.

Although we find the district court erred in how it arrived at the 

sentence, we conclude the sentence was correct and should be affirmed.

AFFIRMED.

 

26 Id. at 1066. While the Ninth Circuit was considering whether the Nevada statute 

fell under the generic definition for an enumerated crime of violence under a different 

sentencing guideline, the two guidelines in large part include the same offenses and the 

guideline at issue in our case is even more expansive. Compare U.S.S.G. § 4B1.2(a)(2) 

(specifying that “crime of violence” for career offenders includes “murder, voluntary 

manslaughter, kidnapping, aggravated assault, a forcible sex offense, robbery, arson, 

extortion, or the use or unlawful possession of a firearm described in 26 U.S.C. 5845(a) or 

explosive material as defined in 18 U.S.C. 841(c)”), with U.S.S.G. § 2L1.2, cmt. 1(B)(iii) 

(specifying that a “crime of violence” for illegal reentry purposes includes “any of the following 

offenses under federal, state, or local law: murder, manslaughter, kidnapping, aggravated 

assault, forcible sex offenses (including where consent to the conduct is not given or is not 

legally valid, such as where consent to the conduct is involuntary, incompetent, or coerced), 

statutory rape, sexual abuse of a minor, robbery, arson, extortion, extortionate extension of 

credit, burglary of a dwelling”).