REVISED February 22, 2008

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 06-50647

Summary Calendar

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.

United States Court of Appeals

Fifth Circuit

F I L E D

February 19, 2008

Charles R. Fulbruge III

Clerk
No. 06-50647

2

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.PENALCODE §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 thatis not within the plain, ordinary meaning

of the enumerated offense, the defendant’s sentence cannot be upheld. Id. at

276-77.
No. 06-50647

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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 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,
No. 06-50647

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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.