FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,  No. 05-50979

Plaintiff-Appellee, D.C. No.

v. CR-05-01367-MLH

RAUL BECERRIL-LOPEZ, ORDER

Defendant-Appellant. AMENDING  OPINION AND

DENYING

PETITION FOR

REHEARING EN

BANC AND

AMENDED

OPINION 

Appeal from the United States District Court

for the Southern District of California

Marilyn L. Huff, District Judge, Presiding

Argued November 14, 2006

Submitted June 5, 2008

Pasadena, California

Filed June 12, 2008

Amended August 29, 2008

Before: Harry Pregerson, Cynthia Holcomb Hall, and

Michael Daly Hawkins, Circuit Judges.

Opinion by Judge Hall

11911
COUNSEL

Stephanie J. Lacambra, Federal Defenders of San Diego, Inc.,

San Diego, California, for the defendant-appellant. 

Matthew J. Gardner and Mark R. Rehe, Assistant United

States Attorneys, San Diego, California, for the plaintiffappellee.

ORDER

The opinion filed on June 12, 2008, is amended as follows.

On slip opinion page 6718, footnote 2, the following language

shall be added: 

We express no opinion as to the result if Becerril’s

prior deportation were governed by the Illegal Immigration Reform and Immigrant Responsibility Act of

1997, which provided in part that “[t]he Attorney

General may permit an alien voluntarily to depart . . .

in lieu of being subject to proceedings under section

1229a of this title or prior to the completion of such

proceedings, if the alien is not deportable under section 1227(a)(2)(A)(iii) or section 1227(a)(4)(B) of

this title.” 8 U.S.C. § 1229c(a)(1) (1997); see also

United States v. Ortiz-Lopez, 385 F.3d 1202, 1204

(9th Cir. 2004). 

With this amendment, the panel has voted to deny appellant’s petition for panel rehearing and has recommended

denial of the petition for rehearing en banc. The full court has

been advised of the petition for rehearing en banc and no

judge has requested a vote on whether to rehear the matter en

banc. Fed. R. App. P. 35. 

The petition for panel rehearing and the petition for rehearing en banc are DENIED. 

UNITED STATES v. BECERRIL-LOPEZ 11915
No further petitions for rehearing will be entertained.

OPINION

HALL, Circuit Judge: 

Raul Becerril-Lopez (“Becerril”) appeals his jury conviction and sentence for being a deported alien found in the

United States in violation of 8 U.S.C. § 1326. Among other

claims, he argues that his prior conviction under California

Penal Code § 211 does not qualify as a “crime of violence”

under the sentence enhancement provision for illegal re-entry

crimes. We hold that it does, and we affirm. 

I. Background

Becerril was apprehended just north of the border near San

Ysidro on July 4, 2005. Because he had previously been

deported in 1995, Becerril was subsequently indicted on

charges of being a deported alien found in the United States

in violation of 8 U.S.C. § 1326(a). He was convicted on this

sole count after a jury trial. 

At the sentencing hearing on December 12, 2005, the district court found that Becerril had a base offense level of 8

and imposed a 16-level enhancement under Sentencing

Guidelines § 2L1.2(b) on the basis of a 1986 conviction for

robbery under California Penal Code § 211. See 8 U.S.C.

§ 1326(b). He was sentenced to 100 months in prison (which

was the low end of the applicable Guidelines range) and three

years of supervised release. Becerril filed a timely notice of

appeal. 

II. The Conviction

A. The Motion to Dismiss the Indictment

Becerril first argues that the district court should have dismissed the indictment because he was denied due process at

11916 UNITED STATES v. BECERRIL-LOPEZ
the master calendar hearing preceding his 1995 deportation.

We review de novo the district court’s denial of Becerril’s

motion to dismiss on these grounds. United States v. MuroInclan, 249 F.3d 1180, 1182 (9th Cir. 2001). 

[1] The Due Process Clause requires a meaningful opportunity for judicial review of the underlying deportation in a

§ 1326 prosecution. United States v. Zarate-Martinez, 133

F.3d 1194, 1197 (9th Cir. 1998). To succeed in a collateral

attack on an earlier deportation, a defendant must show (1)

that he exhausted his administrative remedies to appeal his

removal order; (2) that the underlying removal proceedings

deprived him of the opportunity for judicial review; and (3)

that the entry of the order was fundamentally unfair. 8 U.S.C.

§ 1326(d); United States v. Ubaldo-Figueroa, 364 F.3d 1042,

1048 (9th Cir. 2004). A deportation order is fundamentally

unfair if the defendant’s due process rights were violated by

defects in the underlying deportation proceeding, and the

defendant suffered prejudice as a result of the defects. United

States v. Arrieta, 224 F.3d 1076, 1079 (9th Cir. 2000). 

At the master calendar hearing, the Immigration Judge

asked whether anyone had family members who were permanent residents or citizens of the United States, for the purposes of granting relief under § 212(h) of the Immigration and

Naturalization Act. The IJ also asked each person individually

whether he wanted to seek an appeal. The judge did not

advise the group of the possibility of voluntary departure

because he had found that each person had a prior criminal

conviction. Becerril did not mention his family members in

the United States and did not indicate any intent to appeal his

case. Now, he argues that he was entitled to relief under

§ 212(h), as well as voluntary departure, withdrawal of his

application, and an appeal. Therefore, he argues that he suffered prejudice due to alleged defects in the way the hearing

was conducted.

UNITED STATES v. BECERRIL-LOPEZ 11917
1. 212(h) Relief

[2] Becerril argues that he would have been eligible for

relief under § 212(h), and that the judge did not advise him of

this option. Under § 212(h), the Attorney General may waive

removal if deportation would cause “extreme hardship” to relatives of the alien who are U.S. citizens or permanent legal

residents. 8 U.S.C. § 1182(h)(1)(B) (1995). At Becerril’s

hearing, conducted in group format, the IJ asked whether anyone had close relatives who were permanent residents or citizens. After engaging in a colloquy with one person, the IJ

asked in Spanish whether anyone else (“Alguien más?”) qualified. Becerril claims that the IJ “sped through his general

advisal,” and moved on from question to question without

waiting for the translator. The record does not support this

assertion. While the IJ did not wait for the translator at certain

moments, these instances occurred only when the IJ had made

a statement, not asked a question. 

[3] Even if the colloquy here was procedurally deficient in

some way, Becerril must still show that he had “plausible

grounds” for relief under this provision. United States v. ArceHernandez, 163 F.3d 559, 563 (9th Cir. 1998). To demonstrate the “extreme hardship” required by the statute, the

defendant must show that the consequences of his being

removed would go beyond “the common results of deportation,” such as a loss of financial support for relatives in the

United States. Id. at 564 (citing Shooshtary v. INS, 39 F.3d

1049 (9th Cir. 1994)). We will find prejudice only after a

clear, detailed demonstration that the defendant provided

“non-economic familial support” or “something more” than

financial support. Arrieta, 224 F.3d at 1082. Becerril’s brief

presents only a few abstract claims about financial support for

his son, a U.S. citizen, and his father, a legal resident of the

United States. We hold that he has failed to demonstrate any

prejudice here. 

11918 UNITED STATES v. BECERRIL-LOPEZ
2. Voluntary Departure

[4] Becerril claims that he was entitled to be advised of

what he calls “pre-conclusion” voluntary departure under

§ 242 of the INA, codified at 8 U.S.C. § 1252(b) (1995).1 As

it existed in 1995, this provision gave the Attorney General

discretion to waive deportation hearings for aliens who depart

voluntarily “in lieu of initiating deportation proceedings.”

Contreras-Aragon v. INS, 852 F.2d 1088, 1094 (9th Cir.

1988) (emphasis in original). The Supreme Court has noted

that, under the statute at the time, “[a]rrested aliens [were]

almost always offered the choice of departing the country voluntarily, . . . and as many as 98% of them [took] that course.”

Reno v. Flo-res, 507 U.S. 292, 307 (1993).2

1That statute provided: “In the discretion of the Attorney General, . . .

deportation proceedings . . . need not be required in the case of any alien

who admits to belonging to a class of aliens who are deportable . . . if such

alien voluntarily departs from the United States at his own expense, or is

removed at Government expense as hereinafter authorized, unless the

Attorney General has reason to believe that such alien is deportable under

paragraphs (2), (3) or (4) of section 1251(a) of this title.” 8 U.S.C.

§ 1252(b) (1994). 

2Voluntary departure might also have been available after the deportation proceedings under INA § 244, 8 U.S.C. § 1254(e) (1994). See RojasGarcia v. Ashcroft, 339 F.3d 814, 827 (9th Cir. 2003). Becerril does not

contend he should have been advised of this possibility, however. The

“pre-conclusion” departure Becerril describes, which appears in INA

§ 242, would have been granted before the master calendar hearing and

will be referred to as “pre-hearing” voluntary departure. 

We express no opinion as to the result if Becerril’s prior deportation

were governed by the Illegal Immigration Reform and Immigrant Responsibility Act of 1997, which provided in part that “[t]he Attorney General

may permit an alien voluntarily to depart . . . in lieu of being subject to

proceedings under section 1229a of this title or prior to the completion of

such proceedings, if the alien is not deportable under section

1227(a)(2)(A)(iii) or section 1227(a)(4)(B) of this title.” 8 U.S.C.

§ 1229c(a)(1) (1997); see also United States v. Ortiz-Lopez, 385 F.3d

1202, 1204 (9th Cir. 2004). 

UNITED STATES v. BECERRIL-LOPEZ 11919
[5] The Attorney General was not required, however, to

grant this form of relief automatically to aliens who were eligible. See Perales v. Casillas, 903 F.2d 1043, 1050 (5th Cir.

1990) (holding that the “permissive” language of the statute

and implementing regulations gave the Attorney General “unfettered” discretion to grant or deny pre-hearing voluntary

departure). Because pre-hearing voluntary departure would

have been granted, if at all, before the hearing, we cannot hold

that the IJ violated Becerril’s rights by failing to mention it at

the hearing itself.3

3. Withdrawal of Application for Admission

Becerril argues that he was an “applicant for admission” to

the United States and should have been informed of his right

to withdraw his application and leave the country under 8

U.S.C. § 1101(a)(4). Becerril offers no cases, statutes or regulations to support the claim that he was an “applicant for

admission,” and we decline to endorse it. 

4. Right to Appeal

[6] Finally, Becerril argues that his deportation was invalid

because he did not properly waive his right to appeal. He

analogizes his case to United States v. Zarate-Martinez, 133

F.3d 1194 (9th Cir. 1998), where we found that waiver was

invalid because of the way the IJ conducted the group hearing. In Zarate-Martinez, the IJ stated, in the future tense, that

every person “will have the right to appeal,” without stating

when or how. Id. at 1197. The IJ also told the group that anyone who wanted to appeal should raise his hand, without asking each person individually. Id. at 1198. In a later individual

colloquy with the defendant, the IJ asked only whether Zarate

3We note that two unpublished memorandum dispositions issued prior

to this decision held otherwise. See United States v. Nungaray-Rubalcaba,

229 Fed. App’x 436 (9th Cir. Apr. 10, 2007); United States v. BasultoPulido, 219 Fed. App’x 717 (9th Cir. Jan. 25, 2007). 

11920 UNITED STATES v. BECERRIL-LOPEZ
understood his rights and if he had anything else to say. Id.

This court held that Zarate’s one-word responses (“yes” and

“no,” respectively) did not qualify as a valid waiver. 

[7] Becerril’s case is distinguishable from Zarate-Martinez.

The IJ here did not phrase his statements about appeal in the

future tense; it was clear that the time to appeal was at that

hearing. He also asked each individual whether he would

appeal or accept the decision as final. We find the IJ’s inquiry

sufficient and therefore affirm the district court’s refusal to

dismiss the indictment on the basis of a defective deportation

proceeding. 

B. Motion to Strike Testimony of Agent Torres

Becerril next argues that the district court improperly

denied his motion to strike testimony from U.S. Border Patrol

Agent Rene Torres as lacking personal knowledge. Becerril

argues that without Torres’ testimony, nothing showed that he

was free from constant surveillance and “official restraint”

when he entered the country, as required under our § 1326

cases. See United States v. Zavala-Mendez, 411 F.3d 1116,

1119 (9th Cir. 2005) (“a person is not ‘in’ the United States

until he is not only physically present on our side of the border, but also enjoys ‘freedom from official restraint’ ”);

United States v. Cruz-Escoto, 476 F.3d 1081, 1085-86 (9th

Cir. 2007) (“Aliens who . . . sneak across the border in some

illegitimate manner are under official restraint only if they are

under constant governmental observation from the moment

they set foot in this country until the moment of their arrest.”

(citations, quotation marks, and alterations omitted)). The district court’s evidentiary decisions involving factual determinations are reviewed for abuse of discretion. See United States

v. Mateo-Mendez, 215 F.3d 1039, 1042 (9th Cir. 2000). We

reverse only if, absent the error, the jury more probably than

not would have reached a different verdict. See United States

v. Ramirez, 176 F.3d 1179, 1182 (9th Cir. 1999). 

UNITED STATES v. BECERRIL-LOPEZ 11921
Here, the government reopened its case to examine Torres

after the district court ruled that it would give an instruction

on freedom from official restraint. During direct examination,

Torres explained that he had been working as the night scope

operator on the night of Becerril’s arrest, and that he had

tracked several people crossing the desert upon the suggestion

of his dispatcher. Torres first saw these individuals in a canyon one-half-mile north of the border and directed another

agent, Abel Rivera, to the location where he suspected they

were hiding. 

During cross-examination, Torres backtracked on this

story. He said he was in fact not familiar with the events of

that evening: 

Q: But you’re saying now on this stand under oath

that you specifically remember watching Mr. Becerril with your night scope on July 4th? 

A: I remember putting Agent Rivera in on a group

and a scope. I cannot tell you who — who it is at all.

Q: But you specifically remember looking through

your night scope and everything that you did that

night on July 4th? 

A: Not particularly, ma’am. 

Torres then testified that he had prepared for testimony by

reading a report produced by Agent Rivera.

Q: And based on Agent Rivera’s report, that’s what

you’re relying on for your testimony here today? 

A: Yes, ma’am. 

Q: You have no independent recollection of what

happened on July 4th, 2005? 

11922 UNITED STATES v. BECERRIL-LOPEZ
A: Other than I was the scope operator, no, ma’am,

I have no idea. 

The district court denied defense counsel’s motion to strike

this testimony as lacking personal knowledge. 

[8] Under the Federal Rules of Evidence, “[a] witness may

not testify to a matter unless evidence is introduced sufficient

to support a finding that the witness has personal knowledge

of the matter.” Fed. R. Evid. 602. The district court clearly

abused its discretion by admitting Torres’ testimony, which,

in the end, amounted to reading in portions of Agent Rivera’s

report. 

[9] Still, we are not persuaded that reversal is warranted.

Becerril argues that the government needed Torres’ testimony

to establish that he was not under constant surveillance from

the time he crossed the border until his capture and therefore

that he entered the country free from official restraint. But

Becerril ignores testimony from Agent Rivera himself, who

stated that he was alerted to Becerril’s presence when seismic

sensors within the United States indicated people or animals

were in a canyon 50 yards north of the border. According to

Rivera, Torres then directed him to the area where he had

“last seen” Becerril go into the canyon on his night scope, and

when Rivera arrived in that area, he found Becerril hiding in

the brush. This testimony indicated freedom from restraint

and therefore that Becerril had been found in the United

States for purposes of § 1326. See Cruz-Escoto, 476 F.3d at

1085-86. The evidence also establishes, that, more probably

than not, the jury’s verdict would have been the same absent

the evidentiary error. 

[10] The conviction must therefore be affirmed. 

III. Sentencing

We now turn to Becerril’s arguments concerning his sentence. 

UNITED STATES v. BECERRIL-LOPEZ 11923
A. Section 211 Is a “Crime of Violence”

Criminal defendants like Becerril who have reentered the

country after being deported are subject to a 16-level sentencing enhancement if they were previously convicted of a

“crime of violence.” See U.S.S.G. § 2L1.2. The district court

applied this enhancement to Becerril’s prior conviction for

robbery under California Penal Code § 211. We review de

novo whether this was proper, using the test set forth in Taylor v. United States, 495 U.S. 575 (1990). See United States

v. Cortez-Arias, 403 F.3d 1111, 1114 & n.7 (9th Cir. 2005).

1. McDougherty Does Not Control

Before we perform the Taylor analysis, we must briefly

explain why the question is not controlled by our prior precedent. We have previously held that § 211 is a crime of violence under the career offender provision of the Guidelines in

§ 4B1.2. See United States v. McDougherty, 920 F.2d 569

(9th Cir. 1990). In that case, we looked at both § 4B1.2’s

commentary language as well as the federal definition of robbery contained in 18 U.S.C. § 16(b).4 McDougherty’s legal

conclusion clearly rested on the language in § 16(b), which

covers any felony that involved a “substantial risk” that physical force may be used “against the person or property of

another.” See id. at 574. This definition is broader than the

definition contained in § 4B1.2 alone, which identified only

those crimes presenting a substantial risk of physical injury to

another. Injury to property, significantly, was not mentioned.5

4At the time, § 4B1.2 specifically referenced the federal definition in

§ 16(b), but this reference was removed in the 1989 amendments to the

Guidelines. 

5We have also held that a § 211 violation is a crime of violence under

18 U.S.C. § 5032, which dictates when juvenile offenders may be transferred to adult status. See United States v. David H., 29 F.3d 489, 494 (9th

Cir. 1994). In that case we turned, again, to § 16(b) to supply the definition of “crime of violence.” See id. (citing United States v. Baker, 10 F.3d

1374, 1393-94 (9th Cir. 1993)). The statute at issue, however, provided no

definition of its own. 

11924 UNITED STATES v. BECERRIL-LOPEZ
McDougherty is relevant but not controlling in this case.

First, § 2L1.2 contains no reference to 18 U.S.C. § 16(b), as

§ 4B1.2 did. Second, as we have recently emphasized,

§ 4B1.2 has “materially different” wording from § 2L1.2.

United States v. Beltran-Mungia, 489 F.3d 1042, 1049 (9th

Cir. 2007). While § 4B1.2 contains a catch-all for crimes presenting a “serious potential risk of physical injury,” § 2L1.2

covers only those crimes that involve “the use, attempted use,

or threatened use of physical force against the person of

another.” As we held in Beltran-Mungia, a state crime that

satisfies the “crime of violence” definition in § 4B1.2 does

not automatically satisfy the definition in § 2L1.2. Id. Therefore, we approach the issue as a question of first impression.6

2. The Taylor Analysis

As defined in the commentary to U.S.S.G. § 2L1.2, “crime

of violence” means any of the following:

murder, manslaughter, kidnapping, aggravated

assault, forcible sex offenses, statutory rape, sexual

abuse of a minor, robbery, arson, extortion, extortionate extension of credit, burglary of a dwelling, or

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.

To determine whether a conviction under Cal. Penal Code

§ 211 meets this definition, we use the Taylor categorical

approach. We “look only to the fact of conviction and the statutory definition of the prior offense, not to the underlying

facts,” to determine whether the prior conviction is a qualifying offense. United States v. Lopez-Montanez, 421 F.3d 926,

6We issued two memorandum dispositions prior to Beltran-Mungia

deciding the issue under McDougherty. See United States v. Molina-Salas,

210 Fed. App’x 664 (9th Cir. Dec. 11, 2006) and United States v.

Rodriguez-Nicolas, 210 Fed. App’x 669 (9th Cir. Dec. 11, 2006). 

UNITED STATES v. BECERRIL-LOPEZ 11925
929 (9th Cir. 2005) (internal quotation marks and citation

omitted). To demonstrate that § 211 is not per se an offense

within the Guideline, Becerril must show that there is “a realistic probability, not a theoretical possibility, that the State

would apply its statute to conduct that falls outside the generic

definition of [the] crime[s]” listed in the enhancement and

also outside the enhancement’s “catch-all” language. Gonzales v. Duenas-Alvarez, 127 S.Ct. 815, 822 (2007); see also

James v. United States, 127 S.Ct. 1586, 1591 (2007) (examining each listed crime and catch-all in 18 U.S.C. § 924(e)).

Under the law of our circuit, Becerril may carry this burden

by showing that the text of the state statute expressly includes

a broader range of conduct than the Guideline. See United

States v. Vidal, 504 F.3d 1072, 1082 (9th Cir. 2007) (en banc)

(citing United States v. Grisel, 488 F.3d 844, 850 (9th Cir.

2007) (en banc)).7

[11] With this framework in mind, we turn to the state statute. Section 211 of the California Penal Code defines 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.”

Fear is defined as either “[t]he 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 “[t]he 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. 

Becerril argues that California’s definition of robbery is

overbroad in six ways: (1) it encompasses fear of injury to

7

In Duenas-Alvarez, the defendant’s argument relied not on the express

text of the statute at issue, but on how state courts might conceivably

apply it. The Supreme Court held that to prevail, the defendant had to

show either that the statute was applied this way in his own case, or “point

to . . . other cases in which the state courts in fact did apply the statute in

the special (nongeneric) manner for which he argues.” 127 S.Ct. at 822.

11926 UNITED STATES v. BECERRIL-LOPEZ
property; (2) it encompasses fear of any “unlawful injury;” (3)

it has no immediacy requirement; (4) it encompasses force or

fear employed after the initial taking; (5) includes the taking

of money by a person who honestly believes the victim owes

him money; and (6) imposes liability under an overly broad

theory of aiding and abetting. We consider each argument in

turn.

[12] Fear of Injury to Property / Fear of “Unlawful Injury”: Becerril is correct that Cal. Penal Code § 211 is broader

than generic robbery — one of the crimes listed in § 2L1.2 —

because it encompasses takings accomplished by a broader

range of threats than would the generic offense. We adopt as

a generic definition of robbery the same definition adopted by

the Fifth Circuit, which described the crime as “aggravated

larceny, containing at least the elements of misappropriation

of property under circumstances involving immediate danger

to the person.” United States v. Santiesteban-Hernandez, 469

F.3d 376, 380 (5th Cir. 2006) (quoting 3 W. LaFave, Substantive Criminal Law § 20.3(e) (2d ed. 2003) [hereinafter

LaFave]) (emphasis added, internal punctuation omitted).

Section 211 is broader because it encompasses mere threats to

property, such as “Give me $10 or I’ll key your car” or “Open

the cash register or I’ll tag your windows.” Section 211 is not,

therefore, categorically “robbery” as used in the Guideline.

See 3 LaFave § 20.3(d)(2) & n.73 (noting that most modern

statutes limit robbery to force or threats against a person). But

see United States v. Tellez-Martinez, 517 F.3d 813, 815 (5th

Cir. 2008).8

8Tellez-Martinez is the only other published appellate opinion on this

question. The Fifth Circuit held that even though Cal. Penal Code § 211

encompassed threats to property, it fell within the generic definition of

robbery because the statute required that the crime be committed “(1)

directly against the victim or in his presence; and (2) against his will.” 517

F.3d at 815 (citing Cal. Penal Code § 211). The court reasoned that in light

of these elements, “even when the statute is violated by placing the victim

in fear of injury to property, the property has been misappropriated in cirUNITED STATES v. BECERRIL-LOPEZ 11927
[13] But robbery is not the only hurdle. Takings through

threats to property and other threats of unlawful injury fall

within generic extortion, which is also defined as a “crime of

violence.” U.S.S.G. § 2L1.2 cmt. 1(B)(iii). The Supreme

Court has defined generic extortion as “obtaining something

of value from another with his consent induced by the wrongful use of force, fear, or threats.” Scheidler v. Nat’l Org. for

Women, Inc., 537 U.S. 393, 409 (2003) (internal quotation

marks omitted). Unlike robbery, the threats that can constitute

extortion under the modern statutes include threats to harm

property and to cause other unlawful injuries. See 3 LaFave

§ 20.4(a)(4) & n.16 (citing statutes). Becerril cites no authority, and we find none, to suggest that the fear of “unlawful

injury” punished by Cal. Penal Code § 211 is incompatible

with generic extortion. 

[14] We do not suggest that extortion is necessarily a

lesser-included offense of robbery. See People v. Torres, 39

Cal. Rptr. 2d 103, 111-12 (Ct. App. 1995) (defendant’s use of

extreme physical force negated possibility that he intended to

take property with the victim’s consent, as required for extortion). We simply conclude that if a conviction under Cal.

Penal Code § 211 involved a threat not encompassed by

cumstances ‘involving immediate danger to the person.’ ” Id. (quoting

Santiesteban-Hernandez, 469 F.3d at 380). We decline to rely on this reasoning. Even with the additional elements, we are unconvinced that a taking by threat to property necessarily entails dangers to the person. Perhaps

contrary to the Fifth Circuit’s assumption, “against the will” does not

imply any force or threat of force against the person. “Against the will”

in this context simply means “without consent” of the victim. Cal. Jury

Instr. — Crim. 9.40; see also 1 B.E. Witkin & Norman L. Epstein, California Criminal Law: Defenses § 88 (3d ed. 2000) [hereinafter Witkin] (“In

a prosecution for theft or robbery, proof of consent to the taking will constitute a defense.”). And certainly the mere presence of the victim cannot,

without more, supply the requisite danger to the person to elevate a theft

to robbery. See 3 Witkin: Crimes Against Property § 96 (“If the taking is

by a secret picking of a pocket, or by a hasty snatching of a purse without

resistance, the crime is only larceny from the person.”). 

11928 UNITED STATES v. BECERRIL-LOPEZ
generic robbery, it would necessarily constitute generic extortion and therefore be a “crime of violence” under U.S.S.G.

§ 2L1.2. See 3 LaFave § 20.4(b) (“Statutory extortion (or

blackmail) is, of course, closely related to the crime of robbery, having in fact been created in order to plug a loophole

in the robbery law by covering sundry threats which will not

do for robbery.”).9

[15] Immediacy: For similar reasons, Becerril does not get

far with his argument that Cal. Penal Code § 211 has no

immediacy requirement. True, the statute would encompass a

threat of future harm to the victim or the victim’s family. See

Cal. Penal Code § 212; People v. McGee, 133 P.3d 1054,

1057 n.2 (Cal. 2006). However, generic extortion contains no

requirement that the threat be of immediate harm; a threat of

future harm will suffice. See Scheidler, 537 U.S. at 409; 3

LaFave § 20.4(a). 

Force or Fear Beyond Initial Taking: While California’s

definition of robbery does cover defendants who use force in

the course of their escape, see People v. Flynn, 91 Cal. Rptr.

2d 902, 906 (Ct. App. 2000), we are not persuaded that this

exceeds robbery’s generic definition. Though, traditionally,

force used during an escape does not satisfy the force element

of robbery, the modern approach is in line with California’s

9The “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. As LaFave explains: 

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. 

3 LaFave § 20.4(b) (footnote omitted). 

UNITED STATES v. BECERRIL-LOPEZ 11929
law. See LaFave § 20.3(e); Model Penal Code § 222.1 (“An

act shall be deemed ‘in the course of committing a theft’ if it

occurs in an attempt to commit theft or in flight after the

attempt or commission.”). 

Claim-of-Right: Becerril inaccurately states that California

has abolished the so-called “claim of right” defense to robbery, which applies in cases where the defendant had a good

faith belief that he was entitled to the property taken. Rather,

California has simply excluded from this defense cases where

the robbery is perpetrated “to satisfy, settle or otherwise collect on a debt, liquidated or unliquidated.” People v. Tufunga,

987 P.2d 168, 181 (Cal. 1999). The California Supreme Court

drew a distinction between these cases and cases where the

defendant took specific property to which he believed he was

entitled. Id. Such curtailing of the claim of right defense is

entirely consistent with the vast majority of modern cases to

consider the question, which have emphasized the public policy against self-help in such situations. See id. at 177 (citing

cases); 3 LaFave § 20.3(b). This approach therefore keeps

Cal. Penal Code § 211 within the modern, generic definition

of robbery. 

Aiding and Abetting: Becerril also argues that California’s

law of aiding and abetting is significantly broader than the

generic definition. The Supreme Court, however, rejected this

argument in Duenas-Alvarez, 127 S.Ct. at 822. 

[16] Accordingly, we hold that a conviction under Cal.

Penal Code § 211 could only result from conduct that constitutes a “crime of violence” for purposes of U.S.S.G. § 2L1.2.10

The district court properly applied the 16-level enhancement.

10Because we rely on the categorical approach, we need not decide

whether the documents indicating that Becerril committed his robbery by

using a knife would be judicially noticable or dispositive for purposes of

the modified categorical analysis. See Shepard v. United States, 544 U.S.

13, 20-21 (2005). 

11930 UNITED STATES v. BECERRIL-LOPEZ
B. Apprendi Error

[17] Becerril attacks his sentence under Apprendi v. New

Jersey, 530 U.S. 466 (2000), which generally requires that

facts increasing a sentence beyond the statutory maximum be

found by a jury or admitted by the defendant. According to

Becerril, the judicial finding that he was previously deported

after a crime of violence violates Apprendi because it

increased his statutory maximum from two to 20 years. See 8

U.S.C. § 1326; United States v. Covian-Sandoval, 462 F.3d

1090 (9th Cir. 2006). We disagree. As to the conviction itself,

Becerril’s argument is squarely foreclosed by AlmendarezTorres v. United States, 523 U.S. 224, 247 (1998), which

allows judicial fact-finding of prior convictions, and also by

our decisions confirming that Almendarez-Torres remains

binding authority. See United States v. Beng-Salazar, 452

F.3d 1088, 1091 (9th Cir. 2006); United States v. RodriguezLara, 421 F.3d 932, 949-50 (9th Cir. 2005). And as to the

date of the prior removal, the jury necessarily found that

Becerril had been previously removed, and because the only

removal argued to the jury occurred in 2005, the jury also

necessarily found that Becerril had been removed subsequent

to his 1986 robbery conviction. See United States v. MartinezRodriguez, 472 F.3d 1087, 1094 (9th Cir. 2007). Further,

Becerril never challenged any of his prior removals and did

not raise the issue at sentencing. Therefore, any error here

would not warrant reversal. Covian-Sandoval, 462 F.3d at

1098. 

C. Acceptance of Responsibility

[18] Becerril argues that the district court improperly

denied him a downward adjustment for acceptance of responsibility under U.S.S.G. § 3E1.1. “In making the determination

whether a defendant has accepted responsibility, the district

court may not consider against the defendant any constitutionally protected conduct.” United States v. Ochoa-Gaytan, 265

F.3d 837, 842 (9th Cir. 2001) (citation and quotation marks

UNITED STATES v. BECERRIL-LOPEZ 11931
omitted). Here, contrary to Becerril’s contention, the court’s

decision did not rest improperly on the fact that he challenged

the validity of his deportation proceedings. Rather, the court

relied on Becerril’s failure to admit his earlier deportation in

his post-arrest statements or at trial. Nothing in the trial transcript suggests Becerril admitted being deported to the border

agent in the field, and he never returned with more evidence,

as the district court invited him to do, that he had made such

an admission. Accordingly, the district court did not clearly

err when it denied the downward adjustment. See United

States v. Cantrell, 433 F.3d 1269, 1284-86 (9th Cir. 2006).

D. Reasonableness

Finally, Becerril claims that his 100-month sentence was

unreasonable. He contends the district court (1) treated the

Guideline range as presumptively reasonable; (2) failed to

consider the factors in 18 U.S.C. § 3553(a); and (3) imposed

a sentence that was excessive in comparison to those received

by defendants with similar criminal histories. We review for

abuse of discretion, and will not reverse unless the sentence

was procedurally erroneous or substantively unreasonable.

United States v. Carty, 520 F.3d 984, 993 (9th Cir. 2008). 

Becerril’s first two arguments are procedural challenges. “It

would be a procedural error for a district court to . . . treat the

Guidelines as mandatory instead of advisory; to fail to consider the § 3553(a) factors; . . . or to fail adequately to explain

the sentence selected.” Id. at 993. However, we have emphasized that 

[w]hat constitutes a sufficient explanation will necessarily vary depending upon the complexity of the

particular case, whether the sentence chosen is inside

or outside the Guidelines, and the strength and seriousness of the proffered reasons for imposing a sentence that differs from the Guidelines range. A

within-Guidelines sentence ordinarily needs little

11932 UNITED STATES v. BECERRIL-LOPEZ
explanation unless a party has requested a specific

departure, argued that a different sentence is otherwise warranted, or challenged the Guidelines calculation itself as contrary to § 3553(a). This is because

both the Commission and the sentencing judge have

determined that the sentence comports with the

§ 3553(a) factors and is appropriate in the ordinary

case. 

Id. at 992. 

Here, the district court stated on the record that it considered the § 3553(a) factors, and indicated that it considered the

most salient feature of Becerril’s individual circumstances to

be his extensive criminal history. The court explained that it

used the Guidelines range as a starting point in determining

the sentence, and simply did not find the case to warrant a

departure. 

We have little trouble concluding that this explanation was

sufficient. The sentence fell at the low end of the applicable

Guidelines range, and Becerril specifically argued for “the

low end” in both his sentencing memorandum and at the sentencing hearing. The court did not consider the Guidelines

range to be presumptively reasonable, and no more explanation was needed to indicate consideration of the § 3553(a) factors. See id. (“The district court need not tick off each of the

§ 3553(a) factors to show that it has considered them.”).

Given the parties’ agreement that a low-end sentence was

appropriate, further commentary from the bench was simply

unnecessary. 

[19] Finally, the district court was well within its discretion

to reject Becerril’s argument that his sentence would create

unwarranted disparities with other § 1326 defendants. See 18

U.S.C. § 3553(a)(6). As it is on appeal, Becerril’s argument

was conclusory and offered no meaningful way for the district

court to gauge the discrepancies that the sentence would

UNITED STATES v. BECERRIL-LOPEZ 11933
create, if any. Indeed, in the absence of any compelling argument about Becerril’s particular circumstances, we have trouble imagining why a sentence within the Guidelines range

would create a disparity, since it represents the sentence that

most similarly situated defendants are likely to receive. See

Carty, 520 F.3d at 988 (“[W]e recognize that a correctly calculated Guidelines sentence will normally not be found unreasonable on appeal.”). Accordingly, the 100-month sentence

was not unreasonable. 

Because we reject each of Becerril’s challenges, his conviction and sentence are AFFIRMED. 

11934 UNITED STATES v. BECERRIL-LOPEZ