IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 13-40306

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee

v.

MILTON ROMEO VENTURA FUENTES,

Defendant-Appellant

Appeal from the United States District Court

for the Southern District of Texas

USDC No. 5:12-CR-776-1

Before STEWART, Chief Judge, and JOLLY and SOUTHWICK, Circuit 

Judges. 

PER CURIAM:*

Milton Romeo Ventura Fuentes appeals the sentence imposed after he 

pleaded guilty to illegally reentering the United States after deportation. He 

argues that the district court committed plain error by increasing his sentence 

based on a prior District of Columbia conviction that the court treated as 

* 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

December 4, 2013

Lyle W. Cayce

Clerk

 

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No. 13-40306

generic robbery and thus a “crime of violence” under U.S.S.G.

§ 2L1.2(b)(1)(A)(ii).

Because review is for plain error, Fuentes must show at least that the 

district court made an error that is “clear or obvious, rather than subject to 

reasonable debate.” Puckett v. United States, 556 U.S. 129, 135 (2009). He 

also must show that the error affected his substantial rights. Id. If he makes 

these showings, we have discretion to correct the error if it “seriously affects 

the fairness, integrity or public reputation of judicial proceedings.” Id. 

(internal quotation marks, alteration, and citation omitted).

We look to the generic, contemporary definition of the crime to determine

whether it is the listed or enumerated crime of violence, in this case robbery. 

See Taylor v. United States, 495 U.S. 575, 592, 598 (1990); United States v. 

Rodriguez, 711 F.3d 541, 549 (5th Cir. 2013). If a state statute provides 

alternative means of committing a crime, some of which are not within the 

generic definition of robbery, we can decide whether the defendant’s conduct 

was within the generic definition by looking to, among other limited sources, 

the charging papers for the prior crime. See Shepard v. United States, 544 U.S. 

13, 16-17 (2005).

Fuentes relies on decisions from other circuits holding that the 1995 

District of Columbia statute under which he was convicted does not define the 

generic offense of robbery because it criminalizes taking by stealthy seizure or 

snatching. See In re Sealed Case, 548 F.3d 1085, 1090-91 (D.C. Cir. 2008) 

(holding that the definition of “force or violence” in the current and 

indistinguishable version of the statute included stealthy snatching and thus 

was broader than generic robbery); D.C. CODE ANN. § 22-2901 (1995). We have 

previously declined to address this issue and therefore have never held that 

the D.C. crime is not generic robbery. See United States v. Flores-Vasquez, 641 

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F.3d 667, 670-71 (5th Cir. 2011). Accordingly, any error was not clear or 

obvious beyond reasonable debate. See Puckett, 556 U.S. at 135.

Moreover, because the D.C. statute could be violated in ways that are 

considered generic robbery, we look at the bill of information to see if Fuentes’s

conduct was consistent with generic robbery. See Shepard, 544 U.S. at 16-17. 

The bill of information charged that Fuentes “by force and violence, against 

resistance, and by putting in fear, stole and took [an automobile] from the 

person and from the immediate actual possession of” two men. Fuentes shows 

no realistic probability that this offense was or even could have been 

accomplished by stealth or snatching. See Flores-Vasquez, 641 F.3d at 670-71 

(finding that the defendant’s admitted conduct showed that the crime was not 

committed by stealth); see also United States v. Carbajal-Diaz, 508 F.3d 804, 

812 & n.13 (5th Cir. 2007) (requiring more than a mere theoretical possibility 

that a defendant’s crime was beyond the scope of an enumerated crime of 

violence).

Because Fuentes failed to show that it was plain error to treat his prior 

offense as a generic robbery, we need not address his contention that the crime 

did not have the use of force as an element. See United States v. Rayo-Valdez, 

302 F.3d 314, 317-18 (5th Cir. 2002). The judgment of the district court is 

AFFIRMED.

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