           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT United States Court of Appeals
                                                   Fifth Circuit

                                                                            FILED
                                                                        November 13, 2007

                                       No. 05-41808                   Charles R. Fulbruge III
                                                                              Clerk

UNITED STATES OF AMERICA

                                                   Plaintiff-Appellee
v.

RUBEN JAIME NUNEZ-VALENZUELA

                                                   Defendant-Appellant



                   Appeal from the United States District Court
                        for the Southern District of Texas
                              USDC No. 2:05-CR-444


Before KING, BARKSDALE, and DENNIS, Circuit Judges.
PER CURIAM:*
       Having pled guilty, Ruben Jaime Nunez-Valenzuela challenges his 77-
month sentence for illegal reentry after deportation, in violation of 8 U.S.C. §
1326. Nunez challenges his sentence on two bases, including whether his prior
state offense constitutes a crime of violence. AFFIRMED.
                                              I.
       In July 2005, Nunez was stopped by United States Border Patrol Agents
in Robstown, Texas. After the Agents conducted an immigration check and


       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
                                   No. 05-41808

questioned Nunez, they learned he had been previously deported and had
illegally reentered the United States in June 2005.
         Prior to that deportation, Nunez had been convicted in California state
court of second-degree robbery. For the proceeding at hand, he pled guilty to
being illegally present in the United States after deportation. The presentence
investigation     report   (PSR)   recommended    a   16-level   crime-of-violence
enhancement based on the 1997 California robbery conviction. Because of the
enhancement, he faced an advisory guidelines sentencing range of 77 to 96
months.
         Nunez filed written objections to the PSR, asserting: the robbery
conviction was not a crime of violence under the guidelines; and § 1326(b) is
unconstitutional. For the former, he maintained the California statute was
broader in definition than the generic, contemporary definition of robbery
because the statute criminalized taking property by means of fear, as well as by
force.    At sentencing, the district court overruled Nunez’ objections and
sentenced him to 77-months’ imprisonment.
                                        II.
         Nunez contests his sentence. As he did in district court, he claims: the
district court erred in classifying his California robbery conviction as a crime of
violence (COV); and § 1326(b) is unconstitutional.
                                        A.
         Even though the sentencing guidelines are advisory, United States v.
Booker, 543 U.S. 220 (2005), for determining whether a sentence is reasonable,
the interpretation and application of the guidelines are reviewed de novo. E.g.,
United States v. Villegas, 404 F.3d 355, 359 (5th Cir. 2005); United States v.


                                         2
                                  No. 05-41808

Vargas-Duran, 356 F.3d 598, 602 (5th Cir. 2004) (en banc) (reviewing de novo
whether an offense qualified as a COV under § 2L1.2). A district court’s
characterization of a prior offense is a question of law, reviewed de novo. See
United States v. Santiesteban-Hernandez, 469 F.3d 376, 378 (5th Cir. 2006).
      Guideline § 2L1.2 provides: the offense level for unlawfully entering or
remaining in the United States shall be increased 16-levels if the defendant has
a prior conviction for a COV. U.S.S.G. § 2L1.2(b)(1)(A)(ii). That section’s
commentary defines a COV as either any specific enumerated offense, including
“robbery”, 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”. U.S.S.G. § 2L1.2, cmt. n.1(B)(iii).
      For determining whether a state conviction constitutes an enumerated,
but undefined, offense for purposes of the COV enhancement, the label employed
by the state criminal code (here, second-degree robbery) is irrelevant.
Santiesteban-Hernandez, 469 F.3d at 378. Instead, a “common sense approach”
is employed. United States v. Izaguirre-Flores, 405 F.3d 270, 274 (5th Cir. 2005).
Under this approach, our court determines whether a violation of the underlying
statute constitutes the enumerated offense, as that offense is understood in its
“ordinary, contemporary, [and] common meaning”. Id. at 275 (alteration in
original) (internal quotation marks omitted) (citing United States v. Zavala-
Sustaita, 214 F.3d 601, 604 (5th Cir. 2000); United States v. Dominguez-Ochoa,
386 F.3d 639, 642-43 (5th Cir. 2004)).        If the underlying “statute . . .
encompasses prohibited behavior . . . not within the plain, ordinary meaning of
the enumerated offense”, the enhancement cannot be upheld on that basis; and
we turn to whether it can be upheld on the alternative basis of the predicate


                                        3
                                 No. 05-41808

offense having as an element the use or threat of force against another person.
Id. at 273, 276-77.
      In some instances, an overly broad state statute with disjunctive statutory
alternatives for violating the statute may be narrowed to one particular
alternative by state-court documents, such as the charging instrument. See, e.g.,
United States v. Torres-Diaz, 438 F.3d 529, 534 (5th Cir.), cert denied, 547 U.S.
1012 (2006). The charging instrument for Nunez was read at sentencing for the
conviction at issue. It states he “unlawfully and by means of force and fear
[took] personal property from the person, possession and immediate presence of
[the victim]”. Following the charging instrument’s being read at sentencing,
Nunez did not dispute he pled guilty to this offense.
      In short, the charging instrument tracked the below-quoted statutory
force-and-fear language. This is the “standard practice” in California and does
not require proof of both means of commission in order to sustain a conviction.
See People v. Lopez, 29 Cal. Rptr. 3d 586, 604 (Cal. Ct. App. 2005). Therefore,
the COV inquiry, in this instance, does not end with the charging instrument.
      In Santiesteban-Hernandez, 469 F.3d at 379-80, our court addressed
whether the Texas offense of robbery is a COV under § 2L1.2. This court noted
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. Our court 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 (emphasis added)


                                       4
                                 No. 05-41808

(alteration in original) (internal quotation marks omitted) (quoting WAYNE R.
LAFAVE, 3 SUBSTANTIVE CRIMINAL LAW § 20.3 intro., (d)(2) (2d ed. 2003)). “The
immediate danger element is what makes robbery deserving of greater
punishment than that provided for larceny and extortion . . . .” Id. (internal
quotation marks omitted). The court recognized the danger is inherently present
by the taking of property by means of 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 of the person robbed at the time
of the robbery”. Id. § 212.
      Although Nunez maintains a conviction under the California robbery
statute is not a COV 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: directly against
the victim or in his presence; and against his will. Id. As in Santiesteban-
Hernandez, the California statute involves the misappropriation of property
under circumstances involving danger to the person.          469 F.3d at 380.
Regardless of how the robbery occurs, 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).




                                       5
                                 No. 05-41808

      Such a reading of the statute is within the generic or contemporary
meaning of robbery as understood by this court. See also United States v.
McDougherty, 920 F.2d 569, 574 (9th Cir. 1990) (holding, under another
guideline, California robbery under § 211 is a COV because, “‘by its nature, [it]
involves a substantial risk’ that physical force may be used”) (quoting 18 U.S.C.
§ 16(b)). Therefore, the COV enhancement was proper based on a conviction for
robbery under § 211 of the California Penal Code. As a result, the district court
properly calculated the advisory guidelines sentence and imposed a reasonable
sentence. See United States v. Mares, 402 F.3d 511 (5th Cir. 2005).
                                        B.
      Nunez also maintains the “felony” and “aggravated felony” provisions of
8 U.S.C. § 1326(b)(1) and (b)(2) are unconstitutional in the light of Apprendi v.
New Jersey, 530 U.S. 466 (2000). This argument is foreclosed by Almendarez-
Torres v. United States, 523 U.S. 224, 235 (1998), which held 8 U.S.C. §
1326(b)(2) is a penalty provision and not a separate criminal offense. United
States v. Pineda-Arrellano, 492 F.3d 624, 625 (5th Cir. 2007), petition for cert.
filed, (Aug. 28, 2007) (No. 07-6202).
                                        III.
      For the foregoing reasons, the sentence is AFFIRMED.




                                         6
