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

                                                                            FILED
                                                                          October 5, 2007
                                       No. 06-41492
                                                                      Charles R. Fulbruge III
                                                                              Clerk
UNITED STATES OF AMERICA

                                                  Plaintiff-Appellee
v.

RAFAEL FLORES-HERNANDEZ, also known as Enrique Gaytan-Roman

                                                  Defendant-Appellant


               Appeal from the United States District Court for the
                           Southern District of Texas
                               (No. 1:06-CR-372)


Before JOLLY, DAVIS, and WIENER, Circuit Judges.
PER CURIAM:*
       Defendant-Appellant Rafael Flores-Hernandez appeals the district court’s
imposition of a sixteen-level “crime of violence” sentence enhancement under §
2L1.2(b)(1)(A)(ii).     Flores-Hernandez pleaded guilty to illegal reentry after
deportation following a conviction for an aggravated felony, in violation of 8
U.S.C. § 1326(a) and (b)(2). Flores-Hernandez contends that the district erred
in applying the sentence enhancement, because (1) his prior robbery conviction
does not qualify as a crime of violence, and (2) § 1326(b) is unconstitutional. We
affirm.


       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 06-41492

                                  I. Facts & Proceedings
      In 2001, Flores-Hernandez was convicted under the name Enrique Gayton
for “strong-arm robbery” in violation of Florida Statute § 812.13. He was
sentenced to “18.9 months” in custody of the Florida Department of Corrections.
On March 24, 2005, Flores-Hernandez was deported to Mexico.
      On May 2, 2006, Flores-Hernandez was found in Brownsville, Texas. He
admitted to border patrol agents that he is a Mexican citizen who had illegally
reentered the United States by swimming across the Rio Grande. Flores-
Hernandez subsequently pleaded guilty before a magistrate judge to a one-count
indictment charging him with being an alien found illegally in the United States
after previous deportation, subsequent to a conviction for an aggravated felony.
There was no plea agreement.              Pursuant to U.S.S.G. § 2L1.2(a), Flores-
Hernandez was assigned a base offense level of eight. The PSR recommended
a sixteen-level increase because Flores-Hernandez had been deported after a
conviction for a “crime of violence.”
      Flores-Hernandez objected to the sixteen-level increase, asserting that his
prior robbery conviction could not be considered a crime of violence. He also
objected to the constitutionality of § 1326(b). At the sentencing hearing, the
district court overruled both objections. The court sentenced Flores-Hernandez
to 80 months in prison, followed by three years of supervised release. Flores-
Hernandez timely filed a notice of appeal.
                                        II. Analysis
1. Standard of Review
      We review de novo the district court’s interpretation and application of the
federal sentencing guidelines.1 We accept the district court’s findings of fact




      1
          United States v. Smith, 440 F.3d 704, 706 (5th Cir. 2006).

                                              2
                                        No. 06-41492

unless clearly erroneous.2 Under United States v. Booker, we ultimately review
the sentence to determine whether it is reasonable in light of the factors set forth
in 18 U.S.C. § 3553(a).3
2. Crime of Violence
      Under U.S.S.G. § 2L1.2(b)(1)(A)(ii), the offense level for illegal reentry is
increased by sixteen levels if the defendant was previously convicted of a “crime
of violence.” A crime of violence is either: (1) any specified enumerated offense,
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.”4 The list of enumerated offenses includes robbery.5
      As the enhancement provision does not define robbery, we must first
assign the term its generic and contemporary meaning; that is, its ordinary and
common meaning.6 This meaning is uniform and independent of the state’s own
criminal code designation.7 Sources of generic, contemporary meaning include
the Model Penal Code (“MPC”), federal and state laws, dictionaries, and
treatises.8 We take a common sense approach and recognize that categorical
offense designations like “robbery” are usually intended “‘to capture all offenses
of a certain level of seriousness.’”9



      2
          Id.
      3
          543 U.S. 220, 260-61 (2005); Smith, 440 F.3d at 706.
      4
          U.S.S.G. § 2L1.2, comment (n.(1)(B)(iii)).
      5
          Id.
      6
          United States v. Santiesteban-Hernandez, 469 F.3d 376, 378 (5th Cir. 2006).
      7
          Id.
      8
          Id. at 379.
      9
          Id. (quoting Taylor v. United States, 495 U.S. 575, 590 (1990)).

                                                3
                                        No. 06-41492

      After determining the generic, contemporary meaning of the term, we
must then compare it to the statute governing the prior conviction.10 We follow
a categorical approach to evaluating the correspondence between generic
contemporary meaning and the statutory definition of the underlying offense.11
If the statute governing the prior conviction follows the generic definition with
only minor variations, or is narrower than the generic crime, the sentence
enhancement may be applied.12               The elements of the offense need only
“substantially correspond” to the generic definition of the enumerated offense to
pass muster under the categorical approach.13 In making this determination,
we examine the elements of the prior offense of conviction, not the defendant’s
underlying conduct.14
      When we address the sources for generic contemporary meaning, we find
that, even though states differ as to the precise definition of robbery, “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.’”15 It is the element of immediate danger that
makes robbery “‘deserving of greater punishment than that provided for larceny’
and extortion .”16




      10
           Id.
      11
           United States v. Torres-Diaz, 438 F.3d 529, 536 (5th Cir. 2006).
      12
           Santeisteban-Hernandez, 469 F.3d at 379.
      13
           Taylor, 495 U.S. at 602.
      14
           Torres-Diaz, 438 F.3d at 536.
      15
        Santiesteban-Hernandez, 469 F.3d at 380 (quoting Wayne R. LaFave, Substantive
Criminal Law § 20.3 (d)(2) (2d ed. 2003)).
      16
           Id.

                                               4
                                            No. 06-41492

      According to the MPC, a person commits robbery if, in the course of
committing a theft, he:
      (a) inflicts serious bodily injury upon another; or
      (b) threatens another with or purposely puts him in fear of immediate
      serious bodily injury; or
      (c) commits or threatens immediately to commit any felony of the first or
      second degree17
Under the MPC, “[a]n 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.”18
      Black’s Law Dictionary defines “robbery” as: “the illegal taking of property
from the person of another, or in the person’s presence, by violence or
intimidation; aggravated larceny.”19 Webster’s defines “robbery” as “the act or
practice of robbing,” and “larceny from the person or presence of another by
violence or threat.”20 To “rob” is defined as “to take something away from
another by force” or “to remove valuables without right from (a place).”21
      At the time of Flores-Hernandez’s conviction in 2000, the Florida statute
in question defined the offense of “robbery” as follows:
      (1) the taking of money or other property which may be the subject of
      larceny from the person or custody of another, with intent to either
      permanently or temporarily deprive the person or owner of the money or
      other property, when in the course of the taking there is the use of force,
      violence, assault, or putting in fear.22



      17
           Model Penal Code § 222.1.
      18
           Id.
      19
           Black’s Law Dictionary 1354 (8th ed. 2004).
      20
           Webster’s New Collegiate Dictionary (1975).
      21
           Id.
      22
           Fla. Stat. § 812.13(1) (2001).

                                                 5
                                          No. 06-41492

“The fear contemplated by the statute is the ‘fear or death or great bodily
harm.’”23
        Flores-Hernandez argues that the Florida statute is overly broad and
therefore outside the generic definition of robbery, because a defendant can be
convicted without the intentional use or threat of force. Flores-Hernandez
mistakenly relies on State v. Hawkins to support his interpretation of the
statute.24 In Hawkins, the Florida appellate court concluded that there was
sufficient evidence to support a robbery conviction when the defendant had
stolen an unoccupied truck in which the keys had been left in the ignition, and
the defendant had continued driving away when the victim attempted to resist
the taking by hanging on the side of the vehicle.25                According to Flores-
Hernandez, Hawkins demonstrates that a defendant is not required to use force
purposely to be convicted under the Florida statute. Contrary to this argument,
however, the court in Hawkins held that the defendant’s act of driving away,
while the victim was hanging onto the side of the car, “was an act of force
intended, in part, to overcome the resistence to the taking.”26 Therefore, this
case does not support the contention that a defendant may be convicted under
the Florida statute without purposefully using force or putting the defendant in
fear.
        Although the Florida statute does not specifically state that the defendant
must intentionally use force or place the victim in fear of bodily harm, the
statute does require that the defendant use force or fear as a means of acquiring



        23
          Magnotti v. State, 842 So.2d 963, 965 (Fla. Dist. Ct. App. 2003) (quoting Smithson
v. State, 689 So.2d 1226, 1228 (Fla. Dist. Ct. App. 1997)).
        24
             790 So.2d 492 (Fla. Dist. Ct. App. 2001).
        25
             Id. at 495.
        26
             Id.

                                                 6
                                        No. 06-41492

the property. Thus, the Florida statute contains the essential elements of
robbery–the misappropriation of property involving danger to a person. That
the Florida statute does not use the words purposefully or intentionally is not
sufficient to keep the statute outside of the generic definition of robbery. The
district court did not err by enhancing Flores-Hernandez’s sentence for his prior
conviction under the Florida law of robbery.
3. Apprendi Challenge
      Flores-Hernandez also contends that the “felony” and “aggravated felony”
provisions of § 1326(b) are unconstitutional in light of Apprendi.27          He
acknowledges that his argument is foreclosed by Almendarez-Torres v. United
States, but raises it to preserve it for further review.28 As we have repeatedly
held, Almendarez-Torres remains binding despite Apprendi.29 Accordingly,
Flores-Hernandez’s argument that § 1326 is unconstitutional in light of
Apprendi fails.
                                       III. Conclusion
      Flores-Hernandez’s guilty plea conviction and the sentence imposed are
AFFIRMED.




      27
           530 U.S. 466 (2000).
      28
           523 U.S. 224, 235 (1998).
      29
           United States v. Garza-Lopez, 410 F.3d 268, 276 (5th Cir. 2005).

                                              7
