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

                                                                  FILED
                                                                 March 11, 2008
                                No. 06-41312
                              Summary Calendar               Charles R. Fulbruge III
                                                                     Clerk

UNITED STATES OF AMERICA

                                            Plaintiff-Appellee

v.

MARLON ROLANDO ALVARADO-RODRIGUEZ

                                            Defendant-Appellant


                 Appeal from the United States District Court
                      for the Southern District of Texas
                         USDC No. 7:06-CR-165-ALL


Before REAVLEY, SMITH, and DENNIS, Circuit Judges.
PER CURIAM:*
      Marlon Rolando Alvarado-Rodriguez pleaded guilty to being found
unlawfully in the United States following deportation in violation of 8 U.S.C.
§ 1326. The presentence report (PSR) assigned Alvarado-Rodriguez a base
offense level of eight. Because Alvarado-Rodriguez had a prior conviction for
second degree 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, Alvarado-Rodriguez’s total offense level was 21,

      *
      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should not be published and is not precedent except under the limited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.
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his criminal history category was VI, and his guideline range was 77 to 96
months in prison.      The district court sentenced him to 77 months of
imprisonment.
      As he did in the district court, Alvarado-Rodriguez argues that his prior
California second degree 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 Guidelines, Alvarado-Rodriguez argues that robbery under
CAL. PENAL CODE § 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, Alvarado-Rodriguez 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

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encompasses prohibited behavior that is not within the plain, ordinary meaning
of the enumerated offense, the defendant’s sentence cannot be upheld. Id. at
276-77.
      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 punishment than 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 of the person robbed at the time
of the robbery.” CAL. PENAL CODE § 212.
      Although Alvarado-Rodriguez 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

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(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, 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), Alvarado-
Rodriguez 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.




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