                                                                        F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                    UNITED STATES COURT OF APPEALS
                                                                          May 3, 2006
                                 TENTH CIRCUIT                        Elisabeth A. Shumaker
                                                                         Clerk of Court

 UNITED STATES OF AMERICA,

               Plaintiff - Appellee,                    No. 05-2313
          v.                                         (D. New Mexico)
 RAUL TEODOMIRO OBANDO-                         (D.C. No. CR-05-1103-RB)
 LANDA,

               Defendant - Appellant.


                            ORDER AND JUDGMENT *


Before TACHA, Chief Circuit Judge, ANDERSON and BALDOCK, Circuit
Judges.




      After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist in the determination

of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is

therefore ordered submitted without oral argument.




      *
       This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
      Defendant-Appellant Raul Obando-Landa, a citizen of Peru, pled guilty to

one count of reentry of a deported alien previously convicted of an aggravated

felony, in violation of 8 U.S.C. § 1326(a)(1), (a)(2) and (b)(2). He was sentenced

to forty-six months’ imprisonment, which was based in part upon a sixteen-level

enhancement of his total offense level under the United States Sentencing

Commission, Guidelines Manual (“USSG”), §2L1.2(b)(1)(A) (Nov. 2004), which

in turn was based upon the district court’s characterization of Obando-Landa’s

prior New York state conviction for attempted robbery in the third degree as a

“crime of violence.” He appeals his sentence on the sole ground that the district

court erred in applying that enhancement in its determination of his sentence. We

affirm.



                                 BACKGROUND

      On April 5, 2004, United States Border Patrol authorities encountered

Obando-Landa on a Greyhound bus at a Border Patrol checkpoint in Dona Ana

County, New Mexico. When questioned about his citizenship, Obando-Landa

admitted that he was a national and citizen of Peru, but claimed he was a legal

permanent resident alien, although he lacked documentation of that status. He

was accordingly detained, and further investigation revealed that he possessed no

immigration documents authorizing his presence in the United States.


                                        -2-
Immigration authorities also discovered that Obando-Landa had previously been

deported from the United States in 1996, subsequent to his conviction in New

York for attempted third-degree robbery.

      Obando-Landa thereafter pled guilty to illegally reentering the country after

previously being deported following conviction for an aggravated felony, in

violation of 8 U.S.C. § 1326(a)(1), (a)(2) and (b)(2). A presentence report

(“PSR”) was prepared, which calculated a base offense level of eight and then

increased that by sixteen levels pursuant to USSG §2L1.2(b)(1)(A)(ii) because of

Obando-Landa’s prior deportation after his conviction for a felony that is a crime

of violence. 1 After a three-level downward adjustment for acceptance of

responsibility, Obando-Landa was assigned a total offense level of twenty-one.

With a criminal history category of III, the advisory sentencing range under the

Guidelines was forty-six to fifty-seven months.




      1
          The PSR stated the following concerning that felony conviction:

      On February 6, 1991, the defendant was sentenced to 1 year custody
      for the crime of Attempted Robbery-3 in the Queens County Superior
      Court, New York, Case No. 02020-90. Pursuant to §2L1.2
      Commentary, Application Note B(iii), a “crime of violence”
      means...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.

PSR ¶ 10, Sealed Appellee’s Supp. App. Vol. II.

                                          -3-
      Obando-Landa objected to the sixteen-level enhancement recommended by

the PSR, arguing that the attempted robbery conviction does not qualify as a

crime of violence under Tenth Circuit precedent. Obando-Landa reiterated that

objection at his sentencing hearing. Obando-Landa also sought a downward

departure based upon a history of mental illness. 2

      The district court denied Obando-Landa’s objection, finding, with respect

to the sixteen-level enhancement, that “the Guidelines have been appropriately

calculated in this instance.” Tr. of Sentencing at 11, App. Vol. I at 31. The court

then sentenced Obando-Landa to forty-six months. Obando-Landa appeals,

challenging only the sixteen-level enhancement based upon the characterization of

his attempted third-degree robbery conviction as a conviction for a crime of

violence.



                                   DISCUSSION

      Following the Supreme Court’s decision in United States v. Booker, 543

U.S. 220 (2005), the federal sentencing Guidelines are advisory. Nonetheless,

because sentencing courts are required to “consider” the properly-calculated

Guidelines sentencing range, United States v. Gonzalez-Huerta, 403 F.3d 727,

748-49 (10th Cir.) (en banc) (internal quotation omitted), cert. denied, 126 S. Ct.


      2
          Obando-Landa makes no argument on appeal about his mental illness.

                                         -4-
495 (2005), we continue to review the sentencing court’s factual findings under

the Guidelines for clear error and its legal determinations de novo. United States

v. Serrata, 425 F.3d 886, 906 (10th Cir. 2005). We review for reasonableness the

ultimate sentence imposed. Booker, 543 U.S. at 261-62 (Breyer, J.). “[A]

sentence that is properly calculated under the Guidelines is entitled to a rebuttable

presumption of reasonableness.” United States v. Kristl, 437 F.3d 1050, 1054

(10th Cir. 2006).

      USSG §2L1.2(b)(1)(A)(ii) requires a sixteen-level enhancement “[i]f the

defendant previously was deported . . . after . . . a conviction for a felony that is

. . . a crime of violence.” The application notes specifically state that a “‘[c]rime

of violence’ means any of the following: . . . 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.” USSG §2L1.2,

comment. (n.1(B)(iii)). Additionally, the application notes state that “[p]rior

convictions of offenses counted under subsection (b)(1) include the offenses of

. . . attempting[] to commit such offenses.” Id., comment. (n.5).

      Generally speaking, we interpret the Sentencing Guidelines according
      to accepted rules of statutory construction. In interpreting a
      guideline, we look at the language in the guideline itself, as well as
      at the interpretative and explanatory commentary to the guideline
      provided by the Sentencing Commission. Commentary in the
      Guidelines Manual that interprets or explains a guideline is
      authoritative unless it violates the Constitution or a federal statute, or
      is inconsistent with, or a plainly erroneous reading of, that guideline.

                                           -5-
United States v. Torres-Ruiz, 387 F.3d 1179, 1181 (10th Cir. 2004) (citations,

internal quotation, and alteration marks omitted).

      When we consider generally whether a prior conviction was for a “crime of

violence” under USSG §2L1.2, we employ the “categorical approach.” United

States v. Martinez-Hernandez, 422 F.3d 1084, 1086 (10th Cir. 2005). This entails

looking at “the elements of the [state] statute under which [the defendant] had

been convicted,” id., to determine whether those elements require “the use,

attempted use, or threatened use of physical force against the person of another.”

However, our inquiry in this case is even more straightforward. The commentary

to USSG §2L1.2 specifically lists “robbery” as a “crime of violence” for purposes

of the Guideline. It also specifically includes “attempts” to commit a “crime of

violence” within the definition of such a crime. We have cited with approval the

Sentencing Commission’s explanation for its 2003 amendment of the definition of

crime of violence in §2L1.2, where the Commission expressly stated that the

amended, and current, definition of “crime of violence” “‘makes clear that the

enumerated offenses are always classified as “crimes of violence,” regardless of

whether the prior offense expressly has as an element the use, attempted use, or

threatened use of physical force against the person of another.’” United States v.

Munguia-Sanchez, 365 F.3d 877, 881 (10th Cir. 2004) (quoting USSG app. C

(vol. II), amend. 658, at 401-02 (Supp. 2003)) (emphasis omitted); see also


                                         -6-
Torres-Ruiz, 387 F.3d at 1182 (employing the categorical approach because the

particular crime “is not specifically included in §2L1.2 as a ‘crime of violence’”).

Thus, “robbery,” as an enumerated offense, falls within the definition of a “crime

of violence.” And, because “attempts” to commit such crimes also are expressly

included, Obando-Landa’s attempted third-degree robbery conviction subjects him

to the sixteen-level enhancement contained in USSG §2L1.2.

      Moreover, were we to employ the categorical approach and inquire whether

a conviction for attempted third-degree robbery under New York statutory law

qualifies as an “offense under . . . state . . . law that has as an element the use,

attempted use, or threatened use of physical force against the person of another”

under §2L1.2, we would conclude that it does. N.Y. Penal Law § 160.05 defines

third-degree robbery as “forcibly steal[ing] property.” Further, “[a] person

forcibly steals property and commits robbery when, in the course of committing a

larceny, he uses or threatens the immediate use of physical force upon another

person . . .” Id. § 160.00. Those statutory definitions clearly require “the use,

attempted use, or threatened use of physical force against the person of another.” 3


      3
        In interpreting an earlier version of USSG §2L1.2, the Second Circuit held
that a “conviction of attempted robbery in the third degree [under New York law]
constituted an ‘aggravated felony’ under [USSG] §2L1.2(b)(1)(A).” United
States v. Fernandez-Antonia, 278 F.3d 150, 163 (2d Cir. 2002). The Fernandez-
Antonia court applied a version of the Guidelines in which “aggravated felony”
for purposes of USSG §2L1.2 included a “crime of violence” as defined in 18
                                                                     (continued...)

                                           -7-
We conclude that the district court properly applied the sixteen-level enhancement

under USSG §2L1.2.

      Obando-Landa makes no other argument about the reasonableness of his

sentence, and we find it reasonable as Booker requires.



                                 CONCLUSION

      For the foregoing reasons, we AFFIRM Obando-Landa’s sentence.

                                              ENTERED FOR THE COURT


                                              Stephen H. Anderson
                                              Circuit Judge




      3
        (...continued)
U.S.C. § 16, which, in turn, defined a “crime of violence” as “an offense that has
as an element the use, attempted use, or threatened use of physical force against
the person or property of another.” See USSG §2L1.2 (Nov. 2000); 18 U.S.C.
§ 1101(a)(43)(F).

                                        -8-
