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

                                                 FILED
                                                                            March 4, 2009
                                       No. 07-51492
                                                                       Charles R. Fulbruge III
                                                                               Clerk



UNITED STATES OF AMERICA,

                                                   Plaintiff-Appellee,
v.

JUAN GABRIEL CUEVAS-JACOME,

                                                   Defendant-Appellant.




                   Appeal from the United States District Court
                        for the Western District of Texas
                              No. 3:07-CR-2174-ALL




Before DAVIS, SMITH, and OWEN, Circuit Judges.
PER CURIAM:*


       Juan Cuevas-Jacome pleaded guilty of illegal reentry into the United
States after removal. The presentence report (“PSR”) recommended a sixteen-
level enhancement under U.S.S.G. § 2L1.2(b)(1)(A)(ii), because Cuevas-Jacome’s


       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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. 07-51492

prior conviction of third-degree robbery under Oregon law was a “crime of vio-
lence” (“COV”). The PSR did not include any specific information on the Oregon
robbery statute and noted that “[d]etails of the offense have been requested, but
not yet received.” Following the recommendation in the PSR, the district court
applied the enhancement. We affirm.
      Cuevas-Jacome did not object to the enhancement in the district court, so
we review for plain error, see United States v. Garza-Lopez, 410 F.3d 268, 272
(5th Cir. 2005), under which “standard[] a defendant must establish error that
is plain and affects substantial rights,” United States v. Gonzalez-Ramirez, 477
F.3d 310, 311 (5th Cir. 2007). This court then has discretion to correct the error
if it “seriously affects the fairness, integrity, or public reputation of judicial pro-
ceedings.” Id. at 311-12 (internal quotations and modifications omitted).
      The district court committed plain error by relying on the characterization
in the PSR alone without further information about the conviction. Garza-Lopez,
410 F.3d at 274. Robbery is one of the enumerated COV offenses under § 2L1.2-
(b)(1)(A)(ii), but the district court must analyze the statute of conviction under
the “common-sense approach” to verify that it comports with the generally-ac-
cepted definition of robbery. See United States v. Mungia-Portillo, 484 F.3d 813,
816 (5th Cir.), cert. denied, 128 S. Ct. 320 (2007). With only the unsupported
statement in the PSR, the court had no way of making that determination. The
error obviously affected Cuevas-Jacome’s substantial rights, because the en-
hancement vastly increased the guideline range. See United States v. Gracia-
Cantu, 302 F.3d 208, 313 (5th Cir. 2002) (noting that a large increase in recom-
mended guideline range affects substantial rights).
      On appeal, this court granted the government’s unopposed motion to sup-
plement the record to include the Oregon statute under which Cuevas-Jacome
was convicted. Therefore, we can properly determine whether the statute is



                                          2
                                        No. 07-51492

equivalent to generic robbery such that the enhancement applies.1
       Cuevas-Jacome was convicted of robbery in the third degree under a stat-
ute that reads:
       (1) A person commits the crime of robbery in the third degree if in
       the course of committing or attempting to commit theft or unautho-
       rized use of a vehicle . . . the person uses or threatens the immediate
       use of physical force upon another person with the intent of:

                (a) Preventing or overcoming resistance to the taking of
                the property or to retention thereof immediately after
                the taking; or

                (b) Compelling the owner of such property or another
                person to deliver the property or to engage in other con-
                duct which might aid in the commission of the theft or
                unauthorized use of a vehicle.

O R. R EV. S TAT. § 164.395 (West 2003). This court has previously defined the
“generic, contemporary meaning of ‘robbery.’” United States v. Santiesteban-
Hernandez, 469 F.3d 376, 379 (5th Cir. 2006). Consulting several dictionaries
and treatises and robbery statutes from a number of states, we concluded that
“the generic form of robbery ‘may be thought of as aggravated larceny,’ contain-
ing at least the elements of ‘misappropriation of property under circumstances
involving [immediate] danger to the person.’” Id. at 380 (quoting W AYNE R. L A-
F AVE, S UBSTANTIVE C RIMINAL L AW § 20.3 intro., (d)(2) (2d ed. 2003)). We held
that the Texas robbery statute 2 fit the generic definition, because its require


       1
       See United States v. Fernandez-Cusco, 447 F.3d 382, 386-87 (5th Cir. 2006) (using sup-
plemental information introduced on appeal to determine whether COV enhancement applies);
United States v. Martinez-Vega, 471 F.3d 559, 562 (5th Cir. 2006) (same).
       2
           The the Texas robbery statute reads as follows:

       (a) A person commits an offense if, in the course of committing theft as defined
       in Chapter 31 and with intent to obtain or maintain control of the property, he:

                                                                                (continued...)

                                               3
                                          No. 07-51492

ment of “actual or threatened bodily injury” is the equivalent of the immediate-
danger element in generic robbery. Id. at 381.3
       The Oregon third-degree robbery statute has both of the elements of gen-
eric robbery. It includes misappropriation of property with the words “commit-
ting or attempting to commit theft or unauthorized use of a vehicle.” And it re-
quires that there be immediate danger to a person, because the defendant must
“use[] or threaten[] the immediate use of physical force upon another person” to
be convicted. Cuevas-Jacome was therefore convicted of a COV and was subject
to the sixteen-level enhancement. Because the district court’s error did not “seri-
ously affect[] the fairness, integrity, or public reputation of judicial proceedings,”
Gonzalez-Ramirez, 477 F.3d at 311-12, we AFFIRM.




       2
           (...continued)
                  (1) intentionally, knowingly, or recklessly causes bodily injury to
                  another; or

                 (2) intentionally or knowingly threatens or places another in fear
                 of imminent bodily injury or death.

TEX . PENAL CODE ANN . § 29.02 (Vernon 2006).
       3
         See also United States v. Tellez-Martinez, 517 F.3d 813 (5th Cir.) (relying on the San-
tiesteban-Hernandez definition to hold that the California robbery statute is a COV for sen-
tence-enhancement purposes), cert. denied, 129 S. Ct. 170 (2008).

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