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

                                                 FILED
                                                                            March 5, 2009

                                       No. 08-50297                    Charles R. Fulbruge III
                                                                               Clerk

UNITED STATES OF AMERICA

                                                   Plaintiff-Appellee
v.

SAMMY LEE BRYANT, JR

                                                   Defendant-Appellant




                   Appeal from the United States District Court
                        for the Western District of Texas
                           USDC No. 7:07-CR-151-ALL


Before JONES, Chief Judge, and WIENER and BENAVIDES, Circuit Judges.
PER CURIAM:*
       Defendant-Appellant Sammy Lee Bryant, Jr. pleaded guilty to one count
of possession with intent to distribute a controlled substance in violation of 18
U.S.C. §§ 841(a)(1) and 841(b)(1)(B) and 18 U.S.C. § 2. He now appeals his
sentence, claiming that the district court erred in applying an enhancement for
career-offender status. Finding no reversible error, we affirm Bryant’s sentence.




       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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. 08-50297

                          I. FACTS AND PROCEEDINGS
       A grand jury indicted Bryant for two counts of possession with intent to
distribute cocaine base in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(B) and
18 U.S.C. § 2. The two counts of the indictment differed only in the dates of the
alleged offenses. Pursuant to a plea agreement, Bryant pleaded guilty to Count
Two of the indictment. His pre-sentence report categorized him as a “career
offender” as defined in section 4B1.1 of the United States Sentencing Guidelines
(the “Guidelines”) in part because it considered Byrant’s prior Florida state
conviction for robbery by sudden snatching as a “crime of violence” under section
4B1.2. As a career offender, Bryant’s criminal history category increased one
level to category VI and his total offense level increased from 25 to 31. He filed
an objection to the pre-sentence report, contending that his conviction for
robbery by sudden snatching was not a crime of violence because Florida law
does not require the use of force against a person when committing that offense.
The district court rejected Bryant’s objection, concluding that the Florida offense
was a crime of violence and that Bryant was thus a career offender.
       At sentencing, the government, for the limited purposes of the instant
appeal, agreed to refrain from enforcing the appeal waiver provision contained
in Bryant’s plea agreement. Bryant timely filed a notice of appeal.
                                      II. ANALYSIS
A.     Standard of Review
       We review de novo a district court’s application of the Guidelines,
including its determination that a prior conviction is a crime of violence.1




       1
         United States v. Herrera-Montes, 490 F.3d 390, 391 (5th Cir. 2007). We would review
the district court’s factual findings for clear error. United States v. Cisneros-Gutierrez, 517
F.3d 751, 764 (5th Cir. 2008). In the instant case, however, Bryant asks us to make a purely
legal determination.

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                                        No. 08-50297

B.     Claimed Sentencing Error
       The sole issue that Adams asks us to resolve is whether his prior
conviction for “robbery by sudden snatching” in violation of Florida law
constitutes a “crime of violence” as defined in section 4B1.2 of the Guidelines.
Even though Bryant concedes that he was convicted of the offense, the record
includes neither the Florida indictment nor any other evidence that offers details
of the commission of the crime. Under these circumstances, we “proceed with
the assumption that the conduct constituted the ‘least culpable act’ satisfying
the count of conviction.”2
       Section 4B1.2 of the Guidelines defines “crime of violence” as follows:
       [A]ny offense under federal or state law, punishable                            by
       imprisonment for a term exceeding one year,3 that —

                (1) has as an element the use, attempted use, or threatened
                use of physical force against the person of another, or

                (2) is burglary of a dwelling, arson, or extortion, involves use
                of explosives, or otherwise involves conduct that presents a
                serious potential risk of physical injury to another.4


The commentary to the Guidelines, which we consider authoritative,5
enumerates several offenses that are “crimes of violence.” Robbery is one such
offense.6 If the subject state offense is enumerated, there is no need to inquire

       2
        United States v. Mohr, 554 F.3d 604, 2009 WL 26766, at * 2 (5th Cir. 2009) (quoting
United States v. Houston, 364 F.3d 243, 246 (5th Cir. 2004)).
       3
         Florida robbery by sudden snatching is a felony of the third degree punishable for a
term of imprisonment not exceeding five years. FLA . STAT . ANN . § 812.131(2)(b) (defining the
offense as a “felony of the third degree”); id. § 775.082(3)(d) (indicating that such felonies are
punishable by a term of imprisonment of up to five years).
       4
           U.S. SENTENCING GUIDELINES MANUAL § 4B1.2(a) (2008).
       5
           United States v. Wise, 447 F.3d 440, 446 (5th Cir. 2006) (per curiam).
       6
           U.S. SENTENCING GUIDELINES MANUAL § 4B1.2 cmt. n.1.

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                                             No. 08-50297

further regarding whether the offense constitutes a “crime of violence.”7 Yet, to
determine whether a state offense — here, Florida “robbery by sudden
snatching” — falls within the enumerated predicate offense — here, “robbery,”
a term that the Guidelines leaves undefined — we must first find the “generic,
contemporary meaning” of the predicate offense, viz, its “ordinary, contemporary,
common meaning.”8 “This meaning is uniform and independent of the ‘labels
employed by the various States’ criminal codes.’” 9               “After determining the
generic, contemporary meaning of the predicate offense, we must then compare
it to the statute governing the prior conviction. If the defendant was convicted
under a statute following the generic definition with only minor variations, or
a statute narrower than the generic crime, the sentence enhancement may be
applied.”10
       [T]he 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. It is this immediate danger element [that] makes robbery
       deserving of greater punishment than that provided for larceny and
       extortion . . . . Such danger is inherently present when property is
       taken by force or putting in fear.11
       We compare Florida “robbery by sudden snatching” to this generic
definition of robbery. The Florida statute states:
       (1) “Robbery by sudden snatching” means the taking of money or
       other property from the victim’s person, with intent to permanently


       7
            See United States v. Rayo-Valdez, 302 F.3d 314, 317 (5th Cir. 2002).
       8
         United States v. Santiesteban-Hernandez, 469 F.3d 376, 378 (5th Cir. 2006) (citing
Taylor v. United States, 495 U.S. 575, 598 (1990)).
       9
            Id. (quoting Taylor, 495 U.S. at 592).
       10
            Id. at 379 (citation omitted).
       11
           United States v. Tellez-Martinez, 517 F.3d 813, 815 (5th Cir. 2008) (per curiam)
(internal quotation marks and citations omitted) (second and third modifications in original).

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                                        No. 08-50297

       or temporarily deprive the victim or the owner of the money or other
       property, when, in the course of the taking, the victim was or
       became aware of the taking. In order to satisfy this definition, it is
       not necessary to show that:

              (a) The offender used any amount of force beyond that effort
              necessary to obtain possession of the money or other property;
              or

              (b) There was any resistance offered by the victim to the
              offender or that there was injury to the victim’s person.12
       Florida courts have defined “from the victim’s person” as being “plucked
from the embrace of the person, not from the person’s figurative biosphere.”13
Because the Florida statute neither requires as an element that the victim be
placed in immediate danger nor that he be placed in serious fear for his safety,
it does not meet the generic contemporary meaning of “robbery.” 14 Given that
Florida “robbery by sudden snatching” is not the enumerated offense of
“robbery,” we next ask
       if (A) that offense has as an element the use, attempted use, or
       threatened use of physical force against the person of another, or (B)
       the conduct set forth (i.e., expressly charged) in the count of which
       the defendant was convicted involved use of explosives (including


       12
           FLA . STAT . ANN . § 812.131(1). The statute defines “in the course of the taking” as
“prior to, contemporaneous with, or subsequent to the taking of the property . . . .” Id.
§ 812.131(3)(b).
       13
           Brown v. State, 848 So. 2d 361, 364 (Fla. Dist. Ct. App. 2003) (concluding that a
defendant did not take a purse from the victim’s person when the purse had been placed on
a park bench near her, but apart from her person); see State v. Floyd, 872 So. 2d 445, 446–47
(Fla. Dist. Ct. App. 2004) (reversing a conviction for robbery by sudden snatching in a case in
which the defendant snatched a woman’s purse that was located near the center console of a
vehicle, but not on her person).
       14
          See Tellez-Martinez, 517 F.3d at 814–15. Cf. United States v. Flores-Hernandez, 250
F. App’x 85, 88–89 (5th Cir. 2007) (unpublished) (per curiam) (holding that the Florida robbery
statute (as opposed to robbery by sudden snatching) “require[s] that the defendant use force
or fear as a means of acquiring . . . property” and that thus it “contains the essential elements
of robbery — the misappropriation of property involving danger to a person”).

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                                        No. 08-50297

       any explosive material or destructive device) or, by its nature,
       presented a serious potential risk of physical injury to another.15

As we discuss below, the second prong of this analysis is dispositive; we thus
need not consider whether the Florida offense of robbery by sudden snatching
has as an element the “use, attempted use, or threatened use of physical force
against the person of another.”16
       In this prong of the inquiry, we ask whether Florida’s robbery by sudden
snatching “by its nature, present[s] a serious potential risk of physical injury to
another.” 17 We take a categorical approach in making this determination.18 Our
prior holding in United States v. Hawkins dictates that robbery by sudden
snatching involves the requisite risk of physical injury.19 There, we determined
whether “theft from a person” under Texas law was a crime of violence. The
Texas offense required (1) the appropriation of property, (2) without the owner’s
effective consent, and (3) from the person of another. 20 “[T]he Texas Court of
Criminal Appeals described the crime of theft from a person as consisting of
‘conduct which involves the risk of injury inherent in taking property from a




       15
            U.S. SENTENCING GUIDELINES MANUAL § 4B1.2 cmt. n.1 (emphasis added).
       16
           We nevertheless note that there is a meaningful distinction between legally
sufficient “physical force against” and mere “physical contact with” a person. Flores v.
Ashcroft, 350 F.3d 666, 672 (7th Cir. 2003); see also United States v. Landeros-Gonzales, 262
F.3d 424, 426 (5th Cir. 2001) (indicating that the use of force element of a crime of violence
involves “destructive or violent force”).
       17
            U.S. SENTENCING GUIDELINES MANUAL § 4B1.2 cmt. n.1.
       18
            United States v. Rodriguez-Jaimes, 481 F.3d 283, 286 (5th Cir. 2007).
       19
            United States v. Hawkins, 69 F.3d 11 (5th Cir. 1995).
       20
          See United States v. Hawkins, 25 F.3d 1044, 1994 WL 261246, at *2 (5th Cir. 1994)
(citing TEX . PENAL CODE ANN . §§ 31.03(a), (b)(1), (e)(4)(B)) (unpublished) (per curiam).

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                                        No. 08-50297

person.’” 21 That court also explicitly stated that purse snatching or pick-
pocketing are crimes “wherein a struggle might occur or a defendant might
injure a person to take the property.” 22 In contrast, the court noted that ordinary
theft not involving property taken from a person — such as taking property
sitting on a counter or on the floor — does not involve such risk of fright or
injury.23     Relying on the Texas Court of Criminal Appeals’ description, we
concluded that theft from a person is a felony under Texas law that “involves an
inherent risk of injury to the victim.” 24 We thus determined that the felony was
a crime of violence for the purposes of section 4B1.2 of the Guidelines.25 The
instant case is indistinguishable; Florida robbery by sudden snatching requires
no less inherent risk of injury than does the Texas offense of theft from a person.
       We also agree with the reasoning in United States v. Davis, a decision of
the District Court for the District of Maine on which the government relies. 26 In
that case, the court determined that Florida robbery by sudden snatching is a
crime of violence.27 The court cited both our decision in Hawkins and the First
Circuit’s determination that “[t]aking property directly from a person seems to




       21
         See Hawkins, 69 F.3d at 13 (quoting Earls v. State, 707 S.W.2d 82, 86 (Tex. Crim.
App. 1986)).
       22
            Earls, 707 S.W.2d at 86.
       23
          Id.; see also Sanders v. State, 664 S.W.2d 705, 707 (Tex. Crim. App. 1982) (“Theft
from the person includes a risk of injury to the person from whom the property is taken that
is not present when theft is committed by taking property from the sidewalk . . . .”).
       24
            Hawkins, 69 F.3d at 13 (citation omitted).
       25
            Id.
       26
            United States v. Davis, 353 F. Supp. 2d 91, 94–95 (D. Me. 2005).
       27
            Id.

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us to run a ‘substantial’ or ‘serious’ risk that ‘physical force’ or ‘physical injury’
will follow.”28
       It is also significant that Florida robbery by sudden snatching requires
that “in the course of the taking, the victim was or became aware of the
taking.”29 By mandating that the victim be aware of the taking, the statute
ensures a heightened risk of injury that does not exist when a defendant takes
property from the person of another without detection.30
       Additionally, application of the Supreme Court’s decision in Begay v.
United States 31 does not alter our conclusion. As we recently stated in United
States v. Mohr, under Begay an offense that presents a “serious risk of physical
injury to another” can only be a crime of violence if the offense is ‘roughly
similar, in kind as well as in degree of risk posed, to the [enumerated] examples
themselves.’”32 In our “similarity” inquiry, we look to the fact that “the example
crimes all ‘typically involve purposeful, violent, and aggressive conduct’” and all
— unlike the strict liability, drunk driving offense in Begay — “require some
form of criminal intent.” 33 Here, a robbery-by-sudden-snatching offender clearly
has criminal intent. Further, the offense of taking property from a person aware



       28
          Id. (quoting United States v. McVicar, 907 F.2d 1, 2 (1st Cir. 1990) (determining
whether Tennessee’s offense of “larceny from the person” was a crime of violence when the
offense required a finding that the “theft must be from the person; it is not sufficient that the
property be merely in the presence of the person from whom it is taken”)).
       29
            FLA . STAT . ANN . § 812.131(1) (emphasis added).
       30
         See Brown v. State, 848 So. 2d 361, 364 (Fla. Dist. Ct. App. 2003) (“The statute . . .
addresses the horror of a victim who is conscious of the startling seizure of something from her
hand or person.”).
       31
            Begay v. United States, 128 S. Ct. 1581 (2008).
       32
         United States v. Mohr, 554 F.3d 604, 2009 WL 26766, at *3 (5th Cir. 2009) (quoting
Begay, 128 S. Ct. at 1585).
       33
            Id. at *4 (citing Begay, 128 S. Ct. at 1586–87).

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                                  No. 08-50297

of the taking involves at least as “purposeful, violent, and aggressive conduct”
and poses at least as much risk of physical injury as other enumerated offenses
such as burglary of a dwelling.
      We hold that the Florida offense of robbery by sudden snatching is a crime
of violence for the purposes of section 4B1.2 of the Guidelines. The sentencing
court did not err in imposing an enhancement for career-offender status under
section 4B1.1, so we affirm Bryant’s sentence.
      AFFIRMED.




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