                                                      United States Court of Appeals
                                                               Fifth Circuit
                                                            F I L E D
                    REVISED NOVEMBER 30, 2006
              IN THE UNITED STATES COURT OF APPEALS         October 31, 2006

                       FOR THE FIFTH CIRCUIT            Charles R. Fulbruge III
                                                                Clerk


                           No. 05-50399



UNITED STATES OF AMERICA

          Plaintiff-Appellee

v.

PEDRO SANTIESTEBAN-HERNANDEZ

          Defendant-Appellant


          Appeal from the United States District Court
            for the Western District of Texas, El Paso
                       USDC No. 3:04-CR-2074


Before KING, GARWOOD, and JOLLY, Circuit Judges.

KING, Circuit Judge:

     Defendant-appellant Pedro Santiesteban-Hernandez appeals the

sentence imposed by the district court upon his conviction for

illegal reentry, arguing that (1) his conviction for robbery

under Texas Penal Code § 29.02(a)(1) does not qualify as a crime

of violence under § 2L1.2 of the Sentencing Guidelines, and

(2) the application of the enhancement penalties of 8 U.S.C.

§ 1326(b)(1) violates his due process rights.   For the following

reasons, we AFFIRM.




                                 1
               I. FACTUAL AND PROCEDURAL BACKGROUND

     Defendant-appellant Pedro Santiesteban-Hernandez

(“Santiesteban”), a Mexican citizen, was convicted of robbery

under Texas Penal Code § 29.02(a)(1) on September 3, 1999.1

Following this conviction, Santiesteban was removed from the

United States in May 2004.

     On September 2, 2004, Santiesteban attempted, albeit

unsuccessfully, to reenter the United States by declaring himself

a U.S. citizen at the border crossing.      Santiesteban had not

received permission from the Attorney General or the Secretary of

Homeland Security to reapply for admission.      Santiesteban was

arrested and charged in a one-count indictment of illegal reentry

after removal in violation of 8 U.S.C. § 1326.

     Pursuant to 8 U.S.C. § 1326(b)(1), the government filed

notice of its intent to seek additional available statutory

penalties.   Santiesteban objected to the government’s attempt to

secure the additional penalty enhancement based on Apprendi v.

New Jersey, 530 U.S. 466 (2000).       This objection was overruled.

     At sentencing, the district court followed the

recommendation of the Presentence Investigation Report and set

Santiesteban’s base offense level for the reentry offense at

eight.   Using the 2005 version of the U.S. Sentencing Guidelines


     1
          The record does not contain either the Texas charging
instrument or any other documents or pleadings in the robbery
case.

                                   2
(“U.S.S.G.”), the district court applied a sixteen-level

enhancement, finding that Santiesteban’s prior robbery conviction

constituted a crime of violence within the meaning of U.S.S.G.

§ 2L1.2(b)(1)(A)(ii).2   The district court then applied a three-

level reduction based on Santiesteban’s acceptance of

responsibility, for a total offense level of twenty-one.

Santiesteban objected that his robbery conviction did not qualify

as a crime of violence because the Texas robbery statute does not

require the use or threatened use of force to commit robbery.

The district court overruled the objection and sentenced him to

seventy-seven months’ imprisonment and three years’ supervised

release.   Santiesteban timely appealed.

                          II. DISCUSSION

A.   Crime of Violence

     On appeal, Santiesteban renews his contention that the

sixteen-level offense enhancement was improper because his prior



     2
          The Commentary to U.S.S.G. § 2L1.2(b)(1)(A)(ii) defines
the following as crimes of violence:
          murder, manslaughter, kidnapping, aggravated
          assault, forcible sex offenses, statutory
          rape, sexual abuse of a minor, robbery, arson,
          extortion, extortionate extension of credit,
          burglary of a dwelling, 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.
U.S.S.G. § 2L1.2, cmt. n.1(B)(iii) (2005). When reviewing the
application of the U.S.S.G., we look to the version in effect at
the time of the sentencing. U.S.S.G. § 1B1.11.

                                 3
Texas robbery conviction was not a crime of violence.      The

Commentary to U.S.S.G. § 2L1.2 states that a prior conviction may

qualify as a crime of violence if (1) it is one of the predicate

offenses listed in that section or (2) it has as an element of

the crime the use, attempted use, or threatened use of physical

force against the person of another.      U.S.S.G. § 2L1.2 cmt.

n.1(B)(iii).    Santiesteban argues that his conviction for robbery

under Texas Penal Code § 29.02 does not meet either prong of the

definition, and as a result the enhancement of his sentence was

improper.    We disagree.    A conviction under § 29.02 qualifies as

a “robbery,” one of the predicate offenses listed in the

Commentary to § 2L1.2.      U.S.S.G. § 2L1.2. cmt. n.1(B)(iii).

     Santiesteban does not dispute the fact of his prior robbery

conviction, only its characterization as a crime of violence

under U.S.S.G. § 2L1.2.      We review this characterization de novo.

United States v. Calderon-Pena, 383 F.3d 254, 256 (5th Cir. 2004)

(en banc).

     Because the enhancement provision does not define the

predicate offense of “robbery,” we must first find its “generic,

contemporary meaning,” United States v. Taylor, 495 U.S. 575, 598

(1990), which this circuit has explained as the crime’s

“ordinary, contemporary, common meaning.”      United States v.

Sanchez-Ruedas, 452 F.3d 409, 412 (5th Cir. 2006); United States

v. Izaguirre-Flores, 405 F.3d 270, 275 & n.16 (5th Cir. 2005);

United States v. Dominguez-Ochoa, 386 F.3d 639, 642-43 (5th Cir.

                                    4
2004); United States v. Zavala-Sustaita, 214 F.3d 601, 604 (5th

Cir. 2000).    This meaning is uniform and independent of the

“labels employed by the various States’ criminal codes.”         Taylor,

495 U.S. at 592.    Accordingly, Texas’s designation of Texas Penal

Code § 29.02 as its “robbery” statute does not necessarily mean

that it qualifies as “robbery” under § 2L1.2.       See id.    Instead,

we must determine whether the offense defined by Texas Penal Code

§ 29.02 falls within the generic, contemporary meaning of

“robbery.”

       The generic, contemporary meaning of a predicate offense

“roughly correspond[s] to the definitions of [the crime] in a

majority of the States’ criminal codes.”      Id. at 589.     When

distilling these definitions, this court must take a “common

sense approach,” Sanchez-Ruedas, 452 F.3d at 412, that identifies

the crime’s “basic elements.”     Taylor, 495 U.S. at 599.     To

ensure that the appropriate elements are identified, this

approach must be guided by the recognition that categorical

offense designations like “robbery” are intended “to capture all

offenses of a certain level of seriousness.”       Taylor, 495 U.S. at

590.

       Sources of generic, contemporary meaning include the Model

Penal Code, treatises, federal and state law, dictionaries, and

the Uniform Code of Military Justice.      See id. at 592 (looking to

the MODEL PENAL CODE and W. LaFave & A. Scott, SUBSTANTIVE CRIMINAL LAW

(1986)); Izaguirre-Flores, 405 F.3d at 275 (relying on

                                   5
definitions from BLACK’S LAW DICTIONARY (8th ed. 2004) and WEBSTER’S

THIRD NEW INTERNATIONAL DICTIONARY (1986)); Dominguez-Ochoa, 386 F.3d

639, 644-46 (2004) (surveying W. LaFave & A. Scott, SUBSTANTIVE

CRIMINAL LAW (1986), federal and state statutes, the UNIFORM CODE      OF

MILITARY JUSTICE, and the MODEL PENAL CODE); United States v. Vargas-

Duran, 356 F.3d 598, 602-03 (2004) (considering definitions from

BLACK’S LAW DICTIONARY (7th ed. 1999), the OXFORD ENGLISH DICTIONARY (2d

ed. 1979), and WEBSTER’S THIRD NEW INTERNATIONAL DICTIONARY (1986)).

     After determining the generic, contemporary meaning of the

predicate offense, we must then compare it to the statute

governing the prior conviction.         See Taylor, 495 U.S. at 599.    If

the defendant was convicted under a statute following the generic

definition with minor variations, or a statute narrower than the

generic crime, the sentence enhancement may be applied.            See id.

     With this framework in mind, we turn to the Texas offense to

determine whether it qualifies as “robbery” under § 2L1.2.           As a

preliminary matter, Santiesteban argues that Texas Penal Code

§ 29.02 is not a crime of violence because it does not define

“robbery” in terms of the use or threat of force.         If our

analysis were to focus on the second prong of the crime of

violence definition, which has a force requirement, this omission

would be dispositive.     However, our analysis instead centers on

the first prong, which does not require a predicate offense to

have as an element the use or threat of force against another



                                    6
person.    See United States v. Rayo-Valdez, 302 F.3d 314, 317 (5th

Cir. 2002).3   Thus, the issue is not merely whether § 29.02 has

as an element the use or threat of force, but whether the use or

threat of force is part of the generic, contemporary meaning of

“robbery.”4

     Although the precise state definitions vary, 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.”

WAYNE R. LAFAVE, SUBSTANTIVE CRIMINAL LAW § 20.3 intro., (d)(2) (2d ed.

2003).    The immediate danger element is what makes robbery

“deserving of greater punishment than that provided for larceny”

and extortion, id., and has been implemented by the states in two


     3
          Santiesteban relies upon Vargas-Duran, Calderon-Pena,
and Sarmiento-Funes, but those cases do not support his position.
In those cases, we considered the second prong of the crime of
violence definition, whether the underlying statute of conviction
“has as an element the use, attempted use, or threatened use of
physical force against another.” See Vargas-Duran, 356 F.3d at
599-600; Calderon-Pena, 383 F.3d at 256-58; United States v.
Sarmiento-Funes, 374 F.3d 336, 340-42 (5th Cir. 2004). Although
Sarmiento-Funes discusses both prongs of the definition, the
language relied on by the defendant is from the discussion of the
second prong. 374 F.3d at 340-42.
     4
       This appeal does not present the question of whether the
mens rea differs between the statute governing the defendant’s
offense and the generic, contemporary meaning of the offense.
However, such a situation would not alter the analysis; rather,
mens rea would be another basic element on which the two
definitions must correspond. See, e.g., Dominguez-Ochoa, 386
F.3d at 644-46 (holding that Texas’s negligent homicide statute
is not equivalent to the generic meaning of manslaughter, which
requires a recklessness mens rea).

                                   7
main ways.    The majority of states require property to be taken

from a person or a person’s presence by means of force or putting

in fear.5    See, e.g., ALA. CODE § 13A-8-43(a) (West 2003); WIS.

STAT. ANN. § 943.32 (West 2005).    Texas, the Model Penal Code, and

ten other states differ somewhat in that they define the

immediate danger in terms of bodily injury.6     Texas Penal Code

§ 29.02 reads:

     5
           Thirty-eight states, the District of Columbia, and
Professor LaFave take this approach. See, e.g., ALA. CODE § 13A-
8-43(a) (West 2003); ARK. CODE ANN. § 5-12-102(A) (2003); CONN. GEN.
STAT. ANN. § 53a-133 (West 2001); DEL. CODE ANN. tit. 11, § 831(a)
(2004); D.C. CODE § 22-2801 (2006); GA. CODE ANN. § 16-8-40(a) (West
2003); 720 ILL. COMP. STAT. ANN. 5/18-1(a) (West 2003); IND. CODE ANN.
§ 711.1 (West 2003); KY. REV. STAT. ANN. § 515.030 (West 1995); LA.
REV. STAT. ANN. § 14:65(A) (West 1997); MD. CODE ANN.§ 3-401(e) (West
2003); MASS. GEN. LAWS ANN. CH. 265, § 19(b) (West 2000); MISS. CODE
ANN. § 97-3-73 (West 2003); N.H. REV. STAT. ANN. § 636:1(I) (West
1996); N.C. GEN. STAT. ANN. § 14-87.1 (West 2003); N.Y. PENAL CODE
§ 160.00 (McKinney 2003); OKLA. STAT. ANN. tit. 21, § 791 (West
2002); R.I. GEN. LAWS § 11-39-1(b) (West 2003); S.C. CODE ANN. § 16-
11-325 (West 2003); see also 3 WAYNE R. LAFAVE, SUBSTANTIVE CRIMINAL
LAW § 20.3 (2d ed. 2003).
     6
           Texas, ten other states, and the Model Penal Code
follow this approach and define “robbery” in terms of “bodily
injury” or “committing violence” or “physical harm”. See, e.g.,
TEX. PEN. CODE ANN. § 29.02; see also ME. REV. STAT. ANN. tit. 17-A,
§ 651(I)(A) (West 2003); MONT. CODE ANN. § 45-5-401(1) (2003); N.J.
STAT. ANN. § 2C:15-1(a) (West 1995); N.D. CENT. CODE § 12.1-22-01(1)
(2005); OHIO REV. CODE ANN. § 2911.02(A)(2) (West 2002); W. VA. CODE
ANN. § 61-2-12(b) (West 2003); WYO. STAT. ANN. § 6-2-401(a)l
(2003); MODEL PEN. CODE § 222.1. Some states, such as New Jersey,
include both force and bodily injury in their statute. See, e.g.,
N.J. STAT. ANN. § 2C:15-1(a) (West 1995). Not all robbery
statutes fall squarely into the two categories. See, e.g., VA.
CODE ANN. § 18.2-58 (West 2006) (defining “robbery” as theft “by
strangulation, or suffocation, or by striking or beating, or by
other violence to the person, or by assault or otherwise putting
a person in fear of serious bodily harm, or by the threat or
presenting of firearms, or other deadly weapon or
instrumentality.”).

                                   8
           (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:
                (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. PEN. CODE ANN. § 29.02 (Vernon 2006).   Similarly, the Model

Penal Code provides:

           A person is guilty of 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
                 degree.

MODEL PENAL CODE § 222.1.7

     Although the bodily injury approach implements the immediate

danger element without addressing force, the approach still

recognizes that “[r]obbery is appropriately defined as a separate

and serious offense because of the special elements of danger

commonly associated with forcible theft from the person.”       MODEL

PENAL CODE § 222.1, cmt. at 108 (2001).   In other words, the

     7
          Santiesteban contends that Texas Penal Code § 29.02
should not be considered a crime of violence because it does not
require the bodily injury to be serious, as does Model Penal Code
§ 222.1. We disagree. The Model Penal Code’s requirement of
serious injury is not dispositive because generic robbery does
not require serious bodily injury. The Model Penal Code’s
requirement of serious injury is even narrower than the Texas
statute. See TEX. PEN. CODE ANN. § 29.02; MODEL PENAL CODE § 222.1.

                                 9
bodily injury approach focuses on the realization of the

immediate danger rather than the means by which the immediate

danger is created, but they are two sides of the same coin:

           Any taking from the person will involve some
           use of ‘force’ and perhaps ‘fear’ in some
           general sense of being startled.    But it is
           force or threat of force directed at placing
           the victim in serious fear for his safety that
           justifies the escalated penalties of the
           robbery offense.

MODEL PENAL CODE § 222.1, cmt. at 108 (1980).

     In United States v. Sanchez-Ruedas, 452 F.3d 409 (5th Cir.

2006), this circuit faced a similar issue when it considered

whether the California assault with a deadly weapon statute was a

crime of violence under the Sentencing Guidelines.        In its

analysis of whether the statute fit within the generic,

contemporary meaning of “aggravated assault,” the court compared

the California statute under which the defendant was convicted to

the Model Penal Code’s definition of aggravated assault.           Id. at

413-15.   The California statute prohibited assault upon the

person of another with a deadly weapon or instrument other than a

firearm or by means of force likely to produce great bodily

injury.   CAL. PENAL CODE § 240 (West 1995).     In contrast, the Model

Penal Code provided for conviction of a defendant who “attempts

to cause serious bodily injury to another, or causes such injury

purposely, knowingly or recklessly . . . or attempts to cause or

purposely or knowingly causes bodily injury to another with a

deadly weapon.”   MODEL PENAL CODE § 211.1(2).    Notwithstanding the

                                  10
minor differences between the definitions, the court concluded

that “California’s focus on the defendant’s intentional conduct

in contrast to the Model Penal Code’s intentional result is not

enough to remove the California statute from the family of

offenses commonly known as ‘aggravated assault.’”   Id. at 414.

     A similar conclusion is appropriate here.   Although the

majority of states focus on an act of force in articulating the

requisite level of immediate danger, and the Texas statute

focuses on the realization of the immediate danger through actual

or threatened bodily injury, the difference is not enough to

remove the Texas statute from the family of offenses commonly

known as “robbery.”   Rather, the elements of the Texas statute

substantially correspond to the basic elements of the generic

offense, in that they both involve theft and immediate danger to

a person.

     Accordingly, the district court did not err by enhancing

Santiesteban’s sentence for his prior § 29.02 conviction.     This

holding is the natural result of the “common sense approach” that

this court has adopted to address similar questions.     See United

States v. Torres-Diaz, 438 F.3d 529, 536-38 (5th Cir. 2006);

Sanchez-Ruedas, 452 F.3d at 413-14.

B.   Apprendi Challenge

     Santiesteban also contends that 8 U.S.C. § 1326(b) violates

the Sixth Amendment under Apprendi.   530 U.S. at 466.   He


                                11
acknowledges that this argument is foreclosed by Almendarez-

Torres v. United States, 523 U.S. 224, 235 (1998), but raises it

to preserve it for further review.    We have “repeatedly rejected

arguments like the one made by [Santiesteban] and . . . held that

Almendarez-Torres remains binding despite Apprendi.”    United

States v. Garza-Lopez, 410 F.3d 268, 276 (5th Cir. 2005); see

also United States v. Delagado-Nunez, 295 F.3d 494, 498 (5th Cir.

2002) (“Apprendi did not overrule Almendarez-Torres, which

therefore remains good law.”).   Accordingly, Santiesteban’s

argument that § 1326 is unconstitutional in light of Apprendi

fails.

                        III. CONCLUSION

     Santiesteban’s guilty-plea conviction and the sentence

imposed are AFFIRMED.




                                 12
