                     United States Court of Appeals
                              FOR THE EIGHTH CIRCUIT
                                    ___________

                                    No. 02-1080
                                    ___________

United States of America,                *
                                         *
      Plaintiff - Appellee,              *
                                         * Appeal from the United States
      v.                                 * District Court for the
                                         * Southern District of Iowa.
Vagner A. Valladares,                    *
                                         *
      Defendant - Appellant.             *
                                    ___________

                               Submitted: June 14, 2002

                                   Filed: September 26, 2002
                                    ___________

Before WOLLMAN, RICHARD S. ARNOLD, and LOKEN, Circuit Judges.
                         ___________

LOKEN, Circuit Judge.

       Vagner A. Valladares appeals the sentence imposed after he pleaded guilty to
illegally reentering the United States following a prior deportation in violation of 8
U.S.C. § 1326(a). At sentencing, the district court1 increased his total offense level
by sixteen levels, concluding that his prior conviction for second-degree robbery was
a felony crime of violence for purposes of U.S.S.G. § 2L1.2. The issue on appeal is
whether the court erred in using the amended guideline in effect at the time of

      1
       The HONORABLE RONALD E. LONGSTAFF, Chief Judge of the United
States District Court for the Southern District of Iowa.
sentencing, rather than the guideline in effect at the time of the offense. Because
either version of § 2L1.2 would require the same sixteen-level increase, we affirm.

       Valladares was deported to Guatemala in March 1995 following his second-
degree robbery conviction in a California state court. In February 2001, INS agents
stopped Valladares as he exited an Iowa residence that had been used as the address
on a number of fraudulent social security card applications. Valladares gave agents
documents stating his Guatemalan citizenship, birth date, and alien registration
number.2 When the agents later discovered his prior deportation, he was arrested and
charged with illegal reentry. Valladares pleaded guilty to the charge in August 2001,
stipulating to his prior robbery conviction. He was sentenced on November 1, 2001,
the effective date of a significant amendment to U.S.S.G. § 2L1.2.

        The illegal reentry statute provides for a substantially increased maximum
penalty if the prior deportation followed an aggravated felony conviction. See 8
U.S.C. § 1326(b)(2). Prior to November 2001, to reflect the more serious nature of
a § 1326(b)(2) violation, U.S.S.G. § 2L1.2(b)(1) provided for a sixteen-level increase
if the prior deportation followed any aggravated felony conviction. On November 1,
2001, the guideline was amended to provide for a sliding scale of increases based
upon the seriousness of the aggravated felony as defined in the amended guideline.
See U.S.S.G. App. C, amend. 632. Under the amended guideline, a sixteen-level
increase is imposed if the prior conviction was for a felony crime of violence. See
§ 2L1.2(b)(1)(A)(ii). “Crime of violence” is defined in application note 1(B)(ii)(II)
as including “robbery.” In this case, applying the guideline as amended, the district
court assessed the sixteen-level increase because Valladares’s prior deportation
followed a robbery conviction. This resulted in a sentencing range of forty-six to
fifty-seven months. The court imposed a forty-six-month sentence.


      2
       During his time in the United States, Valladares has used a number of aliases,
including Jose Pacheco-Rodriguez, Rogelio Riveros, and Jose Carlos Ramirez-Yon.

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       Valladares concedes that his prior robbery conviction warrants a sixteen-level
increase under the amended guideline. See United States v. Gomez-Hernandez, No.
01-3789, slip op. at 7 (8th Cir. Aug. 28, 2002). He was sentenced on November 1,
2001, the date the amended guideline became effective. In general, a sentencing
court must use the guideline in effect on the date of sentencing unless that would
violate the Ex Post Facto Clause of the United States Constitution. See 18 U.S.C.
§ 3553(a)(4)(A); U.S.S.G. § 1B1.11(b)(1). Valladares argues that the district court
erred because application of amended § 2L1.2(b) in this case violated the Ex Post
Facto Clause.

       The Ex Post Facto Clause, found in Article I, section 9 of the Constitution,
forbids the enactment of a statute “which makes more burdensome the punishment
for a crime, after its commission.” Collins v. Youngblood, 497 U.S. 37, 42 (1990)
(quotation omitted). The sentencing guidelines are statutes for this purpose.
Therefore, a district court must apply the guideline in effect at the time the crime was
committed if application of the guideline in effect at the time of sentencing would
result in a more severe sentence. See United States v. Levi, 2 F.3d 842, 844-45 (8th
Cir. 1993). Here, Valladares illegally entered the United States prior to the effective
date of the amendment to § 2L1.2(b), so the former version of the guideline must be
applied if that would reduce his guidelines sentencing range.

      Under the prior guideline, the sixteen-level increase was imposed if the
defendant’s prior conviction was for any aggravated felony. See U.S.S.G.
§ 2L1.2(b)(1)(A) (2000). The guideline incorporated the definition of “aggravated
felony” found in 8 U.S.C. § 1101(a)(43), which included as an aggravated felony any
“crime of violence” as defined in 18 U.S.C. § 16. See U.S.S.G. § 2L1.2, comment.
n.1 (2000); 8 U.S.C. § 1101(a)(43)(F). Section 16 defined a crime of violence as:




                                          -3-
      (a) an offense that has as an element the use, attempted use, or
      threatened use of physical force against the person or property of
      another, or

      (b) any other offense that is a felony and that, by its nature, involves a
      substantial risk that physical force against the person or property of
      another may be used in the course of committing the offense.

If Valladares’s robbery conviction fell within either subpart of 18 U.S.C. § 16, it was
an aggravated felony and therefore warranted a sixteen-level increase under the
version of U.S.S.G. § 2L1.2 in effect at the time of his offense. In that event, the
district court did not err in applying the November 2001 amendment because it
resulted in the same sixteen-level increase.

       Under California law, robbery is “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. Valladares
argues that this is not an aggravated felony because it may be committed without “the
use, attempted use, or threatened use” of physical force to provoke the requisite fear.
Like the Ninth Circuit, we disagree. Robbery achieved through “force or fear” by its
nature presents “a substantial risk that physical force against the person or property
of another may be used.” Thus, robbery as defined in the California Penal Code is
a crime of violence within the meaning of 18 U.S.C. § 16(b). See United States v.
Wright, 957 F.2d 520, 521-22 (8th Cir.), cert. denied, 506 U.S. 856 (1992); United
States v. McDougherty, 920 F.2d 569, 573-74 (9th Cir. 1990), cert. denied, 499 U.S.
911 (1991). When the prior offense was “by its nature” a crime of violence, the
district court is not required to consider whether the defendant’s actual conduct
involved the use, attempted use, or threatened use of physical force. See United
States v. Rodriguez, 979 F.2d 138, 140-41 (8th Cir. 1992).

     Moreover, when the statutory definition of a predicate offense encompasses
conduct that may or may not be included in the applicable guideline, the sentencing
                                         -4-
court may look to the underlying charging papers and jury instructions to determine
the elements of the crime of which the defendant was convicted. See United States
v. Smith, 171 F.3d 617, 619-21 (8th Cir. 1999). Here, Valladares was convicted of
robbery because he provided a handgun to a co-defendant, who used the gun to rob
a pedestrian, after which Valladares drove the get-away vehicle. This was an offense
which had as an element the use, attempted use, or threatened use of physical force
within the meaning of 18 U.S.C. § 16(a).

       Because Valladares’s prior robbery conviction was for an aggravated felony,
it warranted a sixteen-level increase under the version of § 2L1.2(b) in effect at the
time of his offense. Thus, the district court’s application of the November 1, 2001
amendment did not result in an increased sentence, and there was no Ex Post Facto
Clause violation. Accordingly, the judgment of the district court is affirmed.

      A true copy.

             Attest:

                CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.




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