                                                                                 FILED
                                                                     United States Court of Appeals
                      UNITED STATES COURT OF APPEALS                         Tenth Circuit

                             FOR THE TENTH CIRCUIT                          April 21, 2016
                         _________________________________
                                                                         Elisabeth A. Shumaker
                                                                             Clerk of Court
UNITED STATES OF AMERICA,

      Plaintiff - Appellee,

v.                                                         No. 15-2096
                                                 (D.C. No. 2:15-CR-00548-JTM-1)
JUAN CARLOS AGUILAR-RAMOS,                                   (D.N.M.)
a/k/a JUAN CARLOS AGUILAR, a/k/a
JUAN CARLOS AGILARRAMOS, a/k/a
JUAN CARLOS RAMOS, a/k/a JUAN G.
AGUILAR, a/k/a JUAN CARLOSE G.
AGUILAR,

      Defendant - Appellant.
                      _________________________________

                             ORDER AND JUDGMENT*
                         _________________________________

Before HARTZ, BALDOCK, and McHUGH, Circuit Judges.**
                  _________________________________

      In 2005, a California Superior Court convicted Defendant Juan Carlos Aguilar-

Ramos of felony robbery in the second degree under California Penal Code § 211.

After he served his two-year sentence, Defendant was deported to Mexico. He later

reentered the United States in 2014 and was subsequently charged with a single count

      *
         This order and judgment is not binding precedent, except under the doctrines
of law of the case, res judicata, and collateral estoppel. It may be cited, however, for
its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
      **
         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.
of reentering the United States after having been deported in violation of 8 U.S.C.

§ 1326. Defendant entered a blind guilty plea, and the district court sentenced him to

46 months’ imprisonment.

      The district court primarily based the sentence on an enhancement under

§ 2L1.2 of the United States Sentencing Guidelines, which governs sentencing for

crimes involving unlawful entry into the United States. This section mandates that

courts must apply a sixteen-level enhancement to a defendant’s sentence if he or she

was previously deported after “a conviction for a felony that is . . . a crime of

violence.” § 2L1.2(b)(1)(A)(ii). The district court concluded that Defendant’s prior

conviction for felony robbery in California constituted a “crime of violence” and thus

applied the enhancement.

      On appeal, Defendant argues that the district court should not have applied the

enhancement. He contends that the district court “erred as a matter of law by treating

[his] prior conviction for robbery [under] California Penal Code § 211[] as a crime of

violence under . . . § 2L1.2(b)(1)(A)(ii).”       Appellant’s Br. 1.   While Defendant’s

appeal was pending, however, we decided United States v. Castillo, 811 F.3d 342

(10th Cir. 2015), wherein we resolved the identical question “whether [a] district

court erred in concluding that [a defendant’s] conviction for robbery under California

Penal Code section 211 qualifies as a conviction for a crime of violence pursuant to

§ 2L1.2 of the Guidelines.”     Id. at 345.        We held in that case that “all crimes

contemplated by § 211 correspond to crimes of violence under § 2L1.2.” Id. at 349

n.2. Castillo therefore requires that Defendant’s argument on appeal must fail.

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      Defendant contends that Castillo is not relevant in this context. Specifically,

he points to § 211, which defines robbery as “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

(emphasis added). Defendant notes that his argument on appeal focuses on robberies

conducted by “force” and specifically hones in on the amount of force required to

turn such a robbery into a crime of violence under § 2L1.2. Castillo, on the other

hand, focused on interpreting robberies accomplished through “fear.” See Castillo,

811 F.3d at 347 (“[A] violation of section 211 achieved through threats to a person

meets the generic robbery definition, while a violation of section 211 based on a

threat to property corresponds to generic extortion.” (emphases added)). Defendant

believes that this distinction shows Castillo does not govern.

      Defendant is splitting hairs. Given the Castillo court’s admonition that “all

crimes contemplated by § 211 correspond to crimes of violence under § 2L1.2,” id. at

349 n.2 (emphasis added), that court intended its holding to reach any type of robbery

described by § 211, whether or not that robbery was conducted through force or

through fear. See also id. at 349 (holding that “[t]he district court did not err in

concluding that a conviction under section 211 is a crime of violence” and not

limiting that holding to robberies accomplished through fear alone). We thus have no

need to consider the amount of force required to turn a § 211 robbery into a crime of

violence under § 2L1.2, because the Castillo court held that all robberies under § 211

were crimes of violence.     And regardless, the cases that Defendant relies on to

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establish the amount of force needed—Leocal v. Ashcroft, 543 U.S. 1 (2004), and

Johnson v. United States, 559 U.S. 133 (2010)—do not apply to the twelve

enumerated crimes of violence under § 2L1.2 (such as robbery). If anything, these

cases would apply only to the meaning of the residual clause of § 2L1.2, which is a

question not before us today. See Johnson, 559 U.S. at 135–36 (interpreting the

meaning of “physical force” under 18 U.S.C. § 924(e)(2)(B)(i) of the Armed Career

Criminal Act, which is identical to the residual clause of § 2L1.2).

      We AFFIRM the district court’s decision to apply the sixteen-level

enhancement.


                                            Entered for the Court


                                            Bobby R. Baldock
                                            Circuit Judge




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15-2096, United States v. Aguilar-Ramos
McHUGH, Circuit Judge, concurring:


       I join in the result reached by the majority, but I write separately to address

Mr. Aguilar-Ramos’s attempt to distinguish his case from our decision in United States v.

Castillo, 811 F.3d 342 (10th Cir. 2015).

       In Castillo, the defendant argued that a conviction under California Penal Code

section 211 was not a crime of violence for purposes of the sentence enhancement found

in U.S.S.G. § 2L1.2(b)(1)(A)(ii) because section 211, California’s robbery statute, was

broader than the generic definition of robbery. In particular, Mr. Castillo claimed that an

unlawful taking of property would violate section 211 if accomplished through threats to

property, while generic robbery requires threats to a person. Although Mr. Castillo was

correct about the differences between the California robbery statute and generic robbery,

we rejected his argument because the conduct that did not correspond to generic

robbery—taking property by threats to property—corresponded to generic extortion.

Thus, either method of violating section 211 identified by Mr. Castillo fell within a

specific crime of violence listed in U.S.S.G. § 2L1.2(b)(1)(A)(ii).

       Like Mr. Castillo, Mr. Aguilar-Ramos contends it was improper to use his robbery

conviction under section 211 to enhance his sentence under U.S.S.G. § 2L1.2(b)(1)(A)(ii)

because section 211 is broader than the generic definition of robbery. But Mr. Aguilar-

Ramos relies on an alleged distinction in the level of force required, rather than the object

of the actor’s threats. Specifically, he argues that the amount of force required under
section 211 is less than the amount required for generic robbery. But Mr. Aguilar-Ramos

is mistaken.

       Section 211 defines robbery as “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.” California courts have defined the force

necessary to constitute a violation of section 211 as “such force as is actually sufficient to

overcome the victim’s resistance.” People v. Burns, 92 Cal. Rptr. 3d 51 (Ct. App. 2009).

Contrary to Mr. Aguilar-Ramos’s assertions, that position is consistent with the generic

definition of robbery. See 67 Am. Jur. 2d, Robbery § 26 (“Any force, violence, or threat,

no matter how slight, is sufficient to sustain a robbery conviction if it . . . prevents or

overcomes resistance to the property’s taking or retention.”); 3 Wayne R. LaFave,

Substantive Criminal Law, § 20.3(d)(1) (2d ed. 2015) (surveying cases). And although

the Model Penal Code requires that the individual “inflict[] serious bodily injury upon

another” to be guilty of robbery, it expressly acknowledges that this requirement “is a

departure from the law in many states.” Model Penal Code § 222.1(1)(a) & explanatory

note (Am. Law Inst., Official Draft 1985).

       Accordingly, even if Mr. Aguilar-Ramos could distinguish his case from our

decision in Castillo, his argument fails on the merits.




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