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

                                                                   FILED
                                                                 February 19, 2008
                                No. 06-50906
                              Summary Calendar               Charles R. Fulbruge III
                                                                     Clerk

UNITED STATES OF AMERICA

                                            Plaintiff-Appellee

v.

LUIS FERNANDO GAYTAN-VALLE, also known as Luis Fernando Valle-
Gayton

                                            Defendant-Appellant


                 Appeal from the United States District Court
                      for the Western District of Texas
                        USDC No. 3:05-CR-2620-ALL


Before KING, HIGGINBOTHAM, and DAVIS, Circuit Judges.
PER CURIAM:*
      Luis Fernando Gayton-Valle (Gayton) pleaded guilty to illegal reentry into
the United States after previously being deported, in violation of 8 U.S.C. § 1326
and was sentenced to 41 months of imprisonment. As he did in the district
court, Gaytan argues that his prior California robbery conviction is not a crime
of violence within the meaning of U.S.S.G. § 2L1.2(b)(1)(A)(ii). Although robbery
is an enumerated crime of violence under the Guideline, Gaytan argues that


      *
      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should not be published and is not precedent except under the limited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. 06-50906

robbery under CAL. PENAL CODE § 211 does not meet the generic, contemporary
definition of robbery because the California statute may be violated not only by
the use of force but also by threats to property. Thus, Gaytan argues, the offense
does not comport with the contemporary meaning of the enumerated offense of
robbery.
      The district court’s characterization of a prior offense is a question of law
that this court reviews de novo. United States v. Santiesteban-Hernandez, 469
F.3d 376, 378 (5th Cir. 2006). Section 2L1.2 of the Guidelines provides that the
offense level for unlawfully entering or remaining in the United States shall be
increased by 16 levels if the defendant has a prior conviction for a “crime of
violence.” § 2L1.2(b)(1)(A)(ii). The commentary to § 2L1.2 defines “crime of
violence” as (1) any specific enumerated offense, including “robbery,” or (2) “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.” § 2L1.2, comment. (n.(B)(iii)).
      When determining whether a state conviction constitutes a specifically
enumerated, but undefined, offense for purposes of § 2L1.2’s crime-of-violence
enhancement, this court uses a “common sense approach.” United States v.
Izaguirre-Flores, 405 F.3d 270, 274 (5th Cir. 2005). Under this approach, we
determine whether a violation of the underlying statute constitutes the
enumerated offense as the enumerated offense is understood in its “‘ordinary,
contemporary, [and] common’ meaning.” Id. at 275. If the underlying statute
encompasses prohibited behavior that is not within the plain, ordinary meaning
of the enumerated offense, the defendant’s sentence cannot be upheld. Id. at
276-77.
      In Santiesteban-Hernandez, 469 F.3d at 379-80, this court addressed
whether the Texas offense of robbery is a crime of violence under § 2L1.2. We
noted that the generic, contemporary meaning of an offense generally
corresponds to the definition in a majority of the States’ criminal codes; sources

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of meaning also include the Model Penal Code, treatises, federal and state law,
dictionaries, and the Uniform Code of Military Justice.          Id. at 379.   We
concluded: “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.”             Id. at 380
(alteration in original) (internal quotation marks omitted). It is this “immediate
danger element [that] makes robbery deserving of greater punishment than that
provided for larceny and extortion . . . .” Id. (internal quotation marks omitted).
Such danger is inherently present when property is taken by force or putting in
fear. Id. at 380-81.
      The California robbery statute proscribes “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. Fear is defined as either the “fear of an unlawful injury to the person or
property of the person robbed” or “fear of an immediate and unlawful injury to
the person or property of anyone in the company of the person robbed at the time
of the robbery.” CAL. PENAL CODE § 212.
      Although Gaytan maintains that a conviction under the California robbery
statute is not a crime of violence because the statute criminalizes threats to
property as well as persons, his assertion is based on a misunderstanding of the
essential language of the statute defining robbery as a crime committed:
(1) directly against the victim or in his presence; and (2) against his will. Like
the Texas statute at issue in Santiesteban-Hernandez, the California robbery
statute involves the misappropriation of property under circumstances involving
danger to the person. 469 F.3d at 380. Regardless of how the robbery occurs,
that danger is inherent in the criminal act. Thus, even when the statute is
violated by placing the victim in fear of injury to property, the property has been
misappropriated in circumstances “involving [immediate] danger to the person.”
Id. (alteration in original).

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      Accordingly, robbery under § 211 of the California Penal Code falls within
the generic or contemporary meaning of robbery as understood by this court.
The § 2L1.2 enhancement was proper, and the district court properly calculated
the advisory guidelines range.
      In light of Apprendi v. New Jersey, 530 U.S. 466 (2000), Gaytan challenges
the constitutionality of § 1326(b)’s treatment of prior felony and aggravated
felony convictions as sentencing factors rather than elements of the offense that
must be found by a jury. This argument is foreclosed by Almendarez-Torres v.
United States, 523 U.S. 224, 235 (1995). United States v. Pineda-Arrellano, 492
F.3d 624, 625 (5th Cir. 2007), cert. denied, 2008 WL 59441 (Jan. 7, 2008) (No. 07-
6202).
      For the foregoing reasons, the judgment of the district court is
AFFIRMED.




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