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

                                                                 FILED
                                                                June 19, 2008
                                No. 07-50815
                             Conference Calendar            Charles R. Fulbruge III
                                                                    Clerk

UNITED STATES OF AMERICA

                                           Plaintiff-Appellee
v.

ROBERTO RIVAS-SALINAS, also known as Marco Antonio Carrillo-Luna

                                           Defendant-Appellant


                 Appeal from the United States District Court
                      for the Western District of Texas
                         USDC No. 3:07-CR-512-ALL


Before JONES, Chief Judge, and JOLLY and DENNIS, Circuit Judges.
PER CURIAM:*
      Roberto Rivas-Salinas (Rivas) appeals his sentence for illegal reentry
following deportation.   Specifically, he challenges the enhancement of his
sentence based upon the district court’s determination that his prior conviction
in California for robbery is a crime of violence for purposes of U.S.S.G.
§ 2L1.2(b)(1)(C). Rivas argues that CAL. PENAL CODE § 211 may be violated not
only by the use of force but also by threats to property. Because § 211 may be
violated by fear of property damage alone, Rivas argues, it does not necessarily


      *
      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should not be published and is not precedent except under the limited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. 07-50815

have the use or threatened use of force as an element, does not fall within the
contemporary meaning of robbery, and is not a crime of violence.
      Because Rivas did not object below to the enhancement on the grounds he
asserts on appeal, this court reviews for plain error. See United States v.
Castillo, 386 F.3d 632, 636 (5th Cir. 2004). In United States v. Tellez-Martinez,
517 F.3d 813, 815 (5th Cir. 2008), this court specifically held that “robbery under
§ 211 of the California Penal Code falls within the generic or contemporary
meaning of robbery as understood by this court” and is, therefore, a crime of
violence under § 2L1.2. Rivas’s arguments to the contrary are, therefore,
without merit.
      Rivas additionally challenges, in light of Apprendi v. New Jersey, 530 U.S.
466 (2000), the constitutionality of 8 U.S.C. § 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. As Rivas concedes, this argument is
foreclosed by Almendarez-Torres v. United States, 523 U.S. 224, 235 (1998).
United States v. Pineda-Arrellano, 492 F.3d 624, 625 (5th Cir. 2007), cert. denied,
128 S. Ct. 872 (2008).
      For these reasons, the judgment of the district court is AFFIRMED.




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