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

                                                                  FILED
                                                                 May 14, 2008
                                No. 07-50924
                              Summary Calendar               Charles R. Fulbruge III
                                                                     Clerk

UNITED STATES OF AMERICA

                                           Plaintiff-Appellee

v.

JAMES SAWYER, JR

                                           Defendant-Appellant


                 Appeal from the United States District Court
                      for the Western District of Texas
                          USDC No. 3:07-CR-66-ALL


Before KING, DAVIS and CLEMENT, Circuit Judges.
PER CURIAM:*
      James Sawyer, Jr. pleaded guilty to importing marijuana and possessing
with intent to distribute marijuana.     The presentence report assessed 11
criminal history points for a criminal history category of V.       Pursuant to
U.S.S.G. §4B1.1, Sawyer’s was defined as a career offender and a criminal
history category of VI was applied to his offense. As a result, Sawyer was
sentenced to 51 months in prison to be followed by 3 years of supervised release.
Sawyer argues that his 1998 California second degree robbery conviction is not

      *
      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should not be published and is not precedent except under the limited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. 07-50924

a crime of violence within the meaning of U.S.S.G. §§ 4B1.1(a) and 4B1.2.
Although robbery is an enumerated crime of violence under the Guidelines,
Sawyer argues that robbery under CAL. PENAL CODE § 211 does not meet the
generic, contemporary definition of robbery because the California statute
prohibits a broader range of conduct. He argues that the statute may be violated
not only by the use of force but also by threats to property. Sawyer concedes that
his failure to object on this point in the district court limits appellate review to
the plain-error standard. See United States v. Ochoa-Cruz, 442 F.3d 865, 866-67
(5th Cir. 2006).
      A “crime of violence” is defined as any state or federal offense punishable
by more than a year of imprisonment that: “(1) has as an element the use,
attempted use, or threatened use of physical force against the person of another,
or (2) is burglary of a dwelling, arson, or extortion, involves use of explosives, or
otherwise involves conduct that presents a serious potential risk of physical
injury to another.” § 4B1.2(a). Pursuant to the commentary to the Guidelines,
robbery is an enumerated crime of violence under this section. See § 4B1.2,
comment. (n.1). If a conviction is for an enumerated offense, it is not necessary
to examine whether the offense also meets the “use of force” prong of the crime
of violence definition. See United States v. Rayo-Valdez, 302 F.3d 314, 317 (5th
Cir. 2002) (discussing cases). However, a state’s labeling of an offense does not
determine whether the offense qualifies as an enumerated offense. United
States v. Fierro-Reyna, 466 F.3d 324, 327 (5th Cir. 2006).              Rather, an
enumerated offense is given its “generic, contemporary meaning.” Id.; United
States v. Izaguirre-Flores, 405 F.3d 270, 275 (5th Cir. 2005) (addressing crime
of violence under U.S.S.G. § 2L1.2). This court then determines “whether the
state conviction falls under the generic, contemporary meaning of the
enumerated offense.” Fierro-Reyna, 466 F.3d at 327.
      This court recently held that robbery under CAL. PENAL CODE § 211 meets
the generic or contemporary definition of robbery in a case involving an offense

                                         2
                                No. 07-50924

level increase pursuant to U.S.S.G. § 2L1.2. United States v. Tellez-Martinez,
517 F.3d 813 (2008). This court reasoned that “the California robbery statute
involves the misappropriation of property under circumstances involving danger
to the person.” Id. This court concluded that the California robbery statute
“falls within the generic or contemporary meaning of robbery.” Id.
      Although the case subjudice concerns application of the career offender
provisions found in U.S.S.G. §4B1.1 rather than an offense level increase under
U.S.S.G. §2L1.2, the question presented by this appeal - whether robbery under
CAL. PENAL CODE § 211 meets the generic or contemporary definition of robbery
and is an enumerated crime of violence - is the same. All of Sawyer’s arguments
were addressed and rejected by the reasoning in Tellez-Martinez, 517 F.3d at
813. Sawyer’s sentence is AFFIRMED.




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