       Case: 16-50074       Document: 00513855038      Page: 1    Date Filed: 01/30/2017




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

                                      No. 16-50074                       FILED
                                                                   January 30, 2017
                                                                    Lyle W. Cayce
UNITED STATES OF AMERICA,                                                Clerk

     Plaintiff - Appellee

v.

BRANDON GABRIEL MONTIEL-CORTES, also known as Brandon Gabriel
Garcia-Co, also known as Brandon Gabriel Garcia-Cortez,

     Defendant - Appellant




                    Appeal from the United States District Court
                         for the Western District of Texas
                             USDC No. 3:15-CR-1415-1


Before DAVIS, DENNIS, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
         Brandon Gabriel Montiel-Cortes pleaded guilty to illegal reentry
following deportation. At sentencing, the district court concluded that his 2013
Nevada conviction for robbery constituted a “crime of violence” within the
meaning of United States Sentencing Guidelines § 2L1.2(b)(1)(A) (2015), thus
triggering a 16-level increase to his offense level. Applying the enhancement



         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.
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                                       No. 16-50074
over Montiel-Cortes’s objection, the district court sentenced him to 57 months
in prison and three years of nonreporting supervised release. Montiel timely
appealed. We affirm.
                                               I.
       After Montiel-Cortes pleaded guilty without a plea agreement to illegal
reentry following deportation, his presentence investigation report (“PSR”)
determined that his total offense level was 21, which included, inter alia, a 16-
level increase for his 2013 Nevada conviction for robbery, in violation of Nev.
Rev. Stat. Ann. § 200.380. The PSR included other state court documents
relating to Montiel-Cortes’s Nevada conviction, including the charging
document, his Alford plea, 1 and the judgment of conviction.
       The PSR concluded that Montiel-Cortes’s Nevada robbery conviction
qualified as a “crime of violence” under U.S.S.G. § 2L1.2(b)(1)(A) (2015), which
imposed a 16-level enhancement if the “defendant previously was deported, or
unlawfully remained in the United States, after” a felony conviction for a crime
of violence. 2 The Application Notes defined “crime of violence” as either (1) any
of the enumerated offenses, including robbery or extortion, or (2) “any other
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.” 3 The PSR further determined that Montiel-Cortes’s criminal history


       1  See North Carolina v. Alford, 400 U.S. 25 (1970). An Alford plea is one in which the
defendant maintains his innocence but agrees to plead guilty. Id. at 37 (stating that a trial
court may accept a plea of guilty “containing a protestation of innocence when . . . a defendant
intelligently concludes that his interests require entry of a guilty plea and the record before
the judge contains strong evidence of actual guilt”).
        2 U.S.S.G. § 2L1.2(b)(1)(A)(ii) (2015).
        3 U.S.S.G. § 2L1.2, cmt. n.1(B)(iii) (2015). The Application Note stated in full:



              “Crime of violence” means any of the following offenses under federal,
              state, or local law: murder, manslaughter, kidnapping, aggravated
              assault, forcible sex offenses (including where consent to the conduct is
              not given or is not legally valid, such as where consent to the conduct is
                                               2
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                                      No. 16-50074
category was IV and that his advisory guidelines range of imprisonment was
57 to 71 months.
      Montiel-Cortes objected to the 16-level enhancement, arguing that the
Nevada robbery offense was not a crime of violence because it encompassed
conduct broader than the generic, contemporary definition of robbery. He
argued that the Nevada offense, in contrast to generic robbery, did not require
immediacy or a specific use of force. He also argued that the Supreme Court’s
grant of a writ certiorari in Mathis v. United States, — U.S. —, 136 S. Ct. 2243,
195 L. Ed. 2d 604 (2016), discussed below, might have some impact on his case.
      The district court overruled Montiel-Cortes’s objection, holding that his
Nevada robbery conviction was necessarily a crime of violence—specifically,
the generic crime of robbery—under the modified categorical approach, also
discussed below. The court sentenced him to 57 months in prison and three
years of nonreporting supervised release. He timely appealed.
                                             II.
      This appeal turns on whether the district court correctly interpreted the
sentencing guidelines when it determined, under the modified categorical
approach, that Montiel-Cortes’s 2013 Nevada robbery conviction necessarily
constituted the generic crime of robbery. We review the district court’s
interpretation of the sentencing guidelines de novo. 4




             involuntary, incompetent, or coerced), statutory rape, sexual abuse of a
             minor, robbery, arson, extortion, extortionate extension of credit,
             burglary of a dwelling, or any other 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.

       Id.
       4 United States v. Calderon-Pena, 383 F.3d 254, 256 (5th Cir. 2004) (citing United

States v. Medina-Anicacio, 325 F.3d 638, 643 (5th Cir. 2003)).
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                                       No. 16-50074
      At the outset, we agree with the parties that, under Mathis, the district
court erred by applying the modified categorical framework and instead should
have applied the categorical approach. We recently summarized these two
approaches in United States v. Howell, 838 F.3d 489, 494 (5th Cir. 2016) as
follows:
      In determining if a prior conviction is for an offense enumerated or
      defined in a Guidelines provision, we generally apply the
      categorical approach and look to the elements of the offense
      enumerated or defined by the Guideline section and compare those
      elements to the elements of the prior offense for which the
      defendant was convicted. We do not consider the actual conduct of
      the defendant in committing the offense. If the offense is an
      enumerated offense, such as burglary, we first determine the
      elements contained in the generic, contemporary meaning of that
      offense.
      In one of several decisions on the subject, the Supreme Court
      explained the application of the categorical approach in Descamps
      v. United States [––– U.S. ––––, 133 S. Ct. 2276, 2283, 186 L. Ed.
      2d 438 (2013)]. The Supreme Court also explained in Descamps, as
      it had in prior opinions, that when a statute defines more than one
      crime, and not all of them constitute an enumerated generic
      offense, courts employ the “modified categorical approach” to
      “determine which crime formed the basis of the defendant's
      conviction.” Courts may consult certain records pertaining to the
      prior offense to ascertain if the conviction rested on the generic or
      defined crime or instead was an over-inclusive offense that could
      not support a sentence enhancement. But, if the statute of
      conviction is not divisible, “[t]he modified [categorical]
      approach . . . has no role to play.” 5
      In Mathis, the Supreme Court provided further guidance on how to
determine whether a statute is divisible:
      Though Mathis dealt with the ACCA [Armed Career Criminal Act],
      rather than the Guidelines, the methodology of determining
      whether a statute is divisible and therefore whether the modified
      categorical approach may be employed, is the same, unless the

      5   838 F.3d at 494–95 (footnotes omitted).
                                              4
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                                      No. 16-50074
       Guidelines were to specify otherwise. The Supreme Court
       explained that if a statute sets forth only various means of
       committing the offense, it is not divisible, but if the statute sets
       forth more than one offense by including alternative elements of
       each offense, then the statute is divisible. The test to distinguish
       means from elements is whether a jury must agree. 6
       In this case, both Montiel-Cortes and the Government agree that Nev.
Rev. Stat. Ann. § 200.380 sets out alternative means of committing the crime
of robbery, rather than alternative elements. Thus, under Mathis, Nev. Rev.
Stat. Ann. § 200.380 is indivisible, and the district court erred by applying the
modified categorical approach. More particularly, the district court erred by
examining the state court documents to determine how, precisely, Montiel-
Cortes violated Nev. Rev. Stat. Ann. § 200.380.
       Instead, under Mathis, we must determine whether Nev. Rev. Stat. Ann.
§ 200.380, as an indivisible whole, categorically qualifies as a crime of violence
such that any conduct criminalized by the Nevada robbery statute necessarily
qualified as a crime of violence under U.S.S.G. § 2L1.2(b)(1)(A) (2015). If there
is any conduct that would violate Nev. Rev. Stat. Ann. § 200.380 but would not
qualify as a crime of violence under U.S.S.G. § 2L1.2(b)(1)(A), then the Nevada
statute cannot support the Guidelines enhancement under the categorical
approach. 7


       6Id. at 497 (footnotes omitted).
       7See, e.g., Moncrieffe v. Holder, ––– U.S. ––––, 133 S. Ct. 1678, 1684, 185 L. Ed. 2d
727 (2013):
              By “generic,” we mean the offenses must be viewed in the abstract, to
              see whether the state statute shares the nature of the federal offense
              that serves as a point of comparison. Accordingly, a state offense is a
              categorical match with a generic federal offense only if a conviction of
              the state offense “‘necessarily’ involved ... facts equating to [the] generic
              [federal offense].” Whether the noncitizen's actual conduct involved
              such facts “is quite irrelevant.”

              Because we examine what the state conviction necessarily involved, not
              the facts underlying the case, we must presume that the conviction
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                                      No. 16-50074
                                           III.
       Given the above, we must determine whether conduct that violates Nev.
Rev. Stat. Ann. § 200.380 necessarily qualifies as a “crime of violence,” as
defined in the Application Notes to U.S.S.G. § 2L1.2(b)(1)(A)(ii) as follows: (1)
any of the enumerated offenses, including robbery and extortion, or (2) “any
other 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.” 8
                    A. The Enumerated Offense of Robbery
       The parties primarily argue about whether the Nevada robbery statute
proscribes conduct that falls within the generic, contemporary meaning of
robbery. Under the categorical framework, we compare the elements of the
Nevada statute with the generic definition to determine whether conduct
proscribed by the statute is broader than the generic definition. 9 Here, Montiel-
Cortes argues that the Nevada statute is broader than the generic,
contemporary meaning of robbery.
       The Fifth Circuit has recognized that the generic, contemporary
definition of robbery encompassed by the guidelines corresponds to the
definition found in a majority of states’ criminal codes and draws on the Model
Penal Code, treatises, and other trusted authorities. 10 We have held that



              “rested upon [nothing] more than the least of th[e] acts” criminalized,
              and then determine whether even those acts are encompassed by the
              generic federal offense.

       Id. (citations omitted, alteration in original).
       8 U.S.S.G. § 2L1.2, cmt. n.1(B)(iii) (2015).
       9 See Taylor v. United States, 495 U.S. 575 (1990); United States v. Calderon-Pena,

383 F.3d 254, 257 (5th Cir. 2004) (en banc).
       10 United States v. Tellez-Martinez, 517 F.3d 813, 815 (5th Cir. 2008) (citing United

States v. Santiesteban-Hernandez, 469 F.3d 376, 379 (5th Cir. 2006), abrogated on other
grounds by United States v. Rodriguez, 711 F.3d 541, 547-63 (5th Cir. 2013) (en banc)).
                                             6
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                                     No. 16-50074
“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.” 11 The immediate danger element “makes
robbery deserving of greater punishment than that provided for larceny and
extortion.” 12
      Montiel-Cortes was convicted under Nev. Rev. Stat. Ann. § 200.380,
which provided in full:
      1. Robbery is the unlawful taking of personal property from the
      person of another, or in the person’s presence, against his or her
      will, by means of force or violence or fear of injury, immediate or
      future, to his or her person or property, or the person or property
      of a member of his or her family, or of anyone in his or her company
      at the time of the robbery. A taking is by means of force or fear if
      force or fear is used to:
             (a) Obtain or retain possession of the property;
             (b) Prevent or overcome resistance to the taking; or
             (c) Facilitate escape.
      The degree of force used is immaterial if it is used to compel
      acquiescence to the taking of or escaping with the property. A
      taking constitutes robbery whenever it appears that, although the
      taking was fully completed without the knowledge of the person
      from whom taken, such knowledge was prevented by the use of
      force or fear.
      2. A person who commits robbery is guilty of a category B felony
      and shall be punished by imprisonment in the state prison for a
      minimum term of not less than 2 years and a maximum term of
      not more than 15 years. 13
      Montiel-Cortes argues that the Nevada statute described the offense
more broadly than the generic definition. Under the Nevada statute, he argues,



      11 Id. (quoting Santiesteban-Hernandez, 469 F.3d at 380).
      12 Id. (quoting Santiesteban-Hernandez, 469 F.3d at 380).
      13 Nev. Rev. Stat. Ann. § 200.380 (2013).

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                                    No. 16-50074
the phrase “force or violence or fear of injury, immediate or future” does not
necessarily require immediate danger because a threat involving the future by
definition cannot be “immediate.” The government argues that the immediacy
element is inherently satisfied because the force or putting in fear must occur
contemporaneously with the taking.
      Neither the Supreme Court nor this court has considered whether, under
the categorical approach, Nevada robbery constitutes the enumerated offense
of robbery for purposes of the 16-level enhancement. Nevertheless, our
decisions addressing other state robbery statutes shows that this court has
rejected arguments similar to the Government’s and generally requires that
danger to the victim be “immediate” to constitute a generic robbery.
      For example, in United States v. Alvarado-Rodriguez, 269 F. App’x 427
(5th Cir. 2008), this court held that a California robbery statute, Cal. Penal
Code § 211, fell within the generic definition of robbery where it defined
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.” 14 The “fear” mentioned in the statute
was defined as either (1) “fear of an unlawful injury to the person or property
of the person robbed, or of any relative of his or member of his family” or (2)
“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.” 15
      The defendant argued that Cal. Penal Code § 211 was broader than the
generic definition of robbery because the California statute criminalized
threats to property in addition to threats to persons. 16        We rejected that
argument, finding that it misconstrued the essential language of Cal. Penal


      14 Cal. Penal Code § 211.
      15 Cal. Penal Code § 212.
      16 Alvarado-Rodriguez, 269 F. App’x at 429.

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                                       No. 16-50074
Code § 211 “defining robbery as a crime committed: (1) directly against the
victim or in his presence; and (2) against his will.” 17 The Court also noted that
“the California robbery statute involves the misappropriation of property
under circumstances involving danger to the person” and that the danger to
the person “is inherent in the criminal act.” 18 Therefore, “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.” 19 Thus, we held that Cal. Penal Code § 211 falls within
the generic definition of robbery. 20
       In sum, although generic robbery may be broad enough to encompass a
fear concerning injury to property in addition to personal injury, the danger
must still be “immediate.” Because the Nevada statute covered not just
immediate danger but also future danger, we conclude that it was broader than
the generic, contemporary definition of robbery. In fact, as Montiel-Cortes
points out, California courts distinguish Nevada robbery because it permits
fear of a future injury. 21
                    B. The Enumerated Offense of Extortion
       That does not end our inquiry, however. The categorical framework
requires us to determine whether the least culpable conduct would qualify as
a “crime of violence” under the guidelines, not just a single one of the
enumerated offenses. We must determine whether the least culpable conduct



       17 Id.; see also United States v. Tellez-Martinez, 517 F.3d 813, 815 (5th Cir. 2008) (per
curiam) (holding that Cal. Penal Code § 211 does fall within the generic definition of robbery).
       18 Id.
       19 Id. (quoting Santiesteban-Hernandez, 469 F.3d at 380).
       20 Id.
       21 See People v. McGee, 133 P.3d 1054, 1057 (Cal. 2007), abrogated on other grounds

by Descamps, 133 S. Ct. at 2276 (noting that Nevada robbery, on its face, did not qualify as a
serious felony in California because, unlike California robbery, Nevada permits “a taking
accomplished by fear of future injury”)).
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                                    No. 16-50074
(involving future danger), which does not qualify as the enumerated “crime of
violence” of robbery, nevertheless still qualifies as another “crime of violence.”
We conclude that such conduct qualifies as generic extortion.
      The generic, contemporary definition of extortion is “obtaining
something of value from another with his consent induced by the wrongful use
of force, fear, or threats.” 22 Montiel-Cortes argues that the Nevada statute
required that the taking be against the victim’s will, whereas the generic
definition of extortion requires the victim’s consent. We disagree. The Nevada
statute provided:
      1. Robbery is the unlawful taking of personal property from the
      person of another, or in the person’s presence, against his or her
      will, by means of force or violence or fear of injury, immediate or
      future, to his or her person or property, or the person or property
      of a member of his or her family, or of anyone in his or her company
      at the time of the robbery. A taking is by means of force or fear if
      force or fear is used to:
             (a) Obtain or retain possession of the property;
             (b) Prevent or overcome resistance to the taking; or
             (c) Facilitate escape.
      The degree of force used is immaterial if it is used to compel
      acquiescence to the taking of or escaping with the property. A taking
      constitutes robbery whenever it appears that, although the taking
      was fully completed without the knowledge of the person from
      whom taken, such knowledge was prevented by the use of force or
      fear. 23
      Although the statute uses the phrase “against his or her will,” implying
a lack of consent, it also emphasizes that the force be “used to compel
acquiescence to the taking of or escaping with the property.” In other words,



      22  Scheidler v. Nat’l Org. for Women, Inc., 537 U.S. 393, 409-10 (2003) (internal
quotation marks omitted).
       23 Nev. Rev. Stat. Ann. § 200.380 (emphasis added).

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                                      No. 16-50074
there is consent only in the narrowest sense, but that consent is only given
because of a threat. In a more general sense, the consent is against the victim’s
will. Indeed, the Ninth Circuit has noted that “the ‘with consent’ element of
generic extortion is not inconsistent with the ‘against the will’ element of a Cal.
Penal Code § 211 conviction for a taking involving threats to property,” 24
quoting from a treatise in support:
       It is sometimes said that robbery differs from statutory extortion
       in those states which require property acquisition in that in the
       former the taking of property must be “against the will” of the
       victim, while in the latter the taking must be “with the consent” of
       the victim, induced by the other’s unlawful threat; but, in spite of
       the different expressions, there is no difference here, for both
       crimes equally require that the defendant's threats induce the
       victim to give up his property, something which he would not
       otherwise have done. 25
       We agree and therefore conclude there is no meaningful distinction
between the Nevada statute’s formulation and the generic, contemporary
definition of extortion, at least with respect to a Nevada robbery involving a
future danger.
                                    IV. Conclusion.
       In sum, we conclude that a conviction under the Nevada robbery statute,
Nev. Rev. Stat. Ann. § 200.380, necessarily is a crime of violence under the
categorical framework. Any Nevada robbery involving an immediate danger
would satisfy the generic, contemporary definition of robbery, while any
Nevada robbery involving a future danger would satisfy the generic,
contemporary definition of extortion. We therefore agree with the Ninth
Circuit’s statement, in United States v. Harris, 572 F.3d 1065 (9th Cir. 2009)



       24  United States v. Becerril-Lopez, 541 F.3d 881, 892 n.9 (9th Cir. 2008).
       25Id. (quoting 3 W. LaFave, Substantive Criminal Law § 20.4(b) (2d ed. 2003) (footnote
omitted)).
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                                        No. 16-50074
(per curiam), that “any conduct under Nev. Rev. Stat. § 200.380 that did not
satisfy the generic definition of robbery . . . would satisfy the generic definition
of extortion.” 26 Montiel-Cortes has pointed to no conduct proscribed by the
Nevada statute that did not also qualify as a crime of violence under the
guidelines. Thus, we conclude that Montiel-Cortes’s conviction for Nevada
robbery, in violation of Nev. Rev. Stat. Ann. § 200.380, constituted a crime of
violence under the guidelines, triggering the 16-level enhancement.
       Although we find the district court erred in how it arrived at the
sentence, we conclude the sentence was correct and should be affirmed.
       AFFIRMED.




       26 Id. at 1066. While the Ninth Circuit was considering whether the Nevada statute
fell under the generic definition for an enumerated crime of violence under a different
sentencing guideline, the two guidelines in large part include the same offenses and the
guideline at issue in our case is even more expansive. Compare U.S.S.G. § 4B1.2(a)(2)
(specifying that “crime of violence” for career offenders includes “murder, voluntary
manslaughter, kidnapping, aggravated assault, a forcible sex offense, robbery, arson,
extortion, or the use or unlawful possession of a firearm described in 26 U.S.C. 5845(a) or
explosive material as defined in 18 U.S.C. 841(c)”), with U.S.S.G. § 2L1.2, cmt. 1(B)(iii)
(specifying that a “crime of violence” for illegal reentry purposes includes “any of the following
offenses under federal, state, or local law: murder, manslaughter, kidnapping, aggravated
assault, forcible sex offenses (including where consent to the conduct is not given or is not
legally valid, such as where consent to the conduct is involuntary, incompetent, or coerced),
statutory rape, sexual abuse of a minor, robbery, arson, extortion, extortionate extension of
credit, burglary of a dwelling”).
                                               12
