                        NONPRECEDENTIAL DISPOSITION
                To be cited only in accordance with Fed. R. App. P. 32.1




                United States Court of Appeals
                                For the Seventh Circuit
                                Chicago, Illinois 60604

                               Submitted April 12, 2018*
                                Decided April 25, 2018

                                        Before

                             JOEL M. FLAUM, Circuit Judge

                             DIANE S. SYKES, Circuit Judge

                             DAVID F. HAMILTON, Circuit Judge

No. 17-2280

UNITED STATES OF AMERICA,                      Appeal from the United States District
     Plaintiff-Appellee,                       Court for the Northern District of Illinois,
                                               Eastern Division.
      v.
                                               No. 15-cr-00182
HUGO PLIEGO-HERNANDEZ,
    Defendant-Appellant.                       Amy J. St. Eve,
                                               Judge.

                                      ORDER

       Hugo Pliego-Hernandez, a Mexican citizen, pleaded guilty to reentering the
United States without authorization after he had been removed. 8 U.S.C. § 1326(a). In
calculating Pliego-Hernandez’s Sentencing Guidelines imprisonment range, the district
judge increased his base offense level after concluding that he was previously convicted
in 2000 of a “crime of violence,” U.S.S.G. § 2L1.2(b)(1)(A)(ii) (2015)—namely, attempted

      *  We agreed to decide this case without oral argument because the briefs and
record adequately present the facts and legal arguments, and oral argument would not
significantly aid the court. FED. R. APP. P. 34(a)(2)(C).
No. 17-2280                                                                            Page 2

robbery, 720 ILL. COMP. STAT. §§ 5/8-4(a) (in force Apr. 13, 2000, to Dec. 31, 2009),
5/18-1(a) (in force before 2000 until Dec. 31, 2009). The judge sentenced
Pliego-Hernandez to 70 months in prison. He did not appeal but later moved under
28 U.S.C. § 2255 to set aside his sentence, arguing that attempted robbery in Illinois is
not a crime of violence for purposes of § 2L1.2. The judge denied the motion. The
parties agree that the only issue before us is whether attempted robbery was properly
treated as a crime of violence. We affirm.

        Pliego-Hernandez argues that his attempted robbery conviction cannot be a
crime of violence because an attempt conviction in Illinois does not require the use,
attempted use, or threat of physical force. He contends that this is a prerequisite to
classifying an offense as a crime of violence because a crime of violence is defined in
§ 2L1.2 cmt. 1(B)(iii) as any offense “that has as an element the use, attempted use, or
threatened use of physical force against the person of another.”

        But Pliego-Hernandez overlooks the earlier part of this same application note,
which enumerates robbery as a crime of violence. U.S.S.G. § 2L1.2 cmt. 1(B)(iii) (“‘Crime
of violence’ means any of the following offenses under federal, state, or local law: …
robbery … .”). Pliego-Hernandez does not argue, as he might have, cf. Shields v.
United States, 885 F.3d 1020, 1022–23 (7th Cir. 2018), that the generic offense enumerated
in this application note is categorically narrower than the Illinois offense. So there is no
need to resort to the “elements” inquiry on which his argument is based. Further,
application note 5 states that an attempt to commit a crime of violence is itself a crime of
violence. U.S.S.G. § 2L1.2 cmt. 5. Thus the commentary to § 2L1.2 clearly provides that
an attempt to commit robbery is itself a crime of violence.1 This guideline commentary
“is binding unless it violates the Constitution or a federal statute, or is inconsistent with,
or a plainly erroneous reading of that Guideline.” United States v. Tate, 822 F.3d 370, 375
(7th Cir. 2016) (internal quotation marks omitted).

      To that end Pliego-Hernandez contends that application note 5 “impermissibly
expands the text of the guideline” it interprets. But the guideline text does not define



       1 We directed the parties to file position statements on the effect of Hill v.
United States, 877 F.3d 717, 719–20 (7th Cir. 2017), a case decided after briefing was
completed. We considered those arguments but do not address them because under the
guideline here, unlike the Armed Career Criminal Act in Hill, the attempted offense is
explicitly enumerated as a crime of violence.
No. 17-2280                                                                       Page 3

“crime of violence.” Because this task is entirely left to the commentary, the
commentary cannot be broader than, or inconsistent with, the guideline.

       Lastly, Pliego-Hernandez argues that application note 5 (equating crimes of
violence with nonviolent attempts at crimes of violence) must be disregarded as
inconsistent with the part of application note 1 that defines a crime of violence as any
offense that requires the use, attempt, or threat of force. But because robbery is an
enumerated offense, that part of application note 1 has no bearing on this appeal. And,
moreover, there is no inconsistency. The part of application note 1 that
Pliego-Hernandez relies on overlaps with application note 5 by providing that the
attempted use of force is a “crime of violence.” U.S.S.G. § 2L1.2 cmt. 1(B)(iii).

       Pliego-Hernandez’s Illinois conviction for attempted robbery qualifies as a crime
of violence under U.S.S.G. § 2L1.2. The judgment is AFFIRMED.
