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

                                                                 FILED
                                                               February 29, 2008
                               No. 07-40162
                             Summary Calendar              Charles R. Fulbruge III
                                                                   Clerk

UNITED STATES OF AMERICA

                                          Plaintiff-Appellee

v.

JOSE LUIS TRUJILLO-LOYA, also known as Luis Rojas-Garcia

                                          Defendant-Appellant


                 Appeal from the United States District Court
                      for the Southern District of Texas
                           USDC No. 1:06-CR-765-1


Before KING, HIGGINBOTHAM and DAVIS, Circuit Judges.
PER CURIAM:*
      Jose Luis Trujillo-Loya pleaded guilty to being an alien unlawfully found
in the United States after deportation, having previously been convicted of an
aggravated felony, and was sentenced to an 80-month term of imprisonment and
a three-year term of supervised release. Trujillo-Loya argues that his prior
California attempted robbery conviction is not a crime of violence within the
meaning of U.S.S.G. § 2L1.2(b)(1)(A)(ii). Trujillo-Loya concedes that he was
convicted of attempted second degree robbery and further concedes that under

      *
      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should not be published and is not precedent except under the limited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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§ 2L1.2, prior convictions for offenses counted under § 2L1.2(b)(1) include
attempting to commit such offenses. See CAL. PENAL CODE §§ 211, 664; U.S.S.G.
§ 2L1.2, comment. (n.5). Although robbery is an enumerated crime of violence
under the Guideline, Trujillo-Loya 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 state
statute may be violated not only by the use of force but also by threats to
property. Because the statute may be violated as a result of fear of property
damage, Trujillo-Loya argues that the offense does not necessarily have as an
element the use or threatened use of force and it 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

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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
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 Trujillo-Loya 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

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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).
      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. See U.S. v. Tellez-Martinez, ___ F.3d____ (5th Cir.
2008).
      In light of Apprendi v. New Jersey, 530 U.S. 466 (2000), Trujillo-Loya
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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