U.S. v. Santiesteban-Hernandez

• Decision Date: 31 October 2006
• Docket Number: No. 05-50399.,05-50399.
• Citation: 469 F.3d 376
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Pedro SANTIESTEBAN-HERNANDEZ, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 376

469 F.3d 376

UNITED STATES of America, Plaintiff-Appellee, v. Pedro SANTIESTEBAN-HERNANDEZ, Defendant-Appellant.

No. 05-50399.

United States Court of Appeals, Fifth Circuit.

October 31, 2006.

Joseph H. Gay, Jr., Asst. U.S. Atty., San Antonio, TX, for U.S.

M. Carolyn Fuentes, Lucien B. Campbell, Fed. Pub. Def., San Antonio, TX, for Defendant-Appellant.

Appeal from the United States District Court for the Western District of Texas.

Before KING, GARWOOD and JOLLY, Circuit Judges.

KING, Circuit Judge:

Defendant-appellant Pedro Santiesteban-Hernandez appeals the sentence imposed by the district court upon his conviction for illegal reentry, arguing that (1) his conviction for robbery under Texas Penal Code § 29.02(a)(1) does not qualify as a crime of violence under § 2L1.2 of the Sentencing Guidelines, and (2) the application of the enhancement penalties of 8 U.S.C. § 1326(b)(1) violates his due process rights. For the following reasons, we AFFIRM.

I. FACTUAL AND PROCEDURAL BACKGROUND

Defendant-appellant Pedro Santiesteban-Hernandez ("Santiesteban"), a Mexican citizen, was convicted of robbery under Texas Penal Code § 29.02(a)(1) on September 3, 1999.¹ Following this conviction, Santiesteban was removed from the United States in May 2004.

On September 2, 2004, Santiesteban attempted, albeit unsuccessfully, to reenter the United States by declaring himself a U.S. citizen at the border crossing. Santiesteban had not received permission from the Attorney General or the Secretary of Homeland Security to reapply for admission. Santiesteban was arrested and charged in a one-count indictment of illegal reentry after removal in violation of 8 U.S.C. § 1326.

Pursuant to 8 U.S.C. § 1326(b)(1), the government filed notice of its intent to seek additional available statutory penalties. Santiesteban objected to the government's attempt to secure the additional penalty enhancement based on Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). This objection was overruled.

At sentencing, the district court followed the recommendation of the Presentence Investigation Report and set Santiesteban's base offense level for the reentry offense at eight. Using the 2005 version of the U.S. Sentencing Guidelines ("U.S.S.G."), the district court applied a sixteen-level enhancement, finding that Santiesteban's prior robbery conviction constituted a crime of violence within the meaning of U.S.S.G. § 2L1.2(b)(1)(A)(ii).² The district court then applied a three-level reduction based on Santiesteban's acceptance of responsibility, for a total offense level of twenty-one. Santiesteban objected that his robbery conviction did not qualify as a crime of violence because the Texas robbery statute does not require the use or threatened use of force to commit robbery. The district court overruled the objection and sentenced him to seventy-seven months' imprisonment and three years' supervised release. Santiesteban timely appealed.

II. DISCUSSION

A. Crime of Violence

On appeal, Santiesteban renews his contention that the sixteen-level offense enhancement was improper because his prior Texas robbery conviction was not a crime of violence. The Commentary to U.S.S.G. § 2L1.2 states that a prior conviction may qualify as a crime of violence if (1) it is one of the predicate offenses listed in that section or (2) it has as an element of the crime the use, attempted use, or threatened use of physical force against the person of another. U.S.S.G. § 2L1.2 cmt. n.1(B)(iii). Santiesteban argues that his conviction for robbery under Texas Penal Code § 29.02 does not meet either prong of the definition, and as a result the enhancement of his sentence was improper. We disagree. A conviction under § 29.02 qualifies as a "robbery," one of the predicate offenses listed in the Commentary to § 2L1.2. U.S.S.G. § 2L1.2. cmt. n. 1(B)(iii).

Santiesteban does not dispute the fact of his prior robbery conviction, only its characterization as a crime of violence under U.S.S.G. § 2L1.2. We review this characterization de novo. United States v. Calderon-Pena, 383 F.3d 254, 256 (5th Cir.2004) (en banc).

Because the enhancement provision does not define the predicate offense of "robbery," we must first find its "generic, contemporary meaning," Taylor v. United States, 495 U.S. 575, 598, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990), which this circuit has explained as the crime's "ordinary, contemporary, common meaning." United States v. Sanchez-Ruedas, 452 F.3d 409, 412 (5th Cir.2006); United States v. Izaguirre-Flores, 405 F.3d 270, 275 & n. 16 (5th Cir.2005); United States v. Dominguez-Ochoa, 386 F.3d 639, 642-43 (5th Cir. 2004); United States v. Zavala-Sustaita, 214 F.3d 601, 604 (5th Cir.2000). This meaning is uniform and independent of the "labels employed by the various States' criminal codes." Taylor, 495 U.S. at 592, 110 S.Ct. 2143. Accordingly, Texas's designation of Texas Penal Code § 29.02 as its "robbery" statute does not necessarily mean that it qualifies as "robbery" under § 2L1.2. See id. Instead, we must determine whether the offense defined by Texas Penal Code § 29.02 falls within the generic, contemporary meaning of "robbery."

The generic, contemporary meaning of a predicate offense "roughly correspond[s] to the definitions of [the crime] in a majority of the States' criminal codes." Id. at 589, 110 S.Ct. 2143. When distilling these definitions, this court must take a "common sense approach," Sanchez-Ruedas, 452 F.3d at 412, that identifies the crime's "basic elements." Taylor, 495 U.S. at 599, 110 S.Ct. 2143. To ensure that the appropriate elements are identified, this approach must be guided by the recognition that categorical offense designations like "robbery" are intended "to capture all offenses of a certain level of seriousness." Taylor, 495 U.S. at 590, 110 S.Ct. 2143.

Sources of generic, contemporary meaning include the Model Penal Code, treatises, federal and state law, dictionaries, and the Uniform Code of Military Justice. See id. at 592, 110 S.Ct. 2143 (looking to the MODEL PENAL CODE and W. LaFave & A. Scott, SUBSTANTIVE CRIMINAL LAW (1986)); Izaguirre-Flores, 405 F.3d at 275 (relying on definitions from BLACK'S LAW DICTIONARY (8th ed.2004) and WEBSTER'S THIRD NEW INTERNATIONAL DICTIONARY (1986)); Dominguez-Ochoa, 386 F.3d 639, 644-46 (2004) (surveying W. LaFave & A. Scott, SUBSTANTIVE CRIMINAL LAW (1986), federal and state statutes, the UNIFORM CODE OF MILITARY JUSTICE, and the MODEL PENAL CODE); United States v. Vargas-Duran, 356 F.3d 598, 602-03 (2004) (considering definitions from BLACK'S LAW DICTIONARY (7th ed.1999), the OXFORD ENGLISH DICTIONARY (2d ed.1979), and WEBSTER'S THIRD NEW INTERNATIONAL DICTIONARY (1986)).

After determining the generic, contemporary meaning of the predicate offense, we must then compare it to the statute governing the prior conviction. See Taylor, 495 U.S. at 599, 110 S.Ct. 2143. If the defendant was convicted under a statute following the generic definition with minor variations, or a statute narrower than the generic crime, the sentence enhancement may be applied. See id.

With this framework in mind, we turn to the Texas offense to determine whether it qualifies as "robbery" under § 2L1.2. As a preliminary matter, Santiesteban argues that Texas Penal Code § 29.02 is not a crime of violence because it does not define "robbery" in terms of the use or threat of force. If our analysis were to focus on the second prong of the crime of violence definition, which has a force requirement, this omission would be dispositive. However, our analysis instead centers on the first prong, which does not require a predicate offense to have as an element the use or threat of force against another person. See United States v. Rayo-Valdez, 302 F.3d 314, 317 (5th Cir.2002).³ Thus, the issue is not merely whether § 29.02 has as an element the use or threat of force, but whether the use or threat of force is part of the generic, contemporary meaning of "robbery."⁴

Although the precise state definitions vary, 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." WAYNE R. LAFAVE, SUBSTANTIVE CRIMINAL LAW § 20.3 intro., (d)(2) (2d ed.2003). The immediate danger element is what makes robbery "deserving of greater punishment than that provided for larceny" and extortion, id., and has been implemented by the states in two main ways. The majority of states require property to be taken from a person or a person's presence by means of force or putting in fear.⁵ See, e.g., ALA. CODE § 13A-8-43(a) (West 2003); WIS. STAT. ANN. § 943.32 (West 2005). Texas, the Model Penal Code, and ten other states differ somewhat in that they define the immediate danger in terms of bodily injury.⁶ Texas Penal Code § 29.02 reads:

(a) A person commits an offense if, in the course of committing theft as defined in Chapter 31 and with intent to obtain or maintain control of the property, he:

(1) intentionally, knowingly, or recklessly causes bodily injury to another; or

(2) intentionally or knowingly threatens or places another in fear of imminent bodily injury or death.

TEX. PEN. CODE ANN. § 29.02 (Vernon 2006). Similarly, the Model Penal Code provides:

A person is guilty of robbery if, in the course of committing a theft, he:

(a) inflicts serious bodily injury upon another; or

(b) threatens another with or purposely puts him in fear of immediate serious bodily injury; or (c) commits or threatens immediately to commit any felony of the first or second degree.

MODEL PENAL CODE § 222.1.⁷

Although the bodily injury approach implements the immediate danger element without addressing force, the approach still recognizes that "[r]obbery is appropriately defined as a separate and serious offense because of the special elements of danger commonly associated with...