United States v. Becerril-Lopez ( 2008 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,  No. 05-50979
Plaintiff-Appellee, D.C. No.
v. CR-05-01367-MLH
RAUL BECERRIL-LOPEZ, ORDER
Defendant-Appellant. AMENDING
 OPINION AND
DENYING
PETITION FOR
REHEARING EN
BANC AND
AMENDED
 OPINION
Appeal from the United States District Court
for the Southern District of California
Marilyn L. Huff, District Judge, Presiding
Argued November 14, 2006
Submitted June 5, 2008
Pasadena, California
Filed June 12, 2008
Amended August 29, 2008
Before: Harry Pregerson, Cynthia Holcomb Hall, and
Michael Daly Hawkins, Circuit Judges.
Opinion by Judge Hall
11911
UNITED STATES v. BECERRIL-LOPEZ 11915
COUNSEL
Stephanie J. Lacambra, Federal Defenders of San Diego, Inc.,
San Diego, California, for the defendant-appellant.
Matthew J. Gardner and Mark R. Rehe, Assistant United
States Attorneys, San Diego, California, for the plaintiff-
appellee.
ORDER
The opinion filed on June 12, 2008, is amended as follows.
On slip opinion page 6718, footnote 2, the following language
shall be added:
We express no opinion as to the result if Becerril’s
prior deportation were governed by the Illegal Immi-
gration Reform and Immigrant Responsibility Act of
1997, which provided in part that “[t]he Attorney
General may permit an alien voluntarily to depart . . .
in lieu of being subject to proceedings under section
1229a of this title or prior to the completion of such
proceedings, if the alien is not deportable under sec-
tion 1227(a)(2)(A)(iii) or section 1227(a)(4)(B) of
this title.” 8 U.S.C. § 1229c(a)(1) (1997); see also
United States v. Ortiz-Lopez, 385 F.3d 1202, 1204
(9th Cir. 2004).
With this amendment, the panel has voted to deny appel-
lant’s petition for panel rehearing and has recommended
denial of the petition for rehearing en banc. The full court has
been advised of the petition for rehearing en banc and no
judge has requested a vote on whether to rehear the matter en
banc. Fed. R. App. P. 35.
The petition for panel rehearing and the petition for rehear-
ing en banc are DENIED.
11916 UNITED STATES v. BECERRIL-LOPEZ
No further petitions for rehearing will be entertained.
OPINION
HALL, Circuit Judge:
Raul Becerril-Lopez (“Becerril”) appeals his jury convic-
tion and sentence for being a deported alien found in the
United States in violation of 8 U.S.C. § 1326. Among other
claims, he argues that his prior conviction under California
Penal Code § 211 does not qualify as a “crime of violence”
under the sentence enhancement provision for illegal re-entry
crimes. We hold that it does, and we affirm.
I. Background
Becerril was apprehended just north of the border near San
Ysidro on July 4, 2005. Because he had previously been
deported in 1995, Becerril was subsequently indicted on
charges of being a deported alien found in the United States
in violation of 8 U.S.C. § 1326(a). He was convicted on this
sole count after a jury trial.
At the sentencing hearing on December 12, 2005, the dis-
trict court found that Becerril had a base offense level of 8
and imposed a 16-level enhancement under Sentencing
Guidelines § 2L1.2(b) on the basis of a 1986 conviction for
robbery under California Penal Code § 211. See 8 U.S.C.
§ 1326(b). He was sentenced to 100 months in prison (which
was the low end of the applicable Guidelines range) and three
years of supervised release. Becerril filed a timely notice of
appeal.
II. The Conviction
A. The Motion to Dismiss the Indictment
Becerril first argues that the district court should have dis-
missed the indictment because he was denied due process at
UNITED STATES v. BECERRIL-LOPEZ 11917
the master calendar hearing preceding his 1995 deportation.
We review de novo the district court’s denial of Becerril’s
motion to dismiss on these grounds. United States v. Muro-
Inclan, 249 F.3d 1180, 1182 (9th Cir. 2001).
[1] The Due Process Clause requires a meaningful opportu-
nity for judicial review of the underlying deportation in a
§ 1326 prosecution. United States v. Zarate-Martinez, 133
F.3d 1194, 1197 (9th Cir. 1998). To succeed in a collateral
attack on an earlier deportation, a defendant must show (1)
that he exhausted his administrative remedies to appeal his
removal order; (2) that the underlying removal proceedings
deprived him of the opportunity for judicial review; and (3)
that the entry of the order was fundamentally unfair. 8 U.S.C.
§ 1326(d); United States v. Ubaldo-Figueroa, 364 F.3d 1042,
1048 (9th Cir. 2004). A deportation order is fundamentally
unfair if the defendant’s due process rights were violated by
defects in the underlying deportation proceeding, and the
defendant suffered prejudice as a result of the defects. United
States v. Arrieta, 224 F.3d 1076, 1079 (9th Cir. 2000).
At the master calendar hearing, the Immigration Judge
asked whether anyone had family members who were perma-
nent residents or citizens of the United States, for the pur-
poses of granting relief under § 212(h) of the Immigration and
Naturalization Act. The IJ also asked each person individually
whether he wanted to seek an appeal. The judge did not
advise the group of the possibility of voluntary departure
because he had found that each person had a prior criminal
conviction. Becerril did not mention his family members in
the United States and did not indicate any intent to appeal his
case. Now, he argues that he was entitled to relief under
§ 212(h), as well as voluntary departure, withdrawal of his
application, and an appeal. Therefore, he argues that he suf-
fered prejudice due to alleged defects in the way the hearing
was conducted.
11918 UNITED STATES v. BECERRIL-LOPEZ
1. 212(h) Relief
[2] Becerril argues that he would have been eligible for
relief under § 212(h), and that the judge did not advise him of
this option. Under § 212(h), the Attorney General may waive
removal if deportation would cause “extreme hardship” to rel-
atives of the alien who are U.S. citizens or permanent legal
residents. 8 U.S.C. § 1182(h)(1)(B) (1995). At Becerril’s
hearing, conducted in group format, the IJ asked whether any-
one had close relatives who were permanent residents or citi-
zens. After engaging in a colloquy with one person, the IJ
asked in Spanish whether anyone else (“Alguien más?”) qual-
ified. Becerril claims that the IJ “sped through his general
advisal,” and moved on from question to question without
waiting for the translator. The record does not support this
assertion. While the IJ did not wait for the translator at certain
moments, these instances occurred only when the IJ had made
a statement, not asked a question.
[3] Even if the colloquy here was procedurally deficient in
some way, Becerril must still show that he had “plausible
grounds” for relief under this provision. United States v. Arce-
Hernandez, 163 F.3d 559, 563 (9th Cir. 1998). To demon-
strate the “extreme hardship” required by the statute, the
defendant must show that the consequences of his being
removed would go beyond “the common results of deporta-
tion,” such as a loss of financial support for relatives in the
United States. Id. at 564 (citing Shooshtary v. INS, 39 F.3d
1049 (9th Cir. 1994)). We will find prejudice only after a
clear, detailed demonstration that the defendant provided
“non-economic familial support” or “something more” than
financial support. Arrieta, 224 F.3d at 1082. Becerril’s brief
presents only a few abstract claims about financial support for
his son, a U.S. citizen, and his father, a legal resident of the
United States. We hold that he has failed to demonstrate any
prejudice here.
UNITED STATES v. BECERRIL-LOPEZ 11919
2. Voluntary Departure
[4] Becerril claims that he was entitled to be advised of
what he calls “pre-conclusion” voluntary departure under
§ 242 of the INA, codified at 8 U.S.C. § 1252(b) (1995).1 As
it existed in 1995, this provision gave the Attorney General
discretion to waive deportation hearings for aliens who depart
voluntarily “in lieu of initiating deportation proceedings.”
Contreras-Aragon v. INS, 852 F.2d 1088, 1094 (9th Cir.
1988) (emphasis in original). The Supreme Court has noted
that, under the statute at the time, “[a]rrested aliens [were]
almost always offered the choice of departing the country vol-
untarily, . . . and as many as 98% of them [took] that course.”
Reno v. Flo-res, 507 U.S. 292, 307 (1993).2
1
That statute provided: “In the discretion of the Attorney General, . . .
deportation proceedings . . . need not be required in the case of any alien
who admits to belonging to a class of aliens who are deportable . . . if such
alien voluntarily departs from the United States at his own expense, or is
removed at Government expense as hereinafter authorized, unless the
Attorney General has reason to believe that such alien is deportable under
paragraphs (2), (3) or (4) of section 1251(a) of this title.” 8 U.S.C.
§ 1252(b) (1994).
2
Voluntary departure might also have been available after the deporta-
tion proceedings under INA § 244, 8 U.S.C. § 1254(e) (1994). See Rojas-
Garcia v. Ashcroft, 339 F.3d 814, 827 (9th Cir. 2003). Becerril does not
contend he should have been advised of this possibility, however. The
“pre-conclusion” departure Becerril describes, which appears in INA
§ 242, would have been granted before the master calendar hearing and
will be referred to as “pre-hearing” voluntary departure.
We express no opinion as to the result if Becerril’s prior deportation
were governed by the Illegal Immigration Reform and Immigrant Respon-
sibility Act of 1997, which provided in part that “[t]he Attorney General
may permit an alien voluntarily to depart . . . in lieu of being subject to
proceedings under section 1229a of this title or prior to the completion of
such proceedings, if the alien is not deportable under section
1227(a)(2)(A)(iii) or section 1227(a)(4)(B) of this title.” 8 U.S.C.
§ 1229c(a)(1) (1997); see also United States v. Ortiz-Lopez, 385 F.3d
1202, 1204 (9th Cir. 2004).
11920 UNITED STATES v. BECERRIL-LOPEZ
[5] The Attorney General was not required, however, to
grant this form of relief automatically to aliens who were eli-
gible. See Perales v. Casillas, 903 F.2d 1043, 1050 (5th Cir.
1990) (holding that the “permissive” language of the statute
and implementing regulations gave the Attorney General “un-
fettered” discretion to grant or deny pre-hearing voluntary
departure). Because pre-hearing voluntary departure would
have been granted, if at all, before the hearing, we cannot hold
that the IJ violated Becerril’s rights by failing to mention it at
the hearing itself.3
3. Withdrawal of Application for Admission
Becerril argues that he was an “applicant for admission” to
the United States and should have been informed of his right
to withdraw his application and leave the country under 8
U.S.C. § 1101(a)(4). Becerril offers no cases, statutes or regu-
lations to support the claim that he was an “applicant for
admission,” and we decline to endorse it.
4. Right to Appeal
[6] Finally, Becerril argues that his deportation was invalid
because he did not properly waive his right to appeal. He
analogizes his case to United States v. Zarate-Martinez, 133
F.3d 1194 (9th Cir. 1998), where we found that waiver was
invalid because of the way the IJ conducted the group hear-
ing. In Zarate-Martinez, the IJ stated, in the future tense, that
every person “will have the right to appeal,” without stating
when or how. Id. at 1197. The IJ also told the group that any-
one who wanted to appeal should raise his hand, without ask-
ing each person individually. Id. at 1198. In a later individual
colloquy with the defendant, the IJ asked only whether Zarate
3
We note that two unpublished memorandum dispositions issued prior
to this decision held otherwise. See United States v. Nungaray-Rubalcaba,
229 Fed. App’x 436 (9th Cir. Apr. 10, 2007); United States v. Basulto-
Pulido, 219 Fed. App’x 717 (9th Cir. Jan. 25, 2007).
UNITED STATES v. BECERRIL-LOPEZ 11921
understood his rights and if he had anything else to say. Id.This court held that Zarate’s one-word responses (“yes” and
“no,” respectively) did not qualify as a valid waiver.
[7] Becerril’s case is distinguishable from Zarate-Martinez.
The IJ here did not phrase his statements about appeal in the
future tense; it was clear that the time to appeal was at that
hearing. He also asked each individual whether he would
appeal or accept the decision as final. We find the IJ’s inquiry
sufficient and therefore affirm the district court’s refusal to
dismiss the indictment on the basis of a defective deportation
proceeding.
B. Motion to Strike Testimony of Agent Torres
Becerril next argues that the district court improperly
denied his motion to strike testimony from U.S. Border Patrol
Agent Rene Torres as lacking personal knowledge. Becerril
argues that without Torres’ testimony, nothing showed that he
was free from constant surveillance and “official restraint”
when he entered the country, as required under our § 1326
cases. See United States v. Zavala-Mendez, 411 F.3d 1116,
1119 (9th Cir. 2005) (“a person is not ‘in’ the United States
until he is not only physically present on our side of the bor-
der, but also enjoys ‘freedom from official restraint’ ”);
United States v. Cruz-Escoto, 476 F.3d 1081, 1085-86 (9th
Cir. 2007) (“Aliens who . . . sneak across the border in some
illegitimate manner are under official restraint only if they are
under constant governmental observation from the moment
they set foot in this country until the moment of their arrest.”
(citations, quotation marks, and alterations omitted)). The dis-
trict court’s evidentiary decisions involving factual determina-
tions are reviewed for abuse of discretion. See United States
v. Mateo-Mendez, 215 F.3d 1039, 1042 (9th Cir. 2000). We
reverse only if, absent the error, the jury more probably than
not would have reached a different verdict. See United States
v. Ramirez, 176 F.3d 1179, 1182 (9th Cir. 1999).
11922 UNITED STATES v. BECERRIL-LOPEZ
Here, the government reopened its case to examine Torres
after the district court ruled that it would give an instruction
on freedom from official restraint. During direct examination,
Torres explained that he had been working as the night scope
operator on the night of Becerril’s arrest, and that he had
tracked several people crossing the desert upon the suggestion
of his dispatcher. Torres first saw these individuals in a can-
yon one-half-mile north of the border and directed another
agent, Abel Rivera, to the location where he suspected they
were hiding.
During cross-examination, Torres backtracked on this
story. He said he was in fact not familiar with the events of
that evening:
Q: But you’re saying now on this stand under oath
that you specifically remember watching Mr. Becer-
ril with your night scope on July 4th?
A: I remember putting Agent Rivera in on a group
and a scope. I cannot tell you who — who it is at all.
Q: But you specifically remember looking through
your night scope and everything that you did that
night on July 4th?
A: Not particularly, ma’am.
Torres then testified that he had prepared for testimony by
reading a report produced by Agent Rivera.
Q: And based on Agent Rivera’s report, that’s what
you’re relying on for your testimony here today?
A: Yes, ma’am.
Q: You have no independent recollection of what
happened on July 4th, 2005?
UNITED STATES v. BECERRIL-LOPEZ 11923
A: Other than I was the scope operator, no, ma’am,
I have no idea.
The district court denied defense counsel’s motion to strike
this testimony as lacking personal knowledge.
[8] Under the Federal Rules of Evidence, “[a] witness may
not testify to a matter unless evidence is introduced sufficient
to support a finding that the witness has personal knowledge
of the matter.” Fed. R. Evid. 602. The district court clearly
abused its discretion by admitting Torres’ testimony, which,
in the end, amounted to reading in portions of Agent Rivera’s
report.
[9] Still, we are not persuaded that reversal is warranted.
Becerril argues that the government needed Torres’ testimony
to establish that he was not under constant surveillance from
the time he crossed the border until his capture and therefore
that he entered the country free from official restraint. But
Becerril ignores testimony from Agent Rivera himself, who
stated that he was alerted to Becerril’s presence when seismic
sensors within the United States indicated people or animals
were in a canyon 50 yards north of the border. According to
Rivera, Torres then directed him to the area where he had
“last seen” Becerril go into the canyon on his night scope, and
when Rivera arrived in that area, he found Becerril hiding in
the brush. This testimony indicated freedom from restraint
and therefore that Becerril had been found in the United
States for purposes of § 1326. See Cruz-Escoto, 476 F.3d at
1085-86. The evidence also establishes, that, more probably
than not, the jury’s verdict would have been the same absent
the evidentiary error.
[10] The conviction must therefore be affirmed.
III. Sentencing
We now turn to Becerril’s arguments concerning his sen-
tence.
11924 UNITED STATES v. BECERRIL-LOPEZ
A. Section 211 Is a “Crime of Violence”
Criminal defendants like Becerril who have reentered the
country after being deported are subject to a 16-level sentenc-
ing enhancement if they were previously convicted of a
“crime of violence.” See U.S.S.G. § 2L1.2. The district court
applied this enhancement to Becerril’s prior conviction for
robbery under California Penal Code § 211. We review de
novo whether this was proper, using the test set forth in Tay-
lor v. United States, 495 U.S. 575 (1990). See United States
v. Cortez-Arias, 403 F.3d 1111, 1114 & n.7 (9th Cir. 2005).
1. McDougherty Does Not Control
Before we perform the Taylor analysis, we must briefly
explain why the question is not controlled by our prior prece-
dent. We have previously held that § 211 is a crime of vio-
lence under the career offender provision of the Guidelines in
§ 4B1.2. See United States v. McDougherty, 920 F.2d 569(9th Cir. 1990). In that case, we looked at both § 4B1.2’s
commentary language as well as the federal definition of rob-
bery contained in 18 U.S.C. § 16(b).4 McDougherty’s legal
conclusion clearly rested on the language in § 16(b), which
covers any felony that involved a “substantial risk” that physi-
cal force may be used “against the person or property of
another.” See id. at 574. This definition is broader than the
definition contained in § 4B1.2 alone, which identified only
those crimes presenting a substantial risk of physical injury to
another. Injury to property, significantly, was not mentioned.5
4
At the time, § 4B1.2 specifically referenced the federal definition in
§ 16(b), but this reference was removed in the 1989 amendments to the
Guidelines.
5
We have also held that a § 211 violation is a crime of violence under
18 U.S.C. § 5032, which dictates when juvenile offenders may be trans-
ferred to adult status. See United States v. David H., 29 F.3d 489, 494 (9th
Cir. 1994). In that case we turned, again, to § 16(b) to supply the defini-
tion of “crime of violence.” See id. (citing United States v. Baker, 10 F.3d
1374, 1393-94 (9th Cir. 1993)). The statute at issue, however, provided no
definition of its own.
UNITED STATES v. BECERRIL-LOPEZ 11925
McDougherty is relevant but not controlling in this case.
First, § 2L1.2 contains no reference to 18 U.S.C. § 16(b), as
§ 4B1.2 did. Second, as we have recently emphasized,
§ 4B1.2 has “materially different” wording from § 2L1.2.
United States v. Beltran-Mungia, 489 F.3d 1042, 1049 (9th
Cir. 2007). While § 4B1.2 contains a catch-all for crimes pre-
senting a “serious potential risk of physical injury,” § 2L1.2
covers only those crimes that involve “the use, attempted use,
or threatened use of physical force against the person of
another.” As we held in Beltran-Mungia, a state crime that
satisfies the “crime of violence” definition in § 4B1.2 does
not automatically satisfy the definition in § 2L1.2. Id. There-
fore, we approach the issue as a question of first impression.6
2. The Taylor Analysis
As defined in the commentary to U.S.S.G. § 2L1.2, “crime
of violence” means any of the following:
murder, manslaughter, kidnapping, aggravated
assault, forcible sex offenses, statutory rape, sexual
abuse of a minor, robbery, arson, extortion, extor-
tionate extension of credit, burglary of a dwelling, or
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.
To determine whether a conviction under Cal. Penal Code
§ 211 meets this definition, we use the Taylor categorical
approach. We “look only to the fact of conviction and the stat-
utory definition of the prior offense, not to the underlying
facts,” to determine whether the prior conviction is a qualify-
ing offense. United States v. Lopez-Montanez, 421 F.3d 926,
6
We issued two memorandum dispositions prior to Beltran-Mungia
deciding the issue under McDougherty. See United States v. Molina-Salas,
210 Fed. App’x 664 (9th Cir. Dec. 11, 2006) and United States v.
Rodriguez-Nicolas, 210 Fed. App’x 669 (9th Cir. Dec. 11, 2006).
11926 UNITED STATES v. BECERRIL-LOPEZ
929 (9th Cir. 2005) (internal quotation marks and citation
omitted). To demonstrate that § 211 is not per se an offense
within the Guideline, Becerril must show that there is “a real-
istic probability, not a theoretical possibility, that the State
would apply its statute to conduct that falls outside the generic
definition of [the] crime[s]” listed in the enhancement and
also outside the enhancement’s “catch-all” language. Gon-
zales v. Duenas-Alvarez, 127 S.Ct. 815, 822 (2007); see also
James v. United States, 127 S.Ct. 1586, 1591 (2007) (examin-
ing each listed crime and catch-all in 18 U.S.C. § 924(e)).
Under the law of our circuit, Becerril may carry this burden
by showing that the text of the state statute expressly includes
a broader range of conduct than the Guideline. See United
States v. Vidal, 504 F.3d 1072, 1082 (9th Cir. 2007) (en banc)
(citing United States v. Grisel, 488 F.3d 844, 850 (9th Cir.
2007) (en banc)).7
[11] With this framework in mind, we turn to the state stat-
ute. Section 211 of the California Penal Code defines 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.”
Fear is defined as either “[t]he 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 “[t]he 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.
Becerril argues that California’s definition of robbery is
overbroad in six ways: (1) it encompasses fear of injury to
7
In Duenas-Alvarez, the defendant’s argument relied not on the express
text of the statute at issue, but on how state courts might conceivably
apply it. The Supreme Court held that to prevail, the defendant had to
show either that the statute was applied this way in his own case, or “point
to . . . other cases in which the state courts in fact did apply the statute in
the special (nongeneric) manner for which he argues.” 127 S.Ct. at 822.
UNITED STATES v. BECERRIL-LOPEZ 11927
property; (2) it encompasses fear of any “unlawful injury;” (3)
it has no immediacy requirement; (4) it encompasses force or
fear employed after the initial taking; (5) includes the taking
of money by a person who honestly believes the victim owes
him money; and (6) imposes liability under an overly broad
theory of aiding and abetting. We consider each argument in
turn.
[12] Fear of Injury to Property / Fear of “Unlawful Inju-
ry”: Becerril is correct that Cal. Penal Code § 211 is broader
than generic robbery — one of the crimes listed in § 2L1.2 —
because it encompasses takings accomplished by a broader
range of threats than would the generic offense. We adopt as
a generic definition of robbery the same definition adopted by
the Fifth Circuit, which described the crime as “aggravated
larceny, containing at least the elements of misappropriation
of property under circumstances involving immediate danger
to the person.” United States v. Santiesteban-Hernandez, 469
F.3d 376, 380 (5th Cir. 2006) (quoting 3 W. LaFave, Substan-
tive Criminal Law § 20.3(e) (2d ed. 2003) [hereinafter
LaFave]) (emphasis added, internal punctuation omitted).
Section 211 is broader because it encompasses mere threats to
property, such as “Give me $10 or I’ll key your car” or “Open
the cash register or I’ll tag your windows.” Section 211 is not,
therefore, categorically “robbery” as used in the Guideline.
See 3 LaFave § 20.3(d)(2) & n.73 (noting that most modern
statutes limit robbery to force or threats against a person). But
see United States v. Tellez-Martinez, 517 F.3d 813, 815 (5th
Cir. 2008).8
8
Tellez-Martinez is the only other published appellate opinion on this
question. The Fifth Circuit held that even though Cal. Penal Code § 211encompassed threats to property, it fell within the generic definition of
robbery because the statute required that the crime be committed “(1)
directly against the victim or in his presence; and (2) against his will.” 517
F.3d at 815 (citing Cal. Penal Code § 211). The court reasoned that in light
of these elements, “even when the statute is violated by placing the victim
in fear of injury to property, the property has been misappropriated in cir-
11928 UNITED STATES v. BECERRIL-LOPEZ
[13] But robbery is not the only hurdle. Takings through
threats to property and other threats of unlawful injury fall
within generic extortion, which is also defined as a “crime of
violence.” U.S.S.G. § 2L1.2 cmt. 1(B)(iii). The Supreme
Court has defined generic extortion as “obtaining something
of value from another with his consent induced by the wrong-
ful use of force, fear, or threats.” Scheidler v. Nat’l Org. for
Women, Inc., 537 U.S. 393, 409 (2003) (internal quotation
marks omitted). Unlike robbery, the threats that can constitute
extortion under the modern statutes include threats to harm
property and to cause other unlawful injuries. See 3 LaFave
§ 20.4(a)(4) & n.16 (citing statutes). Becerril cites no author-
ity, and we find none, to suggest that the fear of “unlawful
injury” punished by Cal. Penal Code § 211 is incompatible
with generic extortion.
[14] We do not suggest that extortion is necessarily a
lesser-included offense of robbery. See People v. Torres, 39
Cal. Rptr. 2d 103, 111-12 (Ct. App. 1995) (defendant’s use of
extreme physical force negated possibility that he intended to
take property with the victim’s consent, as required for extor-
tion). We simply conclude that if a conviction under Cal.
Penal Code § 211 involved a threat not encompassed by
cumstances ‘involving immediate danger to the person.’ ” Id. (quoting
Santiesteban-Hernandez, 469 F.3d at 380). We decline to rely on this rea-
soning. Even with the additional elements, we are unconvinced that a tak-
ing by threat to property necessarily entails dangers to the person. Perhaps
contrary to the Fifth Circuit’s assumption, “against the will” does not
imply any force or threat of force against the person. “Against the will”
in this context simply means “without consent” of the victim. Cal. Jury
Instr. — Crim. 9.40; see also 1 B.E. Witkin & Norman L. Epstein, Califor-
nia Criminal Law: Defenses § 88 (3d ed. 2000) [hereinafter Witkin] (“In
a prosecution for theft or robbery, proof of consent to the taking will con-
stitute a defense.”). And certainly the mere presence of the victim cannot,
without more, supply the requisite danger to the person to elevate a theft
to robbery. See 3 Witkin: Crimes Against Property § 96 (“If the taking is
by a secret picking of a pocket, or by a hasty snatching of a purse without
resistance, the crime is only larceny from the person.”).
UNITED STATES v. BECERRIL-LOPEZ 11929
generic robbery, it would necessarily constitute generic extor-
tion and therefore be a “crime of violence” under U.S.S.G.
§ 2L1.2. See 3 LaFave § 20.4(b) (“Statutory extortion (or
blackmail) is, of course, closely related to the crime of rob-
bery, having in fact been created in order to plug a loophole
in the robbery law by covering sundry threats which will not
do for robbery.”).9
[15] Immediacy: For similar reasons, Becerril does not get
far with his argument that Cal. Penal Code § 211 has no
immediacy requirement. True, the statute would encompass a
threat of future harm to the victim or the victim’s family. See
Cal. Penal Code § 212; People v. McGee, 133 P.3d 1054,
1057 n.2 (Cal. 2006). However, generic extortion contains no
requirement that the threat be of immediate harm; a threat of
future harm will suffice. See Scheidler, 537 U.S. at 409; 3
LaFave § 20.4(a).
Force or Fear Beyond Initial Taking: While California’s
definition of robbery does cover defendants who use force in
the course of their escape, see People v. Flynn, 91 Cal. Rptr.
2d 902, 906 (Ct. App. 2000), we are not persuaded that this
exceeds robbery’s generic definition. Though, traditionally,
force used during an escape does not satisfy the force element
of robbery, the modern approach is in line with California’s
9
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. As LaFave explains:
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 vic-
tim to give up his property, something which he would not other-
wise have done.
3 LaFave § 20.4(b) (footnote omitted).
11930 UNITED STATES v. BECERRIL-LOPEZ
law. See LaFave § 20.3(e); Model Penal Code § 222.1 (“An
act shall be deemed ‘in the course of committing a theft’ if it
occurs in an attempt to commit theft or in flight after the
attempt or commission.”).
Claim-of-Right: Becerril inaccurately states that California
has abolished the so-called “claim of right” defense to rob-
bery, which applies in cases where the defendant had a good
faith belief that he was entitled to the property taken. Rather,
California has simply excluded from this defense cases where
the robbery is perpetrated “to satisfy, settle or otherwise col-
lect on a debt, liquidated or unliquidated.” People v. Tufunga,
987 P.2d 168, 181 (Cal. 1999). The California Supreme Court
drew a distinction between these cases and cases where the
defendant took specific property to which he believed he was
entitled. Id. Such curtailing of the claim of right defense is
entirely consistent with the vast majority of modern cases to
consider the question, which have emphasized the public pol-
icy against self-help in such situations. See id. at 177 (citing
cases); 3 LaFave § 20.3(b). This approach therefore keeps
Cal. Penal Code § 211 within the modern, generic definition
of robbery.
Aiding and Abetting: Becerril also argues that California’s
law of aiding and abetting is significantly broader than the
generic definition. The Supreme Court, however, rejected this
argument in Duenas-Alvarez, 127 S.Ct. at 822.
[16] Accordingly, we hold that a conviction under Cal.
Penal Code § 211 could only result from conduct that consti-
tutes a “crime of violence” for purposes of U.S.S.G. § 2L1.2.10
The district court properly applied the 16-level enhancement.
10
Because we rely on the categorical approach, we need not decide
whether the documents indicating that Becerril committed his robbery by
using a knife would be judicially noticable or dispositive for purposes of
the modified categorical analysis. See Shepard v. United States, 544 U.S.
13, 20-21 (2005).
UNITED STATES v. BECERRIL-LOPEZ 11931
B. Apprendi Error
[17] Becerril attacks his sentence under Apprendi v. New
Jersey, 530 U.S. 466 (2000), which generally requires that
facts increasing a sentence beyond the statutory maximum be
found by a jury or admitted by the defendant. According to
Becerril, the judicial finding that he was previously deported
after a crime of violence violates Apprendi because it
increased his statutory maximum from two to 20 years. See 8
U.S.C. § 1326; United States v. Covian-Sandoval, 462 F.3d
1090 (9th Cir. 2006). We disagree. As to the conviction itself,
Becerril’s argument is squarely foreclosed by Almendarez-
Torres v. United States, 523 U.S. 224, 247 (1998), which
allows judicial fact-finding of prior convictions, and also by
our decisions confirming that Almendarez-Torres remains
binding authority. See United States v. Beng-Salazar, 452
F.3d 1088, 1091 (9th Cir. 2006); United States v. Rodriguez-
Lara, 421 F.3d 932, 949-50 (9th Cir. 2005). And as to the
date of the prior removal, the jury necessarily found that
Becerril had been previously removed, and because the only
removal argued to the jury occurred in 2005, the jury also
necessarily found that Becerril had been removed subsequent
to his 1986 robbery conviction. See United States v. Martinez-
Rodriguez, 472 F.3d 1087, 1094 (9th Cir. 2007). Further,
Becerril never challenged any of his prior removals and did
not raise the issue at sentencing. Therefore, any error here
would not warrant reversal. Covian-Sandoval, 462 F.3d at
1098.
C. Acceptance of Responsibility
[18] Becerril argues that the district court improperly
denied him a downward adjustment for acceptance of respon-
sibility under U.S.S.G. § 3E1.1. “In making the determination
whether a defendant has accepted responsibility, the district
court may not consider against the defendant any constitution-
ally protected conduct.” United States v. Ochoa-Gaytan, 265
F.3d 837, 842 (9th Cir. 2001) (citation and quotation marks
11932 UNITED STATES v. BECERRIL-LOPEZ
omitted). Here, contrary to Becerril’s contention, the court’s
decision did not rest improperly on the fact that he challenged
the validity of his deportation proceedings. Rather, the court
relied on Becerril’s failure to admit his earlier deportation in
his post-arrest statements or at trial. Nothing in the trial tran-
script suggests Becerril admitted being deported to the border
agent in the field, and he never returned with more evidence,
as the district court invited him to do, that he had made such
an admission. Accordingly, the district court did not clearly
err when it denied the downward adjustment. See United
States v. Cantrell, 433 F.3d 1269, 1284-86 (9th Cir. 2006).
D. Reasonableness
Finally, Becerril claims that his 100-month sentence was
unreasonable. He contends the district court (1) treated the
Guideline range as presumptively reasonable; (2) failed to
consider the factors in 18 U.S.C. § 3553(a); and (3) imposed
a sentence that was excessive in comparison to those received
by defendants with similar criminal histories. We review for
abuse of discretion, and will not reverse unless the sentence
was procedurally erroneous or substantively unreasonable.
United States v. Carty, 520 F.3d 984, 993 (9th Cir. 2008).
Becerril’s first two arguments are procedural challenges. “It
would be a procedural error for a district court to . . . treat the
Guidelines as mandatory instead of advisory; to fail to con-
sider the § 3553(a) factors; . . . or to fail adequately to explain
the sentence selected.” Id. at 993. However, we have empha-
sized that
[w]hat constitutes a sufficient explanation will nec-
essarily vary depending upon the complexity of the
particular case, whether the sentence chosen is inside
or outside the Guidelines, and the strength and seri-
ousness of the proffered reasons for imposing a sen-
tence that differs from the Guidelines range. A
within-Guidelines sentence ordinarily needs little
UNITED STATES v. BECERRIL-LOPEZ 11933
explanation unless a party has requested a specific
departure, argued that a different sentence is other-
wise warranted, or challenged the Guidelines calcu-
lation itself as contrary to § 3553(a). This is because
both the Commission and the sentencing judge have
determined that the sentence comports with the
§ 3553(a) factors and is appropriate in the ordinary
case.
Id. at 992.
Here, the district court stated on the record that it consid-
ered the § 3553(a) factors, and indicated that it considered the
most salient feature of Becerril’s individual circumstances to
be his extensive criminal history. The court explained that it
used the Guidelines range as a starting point in determining
the sentence, and simply did not find the case to warrant a
departure.
We have little trouble concluding that this explanation was
sufficient. The sentence fell at the low end of the applicable
Guidelines range, and Becerril specifically argued for “the
low end” in both his sentencing memorandum and at the sen-
tencing hearing. The court did not consider the Guidelines
range to be presumptively reasonable, and no more explana-
tion was needed to indicate consideration of the § 3553(a) fac-
tors. See id. (“The district court need not tick off each of the
§ 3553(a) factors to show that it has considered them.”).
Given the parties’ agreement that a low-end sentence was
appropriate, further commentary from the bench was simply
unnecessary.
[19] Finally, the district court was well within its discretion
to reject Becerril’s argument that his sentence would create
unwarranted disparities with other § 1326 defendants. See 18
U.S.C. § 3553(a)(6). As it is on appeal, Becerril’s argument
was conclusory and offered no meaningful way for the district
court to gauge the discrepancies that the sentence would
11934 UNITED STATES v. BECERRIL-LOPEZ
create, if any. Indeed, in the absence of any compelling argu-
ment about Becerril’s particular circumstances, we have trou-
ble imagining why a sentence within the Guidelines range
would create a disparity, since it represents the sentence that
most similarly situated defendants are likely to receive. See
Carty, 520 F.3d at 988 (“[W]e recognize that a correctly cal-
culated Guidelines sentence will normally not be found unrea-
sonable on appeal.”). Accordingly, the 100-month sentence
was not unreasonable.
Because we reject each of Becerril’s challenges, his convic-
tion and sentence are AFFIRMED.