REVISED February 1, 2017
from the United States District Court for the Western
District of Texas
DAVIS, DENNIS, and SOUTHWICK, Circuit Judges.
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 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.
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,  and the judgment of conviction.
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. 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." The PSR further
determined that Montiel-Cortes's criminal history
category was IV and that his advisory guidelines range of
imprisonment was 57 to 71 months.
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.
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
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.
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."
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 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.
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.
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
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."
The Enumerated Offense of Robbery
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. Here, Montiel-Cortes argues
that the Nevada statute is broader than the generic,
contemporary meaning of robbery.
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. We have held that "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." The immediate