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United States v. Jonathan Sanchez-Ramos , 642 F. App'x 326 ( 2016 )


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  •      Case: 15-40806      Document: 00513425073         Page: 1    Date Filed: 03/15/2016
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 15-40806                                  FILED
Summary Calendar                          March 15, 2016
Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
JONATHAN SANCHEZ-RAMOS,
Defendant-Appellant
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 7:14-CR-1655
Before REAVLEY, SMITH, and HAYNES, Circuit Judges.
PER CURIAM: *
Jonathan Sanchez-Ramos appeals the sentence imposed following his
guilty plea to being unlawfully present in the United States in October 2014
after he had been deported, in violation of
    8 U.S.C. § 1326
    . He argues that the
district court erred in applying a 16-level enhancement for a crime of violence
enumerated in the commentary to U.S.S.G. § 2L1.2, based on his 2005 New
York conviction of attempted robbery in the second degree.
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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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No. 15-40806
Neither his arguments nor his objections were sufficient to put the
district court on notice of the arguments Sanchez-Ramos now makes on appeal.
See FED. R. CRIM. P. 51(b); see also United States v. Chavez-Hernandez,
    671 F.3d 494
    , 497-99 (5th Cir. 2012); United States v. Neal,
    578 F.3d 270
    , 272 (5th
Cir. 2009). Accordingly, we review for plain error. See Puckett v. United States,
    556 U.S. 129
    , 135 (2009). To establish plain error, Sanchez-Ramos must show
a forfeited legal error that is clear or obvious, i.e., not subject to reasonable
dispute, and that affects his substantial rights. See
    id.
     If he makes such a
showing, this court has the discretion to correct the error but will do so only if
it seriously affects the fairness, integrity, or public reputation of judicial
proceedings.
    Id.
    Sanchez-Ramos argues that the New York definitions of “robbery” and of
“attempt” do not meet the generic, contemporary meanings of those terms. See
N.Y. PENAL LAW ¶¶ 110.00, 160.00, 160.10 (West 2005). Robbery is an offense
defined at common law, and this court has derived its generic, contemporary
meaning from “definitions in the variety of state codes, the Model Penal Code,
federal law, and criminal law treatises.” United States v. Rodriguez,
    711 F.3d 541
    , 552 n.16, 553 n.17, 558 (5th Cir. 2013) (en banc); see United States v.
Santiesteban-Hernandez,
    469 F.3d 376
    , 380-81 (5th Cir. 2006), abrogated on
other grounds by Rodriguez. “[T]he 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,” such
as taking property from a person or a person’s presence by means of force or
putting in fear, as in New York’s § 160.00. Santiesteban-Hernandez,
    469 F.3d at 
    380 & n.5.
While Sanchez-Ramos acknowledges this court’s precedent, he argues
that robbery under New York law does not meet the generic, contemporary
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No. 15-40806
definition of robbery set forth in the Model Penal Code § 222.1, which requires
the actual or threatened infliction of serious bodily injury. He gives no reason
why we are not bound by the definition set forth in Santiesteban-Hernandez.
See United States v. Treft,
    447 F.3d 421
    , 425 (5th Cir. 2006) (“Absent an
intervening Supreme Court or en banc decision or a change in statutory law,”
this court is “bound to follow a prior panel’s decision.”). Accordingly, he has
not shown that the district court erred by determining that his New York
robbery offense qualified as robbery, an enumerated crime of violence.
The generic form of attempt requires a mens rea of intent to commit some
other crime and an actus reus of a substantial step that “must both (1) be an
act strongly corroborative of the actor’s criminal intent and (2) amount to more
than mere preparation.” United States v. Sanchez,
    667 F.3d 555
    , 561-63 (5th
Cir. 2012) (quote at 563). Sanchez-Ramos addresses only the substantial step
requirement and argues that the language of the New York attempt statute,
    N.Y. Penal Code § 111.00
    , appears to cover any conduct, however slight, that
tends to effect the crime and thus is broader than the substantial step required
under the contemporary, generic meaning of attempt.           Circuits that have
addressed this issue have determined that, in practice, New York requires
conduct equivalent to the generic substantial step. United States v. Rivera-
Ramos,
    578 F.3d 1111
    , 1114 (9th Cir. 2009); United States v. Fernandez-
Antonia,
    278 F.3d 150
    , 162-63 (2d Cir. 2002). Sanchez-Ramos has not cited
any authority which has held to the contrary. As such, he has not shown that
the district court committed any error in concluding that his attempt to commit
second degree robbery qualified as an enumerated crime of violence.            See
§ 2L1.2, comment. (n.1(B)(iii)), (n.5); see Puckett,
    556 U.S. at 135
    .
The judgment of the district court is AFFIRMED.
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