Court Holds That Robbery Under Tex. Penal Code § 29.02(a)(1) is a 16-Level COV Under §2L1.2

United States v. Santiesteban-Hernandez, No. 05-50399 (5th Cir. Oct. 31, 2006) (King, Garwood, Jolly)

As you know from the title of this post, the court holds in this case that Santiesteban's prior conviction for robbery under Tex. Penal Code § 29.02(a)(1) is the equivalent of generic burglary and therefore a 16-level crime of violence under U.S.S.G. §2L1.2(b)(1)(A)(ii). Let's see why:

Subsection (a)(1) of the Texas § 29.02 defines robbery in terms of causing bodily injury to another in the course of committing a theft. As the court points out, that is a minority position among the states: "The majority of states require property to be taken from a person or person's presence by means of force or putting in fear. Texas, the Model Penal Code, and ten other states differ somewhat in that they define the immediate danger in terms of bodily injury." Slip op. at 8 (citations omitted). Under the Taylor categorical approach, that should mean that the Texas statute is not the equivalent of generic robbery because it criminalizes some conduct that would not be a crime under the robbery definition followed by the large majority of states.

But that's not how the court resolves the question. Instead of comparing the different conduct encompassed by the two different approaches, the court measures the Texas statute against a more abstract description of robbery drawn from commentary in La Fave's Substantive Criminal Law and the Model Penal Code. Both of those sources refer to robbery as a theft which presents some immediate danger to another person. The court then concludes that "force or fear" and "bodily injury" are "two sides of the same coin[,]" that coin being "immediate danger." Slip op. at 9-10.