Defendant-Appellant Anastacio GarciaCaraveo appeals the sentence he received after pleading guilty to illegal reentry, following deportation, under 8 U.S.C. § 1326(a) and (b). The base offense level for this crime under the sentencing guidelines is eight. The PSR recommended a sixteen-point increase based on U.S.S.G. § 2L1.2(b)(l)(A)(ii), which provides that the court should increase a defendant’s offense level for illegal reentry by sixteen points if the defendant has been deported *1232 after committing a “crime of violence.” Without objection, the district court relied on Garcia-Caraveo’s prior conviction in California for robbery to sustain this increase. On appeal, Garcia-Caraveo argues that it was plain error for the court to rely on his California robbery conviction to sustain this enhancement, because that offense did not constitute a “crime of violence” under U.S.S.G. § 2L1.2(b)(l)(A)(ii). Exercising the jurisdiction granted us by 28 U.S.C. § 1291, we AFFIRM.
I. Background
Garcia-Caraveo pled guilty to a one-count information charging him with illegal reentry into the United States under 8 U.S.C. § 1326(a) and (b). His base offense level for illegal reentry was eight. See U.S.S.G. § 2L1.2(a). The presentence investigation report (PSR) recommended adding sixteen offense levels based on U.S.S.G. § 2L1.2(b)(l)(A)(ii), which provides that the court should increase a defendant’s offense level for illegal reentry by sixteen points if the defendant has previously been deported after committing a “crime of violence.” The PSR noted that Garcia-Caraveo had been deported subsequent to a conviction for felony robbery in California and, therefore, was subject to this sixteen-point increase. The PSR further recommended a three-level reduction for acceptance of responsibility under § 3E1.1, so Garcia-Caraveo’s final recommended offense level was twenty-one. The PSR calculated Garcia-Caraveo’s criminal history category as III. His Guidelines sentence range was, therefore, 46-57 months.
Garcia-Caraveo objected to the sixteen-level increase before the district court, but argued only that his conviction for felony robbery in California occurred approximately fifteen years before he was deported, and so that deportation should not be considered “subsequent to” his felony conviction. At his sentencing hearing, the district court agreed to modify the relevant language in the PSR to read that he was “deported on May 17, 2000, after a conviction in 1986 for robbery.” (ROA Vol. Ill at 8.) Garcia-Caraveo agreed that this amendment resolved the concerns he had raised in his objection to the PSR. The district court then sentenced Garcia-Caraveo to forty-six months, the bottom end of the Guidelines range. This timely appeal followed.
II. Analysis
A. Standard of Review
For the first time in this appeal, Garcia-Caraveo argues that his felony robbery conviction in California does not constitute a “crime of violence” under Guidelines § 2L1.2(b)(l)(A)(ii). Typically, the interpretation of a provision of the Sentencing Guidelines would be a question of law that we would review
de novo. See United States v. Zuniga-Soto,
B. Garciaj-Caraveo’s Conviction for Robbery in California Constituted a Conviction for a “Crime of Violence” Under U.S.S.G. § 2Ll.2(b) (1) (A)(ii)
Our first step in conducting plain-error review is to determine whether the district *1233 court committed error at all, and we conclude that it did not. Garcia-Caraveo argues that his 1986 conviction for robbery-in California should not subject him to the sixteen-level increase for prior commission of a crime of violence. See U.S.S.G. § 2L1.2(b)(l)(A)(ii). The Guidelines’ commentary on § 2L1.2(b)(l)(A) provides that a “crime of violence” includes:
any of the following offenses under federal, state, or local law: Murder, manslaughter, kidnapping, aggravated assault, forcible sex offenses (including where consent to the conduct is not given or is not legally valid, such as where consent to the conduct is involuntary, incompetent, or coerced), statutory rape, sexual abuse of a minor, robbery, arson, extortion, extortionate extension of credit, burglary of a dwelling, or 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.
Id. cmt. (l)(B)(iii) (emphasis added).
To determine whether a particular state’s criminal statute falls within the ambit of the term “crime of violence” under the Guidelines, we look not to how a state has labeled its statute, but rather consider whether the statute corresponds with the “uniform generic definition” of the crime, using the analytical framework set out in
Taylor v. United States,
Under California law, robbery is “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.” Cal.Penal Code § 211. The California courts have explained that the use of force or fear during either the perpetration of the theft, or while attempting to get away, converts a theft into a robbery.
See People v. Gomez,
At common law, however, robbery occurred only when the perpetrator used force or intimidation before or during the taking itself; force used to retain the property or to escape did not suffice to transform larceny into robbery. See 3 Wayne R. LaFave, Substantive Criminal Law § 20.3(e) (2d ed. 2003) (“[U]nder the traditional view it is not robbery to steal property without violence or intimidation ... although the thief later, in order to retain the stolen property or make good his escape, uses violence or intimidation upon the property owner.”). By defining as robbery crimes in which the accused uses force or violence either during the taking or the getting away, Garcia-Caraveo argues that California Penal Code § 211 is broader than the “uniform generic definition” of robbery. We disagree.
Before turning to the merits of this issue, we first note that this court’s decision in United States v. Servim-Acosta, 534 *1234 F.3d 1362 (10th Cir.2008) — although it dealt with nearly identical facts — does not dictate the outcome here. In ServinAcosta, the defendant pled guilty to illegal reentry. At sentencing, the district court increased his offense level by sixteen because he had been deported after being convicted of felony robbery in California, under California Penal Code § 211. Id. at 1364. On appeal, the defendant argued that the sixteen-level increase for a crime of violence was inappropriate because “the California [robbery] statute is broader than generic robbery.” Id. at 1366. Specifically, the defendant argued that “[t]he California statute is broader ... because it encompasses the use of force to effect an escape after the taking has occurred.” Id.
In
Servim-Acosta,
the government conceded that the California robbery statute was broader than the “uniform generic definition” of robbery. Nonetheless, the government argued that it should still constitute a “crime of violence” because “ ‘robbery’ is one of the felonies enumerated in § 2L1.2’s definition of
crime of violence
[and t]he fact that the robbery statute in California may not include the same application of force as a generic robbery is irrelevant.”
Servin-Acosta,
Turning to the merits, we conclude that California’s robbery statute, as interpreted by the California Supreme Court, is in line with the uniform generic definition of robbery and, therefore, that the sixteen-offense-level increase imposed by the district court was appropriate. While the old common law required that the force or violence used in a robbery occur before or during the taking of property, “a different result is often possible today as a result of legislative or judicial adoption of a continuing offense theory of the crime.” 3 La-Fave,
supra,
§ 20:3(e). Under this theory, a robbery “has occurred not only if the perpetrator uses force or intimidation to take possession of the property, but also if force or intimidation is used to retain possession immediately after the taking, or to carry away the property, or to facilitate escape,” because “a ‘taking’ is not complete ... until the perpetrator has neutralized any immediate interference with his or her possession.”
State v. Mitchell,
Surveying the landscape of state criminal codes, we first note that few states still adhere to the old strict common law requirement of prior or contemporaneous force. Only five states — Georgia, Kansas, Mississippi, New Mexico, and Tennessee— clearly maintain the rule that, in order to commit robbery, the perpetrator must use force before or during the taking itself.
See Hicks v. State,
Next, twelve states have adopted an intermediate position, holding — with some variation' — that force used after the taking to retain property can support a charge of robbery, but force used merely in the course of escape cannot.
See
Alaska Stat. § 11.41.510; Conn. Gen.Stat. § 53a-133; Me.Rev.Stat. Ann. tit. 17-A, § 651; Okla. Stat. tit. 21, § 792; S.D. Codified Laws § 22-30-2; Wis. Stat. § 943.32(l)(a);
State v. Kvale,
There are, thus, thirty-one remaining states
3
that have, either through legislative enactment or by judicial decision, adopted the continuing offense theory of robbery.
See
Ala.Code § • 13A-8-43; Ariz. Rev.Stat. Ann. § 13-1901(2); Ark.Code Ann. § 5-12-102(a); CaLPenal Code
*1236
§ 211; Del.Code Ann. tit. 11, § 831(b); Fla. Stat. § 812.13(3)(a); Haw.Rev.Stat. § 708-842; Iowa Code § 711.1; Mich. Comp. Laws § 750.530(2); Mont.Code Ann. § 45-5-401(3); Nev.Rev.Stat. § 200.380(l)(c); N.H.Rev.Stat. Ann. § 636:1(11); N.J. Stat. Ann. § 2C:15-l(a); N.D. CentCode § 12.1-22-01(3)(a); Ohio Rev.Code Ann. § 2911.02(A); 18 Pa. Cons. Stat. Ann. § 3701(a)(2); Tex. Penal Code Ann. § 29.01; Utah Code Ann. § 76-6-301(2)(c); Wyo. Stat. Ann. § 6-2-401(d);
People v. Villalobos,
Further, distinguished secondary sources also support our conclusion that the uniform generic definition of robbery incorporates the continuing offense theory. The Model Penal Code, for instance, holds that an act of force or violence “shall be deemed ‘in the course of committing a theft’ if it occurs in an attempt to commit theft or inflight after the attempt or commission.” Model Penal Code § 222.1 (emphasis added). Professor LaFave’s treatise deems the continuing offense theory “a desirable change” from the common law. 3 LaFave, supra, § 20.3(e). Another treatise points out:
[Conceptually, [the continuing offense theory] is not necessarily inconsistent with the common-law theory of robbery: A thief who finds it necessary to use force or threatened force after a taking of property in order to retain possession may in legal contemplation be viewed as one who never has the requisite dominion and control of the property to qualify as a “possessor.” Hence, it may be reasoned, the thief has not “taken” possession of the property until his use of force or threatened force has effectively cut off any immediate resistance to his “possession.”
4 Charles E. Torcia,
Wharton’s Criminal Law
§ 463 (15th ed.1996). Moreover, we note that our conclusion comports with the decisions of the other circuit courts to consider whether California Penal Code § 211 falls within the uniform generic definition of robbery with respect to the required timing of the use of force.
See United States v. Tellez-Martinez,
In light of this authority, we hold that, with respect to when the use or threat of force must occur, California Penal Code § 211 falls within the uniform generic definition of robbery, and thus is a “crime of violence” for the purposes of U.S.S.G. § 2L1.2(b)(l)(A)(ii).
4
Forty-three of the fifty states have rejected the old common-
*1237
law requirement that force must be used before or during the taking, and only five have explicitly retained it. Even in light of the rule of lenity, which counsels us to interpret ambiguous criminal statutes— which § 2L1.2 may be — in favor of the accused, Garcia-Caraveo’s side of the ledger comes up short.
See House v. Hatch,
C. Even if California’s Robbery Statute is Broader Than the Uniform Generic Definition of Robbery, Garcia-Caraveo has Failed to Show Plain Error
Had the sentencing court committed error in applying the sixteen-level increase in U.S.S.G. § 2L1.2, Garcia-Caraveo cannot demonstrate that that error would be plain. Drawing every conceivable inference in Garcia-Caraveo’s favor, at best he can point only to some uncertainty as to the breadth of California Penal Code § 211, as compared to generic robbery.
See Juarez-Galvan,
Given our conclusions that the district court did not commit error, and that even if it had, that error would not have been plain, we need not address Garcia-Caraveo’s arguments on the third and fourth elements of plain-error review.
III. Conclusion
Under the framework set out in Taylor, California Penal Code § 211 is not broader than the uniform, generic definition of robbery, and so it is a “crime of violence” for the purposes of U.S.S.G. § 2L1.2. Therefore, we AFFIRM Garcia-Caraveo’s sentence.
Notes
. In
Taylor,
the Supreme Court interpreted the “violent felony” provision of the Armed Career Criminal Act.
See Taylor,
. This court will often avoid accepting a party's concession of a legal matter, especially where that concession leads to reversal of the district court. See
United States v. Avery,
. Two states — Vermont and West Virginia— do not appear to have addressed the question of when the use of force must occur for the purposes of a robbery conviction. Each of those states, however, employs a common-law, rather than statutory, definition of the term robbery.
See State v. Francis,
. We take care to note, however, that our ruling is limited to the issue of the timing of the use or threat of force provided for in California Penal Code § 211. Whether the *1237 entirety of California's robbery statute is within the uniform generic definition of robbery is a question that is not before this court.