United States v. Florentino Marquez-Lobos , 683 F.3d 1061 ( 2012 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,  No. 10-10470
Plaintiff-Appellee, D.C. No.
v.  2:09-cr-01584-
FLORENTINO MARQUEZ-LOBOS, ROS-1
Defendant-Appellant.
 OPINION
Appeal from the United States District Court
for the District of Arizona
Roslyn O. Silver, District Judge, Presiding
Argued and Submitted
March 12, 2012—San Francisco, California
Filed June 19, 2012
Before: John T. Noonan, Jr., M. Margaret McKeown, and
Milan D. Smith, Jr., Circuit Judges.
Opinion by Judge Milan D. Smith, Jr.
7075
UNITED STATES v. MARQUEZ-LOBOS 7077
COUNSEL
Randall M. Howe (argued), Krissa Marie Lanham, and Den-
nis Burke, Office of the United States Attorney, Phoenix, Ari-
zona, for plaintiff-appellee United States of America.
Theron M. Hall III (argued), The Hall Law Firm, P.C., Phoe-
nix, Arizona, for defendant-appellant Florentino Marquez-
Lobos.
OPINION
M. SMITH, Circuit Judge:
Florentino Marquez-Lobos appeals the 16-level enhance-
ment of his sentence due to his prior 1985 conviction for kid-
napping, under Arizona Revised Statute (ARS) § 13-1304.
The district court found that his prior kidnapping conviction
was a “crime of violence,” as defined under the United States
Sentencing Guidelines, U.S.S.G. § 2L1.2(b)(1)(A), and sen-
tenced him to a term of 58 months in prison for illegally
7078 UNITED STATES v. MARQUEZ-LOBOS
entering the country after deportation. On appeal, Marquez-
Lobos contends that ARS § 13-1304 does not meet the
generic definition of kidnapping, and therefore does not qual-
ify as a “crime of violence” under either the categorical or
modified categorical approach.
In United States v. Gonzalez-Perez, 472 F.3d 1158, 1161
(9th Cir. 2007), we held that the generic definition of kidnap-
ping “encompasses, at a minimum, the concept of a ‘nefarious
purpose’ motivating restriction of a victim’s liberty” in addi-
tion to “the unlawful deprivation of another person’s liberty
of movement.” We hold that ARS § 13-1304 categorically
meets this generic definition, and we affirm Marquez-Lobos’s
sentence.
FACTUAL AND PROCEDURAL BACKGROUND
Marquez-Lobos pled guilty to illegal re-entry after deporta-
tion, in violation of 8 U.S.C. § 1326(a). The probation office
calculated the Sentencing Guidelines in the Presentence
Report (PSR) as follows:
Base Offense Level: 8
Specific Offense Characteristics: 16
Adjusted Offense Level 24
Acceptance of Responsibility -3
Total Offense Level 21
The PSR recommended a 16-level enhancement because
Marquez-Lobos’s 1985 conviction for kidnapping under ARS
§ 13-1304 constituted a “crime of violence” under U.S.S.G.
§ 2L1.2(b)(1)(A). Marquez-Lobos objected to this enhance-
ment at sentencing, but the district court overruled his objec-
tion, and sentenced Marquez-Lobos to a term of 58 months.
Marquez-Lobos appealed.
JURISDICTION AND STANDARD OF REVIEW
We have jurisdiction under 28 U.S.C. § 1291.
UNITED STATES v. MARQUEZ-LOBOS 7079
We review de novo whether a conviction constitutes a
“crime of violence” under the Sentencing Guidelines. United
States v. Hermoso-Garcia, 413 F.3d 1085, 1089 (9th Cir.
2005).
DISCUSSION
I. Sentencing Guidelines and Arizona Revised Statute
§ 13-1304
[1] The crime of unlawfully entering the United States
under 8 U.S.C. § 1326 carries a base offense level of 8 under
the Sentencing Guidelines. U.S.S.G. § 2L1.2(a). A defen-
dant’s base offense level may be increased by 16 levels if he
has a prior felony conviction that qualifies as a “crime of vio-
lence.” Id. § 2L1.2(b)(1)(A). The Sentencing Guidelines
define a “crime of violence” as:
[A]ny 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, extor-
tion, 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. § 2L1.2 Application Notes 1.B.iii (emphasis added).
The PSR cited Marquez-Lobos’s prior conviction under
ARS § 13-304, which, at the time of Marquez-Lobos’s con-
viction, read as follows:
A. A person commits kidnapping by knowingly
restraining another person with the intent to:
7080 UNITED STATES v. MARQUEZ-LOBOS
1. Hold the victim for ransom, as a shield
or hostage; or
2. Hold the victim for involuntary servi-
tude; or
3. Inflict death, physical injury or a sexual
offense on the victim, or to otherwise
aid in the commission of a felony; or
4. Place the victim or a third person in
reasonable apprehension of imminent
physical injury to the victim or the
third person; or
5. Interfere with the performance of a
governmental or political function; or
6. Seize or exercise control over any air-
plane, train, bus, ship or other vehicle.
B. Kidnapping is a class 2 felony unless the victim
is released voluntarily by the defendant without
physical injury in a safe place before arrest and
before accomplishing any of the further enumerated
offenses in subsection A of this section in which
case it is a class 4 felony. If the victim is released
pursuant to an agreement with the state and without
any physical injury, it is a class 3 felony. If the vic-
tim is under fifteen years of age kidnapping is a class
2 felony punishable pursuant to § 13-705. The sen-
tence for kidnapping of a victim under fifteen years
of age shall run consecutively to any other sentence
imposed on the defendant and to any undischarged
term of imprisonment of the defendant.
ARS § 13-1304 (emphasis added).
UNITED STATES v. MARQUEZ-LOBOS 7081
Arizona defines the term “restrain” as follows:
“Restrain” means to restrict a person’s movements
without consent, without legal authority, and in a
manner which interferes substantially with such per-
son’s liberty, by either moving such person from one
place to another or by confining such person.
Restraint is without consent if it is accomplished by:
(a) Physical force, intimidation or decep-
tion; or
(b) Any means including acquiescence of
the victim if the victim is a child less than
eighteen years old or an incompetent person
and the victim’s lawful custodian has not
acquiesced in the movement or confine-
ment.
ARS § 13-1301(2) (emphasis added).
II. Taylor Categorical Framework
We apply the categorical and modified categorical
approaches set forth in Taylor v. United States, 495 U.S. 575(1990), to determine whether a defendant’s prior conviction
constitutes a “crime of violence” for the purposes of U.S.S.G.
§ 2L1.2(b)(1)(A). United States v. Pimentel-Flores, 339 F.3d
959, 968 (9th Cir. 2003). We first apply the categorical analy-
sis. Under this approach, we “do not examine the facts under-
lying the prior offense, but look only to the fact of conviction
and the statutory definition of the prior offense.” Id. at 967(quoting United States v. Corona-Sanchez, 291 F.3d 1201,
1203 (9th Cir. 2002) (en banc), superseded on other grounds
by U.S.S.G. § 2L.1, CMT n. 4 (2002)). If the statutory defini-
tion of the prior offense criminalizes conduct that would not
constitute a “crime of violence,” then the statute is not a cate-
gorical fit, and we must consider whether the prior conviction
7082 UNITED STATES v. MARQUEZ-LOBOS
may still be used for a sentencing enhancement under the
modified categorical approach. Pimentel-Flores, 339 F.3d at
967. Under this approach, a prior conviction may only be used
for a sentencing enhancement if “the record includes docu-
mentation or judicially noticeable facts that clearly establish
that the conviction is a predicate for enhancement purposes.”
Id. (quoting Corona-Sanchez, 291 F.3d at 1203).
Finally, if both the statute and the documents containing
judicially noticeable facts would allow the defendant to be
convicted of an offense that would not be a “crime of vio-
lence,” then the sentencing enhancement may not be applied.
See Corona-Sanchez, 291 F.3d at 1203-04.
III. Categorical Analysis
To apply the categorical analysis in this case, we compare
the statute that Marquez-Lobos violated—ARS § 13-1304—
with the generic definition of a “crime of violence,” and
determine if there is a categorical fit. In other words, does all
conduct that could be criminalized under ARS § 13-1304 con-
stitute a “crime of violence?”
Marquez-Lobos first urges us to ignore the PSR’s reference
to ARS § 13-1304 because the PSR did not specify the sub-
section of the statute under which Marquez-Lobos was previ-
ously convicted. He equates this general statutory reference in
the PSR with not referring to a statute at all. In Pimentel-
Flores, the PSR only stated that the defendant had a prior con-
viction for “assault in violation of court order, a felony,” and
did not list a corresponding statutory provision for the convic-
tion. 339 F.3d at 967-68. We held that it was improper for the
sentencing court to rely only on this factual description, with-
out referring to any statute. Id. We reject Marquez-Lobos’s
attempt to expand our holding in Pimentel-Flores to the facts
in this case because a statute (ARS § 13-1304) was clearly
listed in the PSR here. Marquez-Lobos is correct that the PSR
did not limit the conviction to one of the six possible subsec-
UNITED STATES v. MARQUEZ-LOBOS 7083
tions under ARS § 13-1304(A), but that fact is meaningless
here because we conclude that the proper way to apply the
categorical analysis in this case is to consider the statute as a
whole. In other words, we must consider whether a conviction
under any subsection of ARS § 13-1304 necessarily would
constitute a “crime of violence.”
ARS § 13-1304 could qualify categorically as a “crime of
violence” in one of two ways. First, it could qualify if it has
“an element of use, attempted use or threatened use of physi-
cal force against the person of another.” Gonzalez-Perez, 472
F.3d at 1160. Second, it could qualify if it constitutes “kid-
napping in its generic sense.” Id.A. Element of Force
[2] The force necessary to qualify as a crime of violence
must actually be “violent in nature.” Gonzalez-Perez, 472
F.3d at 1160 (quoting United States v. Lopez-Montanez, 421
F.3d 926, 929 (9th Cir. 2005)). We held in Gonzalez-Perez
that a Florida false imprisonment statute did not have an ele-
ment of force because the confinement could be done “secret-
ly.” Id.[3] Similarly, Arizona courts have held that kidnapping
under ARS § 13-1304 may be “committed without the use or
threat of violence.” State v. Bible, 175 Ariz. 549, 604 (1993).
Furthermore, the Arizona courts have held that when the vic-
tim is a minor who is less than 18 years old or incompetent,
“the question whether physical force, intimidation, or decep-
tion has been used is immaterial. The key to establishing lack
of consent is non-acquiescence by the lawful custodian.” State
v. Viramontes, 163 Ariz. 334, 336 (1990). Thus, because there
are situations where one may be convicted of kidnapping
under ARS § 13-1304 where there is no use or threat of vio-
lence, we find that the required element of physical force is
missing from the statute.
7084 UNITED STATES v. MARQUEZ-LOBOS
B. Generic Definition of Kidnapping
In order to determine whether ARS § 13-1304 constitutes
“kidnapping in its generic sense,” we must first determine the
generic definition of kidnapping.
The label a state uses for a crime does not control whether
the crime fits the generic definition. Taylor, 495 U.S. at 599.
Rather, we “derive the crime’s uniform meaning from the
generic, contemporary meaning employed by most states,
guided by scholarly commentary.” United States v. Esparza-
Herrera, 557 F.3d 1019, 1023 (9th Cir. 2009) (quoting United
States v. Gomez-Leon, 545 F.3d 777, 790 (9th Cir. 2008)).
The Model Penal Code (MPC) may “serve[ ] as an aid.”
United States v. Rodriguez-Guzman, 506 F.3d 738, 744 (9th
Cir. 2007). Ultimately, we derive the meaning of the enumer-
ated Guidelines crime not by the ordinary meaning of the
crime, but by surveying the Model Penal Code and state stat-
utes to determine how they define the offense. Esparza-
Herrera, 557 F.3d at 1023.
[4] We addressed the generic definition of kidnapping in
Gonzalez-Perez, and held that the generic definition of kid-
napping “encompasses, at a minimum, the concept of a
‘nefarious purpose’ motivating restriction of a victim’s liber-
ty” along with “the unlawful deprivation of another person’s
liberty of movement.” 472 F.3d at 1161. We hold that ARS
§ 13-1304 meets the generic definition of kidnapping, as
defined in Gonzalez-Perez.
i. Nefarious Purpose
[5] First, ARS § 13-1304 includes the element of the “con-
cept of a ‘nefarious purpose.’ ” It is not enough for a perpetra-
tor to simply act to restrain another person. Rather, ARS § 13-
1304(A) requires that the perpetrator act with one or more of
six enumerated purposes set forth in the section of the statute
before his act can constitute kidnapping. See supra. Our con-
UNITED STATES v. MARQUEZ-LOBOS 7085
clusion is consistent with the reasoning of other circuits, who
have themselves listed ARS § 13-1304 as a statute requiring
a nefarious purpose, when conducting a Taylor analysis of
other kidnapping statues. See, e.g., United States v. Soto-
Sanchez, 623 F.3d 317, 322 (6th Cir. 2010) (including ARS
§ 13-1304 in a survey of state statutes that “require a specific,
‘nefarious’ purpose other than merely restraining the victim”);
United States v. De Jesus Ventura, 565 F.3d 870, 876 n.5
(D.C. Cir. 2009) (same).
Marquez-Lobos’s only argument to the contrary is that the
nefarious purposes enumerated in ARS § 13-1304 are broader
than those contained in the generic definition of kidnapping.
However, Marquez-Lobos fails to indicate what nefarious
purposes he believes are contained in the generic definition of
kidnapping. We clarified in Gonzalez-Perez that all that is
required is a “concept” of a nefarious purpose—an additional,
specific purpose other than restraint of the victim. 472 F.3d at
1161. We did not outline a specific list of such purposes.
This approach is consistent with the approach taken by
other circuits. See Soto-Sanchez, 623 F.3d at 323 (finding that
the generic definition of kidnapping requires “more than
unlawful confinement or restraint of the victim,” but declining
to limit the generic definition to only the specific nefarious
purposes identified in the MPC); De Jesus Ventura, 565 F.3d
at 876 (finding that a majority of jurisdictions define kidnap-
ping to include a criminal purpose and while some states limit
to the purposes in the MPC, others do not). Accordingly, we
reject Marquez-Lobos’s argument, and find that ARS § 13-
1304 meets the “nefarious purpose” requirement included in
the generic definition of kidnapping.
ii. Unlawful Deprivation of Liberty
[6] We also conclude that ARS § 13-1304 contains the
required element of “the unlawful deprivation of another per-
son’s liberty of movement.” Gonzalez-Perez, 472 F.3d at7086 UNITED STATES v. MARQUEZ-LOBOS
1161. ARS § 13-1304 states that “[a] person commits kidnap-
ping by knowingly restraining another person,” and further
defines “restrain” as “restrict[ing] a person’s movements
without consent, without legal authority, and in a manner
which interferes substantially with such person’s liberty, by
either moving such person from one place to another or by
confining such person.” (emphasis added).
Marquez-Lobos contends that the way “restraint” is defined
in ARS § 13-1304 is broader than how it is defined under the
generic definition of kidnapping. The Arizona statutes define
“restraint without consent” as restraint that is accomplished
by:
(a) Physical force, intimidation or deception; or
(b) Any means including acquiescence of the victim
if the victim is a child less than eighteen years old
or an incompetent person and the victim’s lawful
custodian has not acquiesced in the movement or
confinement.
Ariz. Rev. Stat. § 13-1301(2). Marquez-Lobos asserts that the
wording of § 13-1301(2)(b) would include in the definition of
kidnapping a situation where a person is confined or moved—
regardless of whether he or she consented—if the person is
underage or incompetent and the legal guardian does not con-
sent. He contends that the Arizona statute defines this age of
consent to be 18, whereas it is lower (in the 13-16 age range)
in a slight majority of other states, and thus, it is broader than
what should be included in the generic definition.
Marquez-Lobos argues that a slight majority of states (28)
and the MPC have a provision similar to ARS § 13-1304,
which sets an age when guardian consent is required. Four of
these states set the age at 18, as does Arizona. The applicable
age in the 24 remaining states, out of the 28, varies from 13
to 16. Even assuming that the failure of the remaining 22
UNITED STATES v. MARQUEZ-LOBOS 7087
states to include an age requirement does not doom Marquez-
Lobos’s argument that an age of consent requirement is a nec-
essary element of the generic crime of kidnapping, it is hardly
clear that the generic definition incorporates a specific age of
consent, given the varied approach of the states to the require-
ment.
At least one other circuit has suggested that a minor’s inca-
pacity should be considered when determining whether a
crime fits the generic elements of kidnapping, but has also
refrained from requiring a specific age.
The Fifth Circuit held in United States v. Iniguez-Barba,
485 F.3d 790 (5th Cir. 2007), that the New York kidnapping
statute meets the generic definition of kidnapping. The New
York statute, like ARS § 13-1304, contains a provision requir-
ing guardian consent for minors under a certain age, but
defined that age to be 16.1 Id. at 791. A previous Fifth Circuit
case had already held that the Tennessee statute for kidnap-
1
In Iniguez-Barba, the defendant was convicted of a statute stating that
“a person is guilty of kidnapping in the second degree when he abducts
another person.” 485 F.3d at 791 (citing N.Y. Penal Law § 135.20).
Abduct was defined as “to restrain a person with intent to prevent his lib-
eration by either (a) secreting or holding him in a place where he is not
likely to be found, or (b) using or threatening to use deadly physical
force.” Id. In turn, restrain was defined to mean:
restrict a person’s movements intentionally and unlawfully in
such manner as to interfere substantially with his liberty by mov-
ing him from one place to another, or by confining him either in
the place where the restriction commences or in a place to which
he has been moved, without consent and with knowledge that the
restriction is unlawful. A person is so moved or confined “with-
out consent” when such is accomplished by (a) physical force,
intimidation or deception, or (b) any means whatever, including
acquiescence of the victim, if he is a child less than sixteen years
old or an incompetent person and the parent, guardian or other
person or institution having lawful control or custody of him has
not acquiesced in the movement or confinement.
Id. (emphasis added).
7088 UNITED STATES v. MARQUEZ-LOBOS
ping met the generic definition of kidnapping. See United
States v. Gonzalez-Ramirez, 477 F.3d 310 (5th Cir. 2007).
The Tennessee statute had a similar age provision, but set the
age at 13. Id. at 314-15. In analyzing the New York statute in
light of its previous ruling on the Tennessee statute, the
Iniguez-Barba court noted that both statutes required “know-
ing removal or confinement” and “substantial interference
with the victim’s liberty.” 485 F.3d at 791-92. The court next
observed that the New York statute also included the require-
ment in the Tennessee statute that the offense include “force,
threat, or fraud, or . . . if the victim is incompetent or under
age thirteen, lack of consent from the person responsible for
the general supervision of the victim’s welfare.” Id. at 792. In
doing so, the court did not mention the difference between the
statutes in terms of the age of the victim. Were we to agree
with Marquez-Lobos’s argument, the New York statute set-
ting the age at 16 would be broader than the Tennessee statute
setting the age at 13, and the court would have had to survey
the ages from other states to determine if 16 was too broad for
a categorical match. However, this difference is irrelevant
because the Fifth Circuit court found it unnecessary to include
the actual age of the victim in its analysis. Instead, the court
considered the elements more broadly, to include “force,
threat, or fraud or, for children or incompetents, lack of valid
consent.” Id. In doing so, the court framed the element
addressing “consent” to be when someone is a minor or
incompetent—without requiring a specific age for when a
minor becomes competent—as part of the generic definition.
In a later case, the Fifth Circuit reiterated its holding that kid-
napping need only include 1) knowing removal or confine-
ment, 2) substantial interference with the victim’s liberty, and
3) force, threat or fraud, or if the victim is incompetent or
under age, lack of consent. United States v. Cervantes-Blanco,
504 F.3d 576, 585 (5th Cir. 2007); see also United States v.
Moreno-Florean, 542 F.3d 445, 454 (5th Cir. 2008) (shortcut-
ting the last element to “force, threat, or fraud”).2
2
The Fifth Circuit does not require a nefarious purpose, as we did in
Gonzalez-Perez, so the generic definition from the cited Fifth Circuit cases
UNITED STATES v. MARQUEZ-LOBOS 7089
Finally, even if Marquez-Lobos is correct that the Arizona
statute sweeps more broadly than the generic crime, the
Supreme Court has instructed us to look to “the ordinary
case” in determining whether a particular offense is a crime
of violence. James v. United States, 550 U.S. 192, 208 (2007).
Marquez-Lobos does not suggest that the kidnapping cases
ordinarily prosecuted under the Arizona statute involve
minors over the generic age of consent—whatever that age is.
Indeed, he does not provide us with a single case in which
such a prosecution occurs.
[7] We therefore decline to narrow the generic definition
of kidnapping from the one included in Gonzalez-Perez, and
we hold that ARS § 13-1304 contains all the elements
required to meet the generic definition of kidnapping.3
Accordingly, Marquez-Lobos’s prior conviction under ARS
§ 13-1304 categorically qualifies as a “crime of violence,”
and his 16-level sentence enhancement was properly imposed.
CONCLUSION
We hold that Arizona Revised Statute § 13-1304, categori-
cally meets the generic definition of kidnapping, and we
AFFIRM Marquez-Lobo’s sentence.
conflict with our case law to that extent. However, we see no reason to
reinterpret our view of the meaning of the unlawful restraint element of
the crime.
3
Because we find that ARS § 13-1304 categorically meets the generic
definition of kidnapping, we do not engage in any modified categorical
analysis.