United States v. Marlon Flores-Granados

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 14-4249
UNITED STATES OF AMERICA,
Plaintiff − Appellee,
v.
MARLON FLORES−GRANADOS,
Defendant − Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Norfolk. Henry Coke Morgan, Jr.,
Senior District Judge. (2:13-cr-00120-HCM-TEM-1)
Argued: January 27, 2015 Decided: April 15, 2015
Before WILKINSON, KING, and DUNCAN, Circuit Judges.
Affirmed by published opinion. Judge Wilkinson wrote the
opinion, in which Judge King and Judge Duncan joined.
ARGUED: Caroline Swift Platt, OFFICE OF THE FEDERAL PUBLIC
DEFENDER, Alexandria, Virginia, for Appellant. Elizabeth Marie
Yusi, OFFICE OF THE UNITED STATES ATTORNEY, Norfolk, Virginia,
for Appellee. ON BRIEF: Michael S. Nachmanoff, Federal Public
Defender, Keith L. Kimball, Assistant Federal Public Defender,
OFFICE OF THE FEDERAL PUBLIC DEFENDER, Alexandria, Virginia, for
Appellant. Dana J. Boente, United States Attorney, OFFICE OF
THE UNITED STATES ATTORNEY, Alexandria, Virginia, for Appellee.
WILKINSON, Circuit Judge:
In 2013, Marlon Flores-Granados pled guilty to a single-
count indictment for illegal reentry into the United States
following deportation and a conviction for an aggravated felony.
See 8 U.S.C. § 1326(a), (b)(2). He now challenges his sentence,
specifically the 16-level enhancement that was applied pursuant
to the United States Sentencing Guidelines § 2L1.2(b)(1)(A)(ii)
for prior conviction of a “crime of violence.” We hold that
under North Carolina law a conviction for second-degree
kidnapping does constitute a crime of violence, and thus affirm
Flores-Granados’ sentence.
I.
Marlon Flores-Granados is a native and citizen of Honduras.
On August 13, 2006 he was arrested and charged with second-
degree kidnapping, assault with a deadly weapon with intent to
kill or inflict serious bodily injury, and other state charges.
He was convicted in February, 2007 of two counts of second-
degree kidnapping in violation of North Carolina General Statute
§ 14-39 and sentenced to 25-39 months of confinement and
probation. In March of 2007, he was removed from the United
States to Honduras by the Department of Homeland Security’s
Immigration and Customs Enforcement.
Flores-Granados reentered the United States illegally at
some point prior to August 5, 2013, when he was arrested for
2
possession of a controlled substance and assault and battery in
Virginia Beach, VA. He was charged in the Eastern District of
Virginia with Reentry of a Deported Alien in violation of 8
U.S.C. § 1326(a) and (b)(2) to which he pled guilty.
Flores-Granados’ presentence investigation report initially
recommended an 8-level enhancement for a previous conviction for
an aggravated felony under U.S.S.G. § 2L1.2(b)(1)(C). Following
an objection by the government, the probation office agreed that
Flores-Granados’ prior conviction for second-degree kidnapping
in North Carolina qualified as a prior conviction for a ‘crime
of violence’ under U.S.S.G. § 2L1.2(b)(1)(A)(ii) and thus a 16-
level enhancement should be applied instead. With the additional
enhancement, Flores-Granados had an Offense Level Total of 21
and a Criminal History Category of IV generating a recommended
Guidelines Range of 57-71 months.
At the sentencing hearing, the district court adopted the
presentence investigation report, noting that the defendant
objected to the 16-level enhancement, and wanted only the 8-
level enhancement instead. After argument from both parties, the
district judge agreed with the government that the 16-level
enhancement was proper, finding that defendant’s conviction
under § 14-39 for second-degree kidnapping was in fact a crime
of violence under the Guidelines. The court stated that:
3
[T]he Court should not simply accept the 16-point
enhancement based upon the title of the prior
conviction. However, in this case the record reflects
that he threatened the victim with having a gun, broke
into her apartment in the middle of the night while
she was asleep, told her he had a gun, and then
stabbed her with a screwdriver, and I think that
qualifies as the type of violent conduct which
justifies the 16-point enhancement. The Court is not
relying simply on the fact that he was convicted of
second-degree kidnapping, but those facts suggest the
violence of his conduct in the course of the
kidnapping. He also has a number of other convictions
for violent conduct, mostly against the same person.
But, again, he became involved in violent conduct very
recently.
J.A. 68-69. After considering the Guidelines calculations and
the sentencing factors laid out in 18 U.S.C. § 3553(a), the
district court sentenced Flores-Granados to 57 months
imprisonment. This appeal followed.
II.
A.
Under the U.S. Sentencing Guidelines, a defendant who
“previously was deported” after a conviction for a “crime of
violence” and unlawfully returned to the United States is
subject to an enhancement of either 12 or 16 levels depending on
whether the conviction receives criminal history points.
U.S.S.G. § 2L1.2(b)(1)(A)(ii). The application notes define a
crime of violence as any of a list of enumerated offenses,
including “kidnapping,” or “any other offense . . . that has as
an element the use, attempted use, or threatened use of physical
4
force against the person of another.” U.S.S.G. § 2L1.2
Application Notes 1(B)(iii). Flores-Granados contends on appeal
that the district court erred in finding his prior conviction in
North Carolina qualified as a crime of violence within the
meaning of § 2L1.2 of the Guidelines. Whether a prior conviction
should be considered a crime of violence is a question of law
and we review the district court’s determination de novo. See,
e.g., United States v. Jenkins, 631 F.3d 680, 682 (4th Cir.
2011).
Even though the Supreme Court in Taylor v. United States,
495 U.S. 575 (1990), focused on whether a conviction qualified
as a “violent felony” under the Armed Career Criminal Act (ACCA)
we “apply its analysis to the ‘crime of violence’ definition
[under U.S.S.G. § 2L1.2(b)(1)(A)(ii)] as well.” United States v.
Bonilla, 687 F.3d 188, 190 n.3 (4th Cir. 2012); see also United
States v. King, 673 F.3d 274, 279 n.3 (4th Cir. 2012). We “rely
on precedents evaluating whether an offense constitutes a ‘crime
of violence’ under the Guidelines interchangeably with
precedents evaluating whether an offense constitutes a ‘violent
felony’ under the ACCA because the two terms have been defined
in a manner that is ‘substantively identical.’” King, 673 F.3d
at 279 n.3 (quoting United States v. Jarmon, 596 F.3d 228, 231
n.* (4th Cir. 2010)).
5
When considering whether a predicate state crime
constitutes a “crime of violence,” we examine the elements of
the offense using the categorical approach laid out in Taylor.
See 495 U.S. at 598-602; Descamps v. United States, 133 S. Ct.
2276, 2281 (2013). In Taylor, the Supreme Court found that with
regard to prior crimes enumerated in a sentencing enhancement
statute, Congress intended to refer to “the generic,
contemporary meaning” of the crime. Taylor, 495 U.S. at 598.
Such meaning, the Court explained, can be divined from “the
generic sense in which the term is now used in the criminal
codes of most States.” Id.We begin with the fact that kidnapping is an enumerated
offense included by the Sentencing Commission in the definition
of “crime of violence.” Thus, if we find that the North Carolina
statute falls within the generic definition of kidnapping, we
need not look to the residual clause as to whether “use of
force” is an element of the crime. See U.S.S.G.
§ 2L1.2(b)(1)(A)(ii) Application Notes 1(B)(iii). The label of
kidnapping used by North Carolina with regard to Flores-
Granados’ prior conviction is only the start of the inquiry.
Under the categorical approach, the court must identify the
generic contemporary meaning of the enumerated crime. See United
States v. Perez-Perez, 737 F.3d 950, 952 (4th Cir. 2013). We
then compare that definition to the state statute under which
6
defendant was previously convicted. Id. If the defendant was
previously convicted “in a State where the generic definition
has been adopted” or where the “state statute is narrower than
the generic view” then “there is no problem” because in both
cases “the conviction necessarily implies that the defendant has
been found guilty of all the elements of [the] generic [crime].”
Taylor, 495 U.S. at 599. However, if the state statute
“criminalize[s] a broader scope of conduct than the Guideline
crime [then it] is not categorically a crime of violence.”
Perez-Perez, 737 F.3d at 953.
B.
Under the categorical approach, “the sentencing
court . . . must look only to the statutory definitions of the
prior offenses” and may not look “to the particular facts
underlying those convictions.” Taylor, 495 U.S. at 600; see also
Begay v. United States, 553 U.S. 137, 141 (2008). A modified
categorical approach may be used in cases where the state
statute under which the defendant was previously convicted “sets
out one or more elements of the offense in the alternative,” but
not where the statute is “indivisible.” Descamps, 133 S. Ct. at
2281. Moreover, even under the modified categorical approach,
the later court is “generally limited to examining the statutory
definition, charging document, written plea agreement,
transcript of plea colloquy, and any explicit factual finding by
7
the trial judge to which the defendant assented.” Shepard v.
United States, 544 U.S. 13, 16 (2005). The judge may not
consider “police reports or complaint applications.” Id.The district court thus erred in referencing the facts of
Flores-Granados’ prior kidnapping conviction. See J.A. 68-69
(“[H]e . . . broke into her apartment in the middle of the night
while she was asleep, told her he had a gun, and then stabbed
her with a screwdriver, and I think that qualifies as the type
of violent conduct which justifies the 16-point enhancement.”).
Although the statute’s elements are divisible, there are no
Shepard-approved documents present in the record. A police
report, untested and unproven, is not a legitimate source of
factual information for courts to rely on even under the
modified categorical approach of Taylor and Shepard. See Taylor,
495 U.S. at 602; Shepard, 544 U.S. at 16, 26. Here the court was
limited to the categorical approach: whether the elements of the
statute render it categorically a crime of violence. Taylor, 495
U.S. at 599.
III.
The trial court’s error does not, however, resolve the
appeal. We are “entitled to affirm on any ground appearing in
the record, including theories not relied upon or rejected by
the district court.” Scott v. United States, 328 F.3d 132, 137
(4th Cir. 2003). The government contends that although the
8
district court did commit error in relying on facts from the
police report, the 16-level enhancement was proper nonetheless.
We agree that under the categorical approach, Flores-Granados’
kidnapping conviction qualifies as a crime of violence.
As noted, the categorical approach requires us to compare
the North Carolina statute under which Flores-Granados was
convicted with the “generic, contemporary meaning” of the
enumerated crime, here kidnapping. Taylor, 495 U.S. at 598.
A.
The North Carolina statute provides in relevant part:
(a) Any person who shall unlawfully confine, restrain,
or remove from one place to another, any other person
16 years of age or over without consent of such
person, or any other person under the age of 16 years
without the consent of a parent or legal custodian of
such person, shall be guilty of kidnapping if such
confinement, restraint or removal is for the purpose
of:
(1) Holding such other person for a ransom or as
a hostage or using such other person as a shield;
or
(2) Facilitating the commission of any felony or
facilitating flight of any person following the
commission of a felony; or
(3) Doing serious bodily harm to or terrorizing
the person so confined, restrained or removed or
any other person; or
(4) Holding such other person in involuntary
servitude in violation of [N.C. Gen. Stat.] 14-
43.12 . . . 1
1
We consider the statute as it was enacted at the time of
Flores-Granados’ conviction. Subsequent to his conviction, North
Carolina amended the statute to include two additional purposes
regarding holding persons in sexual servitude and trafficking of
(Continued)
9
(b) There shall be two degrees of kidnapping as
defined by subsection (a). If the person kidnapped
either was not released by the defendant in a safe
place or had been seriously injured or sexually
assaulted, the offense is kidnapping in the first
degree . . . If the person kidnapped was released in a
safe place by the defendant and had not been seriously
injured or sexually assaulted, the offense is
kidnapping in the second degree.
N.C. GEN. STAT. § 14-39(a)-(b).
Because the government offers no Shepard-approved
documents, the court must assume that the prior conviction was
based on the least serious of the acts covered by the state
statute. See Johnson v. United States, 559 U.S. 133, 137 (2010).
As explained by the Supreme Court of North Carolina, under N.C.
Gen. Stat. § 14-39, "kidnapping can be just as effectively
accomplished by fraudulent means as by the use of force,
threats, or intimidation." State v. Sturdivant, 283 S.E.2d 719,
729 (N.C. 1981).
Where "the statutory definition of the prior offense has
been interpreted by the state's highest court, that
interpretation constrains our analysis of the elements of state
law." United States v. Aparicio-Soria, 740 F.3d 152, 154 (4th
Cir. 2014) (en banc) (citing Johnson, 559 U.S. at 138). The
persons with the intent to hold such persons in involuntary or
sexual servitude. In any event, because they merely add possible
specific purposes in the alternative, the analysis before this
court is unaltered. See N.C. GEN. STAT. § 14-39(a)(5)-(6).
10
North Carolina Supreme Court has found that the "essence of any
kidnapping offense is the unlawful confinement, restraint or
removal of a human being for a certain proscribed purpose."
Sturdivant, 283 S.E.2d at 728. Under state law, the "difference
between kidnapping and the lesser included offense of false
imprisonment is the purpose of the confinement, restraint, or
removal of another person." State v. Pigott, 415 S.E.2d 555, 562
(N.C. 1992).
The North Carolina Supreme Court has "specifically rejected
the notion that 'confinement' or 'restraint', as used in [§ 14-
39], means confinement or restraint 'for a substantial period'
and that 'removal,' as used in [§ 14-39], requires a movement
'for a substantial distance.'” State v. Surrett, 427 S.E.2d 124,
127 (N.C. Ct. App. 1993) (internal quotations and citations
omitted) (quoting State v. Fulcher, 243 S.E.2d 338, 351 (N.C.
1978)). In "determining whether the crime of kidnapping has been
committed," the Supreme Court explained, "it was clearly the
intent of the Legislature to make resort to a tape measure or a
stop watch unnecessary." Fulcher, 243 S.E.2d at 351.
Given these constraints, Flores-Granados argues that North
Carolina’s statute sweeps more broadly than the generic
definition of kidnapping because it can be accomplished by fraud
or trickery alone and it does not include as an element
“substantial interference with the victim’s liberty” or
11
“circumstances exposing the victim to substantial risk of bodily
injury or confinement as a condition of involuntary servitude.”
Appellant’s Reply Br. at 5-6 (quoting United States v. Najera-
Mendoza, 683 F.3d 627, 630 (5th Cir. 2012)). We agree that there
is a danger in defining crimes of violence so broadly that they
improperly sweep in convictions for prior nonviolent conduct.
Here, however, the North Carolina statute is well within the
generic definition of kidnapping and is thus a crime of
violence.
B.
The elements necessary to the generic definition of
kidnapping present a question of first impression for this
circuit. There is “no uniformly accepted meaning of any of the
listed crimes [as] a consequence of the federalism principles
that have shaped criminal law in the United States.” United
States v. De Jesus Ventura, 565 F.3d 870, 874 (D.C. Cir. 2009).
Nearly every state kidnapping statute and the Model Penal Code
(MPC) includes a requirement of restraint or confinement of the
victim and the employment of unlawful means, often defined as
“by force, threat or deception, or in the case of [a minor or
incompetent individual] without the consent of a parent [or]
guardian.” MODEL PENAL CODE § 212.1; see also De Jesus Ventura, 565
F.3d at 876 (noting that pursuant to 50-state survey the generic
definition of kidnapping must include “(1) an act of
12
restraining, removing, or confining another; and (2) an unlawful
means of accomplishing that act”). Any generic definition must
include these two elements. The parties here dispute, however,
which additional aggravating factors, if any, are required
beyond this baseline definition.
To determine which aggravating elements must be included
for a statute to fall within “the generic sense in which the
term [kidnapping] is now used in the criminal codes of most
States,” we draw upon commonalities amongst the MPC, the laws of
the states, as well as the examples of our sister circuits.
Taylor, 495 U.S. at 598.
C.
For the following reasons, we think it is plain that some
additional element of severity is necessary to distinguish
kidnapping from its lesser-included offenses. In considering the
statutes of the fifty states and the District of Columbia as
well as the Model Penal Code, we conclude that the best
characterization of generic kidnapping is (1) unlawful restraint
or confinement of the victim, (2) by force, threat or deception,
or in the case of a minor or incompetent individual without the
consent of a parent or guardian, (3) either for a specific
nefarious purpose or with a similar element of heightened
intent, or (4) in a manner that constitutes a substantial
interference with the victim’s liberty. Here, because the North
13
Carolina statute requires a specific nefarious purpose for
conviction, even for second-degree kidnapping, it is well within
this definition and as such, it is categorically a crime of
violence.
We start with the MPC’s definition of kidnapping, which
requires unlawful removal of an individual “from his place of
residence or business, or a substantial distance from the
vicinity where he is found,” or unlawful confinement “for a
substantial period in a place of isolation” for one of four
specific purposes:
(a) to hold for ransom or reward, or as a shield or
hostage; or
(b) to facilitate commission of any felony or flight
thereafter; or
(c) to inflict bodily injury on or to terrorize the
victim or another; or
(d) to interfere with the performance of any
governmental or political function.
MODEL PENAL CODE § 212.1. Removal or confinement is unlawful where
“it is accomplished by force, threat or deception, or in the
case of a person who is [younger than] 14 or incompetent, if it
is accomplished without consent” of a parent or guardian. Id.
Thus, the MPC has as aggravating elements both confinement for a
specific nefarious purpose and an element of substantiality, in
addition to unlawful restraint or removal.
However, while it provides a useful guide, the Model Penal
Code “is not the exclusive standard by which we define the terms
14
used in the Sentencing Guidelines.” United States v. Gonzalez-
Ramirez, 477 F.3d 310, 317 (5th Cir. 2007). We also review other
states’ kidnapping statutes for common elements. Many states
separate the elements for first and second degree, or simple and
aggravated kidnapping. See, e.g., N.Y. PENAL LAW §§ 135.00,
135.20, 135.25; TEX. PENAL CODE ANN. §§ 20.01, 20.03, 20.04. Our
inquiry is not limited by degree, however, and “we look to all
offenses termed kidnapping by the various criminal codes.” De
Jesus Ventura, 565 F.3d at 876. The task before us is merely to
“employ a common-sense approach” in order to “ascertain the
contemporary meaning.” Gonzalez-Ramirez, 477 F.3d at 316. We are
“not required to apply the most nuanced, restrictive, or
cutting-edge interpretation.” Id.We agree with the District of Columbia circuit that the
most common approach “requires some kind of heightened intent
beyond the mere intent to restrain the victim’s liberty.” De
Jesus Ventura, 565 F.3d at 877; see also, United States v.
Gonzalez-Perez, 472 F.3d 1158, 1161 (9th Cir. 2007) (Because the
“Florida false imprisonment statute contains no nefarious
purpose element whatsoever . . . [it] does not conform to the
generic, contemporary definition of kidnapping.”). Much like the
MPC, twenty-one state statutes, including North Carolina's,
define kidnapping as unlawful removal or confinement for a
15
specific nefarious purpose. 2 Six additional states include some
element of heightened intent but do not specifically use the
nefarious purposes construct of the MPC. 3
Fifteen states include a nefarious purpose requirement but
only as a disjunctive element in conjunction with other
alternative elements. 4 For example, many states use the nefarious
purposes to distinguish between degrees of kidnapping. Compare
ALA. CODE § 13A-6-43 (first degree kidnapping requires nefarious
purpose, with ALA. CODE § 13A-6-44 (second degree kidnapping does
not). Only eight states and the District of Columbia do not
include a heightened intent element at all: four of those states
2
See ARIZ. REV. STAT. ANN. § 13-1304; ARK. CODE ANN. § 5-11-
102(a); DEL. CODE ANN. tit. 11, §§ 783, 783A, 786; FLA. STAT.
§ 787.01(1); HAW. REV. STAT. § 707-720(1); IOWA CODE § 710.1; KAN.
STAT. ANN. § 21-5408; KY. REV. STAT. ANN. § 509.010, .040; MICH.
COMP. LAWS § 750.349; MINN. STAT. § 609.25(1); MO. REV. STAT.
§ 565.110(1); NEB. REV. STAT. § 28-313; N.H. REV. STAT. ANN. § 633:1;
N.J. REV. STAT. § 2C:13-1(a)-(b); N.M. STAT. ANN. § 30-4-1; N.C.
GEN. STAT. § 14-39(a). N.D. CENT. CODE § 12.1-18-01(1); 18 PA. CONS.
STAT. ANN. § 2901(a); S.D. CODIFIED LAWS § 22-19-1; VT. STAT. ANN.
tit. 13, § 2405; WYO. STAT. ANN. § 6-2-201.
3
See 720 ILL. COMP. STAT. 5/10-1; MASS. GEN. LAWS ch. 265,
§ 26; OR. REV. STAT. §§ 163.225, .235; R.I. GEN. LAWS § 11-26-1; W.
VA. CODE § 61-2-14; WIS. STAT. § 940.31(1).
4
See ALA. CODE §§ 13A-6-40, -43, -44; ALASKA STAT. §
11.41.300(a)-(b); COLO. REV. STAT. §§ 18-3-301, -302; CONN. GEN.
STAT. §§ 53a-91, -92, -94; LA. REV. STAT. ANN. §§ 14:44, :45; IDAHO
CODE ANN. § 18-4501, -4502; ME. REV. STAT. ANN. tit. 17-A, § 301(1);
MONT. CODE ANN. §§ 45-5-302, -303; NEV. REV. STAT. § 200.310; N.Y.
PENAL LAW §§ 135.00, .20, .25; OHIO REV. CODE ANN. § 2905.01; TENN.
CODE ANN. §§ 39-13-303, -304, -305; TEX. PENAL CODE ANN. §§ 20.01,
.03, .04; UTAH CODE ANN. §§ 76-5-301, -302; WASH. REV. CODE §§
9A.40.010-.030.
16
require some additional element of added severity, 5 such as
requiring the perpetrator to move the victim for the crime to be
considered kidnapping, and four states and the District of
Columbia require nothing more than the intentional and unlawful
restraint of the victim. 6
The enumerated nefarious purposes required by North
Carolina are well within the heartland of generic kidnapping.
The statute requires the perpetrator to specifically intend a
heinous criminal act - the worst of the worst – abduction or
restraint of victims for ransom or to further the commission of
a felony, to terrorize victims or cause them bodily injury, or
to hold them in involuntary servitude. See N.C. GEN. STAT. § 14-
39(a). It would be astonishing if restraint or removal of a
victim for one of these nefarious purposes failed to constitute
generic kidnapping. The North Carolina statute is not loosely or
nebulously written nor does it broadly sweep in conduct not
related to the above nefarious aims. We find it hard to conceive
that a statute that requires the perpetrator to intend to engage
in such specific egregious behavior might be too wide-ranging to
be within the generic definition of kidnapping.
5
CAL. PENAL CODE § 207 (kidnapper must move victim from one
place to another); GA. CODE ANN. § 16-5-40 (same); IND. CODE § 35-
42-3-2 (same); MD. CODE ANN., CRIM. LAW § 3-502 (same).
6
See D.C. CODE § 22-2001; MISS. CODE ANN. § 97-3-53; OKLA.
STAT. tit. 21, § 741; S.C. CODE ANN. § 16-3-910; VA. CODE ANN. §
18.2-47.
17
Flores-Granados takes issue with the fact that North
Carolina’s specific purposes do not track exactly the specific
nefarious purposes of the MPC. See Appellant’s Reply Br. at 9-
10. However, the categorical approach does not require us to
match up the language word for word between the statute and the
generic definition. Taylor requires only that the statutory
definition “substantially corresponds” with the generic
enumerated crime to be considered a crime of violence. 495 U.S.
at 602. Further, we consider whether there is “a realistic
probability, not a theoretical possibility, that the State would
apply its statute to conduct that falls outside the generic
definition of a crime.” Gonzales v. Duenas-Alvarez, 549 U.S.
183, 193 (2007). Although it may not be a perfect match, the
North Carolina statute is narrowly drawn and enumerates specific
and serious crimes. We do not think it a realistic probability
that convictions under the statute would sweep too broadly.
D.
Flores-Granados argues, however, that the generic
definition must also, as the MPC does, encompass elements that
embody a substantiality requirement in addition to any
heightened intent requirement. We disagree. While a
substantiality element may be sufficient to render a statute
within the generic definition of kidnapping where it is the only
18
additional aggravating factor, it is not necessary where the law
includes specific nefarious purposes.
Twenty states do include a substantiality requirement, most
commonly that the perpetrator must “restrict [the victim’s]
movement in such a manner as to interfere substantially with the
person’s liberty,” 7 but a majority of states do not. See, e.g.,
HAW. REV. STAT. §§ 707-700 (definitions of terms in kidnapping and
other criminal statutes), -720. Furthermore, of the minority of
states that do have a substantiality requirement, significantly,
only eleven are states in which both a specific nefarious
purpose and a requirement of substantiality are mandatory for
the offense to qualify as kidnapping. 8 Thus, we think, that
where nefarious purposes are required – as they are here -
7
See ALA. CODE §§ 13A-6-40, -43, -44; ALASKA STAT. §§
11.41.300(a)-(b), .370; ARIZ. REV. STAT. ANN. §§ 13-1301, -1304;
ARK. CODE ANN. § 5-11-102(a); CONN. GEN. STAT. §§ 53a-91, -92, -94;
DEL. CODE ANN. tit. 11, §§ 783, 783A, 786; HAW. REV. STAT. §§ 707-
700, -720(1); KY. REV. STAT. ANN. § 509.010, .040; ME. REV. STAT.
ANN. tit. 17-A, § 301; MO. REV. STAT. § 565.110(1); NEB. REV. STAT.
§§ 28-312, -313; N.J. REV. STAT. § 2C:13-1(a)-(b); N.Y. PENAL LAW §§
135.00, .20, .25; N.D. CENT. CODE § 12.1-18-01, -04; 18 PA. CONS.
STAT. ANN. § 2901(a); TENN. CODE ANN. §§ 39-13-303, -304, -305; TEX.
PENAL CODE ANN. §§ 20.01, .03, .04; UTAH CODE ANN. §§ 76-5-301, -302;
VT. STAT. ANN. tit. 13, §§ 2404, 2405(a); WASH. REV. CODE §§
9A.40.010-.030.
8
See ARIZ. REV. STAT. ANN. §§ 13-1301, -1304; ARK. CODE ANN. §
5-11-102(a); DEL. CODE ANN. tit. 11, §§ 783, 783A, 786; HAW. REV.
STAT. §§ 707-700, -720(1); KY. REV. STAT. ANN. § 509.010, .040; MO.
REV. STAT. § 565.110(1); NEB. REV. STAT. §§ 28-312, -313; N.J. REV.
STAT. § 2C:13-1(a)-(b); N.D. CENT. CODE § 12.1-18-01, -04; 18 PA.
CONS. STAT. ANN. § 2901(a); VT. STAT. ANN. tit. 13, §§ 2404,
2405(a).
19
additional aggravating elements, such as substantiality, are not
necessary for the statute to be within the generic definition of
kidnapping.
The defendant relies on Fifth Circuit precedents that
rejected the assertion that “a specified purpose or intent is
required for a state kidnapping conviction to constitute a crime
of violence.” Gonzalez-Ramirez, 477 F.3d at 318. Those cases,
defendant argues, demonstrate that where proof of “substantial
interference with the victim’s liberty” or “circumstances
exposing the victim to substantial risk of bodily injury, or
confinement as a condition of involuntary servitude” is not
required, a kidnapping statute is too broad to be considered
within the generic definition. See United States v. Moreno-
Florean, 542 F.3d 445, 452-56 (5th Cir. 2008). However, none of
the statutes at issue in these cases included as an element the
nefarious purposes required here by North Carolina. Thus, the
court had to rely on whether each statute included a
substantiality requirement to determine if it was too broad to
be within the generic definition of kidnapping.
Contrary to defendant’s view, the Fifth Circuit cases fit
nicely with our holding today. In Cervantes-Blanco, the Colorado
statute, unlike North Carolina’s, required no additional
aggravating factors beyond unlawful restraint by force, threat
or fraud. See 504 F.3d at 586 (“The question therefore becomes
20
whether a statute that contains only [the elements of removal or
confinement by force, threat, or fraud] and lacks any additional
aggravating elements, such as the specified purpose requirements
of the MPC definition, qualifies [as a crime of violence].”);
see also Najera-Mendoza, 683 F.3d at 630. Similarly in Moreno-
Florean, that court found that “[a] two-element definition of
kidnapping would sweep more broadly than the generic,
contemporary meaning of [kidnapping.]” 542 F.3d at 454. Again,
North Carolina’s is not a bare, two-element statute. The Sixth
Circuit’s generic definition of kidnapping coincides with this
explanation as well. See United States v. Soto-Sanchez 623 F.3d
317, 322-24 (6th Cir. 2010) (finding the statute overly broad
where only “forcible confinement of the victim [is] sufficient
for a charge of kidnapping” without additional aggravating
elements).
In addition, in Gonzalez-Ramirez and Iniguez-Barba, the
court held only that a substantiality requirement was sufficient
for a statute to be narrower than the generic definition of
kidnapping, not that it was necessary. See Gonzalez-Ramirez,
477 F.3d at 319 (“Tennessee’s kidnapping statute is . . . at
least as restrictive, if not more restrictive, than a majority
of state kidnapping statutes.”); United States v. Iniguez-Barba,
485 F.3d 790, 792-93 (5th Cir. 2007) (finding that while
specific purposes are not necessary, “the additional aggravating
21
elements of substantial risk of injury or confinement as a
condition of servitude” are sufficient for the New York
kidnapping statute to be within the generic definition).
Our holding is thus consistent with those of other
circuits. At least one aggravator is required. But where an
element of substantiality is present, the nefarious purposes may
not be necessary. See Gonzalez-Ramirez, 477 F.3d at 319;
Iniguez-Barba, 485 F.3d at 792. And this conclusion holds
equally true in the inverse. Where a nefarious purpose or
similar heightened intent requirement is present as an element,
substantiality need not be required. See De Jesus Ventura, 565
F.3d at 877; Gonzalez-Perez, 472 F.3d at 1161. To be within
generic kidnapping, in addition to unlawful restraint by force,
threat or fraud, a statute must contain as an element an
additional aggravating factor such as nefarious purposes or
substantial interference with the victim’s liberty, but need not
require both.
The laws of the states support this conclusion. Thirty
state statutes include either a substantiality component or
specific nefarious purposes as elements. 9 Eleven and the MPC
9
See ALA. CODE §§ 13A-6-40, -43, -44; ALASKA STAT.
§§ 11.41.300(a)-(b), .370; ARIZ. REV. STAT. ANN. §§ 13-1301, -1304;
ARK. CODE ANN. § 5-11-102(a); CONN. GEN. STAT. §§ 53a-91, -92, -94;
DEL. CODE ANN. tit. 11, §§ 783, 783A, 786; FLA. STAT. § 787.01(1);
HAW. REV. STAT. § 707-720; IOWA CODE § 710.1; KAN. STAT. ANN. § 21-
(Continued)
22
include both. 10 An additional six states include as a requirement
an element of heightened intent. 11 Only four states and the
District of Columbia include no additional aggravating factors 12
– and at least two of those state statutes have been found to
sweep broadly enough to be outside the generic definition. See
Najera-Mendoza, 683 F.3d at 630 (finding conviction under
Oklahoma statute not within generic definition); De Jesus
Ventura, 565 F.3d at 877 (finding Virginia statute outlaws
conduct broader than generic definition).
5408; KY. REV. STAT. ANN. § 509.010, .040; ME. REV. STAT. ANN. tit.
17-A, § 301; MICH. COMP. LAWS § 750.349; MINN. STAT. § 609.25(1);
MO. REV. STAT. § 565.110(1); NEB. REV. STAT. §§ 28-312, -313; N.H.
REV. STAT. ANN. § 633:1; N.J. REV. STAT. § 2C:13-1(a)-(b); N.M. STAT.
ANN. § 30-4-1; N.Y. PENAL LAW §§ 135.00, .20, .25; N.C. GEN. STAT.
§ 14-39(a). N.D. CENT. CODE § 12.1-18-01, -04; 18 PA. CONS. STAT.
ANN. § 2901(a); S.D. CODIFIED LAWS § 22-19-1; TENN. CODE ANN. §§ 39-
13-303, -304, -305; TEX. PENAL CODE ANN. §§ 20.01, .03, .04; UTAH
CODE ANN. §§ 76-5-301, -302; VT. STAT. ANN. tit. 13, §§ 2404,
2405(a); WASH. REV. CODE §§ 9A.40.010-.030; WYO. STAT. ANN. § 6-2-
201.
10
See ARIZ. REV. STAT. §§ 13-1301, -1304; ARK. CODE ANN. § 5-
11-102(a); DEL. CODE ANN. tit. 11, §§ 783, 783A, 786; HAW. REV. STAT.
§§ 707-700, -720(1); KY. REV. STAT. ANN. § 509.010, .040; MO. REV.
STAT. § 565.110(1); NEB. REV. STAT. §§ 28-312, -313; N.J. REV. STAT.
§ 2C:13-1(a)-(b); N.D. CENT. CODE § 12.1-18-01, -04; 18 PA. CONS.
STAT. ANN. § 2901(a); VT. STAT. ANN. tit. 13, §§ 2404, 2405(a); see
also MODEL PENAL CODE § 212.1.
11
See 720 ILL. COMP. STAT. 5/10-1; MASS. GEN. LAWS ch. 265,
§ 26; OR. REV. STAT. §§ 163.225, .235; R.I. GEN. LAWS § 11-26-1; W.
VA. CODE § 61-2-14; WIS. STAT. § 940.31(1).
12
See D.C. CODE § 22-2001; MISS. CODE ANN. § 97-3-53; OKLA.
STAT. tit. 21, § 741; S.C. CODE ANN. § 16-3-910; VA. CODE ANN. §
18.2-47.
23
IV.
We do not suggest the approach we have taken here is the
only way to characterize the nature of a predicate offense.
Because this is a sentencing procedure, no mechanical exercise
can ever fully supplant the common sense and good judgment of
the sentencing judge. A “simple strategy of ‘counting noses’
will [not] control the outcome of the categorical approach in
all cases for all crimes.” United States v. Rangel-Castaneda,
709 F.3d 373, 379 (4th Cir. 2013). The greater the variations in
state statutes, moreover, the more difficult a single
paradigmatic act may be to find. Id. (“Our federal system allows
the various states to define offenses as they see fit,
unencumbered by overly stringent federal sentencing standards.
That is precisely why ‘minor variations in terminology’ must be
respected.” (quoting Taylor, 495 U.S. at 599)). In this case,
our review of state laws has served to identify the North
Carolina act as a mainstream statute, not an outlier. Because it
is limited to conduct for a specific nefarious purpose, it
proscribes criminal activity that is well within the generic
definition of kidnapping and thus constitutes a crime of
violence. Put simply, the statute is what we mean when we say
“kidnapping.” As such, the addition of a 16-level enhancement to
Flores-Granados’ sentence for reentry after a prior conviction
24
for a crime of violence was proper and the judgment of the
district court is hereby affirmed.
AFFIRMED
25