United States v. Soto-Sanchez

RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
File Name: 10a0325p.06

UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________

X
Plaintiff-Appellee, -
UNITED STATES OF AMERICA,
-
-
-
No. 08-3541
v.
,
>
-
Defendant-Appellant. -
ALEJANDRO SOTO-SANCHEZ,
-
N
Appeal from the United States District Court
for the Northern District of Ohio at Cleveland.
No. 07-00558-1—John R. Adams, District Judge.
Argued: July 29, 2010
Decided and Filed: October 5, 2010
Before: GIBBONS and COOK, Circuit Judges; VAN TATENHOVE, District
Judge.*

_________________

COUNSEL
ARGUED: Jaime P. Serrat, Cleveland, Ohio, for Appellant. Phillip J. Tripi,
ASSISTANT UNITED STATES ATTORNEY, Cleveland, Ohio, for Appellee.
ON BRIEF: Jaime P. Serrat, Cleveland, Ohio, for Appellant. Laura McMullen Ford,
ASSISTANT UNITED STATES ATTORNEY, Cleveland, Ohio, for Appellee.
_________________

OPINION
_________________

VAN TATENHOVE, District Judge. Alejandro Soto-Sanchez pled guilty to
illegal reentry into the United States after deportation in violation of 8 U.S.C. § 1326.

*
The Honorable Gregory F. Van Tatenhove, United States District Judge for the Eastern District
of Kentucky, sitting by designation.

1
No. 08-3541 United States v. Soto-Sanchez Page 2

On appeal, Soto-Sanchez challenges his sentence. He contends that the district court
erred by applying a sixteen-level enhancement to his offense level under U.S.S.G.
§ 2L1.2 based on his prior conviction for attempted kidnapping. For the reasons set forth
below, we affirm Soto-Sanchez’s sentence.

I.

A single-count Indictment charged Alejandro Soto-Sanchez with illegally
reentering the United States after deportation in violation of 8 U.S.C. § 1326. The
Indictment noted that Soto-Sanchez had previously been removed and deported from the
United States subsequent to a conviction for felony attempted kidnapping in Michigan
state court in 2000. Soto-Sanchez pled guilty to the illegal reentry charge without the
benefit of a plea agreement. At his rearraignment, the United States expressed its belief
that Soto-Sanchez would be subject to a sixteen-level enhancement to his base offense
level under the guidelines at sentencing because his prior attempted kidnapping
conviction qualified as a crime of violence under U.S.S.G. § 2L1.2(b)(1)(A). Soto-
Sanchez indicated his intent to object to such an enhancement. The district court ordered
the parties to brief the issue prior to sentencing.

The United States Probation Office prepared a presentence investigation report
(“PSR”) which calculated Soto-Sanchez’s base offense level at 8.1 As expected, the PSR
recommended a sixteen-level enhancement to Soto-Sanchez’s offense level based on his
prior Michigan state court conviction. The PSR also recommended a three-level
reduction due to Soto-Sanchez’s acceptance of responsibility. With a total offense level
of 21 and a criminal history category III, Soto-Sanchez’s sentencing guideline range was
46 to 57 months.

At sentencing, the court heard oral arguments from the parties regarding the
disputed guideline enhancement. After reviewing the Michigan kidnapping statute at
issue, the district court found that Soto-Sanchez had been convicted of a crime of

1
The 2007 edition of the United States Guidelines Manual was used in the preparation of Soto-
Sanchez’s PSR.
No. 08-3541 United States v. Soto-Sanchez Page 3

violence within the meaning of § 2L1.2(b)(1)(A). The court further found that it could
not consider the police report related to Soto-Sanchez’s attempted kidnapping conviction
in determining whether the offense qualified as a crime of violence. Having determined
that the PSR correctly calculated his guideline range, the district court sentenced Soto-
Sanchez to 46 months in prison. This appeal followed.

II.

A.

“Sentences imposed post-Booker are reviewed for reasonableness–including for
procedural error in the calculation of the guideline range such as defendant asserts in this
case.” United States v. Bartee, 529 F.3d 357, 358 (6th Cir. 2008) (citing Gall v. United
States, 552 U.S. 38, 128 S. Ct. 586, 596, 169 L.Ed.2d 445 (2007)). This Court reviews
legal conclusions regarding the application of the United States Sentencing Guidelines
de novo. United States v. Hover, 293 F.3d 930, 933 (6th Cir. 2002). Accordingly, this
Court reviews de novo the question of whether Soto-Sanchez’s attempted kidnapping
conviction constitutes a crime of violence for the purposes of U.S.S.G. § 2L1.2. See
United States v. Garcia-Serrano, 107 Fed. Appx. 495, 496, 2004 WL 1800869 (6th Cir.
Aug. 9, 2004) (citing United States v. Humphrey, 279 F.3d 372, 379 (6th Cir. 2002)).

B.

United States Sentencing Guideline § 2L1.2(a) prescribes a base offense level of
8 for those convicted of unlawfully entering the United States. Section
2L1.2(b)(1)(A)(ii) then directs that this offense level be increased sixteen levels if the
defendant previously was deported after conviction for a felony that is a “crime of
violence.” U.S.S.G. § 2L1.2(b)(1)(A)(ii). The commentary defines the term “crime of
violence” for purposes of this section to mean “any of the following offenses under
federal, state, or local law: Murder, manslaughter, kidnapping, aggravated assault . . . 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. at
§ 2L1.2, cmt. n. 1(B)(iii) (emphasis added). The commentary further explains that
No. 08-3541 United States v. Soto-Sanchez Page 4

“[p]rior convictions of offenses counted under subsection (b)(1) include the offenses of
aiding and abetting, conspiring, and attempting, to commit such offenses.” Id. at
§ 2L1.2, cmt. n. 5 (emphasis added).

On appeal, Soto-Sanchez does not dispute that he was previously deported after
a Michigan conviction for attempted kidnapping. Instead, he argues that the Michigan
statute under which he was convicted is broader than the generic kidnapping offense
contemplated by the guidelines. Accordingly, Soto-Sanchez contends that the Court
must look further into the details of his conviction to determine whether he was
necessarily convicted of generic kidnapping. Soto-Sanchez specifically urges the Court
to examine the police report describing the incident that gave rise to the kidnapping
charge and find that he did not commit a crime of violence.

In Taylor v. United States, 495 U.S. 575, 579 (1990), the Supreme Court
considered whether second-degree burglary under Missouri law constituted a “violent
felony” for purposes of the Armed Career Criminal Act (“ACCA”), and specifically
18 U.S.C. § 924(e)(1). If so, a mandatory minimum sentence of fifteen years in prison
would apply to the defendant. See Taylor, 495 U.S. at 578; 18 U.S.C. § 924(e)(1). The
statute at issue defined “violent felony” to include any crime punishable by
imprisonment for a term exceeding one year that “is burglary . . . .” Taylor, 495 U.S. at
578 (quoting 18 U.S.C. § 924(e)(2)(B)(ii)). The Court, however, found that “‘burglary’
in § 924(e) must have some uniform definition independent of the labels employed by
the various States’ criminal codes.” Id. at 592. Specifically, the Court found that
“Congress meant by ‘burglary’ the generic sense in which the term is now used in the
criminal codes of most states.” Id. at 598. The Court held that “a person has been
convicted of burglary for purposes of a § 924(e) enhancement if he is convicted of any
crime, regardless of its exact definition or label, having the basic elements of unlawful
or unprivileged entry into, or remaining in, a building or structure, with intent to commit
a crime.” Id. at 599.

The Taylor Court then adopted a categorical approach for ascertaining whether
a defendant is subject to an enhanced penalty under the ACCA. Id. at 600. Under this
No. 08-3541 United States v. Soto-Sanchez Page 5

approach, the sentencing court is generally required to consider only the fact of
conviction and the statutory definition of the prior offense in determining whether the
defendant has committed a violent felony. Id. at 601. The court may not consider the
particular facts underlying the conviction. Id. at 600-01.

In circumstances in which the state statute defines the crime more broadly than
the generic offense, however, a modified categorical approach applies. See United States
v. De Jesus Ventura, 565 F.3d 870, 874 (D.C. Cir. 2009). Then, according to Taylor, the
court may look beyond the statute and the fact of conviction to the indictment or
information and jury instructions. Taylor, 495 U.S. at 602. The court must determine
whether these documents show that the jury was required to find all elements of the
generic offense in order to convict the defendant. Id. In other words, the court still may
not consider the details of the defendant’s crime. See id. at 600-01. The court may use
these additional materials “only to determine which crime within a statute the defendant
committed, not how he committed that crime.” See United States v. Woods, 576 F.3d
400, 405 (7th Cir. 2009) (emphasis in original).

The Taylor Court adopted the categorical approach in part to avoid “the practical
difficulties and potential unfairness” of a broader factual inquiry. Taylor, 495 U.S. at
601. Of a fact-based approach, the Court asked, “Would the Government be permitted
to introduce the trial transcript before the sentencing court, or if no transcript is
available, present the testimony of witnesses?” Id. The Court continued, “If the
sentencing court were to conclude, from its own review of the record, that the defendant
actually committed a generic [offense], could the defendant challenge this conclusion
as abridging his right to a jury trial?” Id. Later, in Shepard v. United States, 544 U.S.
13, 25 (2005), the Supreme Court expanded on this reasoning, noting that allowing a
sentencing judge to consider evidence of the facts of a prior offense raises the concerns
underlying Jones v. United States, 526 U.S. 227 (1999), and Apprendi v. New Jersey,
530 U.S. 466 (2000). Specifically, it allows the sentencing judge to “make a disputed
finding of act about what the defendant and state judge must have understood as the
factual basis of the prior plea . . . .” Shepard, 544 U.S. at 25. The Sixth and Fourteenth
No. 08-3541 United States v. Soto-Sanchez Page 6

Amendments, however, “guarantee a jury’s finding of any disputed fact essential to
increase the ceiling of a potential sentence.” Id.

Since Taylor, this Court has employed the categorical approach in determining
whether an offense constitutes a “crime of violence” under U.S.S.G. § 4B1.2, for
purposes of the career offender provision, see United States v. Arnold, 58 F.3d 1117,
1121 (6th Cir. 1995), and in determining whether an offense constitutes a “crime of
violence” for purposes of U.S.S.G. § 2L1.2, see Garcia-Serrano, 107 Fed. Appx. at
496.2 Further, in Shepard, the Supreme Court expressly extended Taylor’s categorical
approach to convictions following guilty pleas. 544 U.S. at 19. Accordingly, this Court
will employ the categorical approach in determining whether Soto-Sanchez’s conviction
under Michigan’s former kidnapping statute is a conviction for a crime of violence
within the meaning of U.S.S.G. § 2L1.2.

The former Michigan statute on which Soto-Sanchez’s attempted kidnapping
conviction was based reads as follows:

Any person who wilfully, maliciously and without lawful authority shall
forcibly or secretly confine or imprison any other person within this state
against his will, or shall forcibly carry or send such person out of this
state, or shall forcibly seize or confine, or shall inveigle or kidnap any
other person with intent to extort money or other valuable thing thereby
or with intent either to cause such person to be secretly confined or
imprisoned in this state against his will, or in any way held in service
against his will, shall be guilty of a felony, punishable by imprisonment
in the state prison for life or for any term of years.

Mich. Comp. Laws Ann. § 750.349 (1999). In light of Taylor, in order to determine
whether this offense qualifies as a “crime of violence” within the meaning of U.S.S.G.
§ 2L1.2, this Court first must determine whether Michigan’s former kidnapping offense
“substantially corresponds” to the generic crime of kidnapping. Taylor, 495 U.S. at 602.

2
Notably, kidnapping is not enumerated as a “violent felony” under 18 U.S.C. § 924(e)(2)(B)(ii)
or a “crime of violence” under U.S.S.G. § 4B1.2(a)(2). Further, these provisions include in their
definitions of violent crimes any offense that “involves conduct that presents a serious potential risk of
physical injury to another.” 18 U.S.C. § 924(e)(2)(B)(ii); U.S.S.G. § 4B1.2(a)(2). No such clause appears
in the definition of “crime of violence” for the purposes of U.S.S.G. § 2L1.2. Thus, an offense could
constitute a violent crime under the ACCA or § 4B1.2, but not under § 2L1.2, or vice versa.
No. 08-3541 United States v. Soto-Sanchez Page 7

Soto-Sanchez argues that the generic, contemporary meaning of kidnapping is
found in the Model Penal Code (“MPC”). Under the MPC,

A person is guilty of kidnapping if he unlawfully removes another from
his place of residence or business, or if he unlawfully confines another
for a substantial period in a place of isolation, with any of the following
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 (2001). Additionally, “[a] removal or confinement is
unlawful within the meaning of this Section if it is accomplished by force, threat, or
deception, or, in the case of a person who is under the age of 14 or incompetent, if it is
accomplished without the consent of a parent, guardian, or other person responsible for
general supervision of his welfare.” Id.

The MPC makes it a separate, lesser crime of felonious restraint to knowingly
“restrain another unlawfully in circumstances exposing him to risk of serious bodily
injury” or “hold another in a condition of involuntary servitude.” Model Penal Code
§ 212.2 (2001). And the MPC defines “false imprisonment” as knowingly restraining
another unlawfully so as to substantially interfere with his or her liberty. Model Penal
Code § 212.3 (2001). Thus, under the MPC, in order for a crime to constitute
“kidnapping,” the perpetrator must have a specific purpose other than confining his
victim or removing his victim from one place to another; no such specific purpose is
required for the crimes of false imprisonment or felonious restraint.

Although Soto-Sanchez lobbies the Court to adopt the MPC definition of
kidnapping for the purposes of U.S.S.G. § 2L1.2, the Supreme Court in Taylor stated
that the generic, contemporary meaning of an offense is the way the offense is defined
No. 08-3541 United States v. Soto-Sanchez Page 8

by the criminal codes of most states.3 Taylor, 495 U.S. at 598. A survey of state statutes
reveals that twenty-three states follow the MPC’s approach and require a specific,
“nefarious” purpose other than merely restraining the victim in order for an offense to
constitute kidnapping. See Ariz. Rev. Stat. Ann. § 13-1304; Ark. Code Ann. § 5-11-
102(a); Del. Code Ann. tit. 11, § 783; Fla. Stat. § 787.01; Haw. Rev. Stat. § 707-720(1);
Ind. Code § 35-42-3-2; Iowa Code § 710.1; Kan. Stat. Ann. § 21-3420; Ky. Rev. Stat.
Ann. § 509.040(1); La. Rev. Stat. Ann. § 14:44.1; Mich. Comp. Laws § 750.349; Minn.
Stat. § 609.25; Mo. Rev. Stat. § 565.110; Neb. Rev. Stat. § 28-313; N.H. Rev. Stat. Ann.
§ 633:1; N.J. Stat. Ann. § 2C:13-1(a)-(b); N.M. Stat. § 30-4-1(A); N.C. Gen. Stat. § 14-
39(a); N.D. Cent. Code § 12.1-18-01; 18 Pa. Stat. Ann. § 2901(a); S.D. Codified Laws
§ 22-19-1; Vt. Stat. Ann. tit. 13, § 2405(a); Wyo. Stat. Ann. § 6-2-201(a)-(b). See also
De Jesus Ventura, 565 F.3d at 876-77. Notably, Michigan’s current kidnapping statute
is included in this list.4 In only six states and the District of Columbia is detaining or
confining the victim against his or her will enough. See D.C. Code § 22-2001; Idaho
Code Ann. § 18-4501; Miss. Code Ann. § 97-3-53; Nev. Rev. Stat. § 200.310; Okla.
Stat. tit. 21, § 741; S.C. Code Ann. § 16-3-910; Va. Code. Ann. § 18.2-47. See also De
Jesus Ventura, 565 F.3d at 877. In the remaining states, some other aggravating factor
is required, such as exposing the victim to a risk of physical injury, see Ohio Rev. Code
Ann. § 2905.01, Tenn. Code Ann. § 39-13-303, or moving the victim from one place to
another, see Cal. Penal Code § 207(a), Ga. Code Ann. § 16-5-40, Md. Code Ann., Crim

3
The Taylor Court did note, however, that the generic, contemporary definition of burglary
“approximates that adopted by the drafters of the Model Penal Code.” Taylor, 495 U.S. at 598 n.8.
4
In its brief, the United States notes that both the D.C. Circuit in De Jesus Ventura and the Fifth
Circuit in Gonzalez-Ramirez list Michigan’s statute among those statutes that follow the MPC’s approach
and require a specific purpose other than to confine or restrain, even for the least culpable means of
conviction. But the D.C. Circuit and the Fifth Circuit cite the current version of Michigan’s § 750.349,
which reads as follows:
(1) A person commits the crime of kidnapping if he or she knowingly restrains another
person with the intent to do 1 or more of the following:
(a) Hold that person for ransom or reward.
(b) Use that person as a shield or hostage.
(c) Engage in criminal sexual penetration or criminal sexual contact with that person.
(d) Take that person outside of this state.
(e) Hold that person in involuntary servitude.
Mich. Comp. Laws Ann. § 750.349 (2006).
No. 08-3541 United States v. Soto-Sanchez Page 9

Law § 3-502(a). Additionally, thirteen states include in their definition of kidnapping
secreting or holding or intending to secrete or hold the victim where he or she is not
likely to be found. See Idaho Code Ann. § 18-4501; Iowa Code § 710.1; 720 Ill. Comp.
Stat. 5/10-1(a); Mass. Gen. Laws ch. 265, § 26; Or. Rev. Stat. § 163.225(1); R.I. Gen.
Laws § 11-26-1; Ala. Code §§ 13A-6-40(2)(a), 43, & 44; Alaska Stat.
§ 11.41.300(a)(2)(A); Conn. Gen. Stat. § 53a-91 and 94; Me. Rev. Stat. Ann. tit. 17-A,
§ 301(1)(B)(2); N.Y. Penal Law §§ 135.00 & 135.20; Tex. Penal Code Ann.
§§ 20.01(2)-.03; Wash. Rev. Code §§ 9A.40.010(2) & 9A.40.030(1).

After reviewing these statutes, the Court finds that the generic offense of
kidnapping requires more than unlawful confinement or restraint of the victim. The
generic offense does not necessarily require, however, one of the specific purposes
identified by the MPC. Instead, the generic offense of kidnapping requires restraint plus
the presence of some aggravating factor, such as circumstances that create a risk of
physical harm to the victim, or movement of the victim from one place to another. See
De Jesus Ventura, 565 F.3d at 877-78 (“The most common approach defines kidnapping
to include a particular nefarious purpose. And the majority approach requires some kind
of heightened intent beyond the mere intent to restrain the victim’s liberty. Most
critically, a substantial majority of jurisdictions . . . require some additional element of
intent or severity.”). See also United States v. Moreno-Florean, 542 F.3d 445, 454 (5th
Cir. 2008) (holding that, in addition to (1) knowing removal and confinement and
(2) force, threat, or fraud, the generic, contemporary offense of kidnapping requires the
specified purposes identified in the MPC or “[a]dditional aggravating elements”).

The Michigan statute at issue in this case criminalizes six types of conduct as
kidnapping, if done wilfully, maliciously, and without lawful authority:

(1) forcibly confining or imprisoning any other person within the state
against his will;
(2) secretly confining or imprisoning any other person within the state
against his will;
(3) forcibly carrying or sending such person out of the state;
No. 08-3541 United States v. Soto-Sanchez Page 10

(4) forcibly seizing or confining, or inveigling or kidnapping any other
person with intent to extort money or other valuable thing thereby;
(5) forcibly seizing or confining, or inveigling or kidnapping any other
person with intent to cause such person to be secretly confined or
imprisoned in the state against his will; or
(6) forcibly seizing or confining, or inveigling or kidnapping any other
person with intent to cause such person to be in any way held to service
against his will.

See People v. Wesley, 365 N.W.2d 692, 694-95 (Mich. 1984); People v. Jaffray, 519
N.W.2d 108, 113 (Mich. 1994). Of these six offenses deemed kidnapping by Michigan
when Soto-Sanchez was convicted, five appear to fit within the generic, contemporary
meaning of the offense. The second and fifth offenses require as aggravating elements
that the confinement or imprisonment be “secret”5 and that the perpetrator have an intent
to secretly confine his victim respectively. As noted previously, thirteen other states
include a similar aggravating element in their kidnapping statutes. The third offense
includes as an aggravating element that the victim be carried or sent out of the state. The
fourth offense requires that the kidnapper have an intent to extort money or something
else of value; this is similar to the MPC, which finds that an offense constitutes
kidnapping when the perpetrator has as his purpose holding the victim for ransom or
reward. See Model Penal Code § 212.1 (2001). And the sixth offense requires as an
aggravating factor that the kidnapper intend to cause his victim to be held to service
against his will. See Gonzalez-Ramirez, 477 F.3d at 319 (finding that Tennessee’s
kidnapping was in line with the generic offense where it included as aggravating

5
In United States v. Gonzalez-Perez, 472 F.3d 1158, 1161 (9th Cir. 2007), the Ninth Circuit held
that Florida’s false imprisonment statute does not constitute generic kidnapping. Notably, Florida’s false
imprisonment statute defines the offense as “forcibly, by threat, or secretly confining, abducting,
imprisoning or restraining another person without lawful authority and against his or her will.” Id. (citing
Fla. Stat. § 787.02(1)(a)) (emphasis added). According to the court, the generic offense of kidnapping
encompasses a “nefarious purpose motivating restriction of the victim’s liberty.” Id. (citation and internal
quotation marks omitted).
Under Michigan law, however, confining another secretly is sufficiently aggravating to bring the
crime within the generic definition of kidnapping. In People v. Jaffray, 519 N.W.2d 108, 119 (Mich.
1994), the Michigan Supreme Court explained that the essence of “secret confinement” kidnapping is
“deprivation of the assistance of others by virtue of the victim’s” isolation and “inability to communicate
his predicament.” This Court is bound by the Michigan Supreme Court’s interpretation of state law,
including its determination of the elements of a Michigan statute. See Johnson v. United States, --- U.S.
----, 130 S. Ct. 1265, 1269 (2010).
No. 08-3541 United States v. Soto-Sanchez Page 11

elements substantial risk of injury or confinement as a condition of involuntary
servitude).

The first kidnapping offense under Michigan’s former statute is, however, more
problematic. On the face of the statute, the first offense makes forcible confinement of
the victim sufficient for a charge of kidnapping. As stated previously, only six other
states and the District of Columbia define this conduct as kidnapping. The MPC and
several other states, including the other states in this Circuit, consider this conduct to
constitute a lesser offense of false imprisonment. See, e.g., Ky. Rev. Stat. Ann.
§ 509.020; Tenn. Code Ann. § 39-13-302; Ohio Rev. Code Ann. § 2905.03. Indeed, in
Wesley, the Michigan Supreme Court stated that “[t]he forcible confinement section” of
Michigan’s former kidnapping statute, “taken by itself, describes the common-law
misdemeanor offense of false imprisonment.” 365 N.W.2d at 695.

The false imprisonment kidnapping offense under § 750.349, however, requires
that the victim be imprisoned or confined “forcibly.” By its clear terms, then, it “has as
an element the use, attempted use, or threatened use of physical force against the person
of another.” See U.S.S.G. § 2L1.2 cmt. n. 1(B)(iii). In this way, it still qualifies as a
crime of violence subjecting Soto-Sanchez to a sixteen-level enhancement to his offense
level under the residual clause to the definition of “crime of violence” in § 2L1.2.6 See
id.

In sum, the six offenses punished by Michigan’s former kidnapping statute either
fall within the generic, contemporary meaning of kidnapping or have an element
involving the use of force. Thus, under the categorical approach, the Court cannot look
beyond the statute. Soto-Sanchez was necessarily convicted of a crime of violence

6
Even if use of force was not one of its elements, this offense might qualify as generic kidnapping
under the Michigan Supreme Court’s interpretation of the statute. See Johnson, 130 S. Ct. at 1269. In
People v. Adams, 205 N.W.2d 415, 422 (Mich. 1973), the Michigan Supreme Court held that, “where
appropriate,” asportation of the victim is a judicially required element of forcible confinement kidnapping
under Michigan law. In this way, the court distinguished forcible confinement kidnapping from other,
minor crimes and preserved the constitutionality of the statute. Id. The court further held that asportation
or movement of the victim is not sufficient if it is merely incidental to the commission of an underlying
lesser crime. Id. In Wesley, the court explained that asportation “incidental to a crime involving murder,
extortion, or taking a hostage is sufficient for kidnapping because such conduct does not present the danger
of overcharging.” 365 N.W.2d at 696.
No. 08-3541 United States v. Soto-Sanchez Page 12

within the meaning of U.S.S.G. § 2L1.2(b)(1)(A) when he pled guilty to attempted
kidnapping in Michigan state court. Accordingly, the sentencing court correctly
enhanced his offense level by sixteen levels, and his 46-month sentence must be
affirmed.

Even if the Court could look beyond the statute, however, we could not consider
the police report arising from the incident as Soto-Sanchez requests. In Shepard, the
Supreme Court expressly held that courts cannot examine police reports as part of the
modified categorical approach. Shepard, 544 U.S. at 16, 21-23. Instead, courts applying
the modified categorical approach to convictions following guilty pleas are limited to
consideration of the “charging document, written plea agreement, transcript of plea
colloquy, and any explicit factual finding by the trial judge to which the defendant
assented.” Id. at 16.

III.

For the foregoing reasons, we affirm Soto-Sanchez’s sentence.