United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued December 5, 2008 Decided May 15, 2009
No. 07-3099
UNITED STATES OF AMERICA,
APPELLEE
v.
MANUEL DE JESUS VENTURA,
APPELLANT
Appeal from the United States District Court
for the District of Columbia
(No. 04cr00288-01)
Beverly G. Dyer, Assistant Federal Public Defender,
argued the cause for appellant. With her on the briefs was A.J.
Kramer, Federal Public Defender. Laura G. Quint, Assistant
Federal Public Defender, entered an appearance.
Justin E. Dillon, Assistant U.S. Attorney, argued the
cause for appellee. With him on the brief were Jeffrey A.
Taylor, U.S. Attorney, and Roy W. McLeese III and Elizabeth
Trosman, Assistant U.S. Attorneys.
Before: ROGERS, BROWN, and GRIFFITH, Circuit Judges.
Opinion for the Court filed by Circuit Judge GRIFFITH.
2
GRIFFITH, Circuit Judge: Appellant Manuel De Jesus
Ventura challenges the sentence imposed for his crime of
entering the United States after being deported for a felony
conviction. Ventura argues that his prior conviction was not a
“crime of violence,” as the district court found, but was
instead an “aggravated felony,” which triggers a less severe
sentencing range under the Federal Sentencing Guidelines.
We agree, vacate, and remand for resentencing in light of the
correct range.
I.
Ventura, a citizen of El Salvador, first entered the United
States illegally in 1997 and was deported within a month. He
returned to the United States illegally in 1999 and while here
committed the crime that is at the center of this case. In 2000,
the Commonwealth of Virginia charged Ventura with
felonious abduction in violation of VA. CODE § 18.2-47,
which prohibits unlawfully seizing or detaining another
person. Ventura pleaded nolo contendere. The Virginia court
found him “guilty as charged in the indictment.” Tr. of Plea
Colloquy at 17, Commonwealth v. Hernandez-Chacon, No.
98623 (Va. Cir. Ct. Dec. 18, 2000),1 and sentenced him to
eighteen months in prison. When the immigration authorities
learned Ventura had reentered the country illegally, they
deported him again in November 2002.
Ventura soon returned to the country and to his criminal
ways. In 2004 the D.C. Superior Court sentenced him to six
years in prison for, among other crimes, armed assault with
1
Although the defendant in the Virginia case was named “Mario
Hernandez-Chacon,” and the defendant here is named “Manuel De
Jesus Ventura,” the parties assure us that the two are in fact the
same person.
3
intent to commit robbery. While Ventura was serving that
sentence, federal authorities realized he was once again in the
country illegally. The government charged him with the crime
of reentering the United States after having been deported
following conviction for an aggravated felony, in violation of
8 U.S.C. § 1326(a), (b)(2).2 The aggravated felony was the
Virginia abduction. Ventura pleaded guilty.
The district court sentenced Ventura on March 7, 2005.
The central dispute at sentencing was the calculation of the
appropriate Guidelines range. The base offense level for the
crime of unlawful reentry is 8. See U.S. SENTENCING
GUIDELINES MANUAL (U.S.S.G.) § 2L1.2(a) (2004). The
Guidelines direct the court to apply the greatest of several
possible increases based on the criminal conviction that
preceded the defendant’s deportation. If the defendant was
convicted of an “aggravated felony,” the court applies an
eight-level increase. Id. § 2L1.2(b)(1)(C). Because Ventura
pleaded guilty to reentering the country after conviction for an
aggravated felony, he did not contest the eight-level increase.
But some aggravated felonies are also “crimes of violence,”
which instead trigger a sixteen-level increase under the
Guidelines. Id. § 2L1.2(b)(1)(A)(ii). The government’s
presentence investigation report (PSR) concluded that
Ventura’s Virginia conviction was one of those crimes.
Ventura disputed the PSR’s conclusion, arguing that his
aggravated felony conviction was not a crime of violence.
2
Section 1326(a) provides that “any alien who (1) has been denied
admission, excluded, deported, or removed . . . and thereafter (2)
enters, attempts to enter, or is at any time found in, the United
States . . . shall be fined under Title 18, or imprisoned not more
than 2 years, or both.” An alien “whose removal was subsequent to
a conviction for commission of an aggravated felony . . . shall be
fined under such Title, imprisoned not more than 20 years, or both.”
18 U.S.C. § 1326(b)(2).
4
Reading United States v. Booker, 543 U.S. 220 (2005), to
relieve him of the need to make a specific finding about the
applicable Guidelines range, the district judge saw no need to
resolve this dispute. Instead, the court weighed the various
factors set out in 18 U.S.C. § 3553(a) and sentenced Ventura
to 93 months’ imprisonment, a sentence within the applicable
Guidelines range had the court expressly found that Ventura
was convicted of a crime of violence. Ventura appealed, and
we reversed, explaining that under Booker “sentencing courts
remain obligated to calculate and consider the appropriate
guidelines range.” United States v. Ventura, 481 F.3d 821,
823 (D.C. Cir. 2007). Because the district court had
“expressly eschewed making a specific finding as to the
guidelines range applicable to Ventura,” id., we remanded for
it to do so. On remand, the district court concluded that the
Virginia conviction was for a crime of violence and applied a
sixteen-level increase to Ventura’s base offense level. The
resulting sentencing range was 77 to 96 months.3 The court
sentenced Ventura to 84 months’ imprisonment, to be served
after the six-year D.C. Superior Court sentence and to be
followed by three years’ supervised release. Ventura appeals.
3
The district court calculated this range by starting with the base
offense level of 8 for unlawful reentry. It added 16 levels for
conviction of a crime of violence (bringing the level to 24) then
subtracted 2 levels for acceptance of responsibility (producing a
final offense level of 22). The court then looked to the PSR to
determine Ventura’s criminal history category. The PSR calculated
eleven criminal history points based on Ventura’s prior convictions,
placing him in criminal history category V. The district court
therefore looked to the intersection between offense level 22 and
criminal history category V on the 2004 Guidelines sentencing
table to find the specified range of 77 to 96 months.
5
II.
The question we must decide under the Sentencing
Guidelines is whether Ventura’s Virginia conviction for
abduction was for a crime of violence, as the district court
concluded, or for an aggravated felony, as Ventura contends.
If it was a crime of violence, the sixteen-level enhancement
was appropriate. If not, the court should have applied the
eight-level enhancement for aggravated felony convictions,
and Ventura’s Guidelines sentencing range would have been
only 33 to 41 months.4
A.
Distinguishing between the two can be a complicated
task. The commentary to the sentencing guideline for
unlawful reentry, which controls our interpretation, see
Stinson v. United States, 508 U.S. 36, 38 (1993), defines
“crime of violence” as
murder, manslaughter, kidnapping, aggravated assault,
forcible sex offenses, statutory rape, sexual abuse of a
minor, robbery, arson, extortion, extortionate extension
of credit, burglary of a dwelling, or any offense under
federal, state, or local law that has as an element the use,
4
Had the district court determined that Ventura’s past conviction
was only an aggravated felony, it would have calculated the
sentencing range by starting with the same base offense level of 8.
The court would then have added 8 levels for conviction of an
aggravated felony and subtracted 2 levels for acceptance of
responsibility, resulting in a total offense level of 14. Using the
PSR’s conclusion as to criminal history, the court would have
looked to the intersection of offense level 14 and criminal history
category V on the 2004 Guidelines sentencing table. The specified
range is 33 to 41 months.
6
attempted use, or threatened use of physical force against
the person of another.
U.S.S.G. § 2L1.2 cmt. n.1(B)(iii). A sentencing court
applying this definition immediately encounters an obstacle:
there is no uniformly accepted meaning of any of the listed
crimes—a consequence of the federalism principles that have
shaped criminal law in the United States.
The Supreme Court confronted this problem in Taylor v.
United States, 495 U.S. 575 (1990), when it was asked to
determine for sentencing purposes under the Armed Career
Criminal Act, 18 U.S.C. § 924(e), whether a defendant had
been convicted of a “violent felony.” That statute defines
“violent felony” in the same way the Guidelines define “crime
of violence”—by listing qualifying crimes and elements of
crimes. Among the crimes listed in the Armed Career
Criminal Act is “burglary.” Noting that “the criminal codes of
the States define burglary in many different ways,” Taylor,
495 U.S. at 580, the Court reasoned that Congress could not
have intended the length of a sentence to turn on the
definition of burglary in the state of conviction. “That would
mean that a person convicted of unlawful possession of a
firearm would, or would not, receive a sentence enhancement
based on exactly the same conduct, depending on whether the
State of his prior conviction happened to call that conduct
‘burglary.’” Id. at 590–91. Because the statute must be
uniformly applied, the Court held that the only appropriate
definition of “burglary” is “the generic sense in which the
term is now used in the criminal codes of most States.” Id. at
598. Most states define “burglary” to include three common
elements. Thus “a person has been convicted of burglary” in
the generic sense “if he is convicted of any crime, regardless
of its exact definition or label, having [these three] basic
elements.” Id. at 599.
7
Once it has identified the generic crime, the sentencing
court must determine whether a defendant was convicted of
that crime. To answer that question, the Court in Taylor
adopted what it called a “formal categorical approach”
restricted to the express language of the statute under which
the defendant was convicted. Id. at 600. It directed the district
court on remand to determine whether the statute under which
the defendant was convicted required proof of the three
elements of generic burglary. If so, the defendant was
convicted of burglary, which is a violent felony for purposes
of the Armed Career Criminal Act. But under some statutes,
conviction is possible without proving each of those three
elements. In those circumstances, the Court allowed that a
sentencing court may modify the categorical approach by
conducting a limited inquiry into the particular facts of the
defendant’s conviction to determine if he was nevertheless
convicted of generic burglary. For example, a defendant is
convicted of the generic crime if the jury instructions require
a finding of all the elements of the generic crime. See id. at
602.
The Court later applied this “modified” categorical
approach in Shepard v. United States, 544 U.S. 13 (2005). In
that case the defendant had pleaded guilty to violating a
statute that was, by its categorical terms, broader than generic
burglary. The Court found it proper to look to the charging
document, the plea agreement, and the transcript of the plea
colloquy to determine whether the defendant “necessarily
admitted” the elements of the generic offense. Id. at 26. These
documents offer the same certainty about the conviction as
the hypothetical jury instructions discussed in Taylor. By
contrast, the Court found it improper to rely on police reports
supporting the criminal complaint because the defendant had
not admitted the conduct described in those reports. Id. at 22–
8
23. The reports therefore could not show that the defendant
was unambiguously convicted of generic burglary.
We have used the strict categorical approach of Taylor
and the modified categorical approach of Shepard to apply
other sentencing statutes and guidelines that, like the Armed
Career Criminal Act, define relevant terms by providing a list
of crimes and elements. See, e.g., In re Sealed Case, 548 F.3d
1085 (D.C. Cir. 2008) (applying Taylor to the career offender
guideline’s definition of “crime of violence”); United States v.
Andrews, 479 F.3d 894 (D.C. Cir. 2007) (applying Taylor to
the firearms offense guideline’s definition of “crime of
violence”). We now apply these approaches to determine
whether Ventura was convicted of a crime of violence when
the Virginia court accepted his plea of nolo contendere to
felonious abduction.
At sentencing, the government offered two separate
reasons for the court to find that Ventura’s abduction
conviction was for a “crime of violence” under the
Guidelines. First, it argued that the Virginia statute conforms
to the generic definition of “kidnapping,” a listed crime under
the guideline for unlawful reentry. See U.S.S.G. § 2L1.2.
Alternatively, the government argued that Ventura’s plea of
nolo contendere led to a conviction of one of the guideline’s
listed criminal elements—namely, the use of force. The
district court agreed with the government on both points, and
Ventura challenges both conclusions on appeal.
If Ventura is correct that the district court should have
applied the eight-level increase for aggravated felonies, rather
than the sixteen-level increase for crimes of violence, we must
again remand this case for resentencing because “failing to
calculate (or improperly calculating) the Guidelines range” is
a “significant procedural error,” Gall v. United States, 128 S.
9
Ct. 586, 597 (2007); see also United States v. Tann, 532 F.3d
868, 874 (D.C. Cir. 2008) (appellate court must “determine
whether the district court correctly calculated the Guidelines
range and remand for resentencing if it did not”). Whether
Virginia’s abduction statute fits the generic definition of
“kidnapping” is a question of law, which we review de novo.
See United States v. Hill, 131 F.3d 1056, 1062 n.5 (D.C. Cir.
1997). By contrast, we give “due deference” to the district
court’s application of law to fact in deciding whether Ventura
was necessarily convicted of a crime of violence as a result of
his nolo plea, applying an intermediate standard between clear
error and de novo review. See Tann, 532 F.3d at 874.
B.
We must first consider whether the Virginia statute under
which Ventura was convicted describes the generic crime of
“kidnapping” under U.S.S.G. § 2L1.2. The Virginia statute
provides:
Any person, who, by force, intimidation or deception,
and without legal justification or excuse, seizes, takes,
transports, detains or secretes the person of another, with
the intent to deprive such other person of his personal
liberty or to withhold or conceal him from any person,
authority or institution lawfully entitled to his charge,
shall be deemed guilty of “abduction” . . . . The terms
“abduction” and “kidnapping” shall be synonymous in
this Code.
VA. CODE § 18.2-47(A). Although Virginia deems any
violation of this statute “kidnapping,” state labels do not
control our inquiry under the Guidelines. See Taylor, 495 U.S.
at 599. Rather, as Taylor requires, we must identify the
elements of generic kidnapping and determine whether
10
Virginia’s statute conforms to those elements or applies more
broadly.
Taylor instructs us to determine the elements of
kidnapping that are common to most states’ definitions of that
crime. See id. at 598. The parties agree that nearly every state
kidnapping statute includes two common elements: (1) an act
of restraining, removing, or confining another; and (2) an
unlawful means of accomplishing that act. So, for example,
the Virginia abduction statute applies to a person who “seizes,
takes, transports, detains or secretes the person of another,”
VA. CODE § 18.2-47(A), if that seizure or taking is carried out
“by force, intimidation or deception,” id.
But the parties dispute whether generic kidnapping
requires anything more than these two elements. The
government argues that it does not. Ventura contends that a
majority of states, tracking the Model Penal Code, require one
of several “nefarious purposes” to distinguish kidnapping
from less serious crimes, and that the generic definition
should therefore include this element. See Br. of Appellant at
10 (citing 3 WAYNE R. LAFAVE, SUBSTANTIVE CRIMINAL
LAW § 18.1(e) (2d ed. 2003)). In support of his argument,
Ventura points to the Ninth Circuit’s conclusion that generic
kidnapping requires a nefarious purpose. See United States v.
Gonzalez-Perez, 472 F.3d 1158, 1161 (9th Cir. 2007). The
government counters with citations to two Fifth Circuit
decisions rejecting this requirement. See United States v.
Iniguez-Barba, 485 F.3d 790, 791 (5th Cir. 2007); United
States v. Gonzalez-Ramirez, 477 F.3d 310, 318 (5th Cir.
2007).
To resolve the dispute, we look to state kidnapping
statutes, the District of Columbia’s statute, and the federal
kidnapping provision. Many jurisdictions separate kidnapping
11
offenses into simple and aggravated forms or grade them as
first and second degree. Because our task is to determine the
meaning of “kidnapping” in any form or degree, we look to
all offenses termed kidnapping by the various criminal codes.
A bare majority of jurisdictions define “kidnapping” to
include a criminal purpose beyond the mere intent to restrain
the victim. Twenty-two states require what Ventura terms a
“nefarious purpose.”5 Some of these states list only the
nefarious purposes included in the Model Penal Code: to hold
the victim for ransom or reward, to use the victim as a shield
or hostage, to facilitate the commission of a felony or
subsequent flight, to inflict bodily injury on or terrorize the
victim or another person, or to interfere with the performance
of a government or political function. See MODEL PENAL
CODE § 212.1. Other states include additional qualifying
purposes, such as intent to sexually assault the victim or to
hold the victim in involuntary servitude. But each requires
that a defendant act with one of the specified purposes before
the crime is deemed “kidnapping.” In addition to these
twenty-two, five other states also impose a heightened intent
requirement but do not use the nefarious purpose construct.6
5
See ARIZ. REV. STAT. § 13-1304(A); ARK. CODE ANN. § 5-11-
102(a); DEL. CODE ANN. tit. 11, § 783; FLA. STAT. § 787.01(1);
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); 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. § 30-4-1; N.C. GEN. STAT. § 14-39(a); N.D. CENT.
CODE § 12.1-18-01(1); 18 PA. CONS. STAT. § 2901(a); S.D.
CODIFIED LAWS §§ 22-19-1 to -1.1; VT. STAT. ANN. tit. 13, § 2405;
WYO. STAT. ANN. § 6-2-201.
6
See 720 ILL. COMP. STAT. 5/10-1 (requiring, at minimum, intent
to confine victim secretly); MASS. GEN. LAWS ch. 265, § 26
12
Seventeen states require no heightened intent but include
alternative aggravating conduct or circumstances that must be
shown for a crime to constitute kidnapping. Seven of these
states employ nearly identical formulations. Each requires that
the defendant act with a nefarious purpose, hold the victim
where he or she is not likely to be found, or subject the victim
to a substantial risk of serious physical harm (in some states
by using or threatening to use deadly force).7 Five more states
likewise require either a nefarious purpose or an alternative
element of severity: in two states, substantial risk of serious
physical harm;8 in two others, carrying the victim from one
place to another or taking a vulnerable victim;9 and in one,
moving the victim a substantial distance or across state lines,
holding the victim for a substantial period of time, subjecting
the victim to involuntary servitude or a risk of bodily injury,
or taking a child without parental consent.10 In the remaining
(requiring, at minimum, intent to confine victim secretly, to send
victim outside Commonwealth, or to hold victim to involuntary
servitude); OR. REV. STAT. §§ 163.225–.235 (requiring intent to
interfere substantially with victim’s liberty); R.I. GEN. LAWS § 11-
26-1 (requiring, at minimum, intent to confine or imprison victim
secretly or forcibly or to transport victim out of state); WIS. STAT.
§ 940.31(1) (requiring intent to cause secret confinement or
imprisonment of victim, to carry victim out of state, or to hold
victim to involuntary servitude).
7
See ALA. CODE §§ 13A-6-40(2), -43, -44; ALASKA STAT.
§ 11.41.300(a)–(b); CONN. GEN. STAT. §§ 53a-91, -92, -94; ME.
REV. STAT. ANN. tit. 17-A, § 301(1); N.Y. PENAL LAW §§ 135.00,
.20, .25; TEX. PENAL CODE ANN. §§ 20.01(2), .03–.04; WASH. REV.
CODE §§ 9A.40.010–.030.
8
See OHIO REV. CODE ANN. § 2905.01; TENN. CODE ANN. §§ 39-
13-303 to -305.
9
See COLO. REV. STAT. §§ 18-3-301 to -302; LA. REV. STAT. ANN.
§§ 14:44–:45.
10
See UTAH CODE ANN. §§ 76-5-301 to -302.
13
five states in this category, the statutes include no nefarious
purpose element, mandatory or optional, but do require an
additional element of severity.11
Finally, six states, the District of Columbia, and the
federal government define “kidnapping” to require nothing
more than intentional and unlawful—that is, by force,
intimidation, or deception—restraint of the victim.12 These
jurisdictions require neither heightened intent nor any
aggravating conduct or circumstance. Virginia is in this
category.
Our review of these kidnapping statutes leads us to
conclude that a conviction under the Virginia statute is not by
itself a conviction of generic kidnapping. The Virginia statute
outlaws conduct far broader and less serious than the generic
definition of the crime. 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—forty-four
out of fifty-two—require some additional element of intent or
severity. Virginia’s abduction statute encompasses both
generic kidnapping and less serious offenses, leaving it to
other statutes and the discretion of sentencing judges to tailor
11
See CAL. PENAL CODE § 207 (kidnapper must move victim from
one place to another); GA. CODE ANN. § 16-5-40(a) (same); MD.
CODE ANN., CRIM. LAW § 3-502 (same); MONT. CODE ANN. § 45-
5-302(1) (kidnapper must hold victim in a place of isolation or use
or threaten to use physical force); W. VA. CODE § 61-2-14 (victim
must be a child under sixteen).
12
See 18 U.S.C. § 1201(a); 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 § 18.2-47.
14
punishment based on the severity of the offense. Compare
VA. CODE § 18.2-47(A) (providing that abduction, by default,
is a Class 5 felony, punishable by one to ten years’
imprisonment), with VA. CODE § 18.2-48 (providing that
abduction with a nefarious intent is a Class 2 felony,
punishable by twenty years’ to life imprisonment), and VA.
CODE § 18.2-48.1 (providing that abduction by a prisoner or
escaped prisoner is a Class 3 felony, punishable by five to
twenty years’ imprisonment). Thus, under the strict
categorical approach outlined in Taylor, Ventura was not
convicted of the crime of kidnapping for the purpose of
applying U.S.S.G. § 2L1.2.
C.
Because a conviction for felonious abduction in Virginia
does not necessarily entail conviction of all the elements of
generic kidnapping, we may look beyond the statute to
determine, under the modified categorical approach used in
Shepard, whether Ventura was nonetheless convicted of a
crime of violence. The district court concluded under
Shepard’s approach that Ventura was convicted of a crime of
violence by virtue of his nolo contendere plea. We disagree.
The Commonwealth of Virginia charged Ventura by an
indictment that tracked the broad language of the abduction
statute: “On or about the 27th day of August, 2000, in the
County of Fairfax, [Ventura] did feloniously abduct [the
victim] with the intent to deprive her of her personal liberty.”
Tr. of Plea Colloquy at 5, Hernandez-Chacon, No. 98623. By
its terms, this charge includes nothing that would transform
Ventura’s conviction into one for generic kidnapping. It does
not contain the same allegations as the Commonwealth’s
factual proffer, recited as part of the plea colloquy, which
describes a crime that amounts to generic kidnapping. In the
15
proffer the prosecutor alleged that Ventura had approached a
sixteen-year-old girl outside the supermarket where she
worked. After staring at the girl and attempting to engage her
in conversation, Ventura asked her to come with him. She
declined. Ventura then grabbed the girl, pinned her against a
wall, and put his hand between her legs. The girl kicked
Ventura and broke away; he then grabbed her by the arm and
pulled her into an alley. After another struggle, she broke free
and returned to the supermarket to call the police. These
proffered facts include two allegations that, if admitted, would
mean that Ventura was convicted of generic kidnapping as
that term is used by most states: removal of the victim from
one place to another and intent to sexually assault, inflict
bodily injury on, or terrorize the victim.
The question, then, is whether the factual proffer is
within the limited set of evidence that we may look to under
Shepard’s modified categorical approach. The government
argues that it is, because by entering a nolo plea Ventura
admitted the truth of this factual proffer and, therefore, the
elements of generic kidnapping.13 The government maintains
that the pleading defendant admits the truth of any facts
alleged by the prosecution. But this argument misconstrues
the effect of a nolo plea under Virginia law. In Virginia, a
defendant who pleads nolo contendere admits only the truth
of the charge—that is, the crime charged in the indictment.
13
The government’s argument has varied throughout this case. In
its sentencing memorandum, the government argued that Ventura
was necessarily convicted of generic kidnapping. At the sentencing
hearing, the government abandoned this theory and argued instead
that Ventura was necessarily convicted of the use of force—a listed
element under U.S.S.G. § 2L1.2. The distinction is ultimately
unimportant: both arguments depend on whether Ventura was
necessarily convicted of the proffered facts, and we conclude he
was not.
16
See Commonwealth v. Jackson, 499 S.E.2d 276, 278 (Va.
1998) (“[B]y entering a plea of nolo contendere, the
defendant ‘implies a confession . . . of the truth of the
charge . . . .’” (first omission in original)). Thus Ventura was
necessarily convicted of any facts charged in the Virginia
indictment. But that indictment charged only that Ventura
abducted the victim with the intent to deprive her of personal
liberty. Like the abduction statute itself, that description
embraces conduct that does not amount to generic
kidnapping.
Ventura’s nolo plea admitted nothing about the narrower
description of the crime offered by the Commonwealth at the
plea colloquy. Rather, his counsel confirmed that by pleading
nolo contendere Ventura signaled only that he was “not
contesting the charge.” Tr. of Plea Colloquy at 16,
Hernandez-Chacon, No. 98623. And the judge found Ventura
“guilty as charged in the indictment.” Id. at 17 (emphasis
added). At no point did Ventura, his counsel, or the judge
confirm the truth of the facts as stated by the Commonwealth
in its proffer. The judge was not required to accept those facts
to convict Ventura. Indeed, the judge might have inferred that
Ventura was pleading nolo contendere because he had
violated the abduction statute but had not done all that the
government alleged.
On this record, we cannot conclude that Ventura was
convicted of the facts alleged in the Commonwealth’s proffer.
To hold otherwise would conflict with “Taylor’s demand for
certainty when identifying a generic offense,” Shepard, 544
U.S. at 21. “[I]f the indictment or information and jury
instructions show that the defendant was charged only with
[the elements of the generic crime],” the government may use
the conviction as a sentencing enhancement because the jury
could only convict if it found the defendant guilty of those
17
elements. Taylor, 495 U.S. at 602. And when a defendant who
pleads guilty “adopt[s]” the government’s factual statement,
he is necessarily convicted of those facts. Shepard, 544 U.S.
at 20. But in Shepard the Court refused to hold that a
defendant pleading guilty is also convicted of any facts stated
in a police report accompanying the criminal complaint. See
id. at 22. It compared the report to the transcript of a jury trial
showing testimony about the critical facts: neither document
demonstrates with certainty that the defendant was convicted
of those facts. See id.
Likewise, the record here does not permit us to say with
the requisite certainty that Ventura was necessarily convicted
of the elements of generic kidnapping—or the use of physical
force. Even under the modified categorical approach, he was
not convicted of a crime of violence.
III.
Virginia’s abduction statute does not conform to the
generic crime of kidnapping. Under the strict categorical
approach outlined in Taylor, Ventura’s prior conviction under
that statute is not a conviction of kidnapping. Furthermore,
Ventura did not admit facts amounting to generic kidnapping
through his plea of nolo contendere, and the judge who
accepted his plea did not find him guilty of such facts. Even
under the modified categorical approach of Shepard, he was
not convicted of kidnapping or of the use of force. For these
reasons, we conclude that Ventura has not been convicted of a
crime of violence within the meaning of U.S.S.G. § 2L1.2.
Accordingly, he was subject to an eight-level increase, rather
than a sixteen-level increase, under the Federal Sentencing
Guidelines. Because the district court erred in calculating the
advisory sentencing range, we vacate and remand for
resentencing. The district court is not required to impose the
18
sentence the Guidelines recommend, but it must consider that
sentence before rejecting it. See 18 U.S.C. § 3553(a)(4).
So ordered.