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

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