FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee, No. 05-10693
v.
D.C. No.
CR-04-01554-JMR
ABEU GONZALEZ-PEREZ, A.K.A.
Oscar Ortiz-Garcia, OPINION
Defendant-Appellant.
Appeal from the United States District Court
for the District of Arizona
John M. Roll, District Judge, Presiding
Argued and Submitted
September 11, 2006—San Francisco, California
Filed January 10, 2007
Before: Ferdinand F. Fernandez, William A. Fletcher, and
Johnnie B. Rawlinson, Circuit Judges.
Opinion by Judge Rawlinson
257
UNITED STATES v. GONZALEZ-PEREZ 259
COUNSEL
Jon M. Sands, Federal Public Defender, Tracy Friddle, Asst.
Federal Public Defender (argued), Phoenix, Arizona, for the
defendant-appellant.
Paul K. Charlton, United States Attorney, Christina M.
Cabanillas, Appellate Chief, Bruce M. Ferg, Asst. United
States Attorney (argued), Tucson, Arizona, for the plaintiff-
appellee.
OPINION
RAWLINSON, Circuit Judge:
On appeal, Abeu Gonzalez-Perez challenges his sentence
260 UNITED STATES v. GONZALEZ-PEREZ
on the basis that the district court erred in applying a 16-level
enhancement to his sentence for a false-imprisonment convic-
tion under Florida law. Specifically, Gonzalez-Perez contends
that his prior conviction under Florida’s false imprisonment
statute does not constitute a “crime of violence” under
§ 2L1.2(b)(1)(A)(ii) of the Sentencing Guidelines.1 We agree.
Accordingly, we reverse the district court’s imposition of the
16-level enhancement, vacate the sentence and remand for
resentencing. We affirm the district court’s other rulings made
during the sentencing proceedings.
I.
Gonzalez-Perez pled guilty to illegal re-entry following
deportation in violation of 8 U.S.C. § 1326(a). At sentencing,
over Gonzalez-Perez’s objection, the district court applied a
16-level crime-of-violence enhancement based on a prior con-
viction for false imprisonment under Fla. Stat. § 787.02(1)(a).
See U.S.S.G. § 2L1.2(b)(1)(A)(ii). “We review de novo a dis-
trict court’s decision that a prior conviction is a crime of vio-
lence under the Sentencing Guidelines.” United States v.
Velasquez-Reyes, 427 F.3d 1227, 1229 (9th Cir. 2005) (cita-
tion omitted).
II.
[1] A 16-level increase in a defendant’s offense level is
warranted where the defendant was previously removed after
conviction for a “crime of violence.” U.S.S.G. § 2L1.2(b)(1)
(A)(ii). In determining “whether a defendant’s prior offense
constitutes a crime of violence for purposes of U.S.S.G.
§ 2L1.2(b)(1)(A)(ii),” this Court applies the categorical
approach set forth in Taylor v. United States, 495 U.S. 575
(1990). United States v. Pimentel-Flores, 339 F.3d 959, 968
(9th Cir. 2003) (citation and internal quotation marks omit-
ted). Under Taylor’s categorical approach, to determine
1
All references are to the Guidelines effective on November 1, 2004.
UNITED STATES v. GONZALEZ-PEREZ 261
whether a conviction qualifies as a crime of violence, we do
not examine the facts underlying the prior offense, but “look
only to the fact of conviction and the statutory definition of
the prior offense.” Taylor, 495 U.S. at 602.
The Application Note to § 2L1.2(b)(1)(A)(ii) of the Sen-
tencing Guidelines, defines crime of violence as:
any of the following: murder, manslaughter, kidnap-
ping, aggravated assault, forcible sex offenses, statu-
tory 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, attempted
use, or threatened use of physical force against the
person of another.
U.S.S.G. § 2L1.2 cmt. n. 1(B)(iii).
[2] Accordingly, Gonzalez-Perez’s prior conviction quali-
fies as a “crime of violence” if Florida’s false imprisonment
statute, Fla. Stat. § 787.02(1)(a): (1) “has as an element the
use, attempted use, or threatened use of physical force against
the person of another,” or (2) constitutes “kidnapping” in its
generic sense. U.S.S.G. § 2L1.2 cmt. n. 1(B)(iii); see also
United States v. Pereira-Salmeron, 337 F.3d 1148, 1151 (9th
Cir. 2003) (noting that “[a]ny offense listed in [the Guide-
lines’ definition] is inherently deemed to be a ‘crime of vio-
lence’ for purposes of this Guideline, whether or not the use,
attempted use, or threatened use of force against the person of
another . . . is an element of the given offense.”).
[3] The Florida statute defines false imprisonment as “forc-
ibly, by threat, or secretly confining, abducting, imprisoning,
or restraining another person without lawful authority and
against her or his will.” Fla. Stat. § 787.02(1)(a). The govern-
ment argues that a conviction under § 787.02(a) “implicitly
262 UNITED STATES v. GONZALEZ-PEREZ
contain[s] as an element the use . . . of . . . force.” We dis-
agree.
[4] “[T]he force necessary to constitute a crime of violence
must actually be violent in nature.” United States v. Lopez-
Montanez, 421 F.3d 926, 929 (9th Cir. 2005) (citation, alter-
ation, and internal quotation marks omitted). However,
because under Fla. Stat. § 787.02(1)(a) false imprisonment
can be effectuated “secretly,” a conviction under Florida’s
false imprisonment statute need not involve the use of force.
See Robinson v. State, 462 So.2d 471, 476 (Fla. Dist. Ct. App.
1984) (rejecting an argument that there was insufficient evi-
dence to support a kidnapping charge against the defendant
because there was no evidence of the use of any physical
force or threat in transporting the victim); see also Corner v.
State, 868 So.2d 553, 556 (Fla. Dist. Ct. App. 2004) (same);2
cf. United States v. Hernandez-Hernandez, 431 F.3d 1212,
1217 (9th Cir. 2005) (holding that California’s false imprison-
ment statute, which is similar to Florida’s, did not categori-
cally constitute a crime of violence).
[5] Alternatively, the government urges us to hold that false
imprisonment under Florida law qualifies as a crime of vio-
lence within the meaning of the Sentencing Guidelines
because the offense effectively constitutes “kidnapping.”
Again, we disagree. Taylor instructs that where, as here, the
enhancement provision does not specifically define the enu-
merated offense, we must define it according to its “generic,
contemporary meaning.” Taylor, 495 U.S. at 598. We must
then compare the state’s definition of a crime, “with the
generic definition of that crime to determine if the defendant’s
conviction is a crime of violence pursuant to the Sentencing
2
Although Robinson and Corner analyze Florida’s kidnapping statute,
Fla. Stat. § 787.01, it is appropriate to consider these cases because “proof
of the elements of the kidnapping statute . . . constitutes proof of the ele-
ments of false imprisonment.” McCutcheon v. State, 711 So.2d 1286, 1288
(Fla. Dist. Ct. App. 1998) (citations omitted).
UNITED STATES v. GONZALEZ-PEREZ 263
Guidelines.” Velasquez-Reyes, 427 F.3d at 1229 (citations
omitted). The government proposes that the generic, contem-
porary definition of kidnapping should be “the unlawful
deprivation of another person’s liberty of movement.” How-
ever, the generic definition of kidnapping encompasses, at a
minimum, the concept of a “nefarious purpose[ ]” motivating
restriction of the victim’s liberty. See Wayne R. LaFave, 3
Substantive Criminal Law § 18.1(e), at 20, n.154 (2d ed.
2003) (noting that only eleven states do not specify that kid-
napping requires a nefarious purpose); see also Model Penal
Code § 212.1 (providing that a defendant is guilty of kidnap-
ping only if his or her purpose is “(a) to hold for ransom or
reward, or as a shield or hostage; or (b) to facilitate commis-
sion of any felony or flight thereafter; or (c) to inflict bodily
injury on or to terrorize the victim or another; or (d) to inter-
fere with the performance of any governmental or political
function.”). The Florida false imprisonment statute contains
no nefarious purpose element whatsoever. See Fla. Stat.
§ 787.02(1)(a) (defining false imprisonment as “forcibly, by
threat, or secretly confining, abducting, imprisoning, or
restraining another person without lawful authority and
against her or his will.”); cf. Fla. Stat. § 787.01(1)(a) (defining
kidnapping as “forcibly, secretly, or by threat confining,
abducting, or imprisoning another person against her or his
will and without lawful authority, with intent to: (1) [h]old for
ransom or reward or as a shield or hostage[;] (2) [c]ommit
or facilitate commission of any felony; (3) [i]nflict bodily
harm upon or to terrorize the victim or another person; (4)
[i]nterfere with the performance of any governmental or
political function.”) (emphasis added). Accordingly, Florida’s
false imprisonment statute, Fla. Stat. § 787.02(1)(a), does not
conform to the generic, contemporary definition of kidnap-
ping, and does not constitute a categorical crime of violence
for the purposes of applying U.S.S.G. § 2L1.2(b)(1)(A)(ii).3
3
The government conceded that Gonzalez-Perez’s conviction does not
qualify as a crime of violence under the modified categorical approach
described in Taylor. See Taylor, 495 U.S. at 602.
264 UNITED STATES v. GONZALEZ-PEREZ
Accordingly, the district court erred when it applied the 16-
level enhancement under U.S.S.G. § 2L1.2(b)(1)(A)(ii) in cal-
culating Gonzalez-Perez’s sentence. See Lopez-Montanez,
421 F.3d at 932.
III.
[6] Gonzalez-Perez also contends that his sentence was
unreasonable under 18 U.S.C. § 3553(a)(6) given that his co-
defendant in the Florida false imprisonment case received a
sentence of only 60 days after separately reentering the
United States. We disagree. The district court’s finding that
18 U.S.C. § 3553(a)(6) was not implicated is consistent with
the reasonableness requirement articulated in United States v.
Booker, 543 U.S. 220 (2005). The district court reasonably
relied on the facts that Gonzalez-Perez’s former co-defendant
was processed under a “fast-track” procedure, and was
charged with violating a different statute to explain any dis-
parity in the respective sentences imposed. See United States
v. Banuelos-Rodriguez, 215 F.3d 969, 978 (9th Cir. 2000); see
also United States v. Marcial-Santiago, 447 F.3d 715, 717-19
(9th Cir. 2006).
[7] Finally, “a [district] court’s silence regarding [its]
authority to depart is not sufficient to indicate that the court
believed it lacked power to depart.” United States v. You, 382
F.3d 958, 967 (9th Cir. 2004) (citations and internal quotation
marks omitted). In the absence of a clear expression to the
contrary, we assume that the district court is aware of its dis-
cretionary authority to depart. See United States v. Garcia-
Garcia, 927 F.2d 489, 491 (9th Cir. 1991).
IV.
Conclusion
We hold that the district court erred when it applied a 16-
level sentencing enhancement predicated upon a determina-
UNITED STATES v. GONZALEZ-PEREZ 265
tion that Gonzalez-Perez’s conviction for false imprisonment
under Florida law constituted a crime of violence under
U.S.S.G. § 2L1.2(b)(1)(A)(ii). Accordingly, we REVERSE
the district court’s imposition of the enhancement, VACATE
the sentence and REMAND for resentencing. We AFFIRM
the other rulings made by the district court in the course of the
sentencing proceedings.