United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT April 25, 2007
Charles R. Fulbruge III
Clerk
No. 06-50434
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
GERARDO INIGUEZ-BARBA, also known as David Garcia,
Defendant-Appellant.
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Appeal from the United States District Court
for the Western District of Texas
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Before JONES, Chief Judge, and HIGGINBOTHAM and CLEMENT, Circuit
Judges.
PER CURIAM:
Defendant Gerardo Iniguez-Barba pleaded guilty to reentering
the United States following deportation. In sentencing Iniguez,
the district court levied a 16-level increase after concluding that
Iniguez’s previous New York conviction for second-degree
kidnapping, NEW YORK PENAL LAW § 135.20, was a “crime of violence”
under U.S.S.G. § 2L1.2. Iniguez challenges that conclusion,1 which
1
Iniguez also challenges the constitutionality of § 1326(b)’s treatment
of prior felony and aggravated felony convictions as sentencing factors. As
he properly concedes, this argument is foreclosed by Almendarez-Torres v.
United States, 523 U.S. 224, 235 (1998), and he raises the argument only to
preserve it.
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we review de novo. See United States v. Dominguez-Ochoa, 386 F.3d
639, 641 (5th Cir. 2004).
U.S.S.G. § 2L1.2 provides for a 16-level increase if the
defendant was deported following a “crime of violence.” The
commentary to § 2L1.2, which is controlling, Stinson v. United
States, 508 U.S. 36, 38 (1993), defines “crime of violence” as
either an enumerated felony, including “kidnapping,” or a felony
that “has as an element the use, attempted use, or threatened use
of physical force against the person of another.” In determining
whether the New York crime at issue here is the enumerated offense
of “kidnapping,” we look to the “generic, contemporary” meaning of
kidnapping, employing a “common sense approach” that looks to the
Model Penal Code, the LaFave and Scott treatises, modern state
codes, and dictionary definitions. See United States v. Fernandez-
Cusco, 447 F.3d 382, 385 (5th Cir. 2006); United States v. Fierro-
Reyna, 466 F.3d 324, 327 (5th Cir. 2006).
Here, Iniguez was convicted under a statute stating that “[a]
person is guilty of kidnapping in the second degree when he abducts
another person.” NEW YORK PENAL LAW § 135.20. The code defines
“abduct” as “to restrain a person with intent to prevent his
liberation by either (a) secreting or holding him in a place where
he is not likely to be found, or (b) using or threatening to use
deadly physical force.” Id. § 135.00(2). “Restrain” means to
restrict a person's movements intentionally and
unlawfully in such manner as to interfere substantially
with his liberty by moving him from one place to another,
or by confining him either in the place where the
No. 06-50434
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restriction commences or in a place to which he has been
moved, without consent and with knowledge that the
restriction is unlawful. A person is so moved or confined
"without consent" when such is accomplished by (a)
physical force, intimidation or deception, or (b) any
means whatever, including acquiescence of the victim, if
he is a child less than sixteen years old or an
incompetent person and the parent, guardian or other
person or institution having lawful control or custody of
him has not acquiesced in the movement or confinement.
Id. § 135.00(1).
We recently discussed in detail the generic, contemporary
meaning of kidnapping. In United States v. Gonzalez-Ramirez, 477
F.3d 310 (5th Cir. 2007), we concluded that the Tennessee offense
of “kidnapping” was a crime of violence. In doing so, we
explicitly rejected Iniguez’s primary argument — that, because the
MPC requires a specific purpose for an act to be “kidnapping” (such
as a desire for ransom, an intent to facilitate another felony or
flight, etc.), the generic, contemporary meaning of kidnapping
includes such a purpose. Id. at 317. Consequently, NEW YORK PENAL
LAW § 135.20 can be a kidnapping statute even though it doesn’t
require such a purpose.
The court in United States v. Gonzalez-Ramirez also noted that
Tennessee’s statute fell somewhere between MPC kidnapping and MPC
“felonious restraint” because the latter didn’t require, as
Tennessee and MPC kidnapping did, the use of force, threat, or
fraud or, for children or incompetents, the absence of valid
consent. Holding that Tennessee’s statute prohibited more than
“relatively trivial restraints,” rendering it a kidnapping statute,
id. at 318, we noted that Tennessee’s offense included:
No. 06-50434
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(1) knowing removal or confinement;
(2) substantial interference with the victim’s liberty;
(3) (a) force, threat, or fraud, or
(b) if the victim is incompetent or under age thirteen,
lack of consent from the person responsible for the
general supervision of the victim’s welfare; and
(4) (a) circumstances exposing the victim to
substantial risk of bodily injury, or
(b) confinement as a condition of involuntary servitude,
meaning “the condition of a person who is compelled by
force, coercion or imprisonment and against the person’s
will to labor for another, whether paid or not.
Here, NEW YORK PENAL LAW § 135.20 includes the first three of
those four elements; it does not include the last.2 Hence we must
decide whether that fourth element is required if the first three
are present.
We conclude that the first three are sufficient. First,
although we noted in Gonzalez-Ramirez that it was “significant that
Tennessee requires the use of force, threat or fraud along with the
additional aggravating elements of substantial risk of injury or
confinement as a condition of involuntary servitude,” we so noted
to elaborate our holding that Tennessee’s statute was “at least as
restrictive, if not more restrictive, than a majority of state
kidnapping statutes as to competent adults,” citing New York’s and
2
In Tennessee, those first three comprise “false imprisonment,” TENN.
CODE ANN. § 39-13-301(2), 302 (2003), which forms the statutory basis for
Tennessee’s three kidnapping offenses. See TENN. CODE ANN. § 39-13-303
(“kidnapping” is false imprisonment plus risk of injury or involuntary
servitude); id. § 39-13-304 (“aggravated kidnapping” is false imprisonment
committed for one of the MPC-type purposes); id. § 39-13-305 (“especially
aggravated kidnapping” is false imprisonment in certain heinous
circumstances). Of course, that Tennessee calls that crime “false
imprisonment” doesn’t mean that the crime isn’t “kidnapping” under the
generic, contemporary meaning.
No. 06-50434
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twenty-six other states’ kidnapping statutes, only one of which
requires a risk of injury or involuntary servitude. Id. at 319 &
n.52 (emphasis added); see OHIO REV. CODE ANN. § 2905.01(b).3
Indeed, we held Tennessee’s statute “well-within” the generic
definition of kidnapping. Gonzalez-Ramirez, 477 F.3d at 317.
Second, as we noted in Gonzalez-Ramirez, the elements of force,
threat, or fraud or, for children or incompetents, lack of valid
consent, are elements of MPC kidnapping not required of MPC
“felonious restraint” or MPC “false imprisonment.” And that makes
sense, particularly with regard to children or incompetents where
the generic meaning of “kidnapping” must include the stealing of a
child, even in circumstances where the victim can’t be said to be
“expos[ed] to [a] substantial risk of bodily injury” or involuntary
servitude. Third, commentary to the New York kidnapping and
unlawful restraint scheme shows that second-degree kidnapping was
not meant to be a significantly less serious offense than first-
degree kidnapping,4 such that first-degree kidnapping in New York
would be the only “kidnapping” that’s a crime of violence:
To the revisers of the former Penal Law, “restrain” was
“a broad term covering everything from the most serious
3
In about eleven of those states (including New York), the cited statue
is the “second-degree kidnapping” statute, while the “first-degree kidnapping”
statute requires a special purpose. See Gonzalez-Ramirez, 477 F.3d at 317-18
& n.46, 47. In the other states, the cited statute is the main kidnapping
statute, and purpose plays no role. While we don’t look only to the label of
the statute at issue to determine what exactly it proscribes, see Fierro-
Reyna, 466 F.3d at 326-27, of course we must look to the labels of the
statutes to which we compare the statute at issue.
4
The state legislature’s intent behind a criminal statute isn’t
authoritative when determining if that statute proscribes a “crime of
violence,” but it’s informative.
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cases down to removals and confinements not involving a
high degree of isolation, disappearance, or violence.”
“Abduct,” on the other hand, was viewed as a “very
serious form of restraint, savoring strongly of the
substantial removal, isolation and/or violence usually
associated with genuine kidnapping.” Thus, to restrain
another is the lesser offense of unlawful imprisonment
and to abduct another is the far more serious offense of
kidnapping.
NEW YORK PENAL LAW Ch. 40, Pt. Three, Art. 135, Refs. and Annos.
(quoting Staff Comments of the Commission on Revision of the Penal
Law, Revised Penal Law, McKinney’s Spec. Pamph. (1965), p. 277).
Hence second-degree kidnapping isn’t like unlawful imprisonment,
it’s more like “genuine kidnapping.”5 Fourth, BLACK’S LAW DICTIONARY
(8th ed. 2004) defines “kidnapping” as “[t]he crime of seizing and
taking away a person by force or fraud,” not including a potential
for injury or involuntary servitude.6 Finally, we recently decided
in an unpublished case, United States v. Garcia-Gonzalez, No. 05-
40490, 2006 WL 394977, at *1 (5th Cir. Feb. 21, 2006) (reviewing
for plain error), that Texas’s kidnapping statute, TEX. PENAL CODE §
20.03, which is almost identical to New York’s and doesn’t require
a risk of injury or involuntary servitude, proscribes a “crime of
5
This, despite the fact that in New York, “unlawful imprisonment”
requires restraint “under circumstances which expose the [victim] to a risk of
serious physical injury,” NEW YORK PENAL LAW § 135.10, a more serious offense
than most states’ “unlawful [or false] imprisonment.” See Gonzalez-Ramirez,
477 F.3d at 320 n.55. We can’t extend the “risk of serious physical injury”
requirement from unlawful imprisonment to second-degree kidnapping, but if the
latter requires that risk but is a less serious offense than the former, the
former smells more like “kidnapping.”
6
“Aggravated kidnapping” requires a special purpose and “child-
kidnapping” is “kidnapping of a minor, often without the element of force or
fraud (as when someone walks off with another’s baby).” BLACK’S LAW DICTIONARY
(8th ed. 2004).
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violence;” although that opinion isn’t controlling, it’s consistent
with our holding today.
In sum, NEW YORK PENAL LAW § 135.20 proscribes the generic
offense of “kidnapping.” It does not proscribe some lesser offense
under an inapt label of “kidnapping.” Consequently, we do not
address the Government’s alternative argument that § 135.20 “has as
an element the use, attempted use, or threatened use of physical
force against the person of another,” or Iniguez’s rejoinder that
fraud or moving or concealing a child or incompetent without
consent do not inherently involve physical force.
AFFIRMED.