IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
October 12, 2007
No. 06-50738 Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA
Plaintiff-Appellee
v.
JORGE CERVANTES-BLANCO
Defendant-Appellant
Appeal from the United States District Court
for the Western District of Texas
Before DENNIS, CLEMENT, and PRADO, Circuit Judges.
PRADO, Circuit Judge:
Defendant-Appellant Jorge Cervantes-Blanco (“Cervantes”) appeals the
sentence that the district court imposed after he pleaded guilty to illegal reentry
after deportation in violation of 8 U.S.C. § 1326(a). Over Cervantes’s objection,
the district court enhanced his offense level by sixteen levels based on its
conclusion that Cervantes’s prior Colorado conviction for attempted second-
degree kidnapping was a conviction for a crime of violence within the meaning
of section 2L1.2 of the United States Sentencing Guidelines. Cervantes now
appeals this enhancement. For the reasons that follow, we vacate Cervantes’s
sentence and remand for resentencing.
No. 06-50738
I. FACTUAL AND PROCEDURAL BACKGROUND
Cervantes pleaded guilty to a one-count indictment charging him with
being in the United States unlawfully after removal, in violation of 8 U.S.C.
§ 1326(a). The presentence report recommended that Cervantes receive a
sixteen-level sentence enhancement under U.S.S.G. § 2L1.2(b)(1)(A)(ii) for his
prior Colorado conviction for attempted second-degree kidnapping. Cervantes
objected to this enhancement on the basis that his prior offense did not
constitute a crime of violence under the Guidelines. Citing Apprendi v. New
Jersey, 530 U.S. 466, 489 (2000), Cervantes further objected that an
enhancement that resulted in a sentence beyond the statutory maximum
violated due process. Cervantes also raised a challenge to the application of the
Guidelines based on Blakely v. Washington, 542 U.S. 296 (2004). The district
court overruled these objections and sentenced Cervantes to seventy-seven
months’ imprisonment.
Cervantes appealed to this court. We rejected Cervantes’s Apprendi
challenge, noting that his argument was foreclosed by Almendarez-Torres v.
United States, 523 U.S. 224, 235 (1998). United States v. Cervantes-Blanco, 170
F. App’x 875, 876 (5th Cir. 2006) (unpublished). We did not address Cervantes’s
argument that his prior conviction did not qualify as a conviction for a crime of
violence; instead, we vacated Cervantes’s sentence on the basis of the district
court’s Fanfan error and remanded for resentencing. Id. at 876-77; see United
States v. Booker, 543 U.S. 220, 267-68 (2005).
On remand, treating the Guidelines as advisory, the district court again
sentenced Cervantes to seventy-seven months’ imprisonment. Cervantes filed
this timely appeal. On appeal, Cervantes renews his claim that the district court
committed error by classifying his Colorado attempted second-degree kidnapping
offense as a crime of violence, and he also renews his Apprendi objection.
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No. 06-50738
II. JURISDICTION AND STANDARD OF REVIEW
Because this is an appeal from a final judgment of a district court in a
criminal case, we have jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C.
§ 3742. The district court’s characterization of Cervantes’s prior conviction is a
question of law that we review de novo. United States v. Villegas, 404 F.3d 355,
359 (5th Cir. 2005); United States v. Calderon-Pena, 383 F.3d 254, 256 (5th Cir.
2004) (en banc).
III. ANALYSIS
A. Cervantes’s Colorado conviction for attempted second-degree
kidnapping does not qualify as a conviction for a crime of
violence under § 2L1.2
For violations of 8 U.S.C. § 1326, section 2L1.2(b)(1)(A)(ii) of the
Sentencing Guidelines provides for a sixteen-level increase to the defendant’s
base offense level where the defendant was previously deported following a
conviction for a felony that is a crime of violence. The Guidelines commentary
defines a crime of violence as (1) any of a list of enumerated offenses, which
include “kidnapping,” or (2) “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).1
In 1999, Cervantes was convicted in Colorado state court of attempted
second-degree kidnapping in violation of Colorado Revised Statutes § 18-3-302.
In analyzing whether this conviction qualifies as a conviction for a crime of
violence, we look to the particular subdivision of the statute under which
Cervantes was convicted. United States v. Fierro-Reyna, 466 F.3d 324, 327 (5th
Cir. 2006). The parties stated in their briefs and at oral argument that
Cervantes was convicted under § 18-3-302(1), which states,
1
The commentary to § 2L1.2 is binding and is equivalent in force to the Guidelines
language itself, as long as the language and the commentary are not inconsistent. United
States v. Rayo-Valdez, 302 F.3d 314, 318 n.5 (5th Cir. 2002).
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Any person who knowingly seizes and carries any person from one
place to another, without his consent and without lawful justification,
commits second degree kidnapping.
COLO. REV. STAT. § 18-3-302(1) (1999). This court’s analysis is not affected by
the fact that Cervantes was convicted of attempted second-degree kidnapping
rather than the completed offense. See U.S.S.G. § 2L1.2 cmt. n.5; United States
v. Gonzalez-Ramirez, 477 F.3d 310, 313 (5th Cir. 2007).
1. Use of force as an element
Cervantes argues that his second-degree kidnapping offense does not
qualify as a crime of violence under § 2L1.2(b)(1)(A)(ii). He first maintains that
his offense did not have “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). Quoting Calderon-Pena, 383 F.3d at 260, Cervantes argues that “[i]f
any set of facts would support a conviction without proof [of force],” then force
“most decidedly is not an element–implicit or explicit–of the crime.” Accordingly,
Cervantes argues that a conviction under Colorado Revised Statutes
§ 18-3-302(1) does not necessarily require the use, attempted use, or threatened
use of physical force against the person of another.
Cervantes points to Colorado v. Powell, 716 P.2d 1096, 1102 (Colo. 1986),
where the Colorado Supreme Court, in holding that language in an earlier
version of § 18-3-302(1) requiring the seizure to be “knowingly, forcibly, or
otherwise” was unconstitutionally vague, stated that there was not “any
indication of legislative intent that ‘forcibly’ must be an element of second degree
kidnapping.”2 Cervantes also notes that in Colorado v. Metcalf, 926 P.2d 133,
2
The Powell court concluded that “excising the phrase ‘forcibly or otherwise’ leaves the
remainder of the second degree kidnapping statute as a complete and constitutional whole in
accord with legislative intent.” 716 P.2d at 1102. The Colorado General Assembly then
amended § 18-3-302(1) to delete the words “forcibly, or otherwise,” leaving the remainder
intact. Colorado v. Maass, 981 P.2d 177, 185 (Colo. Ct. App. 1998). The resulting provision
is the provision under which Cervantes was convicted.
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137 (Colo. Ct. App. 1996), the Colorado court of appeals, interpreting
§ 18-3-302(1), held that “the word ‘seize’ encompasses a mere taking.” Cervantes
further points out that in Colorado v. Maass, 981 P.2d 177, 185 (Colo. Ct. App.
1998), the court of appeals held that “a victim who is taken by deceit has been
‘seized’ for purposes of a charge of second degree kidnapping.”
The government does not contend that Cervantes’s conviction for second-
degree kidnapping constitutes a crime of violence on the basis that it “has as an
element the use, attempted use, or threatened use of physical force against the
person of another.” Rather, the government puts forth the sole argument that
Cervantes’s offense qualifies as the enumerated offense of “kidnapping.”
Because Cervantes’s arguments are persuasive, and because the government
makes no attempt to argue that Cervantes’s offense has the use of force as an
element, we decline to uphold Cervantes’s sentence on this ground.
2. Enumerated offense of “kidnapping”
a. Summary of parties’ arguments
Cervantes argues that his conviction does not qualify as a conviction for
the enumerated offense of “kidnapping” because the Colorado second-degree
kidnapping statute is broader than the offense contemplated in the Guidelines.
Citing United States v. Dominguez-Ochoa, 386 F.3d 639, 642-46 (5th Cir. 2004),
Cervantes maintains that this circuit defines enumerated offenses according to
their “generic, contemporary meaning” and that if the generically defined offense
involves a narrower range of conduct than the statute of conviction, the
conviction does not qualify as an enumerated offense. He asserts that under this
court’s recent decisions in United States v. Gonzalez-Ramirez, 477 F.3d 310, 318-
19 (5th Cir. 2007), and United States v. Iniguez-Barba, 485 F.3d 790, 791-93 (5th
Cir. 2007), the generic definition of kidnapping contains three requirements: (1)
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No. 06-50738
knowing removal or confinement, (2) substantial interference with the victim’s
liberty, and (3) force, threat, or fraud.3
Cervantes contends that the Colorado second-degree kidnapping statute
includes, at most, the first and third of these requirements, because it does not
explicitly require a substantial interference with the victim’s liberty. He argues
that this court intended the “substantial interference” requirement to have
significance apart from the other two requirements. He also maintains that if
the first and third requirements were deemed sufficient to constitute
“kidnapping,” kidnapping for purposes of § 2L1.2 would encompass offenses as
dissimilar as Colorado’s first-degree kidnapping statute, COLO. REV. STAT. ANN.
§ 18-3-301 (2007), punishable by a minimum term of life imprisonment, and
Arizona’s unlawful imprisonment statute, ARIZ. REV. STAT. ANN. § 13-1303
(2007), punishable by a maximum of eighteen months’ imprisonment. He claims
that such a result would be inconsistent with the Sentencing Guidelines’ goals
of uniformity and proportionality.
The government contends that Cervantes’s second-degree kidnapping
conviction does qualify as the enumerated offense of “kidnapping.” Quoting
United States v. Izaguirre-Flores, 405 F.3d 270, 275 (5th Cir. 2005), the
government maintains that this court uses a “common sense approach” to
determine whether a violation of a state statute constitutes an enumerated
offense.4 It first notes that in cases such as Izaguirre-Flores and United States
3
Initially, Cervantes argued that the generic, contemporary definition of kidnapping
requires that the removal of the victim be done for certain specified purposes, citing the
kidnapping provision of the Model Penal Code (“MPC”), § 212.1 (2001), and this court’s
opinions in United States v. Torres-Diaz, 438 F.3d 529, 536 (5th Cir. 2006), and Dominguez-
Ochoa, 386 F.3d at 644-46 (5th Cir. 2005). In Gonzalez-Ramirez, 477 F.3d at 318, this court
rejected that argument.
4
Initially, citing Rayo-Valdez, 302 F.3d at 316-17, the government also proposed that
a state offense entitled “kidnapping” qualifies as the enumerated offense of “kidnapping,”
regardless of the variations in state laws. Despite certain ambiguous language in Rayo-Valdez,
this circuit has since concluded that the label of a state offense is not determinative of whether
6
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v. Garcia-Gonzalez, 168 F. App’x 564, 565 (5th Cir. 2006) (unpublished), this
court looked to legal dictionary and other dictionary definitions to determine the
ordinary, contemporary, and common meaning of the enumerated offense. The
government quotes Black’s Law Dictionary as defining the offense of kidnapping
as “[t]he crime of seizing and taking away a person by force or fraud. -- Also
termed simple kidnapping.” BLACK’S LAW DICTIONARY 886 (8th ed. 2004).5 The
government proposes that the elements of the Colorado second-degree kidnapping
statute are congruent with the elements of kidnapping as defined in Black’s Law
Dictionary. The government also notes that the offense specified in the
Guidelines is “kidnapping,” not “aggravated kidnapping.”
The government further maintains that the Colorado second-degree
kidnapping statute encompasses all three requirements the Iniguez-Barba court
identified as sufficient to constitute a generic kidnapping offense. It argues that
the Iniguez-Barba “knowing removal or confinement” requirement is equivalent
to the Colorado statute’s “seiz[ing] and carr[ying] element.” It also contends that
the Iniguez-Barba “by force, threat, or fraud” requirement is equivalent to the
Colorado statute’s “without his consent and without lawful justification” element.
Finally, the government argues that the Iniguez-Barba “substantial interference
with the victim’s liberty” requirement is implicitly included in the Colorado
statute because whenever the other two elements of the Colorado statute are met,
there will necessarily be a substantial interference with the victim’s liberty. It
it qualifies as an enumerated offense. See, e.g., Gonzalez-Ramirez, 477 F.3d at 313.
5
The full definition reads as follows:
1. At common law, the crime of forcibly abducting a person from his or her
own country and sending the person to another. This offense amounted to
false imprisonment aggravated by moving the victim to another country.
2. The crime of seizing and taking away a person by force or fraud. -- Also
termed simple kidnapping; (loosely) abduction; (archaically) manstealing.
See ABDUCTION.
BLACK’S LAW DICTIONARY 886 (8th ed. 2004).
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relies in part on Colorado cases stating that proof that movement substantially
increased the risk of harm to the victim may help to prove the “seiz[ing] and
carr[ying]” element in some cases where the degree of movement is insubstantial.
See Colorado v. Harlan, 8 P.3d 448, 476 (Colo. 2000); Colorado v. Owens, 97 P.3d
227, 237 (Colo. Ct. App. 2004). The government asserts that whether the victim
is moved a substantial distance or is moved an insubstantial distance proven by
an increase in the risk of harm to the victim, and the movement has been done
without the victim’s consent, there has necessarily been a substantial
interference with the victim’s liberty.
A close reading of the Colorado second-degree kidnapping statute, Colorado
opinions interpreting the statute, and this court’s most recent opinions on this
issue, Gonzalez-Ramirez and Iniguez-Barba, reveals that Cervantes’s conviction
does not qualify as a conviction for the enumerated offense of “kidnapping.”
b. Caselaw on kidnapping as an enumerated offense
In Gonzalez-Ramirez, this court addressed whether a conviction under
section 39-13-303 of the Tennessee Code qualifies as a conviction for the
enumerated offense of “kidnapping.” 477 F.3d at 314. Section 39-13-303 defines
kidnapping as “false imprisonment . . . (1) [u]nder circumstances exposing the
other person to substantial risk of bodily injury; or (2) [w]here the confinement
of another is in a condition of involuntary servitude.” Id. (quoting TENN. CODE
ANN. § 39-13-303 (2003)). “False imprisonment,” in turn, is defined as “knowingly
remov[ing] or confin[ing] another unlawfully so as to interfere substantially with
the other’s liberty.” Id. (quoting TENN. CODE ANN. § 39-13-302 (2003)). The
Tennessee Code defines “unlawfully” as follows:
“Unlawful” means, with respect to removal or confinement, one
that is accomplished by force, threat or fraud, or, in the case of
a person who is under the age of thirteen (13) or incompetent,
accomplished without the consent of a parent, guardian or
other person responsible for the general supervision of the
minor’s or incompetent’s welfare.
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TENN. CODE ANN. § 39-13-301(2). Thus, under Tennessee law, kidnapping
entails the following: knowing removal or confinement; accomplished by force,
threat, or fraud (or, for incompetents or minors, without consent of a guardian);
in a manner that interferes substantially with the other’s liberty; and (1) under
circumstances exposing the other person to substantial risk of bodily injury, or
(2) where the confinement of another is in a condition of involuntary servitude.
The Gonzalez-Ramirez court looked to the MPC definition of kidnapping
and explained that “kidnapping does not occur under the Model Penal Code
absent one of the specifically enumerated purposes.” 477 F.3d at 316.6 The
court further noted, however, that a “majority of states have rejected a specified
purpose requirement for kidnapping crimes.” Id. at 318. The court therefore
decided that it “[could not] conclude that a specified purpose or intent is required
for a state kidnapping conviction to constitute a crime of violence under section
2L1.2 [of the U.S.S.G.]” Id. After restating the elements of Tennessee Code
section 39-13-303, the court explained,
Tennessee’s kidnapping statute is in line with a majority of other
states with regard to victims who are children or legally incompetent,
and it is at least as restrictive, if not more restrictive, than a majority
of state kidnapping statutes as to competent adults. In this latter
regard, it is significant that Tennessee requires the use of force,
threat or fraud along with the additional aggravating elements of
6
The MPC defines kidnapping as follows:
A person is guilty of kidnapping if he unlawfully removes another from his place
of residence or business, or a substantial distance from the vicinity where he is
found, 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.
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substantial risk of injury or confinement as a condition of involuntary
servitude.
Id. at 319. The court therefore concluded that “Tennessee’s statute does not
sweep more broadly than the generic, contemporary meaning of the term
‘kidnapping.’” Id. at 320. We held that “[b]ecause Tennessee’s statutory
definition of kidnapping falls within the generic, contemporary meaning of
‘kidnapping,’ an enumerated offense in the commentary to section 2L1.2, the
district court did not err in applying a crime-of-violence enhancement in this
case.” Id. at 311.
This court relied heavily on Gonzalez-Ramirez in its recent decision in
Iniguez-Barba, 485 F.3d 790, which addressed whether a conviction under New
York’s second-degree kidnapping statute, New York Penal Law § 135.20,
qualifies as a conviction for the enumerated offense of “kidnapping.” New York
Penal Law § 135.20 states that “[a] person is guilty of kidnapping in the second
degree when he abducts another person.” 485 F.3d at 791. The New York 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.; see NEW YORK
PENAL LAW § 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 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.
485 F.3d at 791; see NEW YORK PENAL LAW § 135.00(1).
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The Iniguez-Barba court first noted that in Gonzalez-Ramirez, we rejected
the 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.” 485 F.3d at 791. Consequently, the court concluded that “NEW YORK
PENAL LAW § 135.20 can be a kidnapping statute even though it doesn’t require
such a purpose.” Id.
The court then noted that the Tennessee statute held in Gonzalez-Ramirez
to constitute the enumerated offense of kidnapping included the following
elements:
(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.”
Id. at 791-92 (citing Gonzalez-Ramirez, 477 F.3d at 318). The court noted that
“NEW YORK PENAL LAW § 135.20 includes the first three of those four elements;
it does not include the last.” Id. at 792. We held that “the first three [elements]
are sufficient” to render an offense the equivalent of the enumerated offense of
“kidnapping.” Id. The court explained that in Gonzalez-Ramirez we held that
the Tennessee statute in question was “at least as restrictive, if not more
restrictive, than a majority of state kidnapping statutes as to competent adults.”
Id. (quoting Gonzalez-Ramirez, 477 F.3d at 319). The court also pointed out
that, as we noted in Gonzalez-Ramirez, the elements of force, threat, or fraud or,
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No. 06-50738
for children or incompetents, lack of valid consent, are elements of MPC
kidnapping not included in lesser MPC offenses. Id.
The court further noted that the Black’s Law Dictionary definition of
“kidnapping” did not require a potential for injury or involuntary servitude. Id.
at 793. Finally, the court acknowledged that in United States v.
Garcia-Gonzalez, 168 F. App’x 564, this court held that Texas’s kidnapping
statute, Texas Penal Code § 20.03, “which is almost identical to New York’s and
doesn’t require a risk of injury or involuntary servitude” qualified as a crime of
violence. Iniguez-Barba, 485 F.3d at 793. The court noted that “although
[Garcia-Gonzalez] isn’t controlling, it’s consistent with our holding today.” Id .
In Garcia-Gonzalez, an unpublished decision, this court held that a conviction
under Texas’s kidnapping statute qualifies as a conviction for the enumerated
offense of kidnapping. 168 F. App’x at 565. Under Texas Penal Code § 20.03(a),
a person commits the offense of kidnapping if he “intentionally or knowingly
abducts another person.” Id.7 In a very brief analysis, this court explained that
7
Though the Garcia-Gonzalez opinion does not discuss this, the Texas Penal Code
defines “abduct” as follows:
(2) “Abduct” means to restrain a person with intent to prevent his liberation by:
(A) secreting or holding him in a place where he is not likely to be found;
or
(B) using or threatening to use deadly force.
Tex. Penal Code Ann. § 20.01(2). “Restrain” is defined as follows:
(1) “Restrain” means to restrict a person’s movements without consent, so as to
interfere substantially with the person’s liberty, by moving the person from one
place to another or by confining the person. Restraint is “without consent” if it is
accomplished by:
(A) force, intimidation, or deception; or
(B) any means, including acquiescence of the victim, if: (i) the victim is a
child who is less than 14 years of age or an incompetent person and
the parent, guardian, or person or institution acting in loco parentis
has not acquiesced in the movement or confinement; or
(ii) the victim is a child who is 14 years of age or older and younger
than 17 years of age, the victim is taken outside of the state and
outside a 120-mile radius from the victim’s residence, and the
parent, guardian, or person or institution acting in loco parentis
has not acquiesced in the movement.
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the “elements of the Texas kidnapping offense are consistent with the ordinary,
contemporary, and common understanding of the term as defined by Black’s Law
Dictionary.” Id.
c. Applying kidnapping caselaw to the Colorado offense
To restate, the provision of the Colorado code under which Cervantes was
convicted, Colorado Revised Statutes § 18-3-302(1), reads as follows:
Any person who knowingly seizes and carries any person from one
place to another, without his consent and without lawful justification,
commits second degree kidnapping.
The Colorado code does not define the key terms in this provision, but Colorado
caselaw sheds light on their meaning. The plain language of the provision and
the Colorado cases interpreting it make clear that § 18-3-302(1) satisfies at most
two of the four elements discussed in Gonzalez-Ramirez and Iniguez-Barba.
It is apparent from the language of § 18-3-302(1) that this provision
satisfies the first element identified in Gonzalez-Ramirez and Iniguez-Barba:
“knowing removal or confinement.” Indeed, § 18-3-302(1) requires removal, not
just confinement. It is possible that § 18-3-302(1) also satisfies the third element
identified in Gonzalez-Ramirez and Iniguez-Barba:
(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.
Gonzalez-Ramirez, 477 F.3d at 318-19; see also Iniguez-Barba, 485 F.3d at 791-
92 (using the same language as Gonzalez-Ramirez). In the Tennessee statute at
issue in Gonzalez-Ramirez, this element appears explicitly in the definition of
the word “unlawfully,” which appears in the statute in question. See TENN. CODE
ANN. § 39-13-301(2). In the New York statute at issue in Iniguez-Barba, this
element appears explicitly in the definition of “without consent,” which is
Id. § 20.01(1).
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incorporated into the definition of “restrain,” see NEW YORK PENAL LAW
§ 135.00(1), which is incorporated into the definition of “abduct,” see NEW YORK
PENAL LAW § 135.00(2), a term that appears in the statute in question. See NEW
YORK PENAL LAW § 135.20.
Section 18-3-302(1) uses the language “without [] consent and without
lawful justification.” Neither of these terms is defined by the Colorado code. The
Colorado Supreme Court has stated that “[i]n the context of the crime of second
degree kidnapping . . . the term ‘without lawful justification’ simply means an
act not authorized or permitted by law–in other words, an act performed without
lawful authority.” Colorado v. Schuett, 833 P.2d 44, 47 (Colo. 1992). The
Colorado courts have not offered a more detailed definition of “without lawful
justification.” With respect to the “without consent” language, the Colorado
Court of Appeals has stated that “a person who is seized by the use of force or
express threats by definition has not given consent.” Maass, 981 P.2d at 186.
The court has also stated that “an adult who consents without deceit to travel
with another has not been ‘seized.’” Id. These statements do not indicate
whether other methods of seizure also qualify as “without consent.”
It is possible that the phrase “without [] consent and without lawful
justification” has the same meaning as the third element in Gonzalez-Ramirez
and Iniguez-Barba; that is, it signifies a taking by
(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.
Gonzalez-Ramirez, 477 F.3d at 318-19; see also Iniguez-Barba, 485 F.3d at 791-
92 (using the same language as Gonzalez-Ramirez). However, because the
Colorado code and Colorado courts have not defined the terms “without consent”
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No. 06-50738
and “without lawful justification” in this precise manner, it is also possible that
these terms have some broader meaning.
It does not appear that § 18-3-302(1) includes the second element
identified in Gonzalez-Ramirez and Iniguez-Barba: “substantial interference
with the victim’s liberty.” Gonzalez-Ramirez, 477 F.3d at 318; see also Iniguez-
Barba, 485 F.3d at 792 (using the same language as Gonzalez-Ramirez). For
both the Tennessee statute addressed in Gonzalez-Ramirez and the New York
statute at issue in Iniguez-Barba, the “substantial interference” language
appears explicitly in the definitions of terms used in the statutes. See id. By
contrast, section 18-3-302(1) of the Colorado Revised Statutes does not include
any such “substantial interference” language, and, as explained above, its key
terms are left undefined by the Colorado code. We have not found any Colorado
decision that imparts a “substantial interference” element to § 18-3-302(1). The
government’s argument that a substantial increase in risk of harm is a factor
that can help establish the “seiz[ing] and carr[ying]” element of the statute is not
persuasive. In Colorado v. Harlan, the Colorado Supreme Court stated, “That
the defendant’s conduct substantially increased a risk of harm to the victim is
not a material element of second degree kidnapping.” 8 P.3d at 476.
Nor does § 18-3-302(1) incorporate the fourth element from Gonzalez-
Ramirez:
(a) circumstances exposing the victim to substantial risk of bodily
injury, or
(b) confinement as a condition of involuntary servitude.
See 477 F.3d at 318-19. This requirement does not appear in the plain language
of § 18-3-302(1). While some defendants have argued that a “substantial risk of
bodily injury” element is embedded in § 18-3-302(1)’s requirement that the
victim be “carrie[d] . . . from one place to another,” also known as the statute’s
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“asportation” requirement, this interpretation has been rejected by the Colorado
Supreme Court. The court stated as follows:
We do not accept the defendant’s proposition that substantially
increasing a risk of harm to the victim is part of the asportation
element of second degree kidnapping. The asportation element of this
offense is simply that a person seized and carried another person
from one place to another. That the defendant’s conduct substantially
increased a risk of harm to the victim is not a material element of
second degree kidnapping. It is instead a factual circumstance
reviewing courts consider in some cases to determine whether there
is sufficient evidence to prove that the defendant moved the victim
from one place to another.
Colorado v. Harlan, 8 P.3d 448, 476 (Colo. 2000).
The question therefore becomes whether a statute that contains only the
Gonzalez-Ramirez first element, “knowing removal or confinement,” and possibly
the Gonzalez-Ramirez third element, “(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 lacks any
additional aggravating elements, such as the specified purpose requirements of
the MPC definition, qualifies as the enumerated offense of “kidnapping.” We
conclude that it does not. While Gonzalez-Ramirez did not hold that any
particular elements are essential, the court did emphasize that where the
specified purposes of the MPC kidnapping definition are lacking, some
aggravating elements are necessary to bring a statute closer to the MPC
definition of kidnapping. 477 F.3d at 317-20. Moreover, the court stated that
“we would not conclude that the term ‘kidnapping’ encompasses any unlawful
confinement, based on the broadest and most basically written state kidnapping
statute.” Id. at 318. The court then included a footnote citing South Carolina
Code § 16-3-910, thus implying that this South Carolina statute was an example
of “the broadest and most basically written state kidnapping statute.” The
South Carolina statute reads as follows:
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No. 06-50738
Kidnapping. Whoever shall unlawfully seize, confine, inveigle, decoy,
kidnap, abduct or carry away any other person by any means
whatsoever without authority of law, except when a minor is seized
or taken by his parent, is guilty of a felony . . . .
S.C. CODE ANN. § 16-3-910 (2003). This provision is quite similar to the Colorado
provision at issue in the instant case.
In support of its position, the government relies on Black’s Law Dictionary,
which is cited in Iniguez-Barba and our unpublished decision in
Garcia-Gonzalez. Black’s Law Dictionary defines kidnapping as “[t]he crime of
seizing and taking away a person by force or fraud.” BLACK’S LAW DICTIONARY
886 (8th ed. 2004). While this definition is somewhat similar to the Colorado
provision at issue in this case, § 18-3-302(1) does not explicitly require “force or
fraud.” Thus, the elements of § 18-3-302(1) are not completely congruent with
the Black’s Law Dictionary definition of kidnapping.
In sum, in accordance with this circuit’s precedent, a kidnapping statute
such as § 18-3-302(1), which lacks the specified purposes of the MPC definition
and other aggravating elements identified in Gonzalez-Ramirez and Iniguez-
Barba, and also lacks an explicit “force or fraud” requirement, does not qualify
as the enumerated offense of “kidnapping.” We therefore conclude that the
district court erred by enhancing Cervantes’s sentence by sixteen levels as a
crime of violence conviction under U.S.S.G. § 2L1.2.
B. Cervantes’s sentence did not violate due process because it
exceeded the maximum sentence for the offense charged in the
indictment
Cervantes raised his Apprendi objection in his original appeal to this court.
This court rejected Cervantes’s argument as foreclosed by Supreme Court and
circuit precedent. Accordingly, under the law of the case doctrine, this court will
not reconsider this argument. See Ill. Cent. Gulf R.R. v. Int’l Paper Co., 889
F.2d 536, 539 (5th Cir. 1989) (“Under the ‘law of the case’ doctrine, an issue of
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No. 06-50738
law or fact decided on appeal may not be reexamined either by the district court
on remand or by the appellate court on a subsequent appeal.”). Even if we were
to reconsider Cervantes’s objection, there has been no change in Supreme Court
or circuit law that would permit us to reverse the district court on this ground.
IV. CONCLUSION
For the foregoing reasons, we VACATE Cervantes’s sentence and
REMAND for resentencing consistent with this opinion.
VACATED and REMANDED.
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