United States v. Moreno-Florean

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit

FILED
September 8, 2008

No. 07-50833 Charles R. Fulbruge III
Clerk

UNITED STATES OF AMERICA

Plaintiff-Appellee
v.

ANTONIO MORENO-FLOREAN

Defendant-Appellant

Appeal from the United States District Court
for the Western District of Texas

Before KING, DeMOSS, and PRADO, Circuit Judges.
DeMOSS, Circuit Judge:
Defendant-Appellant Antonio Moreno-Florean (Moreno-Florean) pleaded
guilty without a plea agreement to attempted illegal reentry into the United
States after having been removed, in violation of 8 U.S.C. § 1326.
Moreno-Florean’s pre-sentence report (PSR), which relied on the 2006 Version
of the Sentencing Guidelines Manual, assigned him a total offense level of
twenty-one, consisting of a base offense level of eight pursuant to UNITED STATES
SENTENCING GUIDELINES MANUAL (U.S.S.G.) § 2L1.2(a) (2006); a sixteen-level
increase because he was removed after his 2004 California conviction for
kidnapping, a conviction the PSR considered a crime of violence (COV) under §
2L1.2(b)(1)(A)(ii); and a three-level decrease pursuant to § 3E1.1(a) and (b) for
 No. 07-50833

acceptance of responsibility. Moreno-Florean’s criminal history score of nine
placed him in a criminal history category of IV, which, combined with his total
offense level, yielded a guidelines range of fifty-seven to seventy-one months of
imprisonment.
Moreno-Florean objected to the PSR concerning its scoring of three past
criminal convictions, but he did not object with respect to his California
kidnapping conviction or the sixteen-level COV enhancement. At sentencing,
Moreno-Florean indicated that his objection had been resolved. The district
court sentenced Moreno-Florean within the guidelines range to fifty-seven
months of imprisonment and three years of supervised release. Moreno-Florean
timely appealed.
Moreno-Florean argues that his California kidnapping conviction was not
a COV for purposes for § 2L1.2(b)(1)(A)(ii). We agree. Thus, we will vacate
Moreno-Florean’s sentence and remand for resentencing.
I. ANALYSIS
A. Standard of Review
Because Moreno-Florean raises this argument for the first time on appeal,
the plain-error standard of review applies. United States v. Gonzalez-Ramirez,
477 F.3d 310, 311 (5th Cir. 2007). Under plain-error review, “a defendant must
establish error that is plain and affects substantial rights.” Id. “If these
conditions are met, an appellate court may exercise its discretion to notice the
forfeited error only if the error seriously affect[s] the fairness, integrity, or public
reputation of judicial proceedings.” Id. at 311-12 (quotations omitted) (alteration
in original). The relevant inquiry is whether the error is plain at the time of
appellate consideration, not at the time of trial. United States v. Martinez-Vega,
471 F.3d 559, 561 (5th Cir. 2006).
B. Crime of Violence Enhancement
1. Section 2L1.2(b)(1)(A)(ii)

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Section 2L1.2(b)(1)(A)(ii) provides for a sixteen-level increase to a
defendant’s base offense level if he was previously deported after being convicted
of a felony that is a COV. United States v. Cervantes-Blanco, 504 F.3d 576,
578-79 (5th Cir. 2007). The Guidelines Manual commentary defines a COV as
“(1) any of a list of enumerated offenses, including ‘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.’” Id. at 579 (quoting § 2L1.2, cmt. n.1(B)(iii))). This court uses different
tests when analyzing whether a particular offense amounts to a COV, and the
test used depends on whether the offense is an enumerated one or has physical
force as an element. United States v. Mendoza-Sanchez, 456 F.3d 479, 481-82
(5th Cir. 2006).
“In determining whether the [California] 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.” United States v. Iniguez-Barba, 485 F.3d 790, 791 (5th
Cir. 2007). State-law labels do not control this inquiry because the COV
“enhancement incorporates crimes with certain elements, not crimes that
happen to be labeled ‘kidnapping’ . . . under state law.” Gonzalez-Ramirez, 477
F.3d at 313.
“In determining whether an offense has as an element the use, attempted
use, or threatened use of physical force against the person of another, this court
uses the categorical approach set forth in Taylor v. United States, 495 U.S. 575,
600-02 (1990), and examines the elements of the offense, rather than the facts
underlying the conviction.” Mendoza-Sanchez, 456 F.3d at 482.
Under either approach, if the statute of conviction contains a series of
disjunctive elements, this court may look beyond the statute to certain records

3
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made or used in adjudicating guilt to determine which subpart of the statute
formed the basis of the conviction. United States v. Mungia-Portillo, 484 F.3d
813, 815 (5th Cir.), cert. denied, 128 S. Ct. 320 (2007); United States v.
Murillo-Lopez, 444 F.3d 337, 339-40 (5th Cir. 2006); see Gonzalez-Ramirez, 477
F.3d at 315. “These records are generally limited to the charging document,
written plea agreement, transcript of the plea colloquy, and any explicit factual
findings by the trial judge to which the defendant assented.” Murillo-Lopez, 444
F.3d at 340 (quotations omitted); accord Mungia-Portillo, 484 F.3d at 815. If the
statute of conviction cannot be narrowed, we consider “whether the least
culpable act constituting a violation of that statute constitutes ‘kidnapping’ for
purposes of U.S.S.G. § 2L1.2.” Gonzalez-Ramirez, 477 F.3d at 315-16.
In this case, the parties agree that Moreno-Florean’s kidnapping
conviction occurred pursuant to CAL. PENAL CODE § 207(a) as reflected in the
indictment and abstract of judgment pertaining to the conviction.1 Section
207(a) states, “Every person who forcibly, or by any other means of instilling
fear, steals or takes, or holds, detains, or arrests any person in this state, and
carries the person into another country, state, or county, or into another part of
the same county, is guilty of kidnapping.” The parties do not cite, and research
did not reveal, any cases from this circuit or another circuit addressing the issue

1
We have previously rejected the use of a California abstract of judgment with respect
to the categorical approach. See United States v. Gutierrez-Ramirez, 405 F.3d 352, 357-58 (5th
Cir. 2005). Our consideration of Moreno-Florean’s abstract of judgment is limited to proving
the existence of his prior kidnapping conviction; it does not function to narrow the statute of
conviction based on the facts underlying the offense. See United States v. Neri-Hernandes, 504
F.3d 587, 590-92 (5th Cir. 2007), cert. denied, 128 S. Ct. 1106 (2008) (distinguishing
consideration of New York certificate of disposition because it was used only to prove fact of
prior conviction); see also United States v. Bonilla, 524 F.3d 647, 653 (5th Cir. 2008).
California abstracts of judgment have sufficient indicia of reliability to support their probable
accuracy such that the documents can be used as evidence of a prior conviction. See
Neri-Hernandes, 504 F.3d at 591-92; see also People v. Mitchell, 26 P.3d 1040, 1043 (Cal. 2001)
(noting that a certified abstract of judgment “constitutes the commitment” and serves as “the
process and authority for carrying the judgment and sentence into effect”) (quotations omitted).

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whether a conviction under § 207(a) is a COV, as the term is currently defined
for § 2L1.2(b)(1)(A)(ii) purposes.2
2. Use of Physical Force as an Element
With respect to whether § 207(a) constitutes a crime of violence under the
categorical approach because it has as an element the use, attempted use, or
threatened use of physical force against the person of another, Moreno-Florean
argues that the use of physical force is not a necessary element of § 207(a)
because § 207(a) makes it unlawful for the offender to act “forcibly, or by any
other means of instilling fear.” Count one of Moreno-Florean’s indictment, the
count underlying his kidnapping conviction, tracks this provision of § 207(a),
charging that Moreno-Florean acted “wilfully, unlawfully, forcibly and by other
means of instilling fear.” The Government does not dispute that the use of force
is not a necessary element of § 207(a). See People v. Majors, 92 P.3d 360, 363
(Cal. 2004) (holding that “the force used against the victim need not be physical”
in order to sustain a conviction for kidnapping under § 207(a)).
The Government argues that Moreno-Florean’s record of conviction
establishes that his kidnapping offense involved injury to the victim based on
the use of physical force. The Government relies on the fact that Moreno-
Florean’s abstract of judgment reflects that he pleaded guilty not only to count

2
In an unpublished case, the Ninth Circuit held that § 207(a) was an “aggravated
felony” under § 2L1.2 as it existed under a prior version of the Guidelines Manual. See United
States v. Nava-Salgado, No. 98-50018, 1999 WL 51397, at *2 (9th Cir. Jan. 27, 1999). That
prior version of § 2L1.2 defined “aggravated felony” as “any crime of violence (as defined in 18
U.S.C. § 16, not including a purely political offense) for which the term of imprisonment
imposed . . . is at least five years.” Id. First, Moreno-Florean was sentenced to three years in
prison for his kidnapping conviction, so his crime would not qualify as an “aggravated felony”
under that prior version of § 2L1.2. See id. (“Nava-Salgado’s sentence of eight years clearly
satisfied the five-year requirement.”). Second, the 18 U.S.C. § 16 definition of “crime of
violence” is broader than the definition of “crime of violence” under the 2006 Version of §
2L1.2(b)(1)(A)(ii). See 18 U.S.C. § 16(b) (defining “crime of violence” as “any other offense that
is a felony and that, by its nature, involves a substantial risk that physical force against the
person or property of another may be used in the course of committing the offense.”) (emphasis
added).

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one of his indictment, kidnapping in violation of § 207(a), but also to count three
of his indictment, willfully inflicting corporal injury in violation of CAL. PENAL
CODE § 273.5(a). The Government argues that the use of physical force is a
necessary element of § 273.5(a), such that the record of conviction establishes
that Moreno-Florean used physical force with respect to his kidnapping
conviction. See People v. Jackson, 91 Cal. Rptr. 2d 805, 810 (Cal. Ct. App. 2000);
see also CAL. PENAL CODE § 273.5(c) (defining the term “traumatic condition”).
While the indictment reflects that the kidnapping and corporal injury
offenses were committed on the same day with Jane Doe as the victim, it does
not establish that the conduct involved in the corporal injury offense was
necessarily involved in the kidnapping offense. According to the language found
in the indictment, Moreno-Florean could have kidnapped Jane Doe “by other
means of instilling fear,” and then later used physical force to inflict corporal
injury upon her. Because we do not have a written plea agreement, transcript
of the plea colloquy, or explicit factual findings by the trial judge to which the
defendant assented, we cannot narrow the statute of conviction to determine
which disjunctive elements of § 207(a) formed the basis of Moreno-Florean’s
conviction.
In determining whether a state guilty plea conviction qualifies as a drug
trafficking offense under § 2L1.2(b)(1)(A)(i), we have previously considered under
the categorical approach the extent to which a guilty plea serves to admit the
factual averments in the indictment. See United States v. Gutierrez-Bautista,
507 F.3d 305, 307-09 (5th Cir. 2007). In Gutierrez-Bautista, we looked to the law
of the state of conviction, Georgia, to determine the effect of Gutierrez-Bautista’s
guilty plea to trafficking in methamphetamine: the plea constituted an
admission of all averments of facts in the indictment. Id. at 308. Because the
indictment made a factual averment that Gutierrez-Bautista both sold and
possessed methamphetamine, we determined that his guilty plea served to admit

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that he both sold and possessed the drug, rendering his conviction a drug
trafficking offense. Id. at 308-09.
Like Gutierrez-Bautista, the indictment in this case charged the
kidnapping offense in the conjunctive, despite the fact that the statute creating
the offense, § 207(a), is phrased in the disjunctive. See id. at 308. The
similarities to Gutierrez-Bautista end there, however, because California has not
adopted Georgia’s rule that a guilty plea constitutes an admission of all
averments of facts in the indictment.
In California, “[a] guilty plea admits every element of the crime charged.”
People v. Wallace, 93 P.3d 1037, 1043 (Cal. 2004) (quotations omitted). Based
on Wallace, one might argue that Moreno-Florean’s guilty plea admitted every
conjunctive element alleged in the indictment. This argument is misplaced,
however, because “[i]t is well settled [in California] that where the statute
enumerates several acts disjunctively, which separately or together shall
constitute the [criminal] offense, the indictment, if it charges more than one of
them . . . in the same count, should do so in the conjunctive.” People v. Turner,
8 Cal. Rptr. 285, 288 (Cal. Ct. App. 1960) (citing People v. O’Brien, 62 P. 297, 298
(Cal. 1900)); accord In re Bushman, 463 P.2d 727, 775 (Cal. 1970). Furthermore,
if the indictment alleges elements in the conjunctive, the defendant can be
convicted if the evidence establishes any set of disjunctive elements that
together constitute the criminal offense. See Turner, 8 Cal. Rptr. at 288; see also
Bushman, 463 P.2d at 775 (“Merely because the complaint is phrased in the
conjunctive, however, does not prevent a trier of fact from convicting a defendant
if the evidence proves only one of the alleged acts.”). Moreno-Florean’s guilty
plea, when viewed in conjunction with the language of the indictment, does not
narrow the statute of conviction for purposes of the categorical approach.
A guilty plea is “the legal equivalent of a verdict of guilty reached by a
jury.” See People v. Valladoli, 918 P.2d 999, 1005 (Cal. 1996). If a jury could

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have convicted Moreno-Florean of kidnapping under § 207(a) without finding
that he used physical force, then a judge could have found a factual basis for his
guilty plea without finding that he used physical force. See Wallace, 93 P.3d at
1043 (noting that a guilty plea in California “ordinarily includes an admission
that there is a factual basis for the plea”). Moreno-Florean’s guilty plea to the
kidnapping count in his indictment, standing alone, does not compel a finding
that he used physical force to perpetrate that crime.
The statute of conviction cannot be narrowed through reference to the
guilty plea and the abstract of judgment, so we must consider “whether the least
culpable act constituting a violation of that statute constitutes ‘kidnapping’ for
purposes of U.S.S.G. § 2L1.2.” Gonzalez-Ramirez, 477 F.3d at 315-16. Because
kidnapping under § 207(a) can be accomplished without the use of physical force,
we decline to uphold Moreno-Florean’s sentence under the categorical approach.
See Cervantes-Blanco, 504 F.3d at 579-80.
3. Enumerated Offense of “Kidnapping”
We have recently considered whether kidnapping statutes from three
states qualify as the enumerated offense of “kidnapping” for purposes of §
2L1.2(b)(1)(A)(ii). See Cervantes-Blanco, 504 F.3d 576 (determining that COLO.
REV. STAT. ANN. § 18-3-302(1) did not qualify); Iniguez-Barba, 485 F.3d 790
(determining that N.Y. PENAL LAW § 135.20 qualified); Gonzalez-Ramirez, 477
F.3d 310 (determining that TENN. CODE ANN. § 39-13-303 qualified); see also
United States v. Garcia-Gonzalez, 168 F. App’x 564, 565 (5th Cir.), cert. denied,
127 S. Ct. 187 (2006) (determining that TEX. PENAL CODE § 20.03(a) qualified).
In Gonzalez-Ramirez, 477 F.3d at 316-19, we considered the definition of
kidnapping in the Model Penal Code (MPC) and kidnapping statutes of other
states, and we determined that TENN. CODE ANN. § 39-13-303 did not sweep
more broadly than the enumerated offense of “kidnapping” based on the statute’s
elements:

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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 . . . .
Id. at 318-19. Although the MPC’s definition of kidnapping required that
removal or confinement occur due to a specified purpose, such as ransom or the
infliction of bodily injury, we determined that § 39-13-303 qualified as the
enumerated offense of “kidnapping” under § 2L1.2 without a specified purpose
element.3 Id. at 318. We found it 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.”
Id. at 319.
In Iniguez-Barba, 485 F.3d at 791-93, we determined that N.Y. PENAL LAW
§ 135.20 qualified as the enumerated offense of “kidnapping” even though it
included only the first three of the four elements present in § 39-13-303, lacking
the element of risk of injury or confinement as a condition of involuntary
servitude. We noted that our decision was consistent with Garcia-Gonzalez, 168
F. App’x at 565, an unpublished case which held that the enumerated offense of

3
The MPC defines the most serious imprisonment offense, kidnapping, in the following
manner: “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 (2001); accord Gonzalez-Ramirez, 477 F.3d
at 316.

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“kidnapping” included a Texas statute that was nearly identical to the New York
statute and likewise lacked the requirement of risk of injury or involuntary
servitude. Iniguez-Barba, 485 F.3d at 793.
In Cervantes-Blanco, 504 F.3d at 586-87, we determined that COLO. REV.
STAT. § 18-3-302(1) did not qualify as the enumerated offense of “kidnapping,”
reasoning that it lacked the second and fourth elements present in § 39-13-303,
did not explicitly require “force or fraud” as required under the third element of
§ 39-13-303, and lacked either the specified purpose elements contained in the
MPC definition or any other additional aggravating elements. We summarized
our analysis as follows:
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.

Id. at 586 (italics in original). We concluded that “a kidnapping statute . . .
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.’” Id. at 587.
Relying on these three cases, Moreno-Florean argues that CAL. PENAL
CODE § 207(a) lacks the elements necessary to qualify it as the enumerated
offense of “kidnapping.” He argues that, similar to the Colorado statute

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considered in Cervantes-Blanco, § 207(a) lacks the second and fourth elements
present in § 39-13-303. That is, he argues that § 207(a) does not require
“substantial interference with the victim’s liberty” and “(a) circumstances
exposing the victim to substantial risk of bodily injury, or (b) confinement as a
condition of involuntary servitude.” He also argues that § 207(a) lacks the
specified purpose requirements contained in the MPC definition. The
Government points out that, unlike COLO. REV. STAT. § 18-3-302(1), § 207(a)
explicitly contains the third element of § 39-13-303, the “force or fraud”
requirement.
COLO. REV. STAT. § 18-3-302(1), which does not qualify as the enumerated
offense of “kidnapping,” states the following: “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.” CAL. PENAL
CODE § 207(a), which is the subject of this appeal, uses language similar to the
Colorado statute: “Every person who forcibly, or by any other means of instilling
fear, steals or takes, or holds, detains, or arrests any person in this state, and
carries the person into another country, state, or county, or into another part of
the same county, is guilty of kidnapping.”
We must first determine whether the Colorado statute is distinguishable
from the California statute because the California statute contains an explicit
“force or fraud” element. In other words, if the presence of two explicit elements
identified in Gonzalez-Ramirez is sufficient to qualify § 207(a) as the enumerated
offense of kidnapping, then § 207(a) is a COV and our analysis ends. It is
undisputed that § 207(a) contains the first and third elements identified in
Gonzalez-Ramirez: (1) knowing removal and confinement; and (3) force, threat,
or fraud.
The presence of these two explicit elements, standing alone, is not
sufficient to qualify § 207(a) as a COV. If these two elements were deemed

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sufficient to constitute the enumerated offense of kidnapping, then dissimilar
state kidnapping offenses would be treated identically for purposes of the COV
enhancement. See Cervantes-Blanco, 504 F.3d at 580, 586-87. This would be
inconsistent with the Sentencing Guideline’s goals of uniformity and
predictability. See United States v. Ashburn, 20 F.3d 1336, 1347 (5th Cir. 1994).
A two-element definition of kidnapping would sweep more broadly than the
generic, contemporary meaning of the crime. See Gonzalez-Ramirez, 477 F.3d
at 319-20. Additional aggravating elements, such as the second and forth
elements identified in Gonzalez-Ramirez, or the specified purpose requirements
of the MPC definition, are necessary to qualify § 207(a) as the enumerated
offense of “kidnapping.” See Iniguez-Barba, 485 F.3d at 792-93 (concluding that
“the first three of those four elements” in Gonzalez-Ramirez “proscribes the
generic offense of ‘kidnapping’”).
Additional aggravating elements do not appear anywhere in the text of §
207(a).4 See Cervantes-Blanco, 504 F.3d at 585 (“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.”). In Cervantes-Blanco, we examined
Colorado case law to determine whether the “force or fraud” requirement of
Gonzalez-Ramirez was equivalent to the explicit “without consent and lawful
justification” element found in the Colorado second-degree kidnapping statute.
504 F.3d at 585. In Colorado, a kidnapping compelled through force or express
threats is “without consent,” see Colorado v. Maass, 981 P.2d 177, 186 (Colo. Ct.
App. 1998), but we noted that “it is possible that these terms [without consent
and without lawful justification] have some broader meaning.” Cervantes-

4
In particular, “[w]e have not found [and the Government has not cited to] any
[California] decision that imparts a “substantial interference” element to [§ 207(a)].” See
Cervantes-Blanco, 504 F.3d at 586.

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Blanco, 504 F.3d at 585. Following the lead of Cervantes-Blanco, we will
examine California case law to determine whether additional aggravating
elements are necessarily subsumed within the explicit elements of § 207(a).
Because Moreno-Florean pleaded guilty, we do not have a jury charge that
sets forth the elements of a § 207(a) violation. California appellate courts have
cited approvingly to the Judicial Council of California Criminal Jury
Instructions (CALCRIM) and the Committee on California Criminal Jury
Instructions (CALJIC) when discussing criminal jury charges. See, e.g., People
v. Wyatt, 81 Cal. Rptr. 3d 911, 917-18 (Cal. Ct. App. 2008) (CALCRIM); People
v. Martinez, 973 P.2d 512, 520 (Cal. 1999) (CALJIC). CALJIC states the
following elements for kidnapping under § 207(a): “(1) a person was unlawfully
moved by the use of physical force, or by any other means of instilling fear; (2)
the movement of the other person was without his consent; and (3) the
movement of the other person in distance was substantial in character.”
CALJIC § 9.50 Kidnapping—No Other Underlying Crime (2005 Revision). To
consent, a person must “(1) act freely and voluntarily and not under the
influence of threats, force, or duress; (2) have knowledge that he was being
physically moved; and (3) possess sufficient mental capacity to make an
intelligent choice whether to be physically moved by the other person.” CALJIC
§ 9.56 No Kidnapping When Free Consent.
The CALCRIM elements for kidnapping under § 207(a) are effectively
identical to CALJIC’s, just in a different order: “(1) the defendant took, held, or
detained another person by using force or by instilling reasonable fear; (2) using
that force or fear, the defendant moved the other person or made the other
person move a substantial distance; and (3) the other person did not consent to
the movement.” CALCRIM § 1215 Kidnapping (Pen. Code § 207(a)) (2008).
Importantly for purposes of this appeal, CALCRIM defines the term “substantial
distance:”

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Substantial distance means more than a slight or trivial distance.
In deciding whether the distance was substantial, you must consider
all the circumstances relating to the movement. Thus, in addition
to considering the actual distance moved, you may also consider
other factors such as whether the movement increased the risk of
[physical or psychological] harm, increased the danger of a
foreseeable escape attempt, gave the attacker a greater opportunity
to commit additional crimes, or decreased the likelihood of detection.

Id. (emphasis added).
Both the CALCRIM and the CALJIC elements for kidnapping under §
207(a) correspond to those elements recognized by California appellate courts.
See, e.g., People v. Jones, 133 Cal. Rptr. 2d 358, 362 (Cal. Ct. App. 2003)
(“Generally, to prove the crime of kidnapping, the prosecution must prove three
elements: (1) a person was unlawfully moved by the use of physical force or fear;
(2) the movement was without the person’s consent; and (3) the movement of the
person was for a substantial distance.”). The explicit elements of kidnapping
recognized by CALCRIM, CALJIC, and Jones only correspond to two of the four
elements identified in Gonzalez-Ramirez.
Under California case law, some aggravating factors discussed in
Gonzalez-Ramirez and some specified purposes of the MPC definition are
contextual factors that a jury may consider in determining whether the state
proved the asportation element of § 207(a). Prior to 1999, the California
Supreme Court defined the asportation element for kidnapping in terms of the
actual distance moved and concluded this element was satisfied if this distance
was substantial in character. See People v. Caudillo, 580 P.2d 274, 279 (Cal.
1978). The court overruled Caudillo’s determination that actual distance was
the litmus test for asportation in People v. Martinez, 973 P.2d 512 (Cal. 1999).
The court explained: “Section 207(a) proscribes kidnapping or forcible movement,
not forcible movement for a specified number of feet or yards. Our apparent
limitation to actual distance in Caudillo adds language to the statute that is

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simply not there. Indeed, as we have historically recognized for both aggravated
and simple kidnapping, limiting a trier of fact’s consideration to a particular
distance is rigid and arbitrary, and ultimately unworkable.” Id. at 519.
In Martinez, the California Supreme Court adopted a totality of the
circumstances test for the asportation element:
[I]n determining whether the movement is “substantial in
character,” the jury should consider the totality of the
circumstances. Thus, in a case where the evidence permitted, the
jury might properly consider not only the actual distance the victim
is moved, but also such factors as whether that movement increased
the risk of harm above that which existed prior to the asportation,
decreased the likelihood of detection, and increased both the danger
inherent in a victim’s foreseeable attempts to escape and the
attacker’s enhanced opportunity to commit additional crimes.

Id. at 520 (citation omitted). Of the contextual factors mentioned in Martinez,
the “increased the risk of harm” factor is equivalent to the fourth element
discussed in Gonzalez-Ramirez, see 477 F.3d at 318, and the “enhanced
opportunity to commit additional crimes” factor is the equivalent of one of the
specified purposes of the MPC definition. See MODEL PENAL CODE § 212.1
(identifying one specified purpose as “to facilitate commission of any felony or
flight thereafter”).
In California, a jury can find that the asportation element of § 207(a) is
satisfied based on distance alone, without consideration of (1) the other
aggravating factors discussed in Gonzalez-Ramirez or (2) the specified purposes
of the MPC definition. See Martinez, 973 P.2d at 541 (“While the jury may
consider a victim’s increased risk of harm, it may convict of simple kidnapping
without finding an increase in harm, or any other contextual factors. Instead, as
before, the jury need only find that the victim was moved a distance that was
‘substantial in character.’”). Based on the California Supreme Court’s statement
in Martinez, there is a “realistic probability” that California “would apply [§

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207(a)] to conduct that falls outside the generic definition” of kidnapping.
Gonzales v. Duenas-Alvarez, 127 S. Ct. 815, 822 (2007); see also United States v.
Ramos-Sanchez, 483 F.3d 400, 403-04 (5th Cir. 2007).
A “contextual factor,” which is part of a “totality of the circumstances” test
and is not necessarily considered by the jury, is not the equivalent of an element
for purposes of our enumerated offense analysis. Because the least culpable act
constituting a violation of § 207(a) only requires proof of two elements discussed
in Gonzalez-Ramirez, we conclude that § 207(a) sweeps more broadly than the
generic, contemporary meaning of “kidnapping.”5
4. Alternative Sentence
The Government also argues that the district court provided detailed, fact
specific reasons for its sentence based on the factors under 18 U.S.C. § 3553(a),
such that the district court provided an alternative basis for its sentence. The
Government argues that the sentence should be affirmed because
Moreno-Florean cannot show that the “alternative sentence” was unreasonable.
While the district court discussed facts pertaining to the § 3553(a) factors, it did
not impose any alternative sentence. Without the sixteen-level COV
enhancement, Moreno-Florean’s guidelines range would have been significantly
less than fifty-seven to seventy-one months of imprisonment. Before the district
court imposes a non-guideline sentence, it must first properly calculate the
applicable guideline range. United States v. Bonilla, 524 F.3d 647, 656 (5th Cir.
2008). Because we cannot say that Moreno-Florean’s sentence did not “result”
from an incorrect application of the guidelines, we cannot affirm his sentence on
the basis of the Government’s “alternative sentence” theory. See id.
II. CONCLUSION

5
The Government also contends that the record of conviction may be used to narrow
Moreno-Florean’s kidnapping conviction, such that the kidnapping conviction falls within the
generic, contemporary definition of kidnapping. We reject this argument for the same reasons
we rejected it with regard to the categorical approach.

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It was plain error to enhance Moreno-Florean’s sentence under §
2L1.2(b)(1)(A)(ii) because no Fifth Circuit case has held that the generic,
contemporary meaning of “kidnapping” requires proof of only two elements
discussed in Gonzalez-Ramirez and does not require proof of any of the specified
purposes of the MPC definition. Furthermore, this error affected Moreno-
Florean’s substantial rights because the COV enhancement substantially
increased his offense level under the guidelines, and there is a reasonable
probability that he received a higher sentence than we would have received
without the enhancement. See United States v. Villegas, 404 F.3d 355, 365 (5th
Cir. 2005); see also United States v. Garza-Lopez, 410 F.3d 268, 275 (5th Cir.
2005) (holding that erroneous enhancement for prior drug-trafficking offense
resulting in a substantially different sentence affected the fairness of judicial
proceedings). For these reasons, we will exercise our discretion to VACATE
Moreno-Florean’s sentence and REMAND for resentencing consistent with this
opinion.
VACATE and REMAND.

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