The en banc court has made an obvious error of interpretation under governing Supreme Court precedent in this case.
A mandatory minimum 15-year term of imprisonment under the Armed Career Criminal Act, 18 U.S.C. § 922(g), is imposed on any convicted defendant who has three prior convictions for “violent felonies.” Section 924(e)(2)(B) defines the term “violent felony” as a felony that “has as an element the ... threatened use of physical force ... or is burglary, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another_” The Supreme Court has interpreted the mandatory minimum statute restrietively to mean that the sentencing court may “look only to the fact of conviction and the statutory definition of the prior offense.” Taylor v. United States, 495 U.S. 575, 602, 110 S.Ct. 2143, 2160, 109 L.Ed.2d 607 (1990). The Court explained that in a narrow range of cases in which a statute may provide alternative elements, some of which satisfy the mandatory minimum provisions and others of which do not, the sentencing court may look to the indictment or information and jury instructions to determine whether the jury necessarily had to find the element of “violence” which satisfies the statute. If the conviction in question may be committed without violence under the definition of the offense, then the conviction may not be used for enhancement. Thus, the Court adopted a “categorical” approach, not a specific offense approach.
The question presented in this case is whether the defendant’s prior conviction for first degree attempted kidnapping, Ohio Rev. Code § 2905.01, constitutes a “violent” felony for § 924(e), and requires a 15 year mandatory minimum sentence, when the offense at issue criminalizes “kidnapping by deception.” 1 Using the categorical approach, this *329statute does not have as an element the threatened use of physical force because the statute may be violated by means of “deception” as well as by force or threat. Under the deception alternative, some of the ways to violate the statute are violent felonies and others are not. Taylor therefore provides that a court should review the indictment to determine whether the defendant was actually convicted of a violent felony.
The defendant here pled guilty to the following charge:
The ... defendant ... did attempt by force, threat or deception [to] remove[] Colleen Lally from the place where she was found or restrained her of her liberty for the purpose of facilitating the commission of a felony or the flight thereafter and/or terrorizing, or inflicting serious physical harm on Colleen Lally, and/or engaging in sexual activity with Colleen Lally against her will and failed to release the victim in a safe place unharmed. (Emphasis added).
The indictment charges that the offense of conviction may have been committed by deception for the purpose of facilitating “the commission of a felony or the flight thereafter,” which may be done without violence as defined in the federal mandatory minimum statute.
For example, any one of the following nonviolent crimes comes within the Ohio statute and the language of the indictment in this case: The defendant is a pimp and the victim of the kidnapping works for the defendant as a prostitute. The woman agrees to accompany the defendant across state lines after he tells her that they are going from Cincinnati, Ohio to Covington, Kentucky to meet a friend, when in fact his reason for taking her to Kentucky is to engage in prostitution. Unknown to the defendant, the “friend” is an undercover agent and when the defendant and the woman arrive at the friend’s home, they are arrested. In this example, the defendant, by deception, removed the.woman from the place where she was found in order to facilitate the commission of prostitution, and he failed to release the victim in a safe place unharmed because he was apprehended before he could release the woman. It is difficult to discern how such a crime could be a “violent felony” which poses “a serious potential risk of physical injury to the victim or another.” But these facts fit precisely within the Ohio statute and the language of the indictment. They fit the indictment like a glove and involve no potential for violence whatever.
As a second example, a defendant and his partner-in-crime plan to steal art work from the wall of the defendant’s employer’s office on a Saturday afternoon when no one is at the office. When they arrive, they discover that the employer’s teenage daughter is working at the employer’s computer. The defendant decides to lure the daughter away from the office in order to give his partner the opportunity to steal the art work. The defendant offers to take the child, who he knows from previous contacts with him, to the ice cream parlor or another destination. The child agrees, and the defendant persuades the child to stay with him for long enough to give his partner the opportunity to pull off the job. Midway through the heist, however, his partner is apprehended and tells the police where the defendant and the child have gone. The police find the defendant and the child sitting in the ice cream parlor and the defendant is apprehended. In this example, the defendant has, by deception, removed the child from the place where she was found for the purpose of facilitating the commission of the theft. He further failed to release the victim in a safe place unharmed because the defendant was apprehended before he had the opportunity to release the child. I fail to see how either the first example or this theft case could possibly *330be considered one which “presents a serious potential risk of physical injury.”
A third example is a case in which the defendant, who is under a court order not to interfere with the custody of his minor child, induces his minor child by deception to leave her mother and live with him. The defendant uses the “kidnapped” child to assist in committing a nonviolent felony such as theft of a check from the mail, and he is arrested during the attempt. There is no violence or potential for violence. Because he was arrested during the offense, the defendant did not “release the child in a safe place unharmed.”
In all of these examples, which fit within the Ohio statute and precise language of the indictment in this case, and in many other cases which can be formulated, it is possible for Kaplansky to have been convicted of first degree attempted kidnapping without committing a violent felony as it is defined by § 924(e). Why should he be sentenced automatically to a mandatory minimum based on violence when none of these crimes are violent or involve any “serious” risk of violence?
We are supposed to be bound by Taylor to employ the categorical approach and not to look further behind the conviction than the indictment, and we are required to interpret such enhancement statutes strictly. Under the Taylor rationale, it seems obvious that Kaplansky could commit the “removal-from-the-place-found” crime charged in the instant indictment without any risk of violence whatsoever. Under these standards, Kaplansky’s conviction should not have been used to enhance his sentence.
The court has reached out to sentence the defendant to a mandatory minimum sentence. What has happened here, as has happened so often in our legal history, is that the court has created a legal fiction. It has ordained that a “serious potential” for “violence” must always be “invariably present” and “an inherent aspect of the crime” whenever “by deception a person removes another from the place where he is found.” We know as a matter of fact that such deception will not “invariably” lead to violence or create any more risk of violence than many activities we describe as nonviolent. The above set of examples demonstrate that fact. So the court simply creates a legal fiction: “deceptive removal from the place found” equals “violence” because it is always “possible” that it “might” occur.
I would not reach out in this or other eases through the creation of a legal fiction to impose long mandatory minimum sentences. I would not fictionalize “violence,” or say as a categorical matter that conduct is “violent” when it is not. In such cases I would leave it up to the district court to arrive at the sentence to be imposed without tying the judge down to a 15 year mandatory minimum sentence. What is the point of enlarging the reach of mandatory minimum sentences through legal fictions? There is no good reason to do so that I can see.
. The Ohio kidnapping statute reads in relevant part:
(A) No person by ... deception ... shall remove another from the place where he is found or restrain him of his liberty, for any of the following purposes:
(1) To hold for ransom, or as a shield or hostage;
*329(2) To facilitate the commission of any felony or flight thereafter;
(3) To terrorize, or to inflict serious physical harm on the victim or another;
(4) To engage in sexual activity ... with the victim against his will;
(5) To hinder, impede, or obstruct a function of government, or to force any action or concession on the part of governmental authority.
(C) Whoever violates this section is guilty of kidnapping, an aggravated felony of the first degree. If the offender releases the victim in a safe place unharmed, kidnapping is an aggravated felony of the second degree.
Ohio Rev.Code § 2905.01.