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

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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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No. 07-50833

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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No. 07-50833

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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No. 07-50833

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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No. 07-50833

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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