United States v. Florentino Marquez-Lobos

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,  No. 10-10470

Plaintiff-Appellee, D.C. No.

v. 2:09-cr-01584-

FLORENTINO MARQUEZ-LOBOS,  ROS-1

Defendant-Appellant. ORDER AND

AMENDED

 OPINION

Appeal from the United States District Court

for the District of Arizona

Roslyn O. Silver, District Judge, Presiding

Argued and Submitted

March 12, 2012—San Francisco, California

Filed June 19, 2012

Amended September 21, 2012

Before: John T. Noonan, Jr., M. Margaret McKeown, and

Milan D. Smith, Jr., Circuit Judges.

Opinion by Judge Milan D. Smith, Jr.

11625

UNITED STATES v. MARQUEZ-LOBOS 11627

COUNSEL

Randall M. Howe (argued), Krissa Marie Lanham, and Den-

nis Burke, Office of the United States Attorney, Phoenix, Ari-

zona, for plaintiff-appellee United States of America.

Theron M. Hall III (argued), The Hall Law Firm, P.C., Phoe-

nix, Arizona, for defendant-appellant Florentino Marquez-

Lobos.

ORDER

The opinion filed on June 19, 2012 is amended as follows:

On slip opinion page 7089, remove the paragraph from

lines 1 to 10, starting with “Finally, even if Marquez-Lobos

is correct that the Arizona statute sweeps more broadly than

the generic crime . . .” and ending with “. . . in which such

a prosecution occurs.”

With this amendment, the panel has unanimously voted to

deny the petition for panel rehearing. Judges McKeown and

11628 UNITED STATES v. MARQUEZ-LOBOS

Smith have voted to deny the petition for rehearing en banc,

and Judge Noonan so recommends.

The full court has been advised of the petition for rehearing

en banc, and no active judge of the court has requested a vote

on whether to rehear the matter en banc. Fed. R. App. P. 35.

The petition for panel rehearing and rehearing en banc is

DENIED. No future petition for panel rehearing or rehearing

en banc will be entertained in this case.

OPINION

M. SMITH, Circuit Judge:

Florentino Marquez-Lobos appeals the 16-level enhance-

ment of his sentence due to his prior 1985 conviction for kid-

napping, under Arizona Revised Statute (ARS) § 13-1304.

The district court found that his prior kidnapping conviction

was a “crime of violence,” as defined under the United States

Sentencing Guidelines, U.S.S.G. § 2L1.2(b)(1)(A), and sen-

tenced him to a term of 58 months in prison for illegally

entering the country after deportation. On appeal, Marquez-

Lobos contends that ARS § 13-1304 does not meet the

generic definition of kidnapping, and therefore does not qual-

ify as a “crime of violence” under either the categorical or

modified categorical approach.

In United States v. Gonzalez-Perez, 472 F.3d 1158, 1161

(9th Cir. 2007), we held that the generic definition of kidnap-

ping “encompasses, at a minimum, the concept of a ‘nefarious

purpose’ motivating restriction of a victim’s liberty” in addi-

tion to “the unlawful deprivation of another person’s liberty

of movement.” We hold that ARS § 13-1304 categorically

meets this generic definition, and we affirm Marquez-Lobos’s

sentence.

UNITED STATES v. MARQUEZ-LOBOS 11629

FACTUAL AND PROCEDURAL BACKGROUND

Marquez-Lobos pled guilty to illegal re-entry after deporta-

tion, in violation of 8 U.S.C. § 1326(a). The probation office

calculated the Sentencing Guidelines in the Presentence

Report (PSR) as follows:

Base Offense Level: 8

Specific Offense Characteristics: 16

Adjusted Offense Level 24

Acceptance of Responsibility -3

Total Offense Level 21

The PSR recommended a 16-level enhancement because

Marquez-Lobos’s 1985 conviction for kidnapping under ARS

§ 13-1304 constituted a “crime of violence” under U.S.S.G.

§ 2L1.2(b)(1)(A). Marquez-Lobos objected to this enhance-

ment at sentencing, but the district court overruled his objec-

tion, and sentenced Marquez-Lobos to a term of 58 months.

Marquez-Lobos appealed.

JURISDICTION AND STANDARD OF REVIEW

We have jurisdiction under 28 U.S.C. § 1291.

We review de novo whether a conviction constitutes a

“crime of violence” under the Sentencing Guidelines. United

States v. Hermoso-Garcia, 413 F.3d 1085, 1089 (9th Cir.

2005).

DISCUSSION

I. Sentencing Guidelines and Arizona Revised Statute

§ 13-1304

[1] The crime of unlawfully entering the United States

under 8 U.S.C. § 1326 carries a base offense level of 8 under

11630 UNITED STATES v. MARQUEZ-LOBOS

the Sentencing Guidelines. U.S.S.G. § 2L1.2(a). A defen-

dant’s base offense level may be increased by 16 levels if he

has a prior felony conviction that qualifies as a “crime of vio-

lence.” Id. § 2L1.2(b)(1)(A). The Sentencing Guidelines

define a “crime of violence” as:

[A]ny of the following offenses under federal, state,

or local law: Murder, manslaughter, kidnapping,

aggravated assault, forcible sex offenses (including

where consent to the conduct is not given or is not

legally valid, such as where consent to the conduct

is involuntary, incompetent, or coerced), statutory

rape, sexual abuse of a minor, robbery, arson, extor-

tion, extortionate extension of credit, burglary of a

dwelling, or any other 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. § 2L1.2 Application Notes 1.B.iii (emphasis added).

The PSR cited Marquez-Lobos’s prior conviction under

ARS § 13-304, which, at the time of Marquez-Lobos’s con-

viction, read as follows:

A. A person commits kidnapping by knowingly

restraining another person with the intent to:

1. Hold the victim for ransom, as a shield

or hostage; or

2. Hold the victim for involuntary servi-

tude; or

3. Inflict death, physical injury or a sexual

offense on the victim, or to otherwise

aid in the commission of a felony; or

UNITED STATES v. MARQUEZ-LOBOS 11631

4. Place the victim or a third person in

reasonable apprehension of imminent

physical injury to the victim or the

third person; or

5. Interfere with the performance of a

governmental or political function; or

6. Seize or exercise control over any air-

plane, train, bus, ship or other vehicle.

B. Kidnapping is a class 2 felony unless the victim

is released voluntarily by the defendant without

physical injury in a safe place before arrest and

before accomplishing any of the further enumerated

offenses in subsection A of this section in which

case it is a class 4 felony. If the victim is released

pursuant to an agreement with the state and without

any physical injury, it is a class 3 felony. If the vic-

tim is under fifteen years of age kidnapping is a class

2 felony punishable pursuant to § 13-705. The sen-

tence for kidnapping of a victim under fifteen years

of age shall run consecutively to any other sentence

imposed on the defendant and to any undischarged

term of imprisonment of the defendant.

ARS § 13-1304 (emphasis added).

Arizona defines the term “restrain” as follows:

“Restrain” means to restrict a person’s movements

without consent, without legal authority, and in a

manner which interferes substantially with such per-

son’s liberty, by either moving such person from one

place to another or by confining such person.

Restraint is without consent if it is accomplished by:

(a) Physical force, intimidation or decep-

tion; or

11632 UNITED STATES v. MARQUEZ-LOBOS

(b) Any means including acquiescence of

the victim if the victim is a child less than

eighteen years old or an incompetent person

and the victim’s lawful custodian has not

acquiesced in the movement or confine-

ment.

ARS § 13-1301(2) (emphasis added).

II. Taylor Categorical Framework

We apply the categorical and modified categorical

approaches set forth in Taylor v. United States, 495 U.S. 575

(1990), to determine whether a defendant’s prior conviction

constitutes a “crime of violence” for the purposes of U.S.S.G.

§ 2L1.2(b)(1)(A). United States v. Pimentel-Flores, 339 F.3d

959, 968 (9th Cir. 2003). We first apply the categorical analy-

sis. Under this approach, we “do not examine the facts under-

lying the prior offense, but look only to the fact of conviction

and the statutory definition of the prior offense.” Id. at 967

(quoting United States v. Corona-Sanchez, 291 F.3d 1201,

1203 (9th Cir. 2002) (en banc), superseded on other grounds

by U.S.S.G. § 2L.1, CMT n. 4 (2002)). If the statutory defini-

tion of the prior offense criminalizes conduct that would not

constitute a “crime of violence,” then the statute is not a cate-

gorical fit, and we must consider whether the prior conviction

may still be used for a sentencing enhancement under the

modified categorical approach. Pimentel-Flores, 339 F.3d at

967. Under this approach, a prior conviction may only be used

for a sentencing enhancement if “the record includes docu-

mentation or judicially noticeable facts that clearly establish

that the conviction is a predicate for enhancement purposes.”

Id. (quoting Corona-Sanchez, 291 F.3d at 1203).

Finally, if both the statute and the documents containing

judicially noticeable facts would allow the defendant to be

convicted of an offense that would not be a “crime of vio-

UNITED STATES v. MARQUEZ-LOBOS 11633

lence,” then the sentencing enhancement may not be applied.

See Corona-Sanchez, 291 F.3d at 1203-04.

III. Categorical Analysis

To apply the categorical analysis in this case, we compare

the statute that Marquez-Lobos violated—ARS § 13-1304—

with the generic definition of a “crime of violence,” and

determine if there is a categorical fit. In other words, does all

conduct that could be criminalized under ARS § 13-1304 con-

stitute a “crime of violence?”

Marquez-Lobos first urges us to ignore the PSR’s reference

to ARS § 13-1304 because the PSR did not specify the sub-

section of the statute under which Marquez-Lobos was previ-

ously convicted. He equates this general statutory reference in

the PSR with not referring to a statute at all. In Pimentel-

Flores, the PSR only stated that the defendant had a prior con-

viction for “assault in violation of court order, a felony,” and

did not list a corresponding statutory provision for the convic-

tion. 339 F.3d at 967-68. We held that it was improper for the

sentencing court to rely only on this factual description, with-

out referring to any statute. Id. We reject Marquez-Lobos’s

attempt to expand our holding in Pimentel-Flores to the facts

in this case because a statute (ARS § 13-1304) was clearly

listed in the PSR here. Marquez-Lobos is correct that the PSR

did not limit the conviction to one of the six possible subsec-

tions under ARS § 13-1304(A), but that fact is meaningless

here because we conclude that the proper way to apply the

categorical analysis in this case is to consider the statute as a

whole. In other words, we must consider whether a conviction

under any subsection of ARS § 13-1304 necessarily would

constitute a “crime of violence.”

ARS § 13-1304 could qualify categorically as a “crime of

violence” in one of two ways. First, it could qualify if it has

“an element of use, attempted use or threatened use of physi-

cal force against the person of another.” Gonzalez-Perez, 472

11634 UNITED STATES v. MARQUEZ-LOBOS

F.3d at 1160. Second, it could qualify if it constitutes “kid-

napping in its generic sense.” Id.

A. Element of Force

[2] The force necessary to qualify as a crime of violence

must actually be “violent in nature.” Gonzalez-Perez, 472

F.3d at 1160 (quoting United States v. Lopez-Montanez, 421

F.3d 926, 929 (9th Cir. 2005)). We held in Gonzalez-Perez

that a Florida false imprisonment statute did not have an ele-

ment of force because the confinement could be done “secret-

ly.” Id.

[3] Similarly, Arizona courts have held that kidnapping

under ARS § 13-1304 may be “committed without the use or

threat of violence.” State v. Bible, 175 Ariz. 549, 604 (1993).

Furthermore, the Arizona courts have held that when the vic-

tim is a minor who is less than 18 years old or incompetent,

“the question whether physical force, intimidation, or decep-

tion has been used is immaterial. The key to establishing lack

of consent is non-acquiescence by the lawful custodian.” State

v. Viramontes, 163 Ariz. 334, 336 (1990). Thus, because there

are situations where one may be convicted of kidnapping

under ARS § 13-1304 where there is no use or threat of vio-

lence, we find that the required element of physical force is

missing from the statute.

B. Generic Definition of Kidnapping

In order to determine whether ARS § 13-1304 constitutes

“kidnapping in its generic sense,” we must first determine the

generic definition of kidnapping.

The label a state uses for a crime does not control whether

the crime fits the generic definition. Taylor, 495 U.S. at 599.

Rather, we “derive the crime’s uniform meaning from the

generic, contemporary meaning employed by most states,

guided by scholarly commentary.” United States v. Esparza-

UNITED STATES v. MARQUEZ-LOBOS 11635

Herrera, 557 F.3d 1019, 1023 (9th Cir. 2009) (quoting United

States v. Gomez-Leon, 545 F.3d 777, 790 (9th Cir. 2008)).

The Model Penal Code (MPC) may “serve[ ] as an aid.”

United States v. Rodriguez-Guzman, 506 F.3d 738, 744 (9th

Cir. 2007). Ultimately, we derive the meaning of the enumer-

ated Guidelines crime not by the ordinary meaning of the

crime, but by surveying the Model Penal Code and state stat-

utes to determine how they define the offense. Esparza-

Herrera, 557 F.3d at 1023.

[4] We addressed the generic definition of kidnapping in

Gonzalez-Perez, and held that the generic definition of kid-

napping “encompasses, at a minimum, the concept of a

‘nefarious purpose’ motivating restriction of a victim’s liber-

ty” along with “the unlawful deprivation of another person’s

liberty of movement.” 472 F.3d at 1161. We hold that ARS

§ 13-1304 meets the generic definition of kidnapping, as

defined in Gonzalez-Perez.

i. Nefarious Purpose

[5] First, ARS § 13-1304 includes the element of the “con-

cept of a ‘nefarious purpose.’ ” It is not enough for a perpetra-

tor to simply act to restrain another person. Rather, ARS § 13-

1304(A) requires that the perpetrator act with one or more of

six enumerated purposes set forth in the section of the statute

before his act can constitute kidnapping. See supra. Our con-

clusion is consistent with the reasoning of other circuits, who

have themselves listed ARS § 13-1304 as a statute requiring

a nefarious purpose, when conducting a Taylor analysis of

other kidnapping statues. See, e.g., United States v. Soto-

Sanchez, 623 F.3d 317, 322 (6th Cir. 2010) (including ARS

§ 13-1304 in a survey of state statutes that “require a specific,

‘nefarious’ purpose other than merely restraining the victim”);

United States v. De Jesus Ventura, 565 F.3d 870, 876 n.5

(D.C. Cir. 2009) (same).

Marquez-Lobos’s only argument to the contrary is that the

nefarious purposes enumerated in ARS § 13-1304 are broader

11636 UNITED STATES v. MARQUEZ-LOBOS

than those contained in the generic definition of kidnapping.

However, Marquez-Lobos fails to indicate what nefarious

purposes he believes are contained in the generic definition of

kidnapping. We clarified in Gonzalez-Perez that all that is

required is a “concept” of a nefarious purpose—an additional,

specific purpose other than restraint of the victim. 472 F.3d at

1161. We did not outline a specific list of such purposes.

This approach is consistent with the approach taken by

other circuits. See Soto-Sanchez, 623 F.3d at 323 (finding that

the generic definition of kidnapping requires “more than

unlawful confinement or restraint of the victim,” but declining

to limit the generic definition to only the specific nefarious

purposes identified in the MPC); De Jesus Ventura, 565 F.3d

at 876 (finding that a majority of jurisdictions define kidnap-

ping to include a criminal purpose and while some states limit

to the purposes in the MPC, others do not). Accordingly, we

reject Marquez-Lobos’s argument, and find that ARS § 13-

1304 meets the “nefarious purpose” requirement included in

the generic definition of kidnapping.

ii. Unlawful Deprivation of Liberty

[6] We also conclude that ARS § 13-1304 contains the

required element of “the unlawful deprivation of another per-

son’s liberty of movement.” Gonzalez-Perez, 472 F.3d at

1161. ARS § 13-1304 states that “[a] person commits kidnap-

ping by knowingly restraining another person,” and further

defines “restrain” as “restrict[ing] a person’s movements

without consent, without legal authority, and in a manner

which interferes substantially with such person’s liberty, by

either moving such person from one place to another or by

confining such person.” (emphasis added).

Marquez-Lobos contends that the way “restraint” is defined

in ARS § 13-1304 is broader than how it is defined under the

generic definition of kidnapping. The Arizona statutes define

UNITED STATES v. MARQUEZ-LOBOS 11637

“restraint without consent” as restraint that is accomplished

by:

(a) Physical force, intimidation or deception; or

(b) Any means including acquiescence of the victim

if the victim is a child less than eighteen years old

or an incompetent person and the victim’s lawful

custodian has not acquiesced in the movement or

confinement.

Ariz. Rev. Stat. § 13-1301(2). Marquez-Lobos asserts that the

wording of § 13-1301(2)(b) would include in the definition of

kidnapping a situation where a person is confined or moved—

regardless of whether he or she consented—if the person is

underage or incompetent and the legal guardian does not con-

sent. He contends that the Arizona statute defines this age of

consent to be 18, whereas it is lower (in the 13-16 age range)

in a slight majority of other states, and thus, it is broader than

what should be included in the generic definition.

Marquez-Lobos argues that a slight majority of states (28)

and the MPC have a provision similar to ARS § 13-1304,

which sets an age when guardian consent is required. Four of

these states set the age at 18, as does Arizona. The applicable

age in the 24 remaining states, out of the 28, varies from 13

to 16. Even assuming that the failure of the remaining 22

states to include an age requirement does not doom Marquez-

Lobos’s argument that an age of consent requirement is a nec-

essary element of the generic crime of kidnapping, it is hardly

clear that the generic definition incorporates a specific age of

consent, given the varied approach of the states to the require-

ment.

At least one other circuit has suggested that a minor’s inca-

pacity should be considered when determining whether a

crime fits the generic elements of kidnapping, but has also

refrained from requiring a specific age.

11638 UNITED STATES v. MARQUEZ-LOBOS

The Fifth Circuit held in United States v. Iniguez-Barba,

485 F.3d 790 (5th Cir. 2007), that the New York kidnapping

statute meets the generic definition of kidnapping. The New

York statute, like ARS § 13-1304, contains a provision requir-

ing guardian consent for minors under a certain age, but

defined that age to be 16.1 Id. at 791. A previous Fifth Circuit

case had already held that the Tennessee statute for kidnap-

ping met the generic definition of kidnapping. See United

States v. Gonzalez-Ramirez, 477 F.3d 310 (5th Cir. 2007).

The Tennessee statute had a similar age provision, but set the

age at 13. Id. at 314-15. In analyzing the New York statute in

light of its previous ruling on the Tennessee statute, the

Iniguez-Barba court noted that both statutes required “know-

ing removal or confinement” and “substantial interference

with the victim’s liberty.” 485 F.3d at 791-92. The court next

observed that the New York statute also included the require-

ment in the Tennessee statute that the offense include “force,

threat, or fraud, or . . . if the victim is incompetent or under

age thirteen, lack of consent from the person responsible for

1

In Iniguez-Barba, the defendant was convicted of a statute stating that

“a person is guilty of kidnapping in the second degree when he abducts

another person.” 485 F.3d at 791 (citing N.Y. Penal Law § 135.20).

Abduct was defined as “to restrain a person with intent to prevent his lib-

eration 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. In turn, restrain was defined to mean:

restrict a person’s movements intentionally and unlawfully in

such manner as to interfere substantially with his liberty by mov-

ing 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 “with-

out consent” when such is accomplished by (a) physical force,

intimidation or deception, or (b) any means whatever, including

acquiescence of the victim, if he is a child less than sixteen years

old or an incompetent person and the parent, guardian or other

person or institution having lawful control or custody of him has

not acquiesced in the movement or confinement.

Id. (emphasis added).

UNITED STATES v. MARQUEZ-LOBOS 11639

the general supervision of the victim’s welfare.” Id. at 792. In

doing so, the court did not mention the difference between the

statutes in terms of the age of the victim. Were we to agree

with Marquez-Lobos’s argument, the New York statute set-

ting the age at 16 would be broader than the Tennessee statute

setting the age at 13, and the court would have had to survey

the ages from other states to determine if 16 was too broad for

a categorical match. However, this difference is irrelevant

because the Fifth Circuit court found it unnecessary to include

the actual age of the victim in its analysis. Instead, the court

considered the elements more broadly, to include “force,

threat, or fraud or, for children or incompetents, lack of valid

consent.” Id. In doing so, the court framed the element

addressing “consent” to be when someone is a minor or

incompetent—without requiring a specific age for when a

minor becomes competent—as part of the generic definition.

In a later case, the Fifth Circuit reiterated its holding that kid-

napping need only include 1) knowing removal or confine-

ment, 2) substantial interference with the victim’s liberty, and

3) force, threat or fraud, or if the victim is incompetent or

under age, lack of consent. United States v. Cervantes-Blanco,

504 F.3d 576, 585 (5th Cir. 2007); see also United States v.

Moreno-Florean, 542 F.3d 445, 454 (5th Cir. 2008) (shortcut-

ting the last element to “force, threat, or fraud”).2

[7] We therefore decline to narrow the generic definition

of kidnapping from the one included in Gonzalez-Perez, and

we hold that ARS § 13-1304 contains all the elements

required to meet the generic definition of kidnapping.3

Accordingly, Marquez-Lobos’s prior conviction under ARS

2

The Fifth Circuit does not require a nefarious purpose, as we did in

Gonzalez-Perez, so the generic definition from the cited Fifth Circuit cases

conflict with our case law to that extent. However, we see no reason to

reinterpret our view of the meaning of the unlawful restraint element of

the crime.

3

Because we find that ARS § 13-1304 categorically meets the generic

definition of kidnapping, we do not engage in any modified categorical

analysis.

11640 UNITED STATES v. MARQUEZ-LOBOS

§ 13-1304 categorically qualifies as a “crime of violence,”

and his 16-level sentence enhancement was properly imposed.

CONCLUSION

We hold that Arizona Revised Statute § 13-1304, categori-

cally meets the generic definition of kidnapping, and we

AFFIRM Marquez-Lobo’s sentence.