U.S. v. Gonzalez-Ramirez, 04-51355.

• Decision Date: 30 January 2007
• Docket Number: No. 04-51355.,04-51355.
• Citation: 477 F.3d 310
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Roberto GONZALEZ-RAMIREZ, also known as Roberto Gonzalez, also known as Emerlindo Santos Castro-Castro, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

477 F.3d 310

UNITED STATES of America, Plaintiff-Appellee, v. Roberto GONZALEZ-RAMIREZ, also known as Roberto Gonzalez, also known as Emerlindo Santos Castro-Castro, Defendant-Appellant.

No. 04-51355.

United States Court of Appeals, Fifth Circuit.

January 30, 2007.

Joseph H. Gay, Jr., Asst. U.S. Atty., Margaret M. Embry (argued), San Antonio, TX, for U.S.

Donna F. Coltharp (argued), Lucien B. Campbell, Fed. Pub. Def., San Antonio, TX, for Defendant-Appellant.

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

Before JOLLY, PRADO and OWEN, Circuit Judges.

OWEN, Circuit Judge:

The defendant contends that a conviction for attempted kidnapping under Tennessee law is not a "crime of violence" for purposes of section 2L1.2 of the United States Sentencing Guidelines. Because Tennessee's statutory definition of kidnapping falls within the generic, contemporary meaning of "kidnapping," an enumerated offense in the commentary to section 2L1.2, the district court did not err in applying a crime-of-violence enhancement in this case. The defendant's sentence is affirmed.

I

The government charged Roberto Gonzalez-Ramirez with illegally re-entering the United States in violation of 8 U.S.C. § 1326. The government then filed a "Notice of Intent to Seek Increased Statutory Penalty" under § 1326(b)(2), which increases the maximum statutory penalty from two years imprisonment to twenty years imprisonment if the defendant was previously deported following an aggravated felony conviction.¹ This request was based on Gonzalez-Ramirez's prior conviction under Tennessee law for attempted kidnapping.

Gonzalez-Ramirez pleaded guilty to violating section 1326, but at sentencing, he objected to being sentenced under subsection 1326(b)(2). Gonzalez-Ramirez argued that Apprendi v. New Jersey² precludes a court from increasing the maximum statutory sentence based on a prior conviction that was not alleged in the indictment. Gonzalez-Ramirez did not otherwise object to the application of subsection 1326(b)(2) or a 16-level crime-of-violence enhancement in calculating the advisory guideline sentencing range, as recommended in the presentence investigation report.

The district court rejected the Apprendi objection, applied the crime-of-violence enhancement under U.S.S.G. § 2L1.2(b)(1)(A)(ii) based on the attempted kidnapping conviction, and sentenced Gonzalez-Ramirez to 46 months imprisonment. On appeal, Gonzalez-Ramirez asserts error in both the application of 8 U.S.C. § 1326(b)(2) and the Guidelines' crime-of-violence enhancement. Gonzalez-Ramirez concedes, however, that his Apprendi objection to the application of the statutory sentencing provision is foreclosed by Almendarez-Torres v. United States³ and circuit precedent.⁴ Therefore, the only issue we consider on appeal is whether Gonzalez-Ramirez's prior conviction for attempted kidnapping under Tennessee law is a "crime of violence" under section 2L1.2. Because this argument was raised for the first time on appeal, the plain-error standard of review applies.⁵

II

Under the plain-error standard, a defendant must establish error that is plain and affects substantial rights.⁶ 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.'"⁷ For the reasons that follow, we conclude that the district court did not err in treating Gonzalez-Ramirez's conviction as a crime of violence under section 2L1.2.

Section 2L1.2 of the Sentencing Guidelines authorizes a 16-level sentence enhancement "[i]f the defendant previously was deported, or unlawfully remained in the United States, after . . . a conviction for a felony that is . . . a crime of violence."⁸ The term "crime of violence" is not defined in section 2L1.2. But according to the Guidelines commentary,

"Crime of violence" means any of the following: murder, manslaughter, kidnapping, aggravated assault, forcible sex offenses, statutory rape, sexual abuse of a minor, robbery, arson, extortion, extortionate extension of credit, burglary of a dwelling, or 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.⁹

We regard the Guidelines commentary as authoritative,¹⁰ and when interpreting it, we apply the plain, ordinary and commonly understood meaning of the words.¹¹

In this case, the government does not contend that Gonzalez-Ramirez was convicted of an offense "that has as an element the use, attempted use, or threatened use of physical force against the person of another." The government asserts only that Gonzalez-Ramirez's conviction constitutes the enumerated offense of kidnapping. According to the government, if the state statute of conviction is labeled "kidnapping" or "attempted kidnapping," the conviction automatically qualifies as kidnapping within the meaning of the Guidelines commentary.

In contrast, Gonzalez-Ramirez argues that labels have varying definitions under differing state statutes and, therefore, cannot be conclusive. According to Gonzalez-Ramirez, the enumerated offense of kidnapping incorporates the Model Penal Code's definition, which requires removal or confinement for certain specified purposes.¹² Unlike the Model Penal Code, the Tennessee statute under which Gonzalez-Ramirez was convicted does not require removal or confinement for any specified purpose. Therefore, according to Gonzalez-Ramirez, he was not convicted of kidnapping as that term is used in the Guidelines.

A

In evaluating these arguments, we first note that a conviction for attempted "kidnapping" may qualify as the enumerated offense of kidnapping for purposes of section 2L1.2(b)(1)(A). The commentary to section 2L1.2 states, "Prior convictions of offenses counted under subsection (b)(1) include the offenses of aiding and abetting, conspiring, and attempting, to commit such offenses."¹³ Gonzalez-Ramirez has not challenged the requirements for an attempt under Tennessee law. Thus, our analysis is not affected by the fact that Gonzalez-Ramirez was convicted of attempted kidnapping rather than kidnapping.¹⁴

B

Turning now to the definition of kidnapping, as enumerated for purposes of section 2L1.2, we conclude that state-law labels do not control. The crime-of-violence enhancement incorporates crimes with certain elements, not crimes that happen to be labeled "kidnapping" or "attempted kidnapping" under state law. "The Guidelines were enacted to bring uniformity and predictability to sentencing."¹⁵ The goal is "to reduce unjustified disparities and so reach toward the evenhandedness and neutrality that are the distinguishing marks of any principled system of justice."¹⁶ These goals would not be accomplished by treating state-law labels of kidnapping as controlling.

State-by-state, the definitions of felony kidnapping vary dramatically. For example, in Maryland, when the victim is a competent adult, the defendant must "by force or fraud, carry or cause [the] person to be carried in or outside the State with the intent to have the person carried or concealed in or outside the State."¹⁷ In contrast, "carrying" is not required in South Carolina. There, kidnapping means to "unlawfully seize, confine, inveigle, decoy, kidnap, abduct or carry away any other person by any means whatsoever without authority of law . . . ."¹⁸ Like South Carolina, Hawaii does not require "carrying." In Hawaii, kidnapping includes any restriction on movement that substantially interferes with the person's liberty.¹⁹ But under Hawaii law, the restraint must be accomplished by force, threat, or deception when the victim is a competent adult, and in all cases, it must be done with a specific intent, such as to hold for ransom, use as a shield or hostage or inflict bodily injury.²⁰ Thus, a defendant who unlawfully restrained but did not "carry" another adult has not committed felony kidnapping under Maryland law. But the defendant has committed felony kidnapping under South Carolina law. Under Hawaii law, whether the defendant committed felony kidnapping will depend on the means and intent.

These provisions illustrate only a few of the many differences in state kidnapping laws. Given these differences, a defendant "would, or would not, receive a sentence enhancement based on exactly the same conduct, depending on whether the State of his prior conviction happened to call that conduct" kidnapping.²¹ We conclude that when a sentencing enhancement under the Guidelines is based on an enumerated but undefined offense, and when the states' definitions of that offense vary significantly, the offense "must have some uniform definition independent of the labels employed by the various States' criminal codes."²² In other words, when determining whether a defendant has been convicted of kidnapping for purposes of section 2L1.2, state-law labels do not control.

C

We must now determine whether Gonzalez-Ramirez's attempted kidnapping conviction under Tennessee law qualifies as "kidnapping" for purposes of section 2L1.2. In Tennessee, all three degrees of kidnapping are defined with reference to false imprisonment.²³ False imprisonment means "knowingly remov[ing] or confin[ing] another unlawfully so as to interfere substantially with the other's liberty."²⁴

"Unlawful" means, with respect to removal or confinement, one which is accomplished by force, threat or fraud, or, in the case of a person who is under the age of thirteen (13) or incompetent, accomplished without the consent of a parent, guardian or other person responsible for the general supervision of the minor's or incompetent's welfare.²⁵

Under section 39-13-303 of Tennessee's Code, "kidnapping" is "false imprisonment . . . (1) [u]nder circumstances exposing the other person to substantial risk of bodily injury; or (2) [w]here the...