U.S. v. Williams, 96-10226
Decision Date | 11 March 1997 |
Docket Number | No. 96-10226,96-10226 |
Citation | 110 F.3d 50 |
Parties | 97 Cal. Daily Op. Serv. 2230, 97 Daily Journal D.A.R. 4064 UNITED STATES of America, Plaintiff-Appellee, v. John Ray WILLIAMS, Defendant-Appellant. |
Court | U.S. Court of Appeals — Ninth Circuit |
John P. Balazs, Assistant Federal Public Defender, Sacramento, California, for the defendant-appellant.
Mark J. McKeon, Assistant United States Attorney, Sacramento, California, for the plaintiff-appellee.
Appeal from the United States District Court for the Eastern District of California, William B. Shubb, District Judge, Presiding. D.C. No. CR-95-00456-WBS.
Before: CHOY, BRUNETTI, and FERNANDEZ, Circuit Judges.
Appellant John Ray Williams appeals his sentence under the Sentencing Guidelines imposed following his guilty plea to one count of bank robbery under 18 U.S.C. § 2113(a). Appellant argues that the district court erred in concluding that his Oregon conviction for attempted second-degree kidnapping is a crime of violence under the career offender guideline, U.S.S.G. § 4B1.2, and that the district court erred in denying him a downward departure based on an extraordinary physical impairment. Both of Appellant's arguments are without merit and we affirm.
Appellant argues that attempted second-degree kidnapping as defined by Oregon law is not a crime of violence as that term is defined by U.S.S.G. § 4B1.2(1)(ii). Section 4B1.2(1) defines the term "crime of violence" as any offense punishable by imprisonment for a term exceeding one year that:
(i) has as an element the use, attempted use, or threatened use of physical force against the person of another, or
(ii) is burglary of a dwelling, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another.
Appellant was convicted under Oregon Revised Statute section 163.225(1)(a) which provides that:
[a] person commits the crime of kidnapping in the second degree if, with intent to interfere substantially with another's personal liberty, and without consent or legal authority, the person:
(a) Takes the person from one place to another....
Or.Rev.Stat. § 163.225(1)(a). The term "without consent" is defined to mean, "the taking or confinement is accomplished by force, threat or deception." Or.Rev.Stat. § 163.215(1). Because second-degree kidnapping as defined by Oregon Revised Statute section 163.225 may be committed by deception, rather than by force, it does not qualify as a "crime of violence" under U.S.S.G. § 4B1.2(1)(i). We must therefore determine whether second-degree kidnapping is a crime "that presents a serious potential risk of physical injury to another." U.S.S.G. 4B1.2(1)(ii).
In determining whether a prior conviction is a "crime of violence" under U.S.S.G. § 4B1.2(1)(ii), we may examine " 'the elements of the crime charged or whether the actual charged 'conduct' of the defendant presented a serious risk of physical injury to another.' " United States v. Young, 990 F.2d 469, 471 (9th Cir.1993), citing United States v. Sahakian, 965 F.2d 740, 742 (9th Cir.1992). Section 4B1.2(1)(ii) requires only that the conduct involve a "potential risk of physical injury." U.S.S.G. § 4B1.2. The Information charging Appellant with the commission of attempted second-degree kidnapping alleged that he did "unlawfully and knowingly, without consent or legal authority, attempt to take [the victim] from one place to another with intent to interfere substantially with the said [victim's] personal liberty...."
We have implied that kidnapping is a crime of violence under U.S.S.G. § 4B1.2(1)(ii) because it involves a "serious potential risk of physical injury to the ... kidnapped person." United States v. Lonczak, 993 F.2d 180, 182-83 (9th Cir.1993). In an analogous context, we explicitly held that "kidnapping entails a 'serious potential risk of physical injury' to the victim, making the offense a 'violent felony'...." United States v. Sherbondy, 865 F.2d 996, 1009 (9th Cir.1988). That holding has been followed by other circuits which have determined that kidnapping is a "crime of violence" because it, by its very nature, involves a substantial risk of physical violence. See United States v. Kaplansky, 42 F.3d 320, 324-25 (6th Cir.1994) ( ); United States v. Salemi, 26 F.3d 1084, 1086 (11th Cir.1994) ( ); United States v. Phelps, 17 F.3d 1334, 1342 (10th Cir.1994) ( ); United States v. Patino, 962 F.2d 263, 267 (2nd Cir.1992) ( ). Indeed, Application Note 2 to section 4B1.2 specifically provides that kidnapping is a crime of violence. U.S.S.G. § 4B1.2, cmt. 2. We agree, kidnapping which occurs "without consent" of the victim, as Appellant's Information...
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