Thursday, April 26, 2007

NY 2d Degree Kidnapping is Equivalent to Generic Kidnapping & Therefore a 16-Level COV Under U.S.S.G. §2L1.2

United States v. Iniguez-Barba, No. 06-50434 (5th Cir. Apr. 25, 2007) (per curiam) (Jones, Higginbotham, Clement)

You know the drill: illegal reentry case, defendant had a prior New York conviction for second degree kidnapping, district court found it to be a crime of violence for purposes of the 16-level enhancement under U.S.S.G. §2L1.2(b)(1)(A)(ii) (kidnapping is an enumerated COV), and defendant appealed.

This isn't the first time the Fifth Circuit has addressed generic kidnapping in a published opinion. In United States v. Gonzalez-Ramirez, the court held that a Tennessee conviction for attempted kidnapping fit within the generic offense definition, after analyzing the differences and similarities among the Tennessee statute, the Model Penal Code's kidnapping/restraint provisions, and the parallel statutes of other states. Gonzalez-Ramirez provided limited guidance for other cases, though, because it never really provided a defintion of generic kidnapping.

Iniguez-Barba fills in that gap. It relies almost entirely on Gonzalez-Ramirez's discussion of kidnapping, but goes a little further by expressly saying that you'll have generic kidnapping if three elements are present:

(1) knowing removal or confinement;

(2) substantial interference with the victim’s liberty; [and]

(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[.]

New York's second degree kidnapping statute had all those elements, so it was generic kidnapping. And because the court held that the offense qualified as an enumerated COV, it did not address the question of whether it might also qualify as a COV under the force-element prong of the definition.

One last thing: as it has in many recent COV cases, the court said it was employing a "common sense approach." But unlike some of those other cases, the court's analysis here is indistinguishable from the Taylor/Shepard categorical approach.

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