Thursday, February 01, 2007

Kidnapping Under Tenn. Code § 39-13-303 Not Broader Than Generic Kidnapping; It's Therefore a COV Under U.S.S.G. §2L1.2(b)(1)(A)(ii)

United States v. Gonzalez-Ramirez, No. 04-51355 (5th Cir. Jan. 30, 2007) (Jolly, Prado, Owen)

Gonzalez pled guilty to illegal reentry (8 U.S.C. § 1326). He had a prior Tennessee conviction for attempted kidnapping. The district court found that the prior conviction was a "crime of violence" for purposes of U.S.S.G. §2L1.2(b)(1)(A)(ii), and accordingly applied a 16-level enhancement when calculating Gonzalez's offense level. Gonzalez challenged that determination on appeal.

The court applied the familiar Taylor/Shepard categorical approach and held that the entirety of the Tennessee kidnapping statute fits within the generic definition of kidnapping, an enumerated crime of violence under §2L1.2, comment. (n.1(B)(iii)). So how did the court get there?

First, the court rejected (for about the thousandth time) the Government's argument that "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." Slip op. at 4. Relying on Taylor, the court observed that state labels are not controlling and that the statute of conviction must instead be compared to a uniform definition of kidnapping.

Next, the court had to figure out which portion of the Tennessee statute underlay Gonzalez's prior conviction. Gonzalez had initially been indicted for aggravated kidnapping under Tenn. Code § 39-13-304(3), (4), but the court could not use that document to identify the relevant statutory provision because Gonzalez was not convicted of that charge. He instead pled guilty to attempted kidnapping under § 39-13-303. However, there was nothing in the record (such as a superseding charging instrument or any other Shepard-sanctioned document) that identified the particular subsection of § 39-13-103 under which Gonzalez was convicted. The court therefore had to consider the entire range of conduct encompassed by § 39-13-303 and determine whether the least culpable conduct prohibited by the statute fit within the generic, contemporary definition of kidnapping.

Having finally gotten to the meat of the issue, the court began with the Model Penal Code, which carves kidnapping into three separate offenses of increasing severity: false imprisonment, felonious restraint, and kidnapping. Gonzalez argued that § 39-13-303 is closer to MPC felonious restraint than MPC kidnapping because MPC kidnapping requires a specified purpose for the restraint whereas the Tennessee statute does not. The court concluded that the Tennessee statute actually falls somewhere in-between MPC felonious restraint and MPC kidnapping, although "closer to the latter" "in terms of the egregiousness of the conduct required for conviction[.]" Slip op. at 14. But the court also pointed out that the MPC isn't the end-all-be-all of generic offense definitions. It therefore went on to compare § 39-13-303 to the kidnapping statutes of other states. Although state statutes vary widely, the court found that most states have rejected a "specified purpose" requirement for kidnapping. The court also concluded that the Tennessee statute is at least as restrictive, if not more so, that most states' kidnapping statutes, insofar as § 39-13-303 "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." Slip op. at 17-18. For that reason, the court held that § 39-13-303 is not broader than the generic, contemporary definition of kidnapping.

The opinion doesn't actually divine the outer boundaries of generic kidnapping, but it does include string cites galore. So if you find yourself needing to compare some other state's kidnapping statute to generic kidnapping, Gonzalez-Ramirez will give you a head start on your research.

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