Monday, October 15, 2007

2d Degree Kidnapping Under Colo. Rev. Stat. § 18-3-302(1) Isn't Generic "Kidnapping" & Therefore Isn't a 16-Level COV Under 2L1.2(b)(1)(A)(ii)

United States v. Cervantes-Blanco, No. 06-50738 (5th Cir. Oct. 12, 2007) (Dennis, Clement, Prado)

This is the third time that the Fifth Circuit has grappled, in a published opinion, with whether a particular state statute fits within the generic definition of "kidnapping" for purposes of the 16-level crime of violence definition in guideline §2L1.2. This time it's a portion of Colorado's second-degree kidnapping statute that's at issue. In a very thorough and careful analysis, the court holds that the Colorado offense isn't generic kidnapping, and further refines the definition of kidnapping developed in the earlier two cases.

The court took its first crack at the issue in United States v. Gonzalez-Ramirez, which rejected the Model Penal Code approach to the question. The MPC distinguishes kidnapping from lesser forms of criminal restraint by requiring a special purpose for the restraint in the case of kidnapping. Gonzalez-Ramirez held that generic kidnapping doesn't require a special purpose. The court went on to hold that the Tennessee statute at issue fit within the definition of generic kidnapping, although it never really explained what the elements of generic kidnapping are.

Round Two was United States v. Iniguez-Barba. It held that the New York statute in question constituted generic kidnapping because it shared three of the four elements of the Tennessee statute from Gonzalez-Ramirez:

(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[.]

Which brings us to Cervantes-Blanco. It involved Colo. Rev. Stat. § 18-3-302(1), which states that, "Any person who knowingly seizes and carries away any person from one place to another, without his consent and without lawful justification, commits second degree kidnapping." After carefully parsing Gonzalez-Ramirez and Iniguez-Barba, the court concluded that the Colorado statute included the first and (possibly) the third elements listed in Iniguez-Barba. But it concluded (based on a review of Colorado case law) that the Colorado statute lacked the second element of "substantial interference with the victim's liberty."

The question therefore became whether a statute that includes only the first and third Gonzalez-Ramirez/Iniguez-Barba elements "and lacks any additional aggravating elements, such as the specified purpose requirements of the MPC definition, qualifies as the enumerated [COV] of 'kidnapping." The court held that "it does not," and summed up its holding thusly:

[I]n accordance with this circuit's precedent, a kidnapping statute such as § 18-3-302(1), which lacks the specified purposes of the MPC definition and other aggravating elements identified in Gonzalez-Ramirez and Iniguez-Barba, and also lacks an explicit "force or fraud" requirement, does not qualify as the enumerated offense of "kidnapping" [under guideline §2L1.2(b)(1)(A)(ii).]

Don't make the mistake of looking at this as just a "kidnapping" case. The court's reasoning process is at least as important as the specific holding, insofar as it illustrates how you have to take a careful look at the case law governing a particular COV question, as well as the state case law intrepreting and applying the statute at issue, to see whether you've got an argument or not. Sometimes you can find successful arguments that might elude you at first glance.

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