using a modified categorical approach that mr gonzales beddes his two thousand and three conviction for false imprisonment is a crime of violence under the reentry guidelines that the government has not in its brief of the app like it's category of the or nothing i think we're kind of are left with that on the way this case has been argued in the briefs and as the court as judge brinn as you said what the government has done is taken a categor approach and this is the first time that the government has ever raised that argument that categorical approach should be applied now the government has given a couple of different justifications for applying a categorical approach just strictly categorical approach i'm going to focus on its proposed definition of kidnapping because that is what the government spends most of its priest grief addressing also the difficulty i have with that is that your client wasn't convict of kidnapping that is the difficulty that i have with it is well he was not convicted of kidnapping when i met the problem he has as we all know it doesn't matter what the state statute calls it if it's kidnapping under the federal definition it's kidnapping so we've got to look at what issue is ok what do we mean by kidnapping under the guidelines you know under the federal concept necessarily just federalism it's whatever generic means it's that that mean the federal definition has adopted whatever the generic is and we have to look outside of federal law to find it right and i think we're on the same page with the concept when are we going to figure out what it is right what the government has proposed is a definition that has really a single element that a defendant unlawfully deprives a person's liberty now the government has said that treatise on substantive criminal law specifically section eighteen point one supports this definition of kidnapping i read a section eighteen point one of substance to criminal law differently and in preparing for this argument it occurred to me that the court need not go so far is to adopt a definition of kidnapping or at least not the complete model penal code definition because really all that is at issue here in this case is whether or not a generic definition would include as an element and if arius purpose in other words for defendant to be convicted of generic kidnapping must there be and in doing that i realized that there are twenty six states specifically let me get the statement that the faith uses when it describes a mature jordi rip approach regarding whether proof of purpose a nefarious purpose is required in most criminal code and when it refers to lists talking about a list of nefarious purposes while a minority do not use such a list and there is a footnote there it's footnote one fifty four when i went to put in one fifty four there are eleven states just eleven states that follow that minority approach but then let's say it goes on to say the other states meaning those in the majority either do include a requirement of purpose either to distinguish kidnapping from any lesser offense carrying other labels to me what that means is that there are some states that include lists of purposes and they do so in order to distinguish kidnapping from non kidnapping offenses for example false imprisonment i went to that footnote that's what noticed one fifty five i counted those states there are twenty six that is clearly a majority approach important florida law a state that follows the majority approach and how it defines kidnapping he was not convicted of kidnapping that was very clear on the record judge roll did in fact note that that it was clear that mr gonzales bettors pled to a it's the government's position that in fact the false imprisonment statute under which the defendant was convicted in florida does constitute kidnapping in the generic contemporary sense ok just to make just to make sure we're on the same page with as i think it's clear but i want to make crystal clear that it's clear we're not arguing that modified categorical approaches are available here on the records and that the district judge had in front of him is that correct that's correct and so there is no instant categorical or nothing that's right as a judg category of conduct that can be a crime under the statute and then compare that with the generic definition just only if you are deciding whether to do it categorically or in a modified categorical that's the term of whether or not it's a categor crime of violence isn't it and that's what i'm proposing because what we're dealing with here is a guideline a simply uses the term kidnapping but without defining it and so we have to understand how we get there do you agree that in order to apply the taylor approach in the categorical granholm that we have to first find looking at the words of the statue what is the broadest conduct that can be a crime under that statute yes they had locked the doors intentionally to keep us in here would that be a crime under the florida statute that's a misunderstanding which i think also the district courts are from about the meaning of secret under florida statute if you reduce the cases i think robin son was one of the ones that this riddle cited what the florida really means by that is that it's not secret from the victim as in your example but secret from the world in other words a person is being isolated in such a way that much the same purpose of the word the seed serves in the california statute and that's exactly why we have to look i suggest to you at a generic definition what is kidnapping which is not otherwise defined within the guidelines mean and doesn't mean simply those which include those kinds of elements or not that is where i suggest that the taylor says we have to look in fact when it's not defined to what is the kind of conduct which is recognized generally and the the nub of that for me comes down to not whether it's secretly or not when we're talking kidnapping when we're talking that's one of the catch all violence and when we're talking kidnapping it's the nefarious purpose question my understanding is that the adversary has a right that majority require some form of nefarious purpose and what's on that list may vary a little bit but here the false imprisonment statute in florida has no such a nefarious purpose requirement all it has is the false imprisonment doesn't doesn't doesn't specify any purpose whatsoever and that's why it's basically going down the following a red herring to be concerned about nefarious purpose because you have to analyze each one of those states and as the quotation that she read indicates most of the reasons why they do that  simply grading it is not saying that this is essentially different from kidnapping it is saying that we want to distinguish with family purpose just as for example under the common law kidnapping and essentially the same but for grading purposes for making it a higher penalty they called a kidnapping with the additional element of taking a person out of the country but the labeling i'm afraid because the guideline use the term kidnapping i mean we have to figure out what is a generic labeling of kidnapping and it seems to me the majority require some nefarious purpose and here under the florida statute for false imprisonment no purpose whatsoever is required  i may be one but there's not specified in the statute that's why i pointed to the court for the fact that even under two hundred one point too in order to get to this question the seriousness of the grading has already in effect been taken care of by the fact that it's required to be a felony under state law meaning it's serious enough however there are the jews or grading for it to be entitled to a kind of leave at least a year in prison so there's a purpose as i say of often in those statues of talking about these nefarious purposes and the explicit reason why the model penal code went down that direction was simply for grading of penalties they didn't like the idea that you could kind of the senses become kidnappings also now whether kidnapping carries a higher penley or a lower penalty it seems to me is irrelevant it's not particularly relevant whether it's higher or lower the point is you want to say you know when i when i explain the car door i haven't kidnap somebody when i when i rob them in gunpoint i haven't kidnapped them i just haven't and that's exactly one of the points that i hope i've made in the brief in taylor when we're talking about what is a generic offense it doesn't even look at the penalties and so this whole grading issue is not really part of the taylor analysis at all what the supreme court was saying is what is the essence of these offenses no matter what we call them because a pointed out that you had in michigan things that were not even called burglary and yet effectively constitute a burglary and yet another state you get all kinds of riot ease of activities that were called burglary but ended up not being included in that generic definition so labels or even the specific conglomeration of elements in any particular state is not the issue the issue is what is broadly understand by the legal community as a whole to constitute the essence of this offense and that's the very point you're trying to second part of what people think is the essence of it and say we' separate from from people you kidnap them and we don't care about that about the great it's a grating thing you kidnap the many and we all know it's kidnapping which is not going to college that's what you've seen the thing because that what has happened with the states despite the n p c s efforts to create in effect a generic definition when you actually read the entire commentary in the faith which i did not offer for the idea that it supports my particular proposed a finish and what he shows is here's where this is kind of the starting point that these states have picked and chosen they sometimes will use this just element sometimes that sometimes they'll grade sometimes they'll call a different things and all of us and often even the very same word will be interpreted differently across the line i understand thank you thank you very much  you have some time yes i'm just going to go back to lafave and this because of this issue of grading that has been brought up and what lafave says about purposes is it says it first describes the approach of not including nefarious purposes as a minority approach and then it says there are states that include nefarious purposes to distinguish kidnapping from any lesser offense carrying other labels that to mean means that that to me means that they are distinguishing kidnapping from non kidnapping by the use of nefarious purposes lefe then goes on to say other states including if arius purposes to distinguish the highest grade of kidnapping from one or more lesser degrees of that offense and that is footnote one fifty six and when i went to count those states that's thirteen states so there a following the approach of not including any kind of purpose there are twenty six states that include purpose that include requirement of nefarious purpose in order to distinguish kidnapping from non kidnapping and then there are thirteen states that have that include if arius purposes just for grading purposes as the government has says even if we say that those thirteen states that include nefarious purpose just for just for grading purposes even if we say that those states that the fact that they include nefarious purposes only for grading that that means that they consider can kidnapping something broader than just then then the definition including the faeries purpose is favored the favored approach also i'll just refer the court to another quote from a favor and says it describes a minority approach of states that deviate substantially from the model people codes reform because they placed in a single statute without regard to whether the means used or the under i'm sorry they placed in a single statute all instances of carrying restraining without regard to whether the means used or the underlying purpose manifest manifest a crime of considerable considerable seriousness and that's the leaven states that follow that approach that is the government's definition ok thank you very