PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 14-4249

UNITED STATES OF AMERICA,

Plaintiff − Appellee,

v.

MARLON FLORES−GRANADOS,

Defendant − Appellant.

Appeal from the United States District Court for the Eastern

District of Virginia, at Norfolk. Henry Coke Morgan, Jr., 

Senior District Judge. (2:13-cr-00120-HCM-TEM-1)

Argued: January 27, 2015 Decided: April 15, 2015

Before WILKINSON, KING, and DUNCAN, Circuit Judges.

Affirmed by published opinion. Judge Wilkinson wrote the 

opinion, in which Judge King and Judge Duncan joined.

ARGUED: Caroline Swift Platt, OFFICE OF THE FEDERAL PUBLIC 

DEFENDER, Alexandria, Virginia, for Appellant. Elizabeth Marie 

Yusi, OFFICE OF THE UNITED STATES ATTORNEY, Norfolk, Virginia, 

for Appellee. ON BRIEF: Michael S. Nachmanoff, Federal Public 

Defender, Keith L. Kimball, Assistant Federal Public Defender, 

OFFICE OF THE FEDERAL PUBLIC DEFENDER, Alexandria, Virginia, for 

Appellant. Dana J. Boente, United States Attorney, OFFICE OF 

THE UNITED STATES ATTORNEY, Alexandria, Virginia, for Appellee.
2

WILKINSON, Circuit Judge: 

In 2013, Marlon Flores-Granados pled guilty to a singlecount indictment for illegal reentry into the United States 

following deportation and a conviction for an aggravated felony. 

See 8 U.S.C. § 1326(a), (b)(2). He now challenges his sentence, 

specifically the 16-level enhancement that was applied pursuant 

to the United States Sentencing Guidelines § 2L1.2(b)(1)(A)(ii) 

for prior conviction of a “crime of violence.” We hold that 

under North Carolina law a conviction for second-degree 

kidnapping does constitute a crime of violence, and thus affirm 

Flores-Granados’ sentence.

I.

Marlon Flores-Granados is a native and citizen of Honduras. 

On August 13, 2006 he was arrested and charged with seconddegree kidnapping, assault with a deadly weapon with intent to 

kill or inflict serious bodily injury, and other state charges. 

He was convicted in February, 2007 of two counts of seconddegree kidnapping in violation of North Carolina General Statute 

§ 14-39 and sentenced to 25-39 months of confinement and 

probation. In March of 2007, he was removed from the United 

States to Honduras by the Department of Homeland Security’s 

Immigration and Customs Enforcement. 

Flores-Granados reentered the United States illegally at 

some point prior to August 5, 2013, when he was arrested for 
3

possession of a controlled substance and assault and battery in 

Virginia Beach, VA. He was charged in the Eastern District of 

Virginia with Reentry of a Deported Alien in violation of 8 

U.S.C. § 1326(a) and (b)(2) to which he pled guilty. 

Flores-Granados’ presentence investigation report initially 

recommended an 8-level enhancement for a previous conviction for 

an aggravated felony under U.S.S.G. § 2L1.2(b)(1)(C). Following 

an objection by the government, the probation office agreed that 

Flores-Granados’ prior conviction for second-degree kidnapping 

in North Carolina qualified as a prior conviction for a ‘crime 

of violence’ under U.S.S.G. § 2L1.2(b)(1)(A)(ii) and thus a 16-

level enhancement should be applied instead. With the additional 

enhancement, Flores-Granados had an Offense Level Total of 21 

and a Criminal History Category of IV generating a recommended 

Guidelines Range of 57-71 months.

At the sentencing hearing, the district court adopted the 

presentence investigation report, noting that the defendant 

objected to the 16-level enhancement, and wanted only the 8-

level enhancement instead. After argument from both parties, the 

district judge agreed with the government that the 16-level 

enhancement was proper, finding that defendant’s conviction 

under § 14-39 for second-degree kidnapping was in fact a crime 

of violence under the Guidelines. The court stated that: 
4

[T]he Court should not simply accept the 16-point 

enhancement based upon the title of the prior 

conviction. However, in this case the record reflects 

that he threatened the victim with having a gun, broke 

into her apartment in the middle of the night while 

she was asleep, told her he had a gun, and then 

stabbed her with a screwdriver, and I think that 

qualifies as the type of violent conduct which 

justifies the 16-point enhancement. The Court is not 

relying simply on the fact that he was convicted of 

second-degree kidnapping, but those facts suggest the 

violence of his conduct in the course of the 

kidnapping. He also has a number of other convictions 

for violent conduct, mostly against the same person. 

But, again, he became involved in violent conduct very 

recently.

J.A. 68-69. After considering the Guidelines calculations and 

the sentencing factors laid out in 18 U.S.C. § 3553(a), the 

district court sentenced Flores-Granados to 57 months 

imprisonment. This appeal followed.

II.

A.

Under the U.S. Sentencing Guidelines, a defendant who 

“previously was deported” after a conviction for a “crime of 

violence” and unlawfully returned to the United States is 

subject to an enhancement of either 12 or 16 levels depending on 

whether the conviction receives criminal history points. 

U.S.S.G. § 2L1.2(b)(1)(A)(ii). The application notes define a 

crime of violence as any of a list of enumerated offenses, 

including “kidnapping,” or “any other offense . . . that has as 

an element the use, attempted use, or threatened use of physical 
5

force against the person of another.” U.S.S.G. § 2L1.2 

Application Notes 1(B)(iii). Flores-Granados contends on appeal 

that the district court erred in finding his prior conviction in 

North Carolina qualified as a crime of violence within the 

meaning of § 2L1.2 of the Guidelines. Whether a prior conviction 

should be considered a crime of violence is a question of law 

and we review the district court’s determination de novo. See, 

e.g., United States v. Jenkins, 631 F.3d 680, 682 (4th Cir. 

2011).

Even though the Supreme Court in Taylor v. United States, 

495 U.S. 575 (1990), focused on whether a conviction qualified 

as a “violent felony” under the Armed Career Criminal Act (ACCA) 

we “apply its analysis to the ‘crime of violence’ definition 

[under U.S.S.G. § 2L1.2(b)(1)(A)(ii)] as well.” United States v. 

Bonilla, 687 F.3d 188, 190 n.3 (4th Cir. 2012); see also United 

States v. King, 673 F.3d 274, 279 n.3 (4th Cir. 2012). We “rely 

on precedents evaluating whether an offense constitutes a ‘crime 

of violence’ under the Guidelines interchangeably with 

precedents evaluating whether an offense constitutes a ‘violent 

felony’ under the ACCA because the two terms have been defined 

in a manner that is ‘substantively identical.’” King, 673 F.3d 

at 279 n.3 (quoting United States v. Jarmon, 596 F.3d 228, 231 

n.* (4th Cir. 2010)).
6

When considering whether a predicate state crime 

constitutes a “crime of violence,” we examine the elements of 

the offense using the categorical approach laid out in Taylor. 

See 495 U.S. at 598-602; Descamps v. United States, 133 S. Ct. 

2276, 2281 (2013). In Taylor, the Supreme Court found that with 

regard to prior crimes enumerated in a sentencing enhancement 

statute, Congress intended to refer to “the generic, 

contemporary meaning” of the crime. Taylor, 495 U.S. at 598. 

Such meaning, the Court explained, can be divined from “the 

generic sense in which the term is now used in the criminal 

codes of most States.” Id. 

We begin with the fact that kidnapping is an enumerated 

offense included by the Sentencing Commission in the definition 

of “crime of violence.” Thus, if we find that the North Carolina 

statute falls within the generic definition of kidnapping, we 

need not look to the residual clause as to whether “use of 

force” is an element of the crime. See U.S.S.G. 

§ 2L1.2(b)(1)(A)(ii) Application Notes 1(B)(iii). The label of 

kidnapping used by North Carolina with regard to FloresGranados’ prior conviction is only the start of the inquiry. 

Under the categorical approach, the court must identify the 

generic contemporary meaning of the enumerated crime. See United 

States v. Perez-Perez, 737 F.3d 950, 952 (4th Cir. 2013). We 

then compare that definition to the state statute under which 
7

defendant was previously convicted. Id. If the defendant was 

previously convicted “in a State where the generic definition 

has been adopted” or where the “state statute is narrower than 

the generic view” then “there is no problem” because in both 

cases “the conviction necessarily implies that the defendant has 

been found guilty of all the elements of [the] generic [crime].” 

Taylor, 495 U.S. at 599. However, if the state statute 

“criminalize[s] a broader scope of conduct than the Guideline 

crime [then it] is not categorically a crime of violence.” 

Perez-Perez, 737 F.3d at 953.

B.

Under the categorical approach, “the sentencing 

court . . . must look only to the statutory definitions of the 

prior offenses” and may not look “to the particular facts 

underlying those convictions.” Taylor, 495 U.S. at 600; see also

Begay v. United States, 553 U.S. 137, 141 (2008). A modified 

categorical approach may be used in cases where the state 

statute under which the defendant was previously convicted “sets 

out one or more elements of the offense in the alternative,” but 

not where the statute is “indivisible.” Descamps, 133 S. Ct. at 

2281. Moreover, even under the modified categorical approach, 

the later court is “generally limited to examining the statutory 

definition, charging document, written plea agreement, 

transcript of plea colloquy, and any explicit factual finding by 
8

the trial judge to which the defendant assented.” Shepard v. 

United States, 544 U.S. 13, 16 (2005). The judge may not 

consider “police reports or complaint applications.” Id.

The district court thus erred in referencing the facts of 

Flores-Granados’ prior kidnapping conviction. See J.A. 68-69 

(“[H]e . . . broke into her apartment in the middle of the night 

while she was asleep, told her he had a gun, and then stabbed 

her with a screwdriver, and I think that qualifies as the type 

of violent conduct which justifies the 16-point enhancement.”).

Although the statute’s elements are divisible, there are no 

Shepard-approved documents present in the record. A police 

report, untested and unproven, is not a legitimate source of 

factual information for courts to rely on even under the 

modified categorical approach of Taylor and Shepard. See Taylor, 

495 U.S. at 602; Shepard, 544 U.S. at 16, 26. Here the court was 

limited to the categorical approach: whether the elements of the 

statute render it categorically a crime of violence. Taylor, 495 

U.S. at 599. 

III.

The trial court’s error does not, however, resolve the 

appeal. We are “entitled to affirm on any ground appearing in 

the record, including theories not relied upon or rejected by 

the district court.” Scott v. United States, 328 F.3d 132, 137 

(4th Cir. 2003). The government contends that although the 
9

district court did commit error in relying on facts from the 

police report, the 16-level enhancement was proper nonetheless. 

We agree that under the categorical approach, Flores-Granados’ 

kidnapping conviction qualifies as a crime of violence. 

As noted, the categorical approach requires us to compare 

the North Carolina statute under which Flores-Granados was 

convicted with the “generic, contemporary meaning” of the 

enumerated crime, here kidnapping. Taylor, 495 U.S. at 598. 

A.

The North Carolina statute provides in relevant part: 

(a) Any person who shall unlawfully confine, restrain, 

or remove from one place to another, any other person 

16 years of age or over without consent of such 

person, or any other person under the age of 16 years 

without the consent of a parent or legal custodian of 

such person, shall be guilty of kidnapping if such 

confinement, restraint or removal is for the purpose 

of: 

(1) Holding such other person for a ransom or as 

a hostage or using such other person as a shield; 

or

(2) Facilitating the commission of any felony or 

facilitating flight of any person following the 

commission of a felony; or

(3) Doing serious bodily harm to or terrorizing 

the person so confined, restrained or removed or 

any other person; or

(4) Holding such other person in involuntary 

servitude in violation of [N.C. Gen. Stat.] 14-

43.12 . . .1

 1 We consider the statute as it was enacted at the time of 

Flores-Granados’ conviction. Subsequent to his conviction, North 

Carolina amended the statute to include two additional purposes 

regarding holding persons in sexual servitude and trafficking of 

(Continued)
10

(b) There shall be two degrees of kidnapping as 

defined by subsection (a). If the person kidnapped 

either was not released by the defendant in a safe 

place or had been seriously injured or sexually 

assaulted, the offense is kidnapping in the first 

degree . . . If the person kidnapped was released in a 

safe place by the defendant and had not been seriously 

injured or sexually assaulted, the offense is 

kidnapping in the second degree. 

N.C. GEN. STAT. § 14-39(a)-(b). 

Because the government offers no Shepard-approved 

documents, the court must assume that the prior conviction was 

based on the least serious of the acts covered by the state 

statute. See Johnson v. United States, 559 U.S. 133, 137 (2010). 

As explained by the Supreme Court of North Carolina, under N.C. 

Gen. Stat. § 14-39, "kidnapping can be just as effectively 

accomplished by fraudulent means as by the use of force, 

threats, or intimidation." State v. Sturdivant, 283 S.E.2d 719, 

729 (N.C. 1981). 

Where "the statutory definition of the prior offense has 

been interpreted by the state's highest court, that 

interpretation constrains our analysis of the elements of state 

law." United States v. Aparicio-Soria, 740 F.3d 152, 154 (4th 

Cir. 2014) (en banc) (citing Johnson, 559 U.S. at 138). The 

 

persons with the intent to hold such persons in involuntary or 

sexual servitude. In any event, because they merely add possible 

specific purposes in the alternative, the analysis before this 

court is unaltered. See N.C. GEN. STAT. § 14-39(a)(5)-(6). 
11

North Carolina Supreme Court has found that the "essence of any 

kidnapping offense is the unlawful confinement, restraint or 

removal of a human being for a certain proscribed purpose." 

Sturdivant, 283 S.E.2d at 728. Under state law, the "difference 

between kidnapping and the lesser included offense of false 

imprisonment is the purpose of the confinement, restraint, or 

removal of another person." State v. Pigott, 415 S.E.2d 555, 562 

(N.C. 1992). 

The North Carolina Supreme Court has "specifically rejected 

the notion that 'confinement' or 'restraint', as used in [§ 14-

39], means confinement or restraint 'for a substantial period' 

and that 'removal,' as used in [§ 14-39], requires a movement 

'for a substantial distance.'” State v. Surrett, 427 S.E.2d 124, 

127 (N.C. Ct. App. 1993) (internal quotations and citations 

omitted) (quoting State v. Fulcher, 243 S.E.2d 338, 351 (N.C. 

1978)). In "determining whether the crime of kidnapping has been 

committed," the Supreme Court explained, "it was clearly the 

intent of the Legislature to make resort to a tape measure or a 

stop watch unnecessary." Fulcher, 243 S.E.2d at 351.

Given these constraints, Flores-Granados argues that North 

Carolina’s statute sweeps more broadly than the generic 

definition of kidnapping because it can be accomplished by fraud 

or trickery alone and it does not include as an element 

“substantial interference with the victim’s liberty” or 
12

“circumstances exposing the victim to substantial risk of bodily 

injury or confinement as a condition of involuntary servitude.” 

Appellant’s Reply Br. at 5-6 (quoting United States v. NajeraMendoza, 683 F.3d 627, 630 (5th Cir. 2012)). We agree that there 

is a danger in defining crimes of violence so broadly that they 

improperly sweep in convictions for prior nonviolent conduct. 

Here, however, the North Carolina statute is well within the 

generic definition of kidnapping and is thus a crime of 

violence.

B.

The elements necessary to the generic definition of 

kidnapping present a question of first impression for this 

circuit. There is “no uniformly accepted meaning of any of the 

listed crimes [as] a consequence of the federalism principles 

that have shaped criminal law in the United States.” United 

States v. De Jesus Ventura, 565 F.3d 870, 874 (D.C. Cir. 2009). 

Nearly every state kidnapping statute and the Model Penal Code 

(MPC) includes a requirement of restraint or confinement of the 

victim and the employment of unlawful means, often defined as 

“by force, threat or deception, or in the case of [a minor or 

incompetent individual] without the consent of a parent [or] 

guardian.” MODEL PENAL CODE § 212.1; see also De Jesus Ventura, 565 

F.3d at 876 (noting that pursuant to 50-state survey the generic 

definition of kidnapping must include “(1) an act of 
13

restraining, removing, or confining another; and (2) an unlawful 

means of accomplishing that act”). Any generic definition must 

include these two elements. The parties here dispute, however, 

which additional aggravating factors, if any, are required 

beyond this baseline definition. 

To determine which aggravating elements must be included 

for a statute to fall within “the generic sense in which the 

term [kidnapping] is now used in the criminal codes of most 

States,” we draw upon commonalities amongst the MPC, the laws of 

the states, as well as the examples of our sister circuits. 

Taylor, 495 U.S. at 598. 

C.

For the following reasons, we think it is plain that some 

additional element of severity is necessary to distinguish 

kidnapping from its lesser-included offenses. In considering the 

statutes of the fifty states and the District of Columbia as 

well as the Model Penal Code, we conclude that the best 

characterization of generic kidnapping is (1) unlawful restraint 

or confinement of the victim, (2) by force, threat or deception, 

or in the case of a minor or incompetent individual without the 

consent of a parent or guardian, (3) either for a specific 

nefarious purpose or with a similar element of heightened 

intent, or (4) in a manner that constitutes a substantial 

interference with the victim’s liberty. Here, because the North 
14

Carolina statute requires a specific nefarious purpose for 

conviction, even for second-degree kidnapping, it is well within 

this definition and as such, it is categorically a crime of 

violence.

We start with the MPC’s definition of kidnapping, which 

requires unlawful removal of an individual “from his place of 

residence or business, or a substantial distance from the 

vicinity where he is found,” or unlawful confinement “for a 

substantial period in a place of isolation” for one of four 

specific purposes: 

(a) to hold for ransom or reward, or as a shield or 

hostage; or

(b) to facilitate commission of any felony or flight 

thereafter; or 

(c) to inflict bodily injury on or to terrorize the 

victim or another; or 

(d) to interfere with the performance of any 

governmental or political function.

MODEL PENAL CODE § 212.1. Removal or confinement is unlawful where 

“it is accomplished by force, threat or deception, or in the 

case of a person who is [younger than] 14 or incompetent, if it 

is accomplished without consent” of a parent or guardian. Id.

Thus, the MPC has as aggravating elements both confinement for a 

specific nefarious purpose and an element of substantiality, in 

addition to unlawful restraint or removal. 

However, while it provides a useful guide, the Model Penal 

Code “is not the exclusive standard by which we define the terms 
15

used in the Sentencing Guidelines.” United States v. GonzalezRamirez, 477 F.3d 310, 317 (5th Cir. 2007). We also review other 

states’ kidnapping statutes for common elements. Many states 

separate the elements for first and second degree, or simple and 

aggravated kidnapping. See, e.g., N.Y. PENAL LAW §§ 135.00, 

135.20, 135.25; TEX. PENAL CODE ANN. §§ 20.01, 20.03, 20.04. Our 

inquiry is not limited by degree, however, and “we look to all 

offenses termed kidnapping by the various criminal codes.” De 

Jesus Ventura, 565 F.3d at 876. The task before us is merely to 

“employ a common-sense approach” in order to “ascertain the 

contemporary meaning.” Gonzalez-Ramirez, 477 F.3d at 316. We are 

“not required to apply the most nuanced, restrictive, or 

cutting-edge interpretation.” Id.

We agree with the District of Columbia circuit that the 

most common approach “requires some kind of heightened intent 

beyond the mere intent to restrain the victim’s liberty.” De 

Jesus Ventura, 565 F.3d at 877; see also, United States v. 

Gonzalez-Perez, 472 F.3d 1158, 1161 (9th Cir. 2007) (Because the 

“Florida false imprisonment statute contains no nefarious 

purpose element whatsoever . . . [it] does not conform to the 

generic, contemporary definition of kidnapping.”). Much like the 

MPC, twenty-one state statutes, including North Carolina's, 

define kidnapping as unlawful removal or confinement for a 
16

specific nefarious purpose.2 Six additional states include some 

element of heightened intent but do not specifically use the 

nefarious purposes construct of the MPC.3

Fifteen states include a nefarious purpose requirement but 

only as a disjunctive element in conjunction with other 

alternative elements.4 For example, many states use the nefarious 

purposes to distinguish between degrees of kidnapping. Compare

ALA. CODE § 13A-6-43 (first degree kidnapping requires nefarious 

purpose, with ALA. CODE § 13A-6-44 (second degree kidnapping does 

not). Only eight states and the District of Columbia do not 

include a heightened intent element at all: four of those states 

 2 See ARIZ. REV. STAT. ANN. § 13-1304; ARK. CODE ANN. § 5-11-

102(a); DEL. CODE ANN. tit. 11, §§ 783, 783A, 786; FLA. STAT.

§ 787.01(1); HAW. REV. STAT. § 707-720(1); IOWA CODE § 710.1; KAN.

STAT. ANN. § 21-5408; KY. REV. STAT. ANN. § 509.010, .040; MICH.

COMP. LAWS § 750.349; MINN. STAT. § 609.25(1); MO. REV. STAT.

§ 565.110(1); NEB. REV. STAT. § 28-313; N.H. REV. STAT. ANN. § 633:1;

N.J. REV. STAT. § 2C:13-1(a)-(b); N.M. STAT. ANN. § 30-4-1; N.C.

GEN. STAT. § 14-39(a). N.D. CENT. CODE § 12.1-18-01(1); 18 PA. CONS.

STAT. ANN. § 2901(a); S.D. CODIFIED LAWS § 22-19-1; VT. STAT. ANN.

tit. 13, § 2405; WYO. STAT. ANN. § 6-2-201.

3 See 720 ILL. COMP. STAT. 5/10-1; MASS. GEN. LAWS ch. 265, 

§ 26; OR. REV. STAT. §§ 163.225, .235; R.I. GEN. LAWS § 11-26-1; W.

VA. CODE § 61-2-14; WIS. STAT. § 940.31(1). 4 See ALA. CODE §§ 13A-6-40, -43, -44; ALASKA STAT. § 

11.41.300(a)-(b); COLO. REV. STAT. §§ 18-3-301, -302; CONN. GEN.

STAT. §§ 53a-91, -92, -94; LA. REV. STAT. ANN. §§ 14:44, :45; IDAHO 

CODE ANN. § 18-4501, -4502; ME. REV. STAT. ANN. tit. 17-A, § 301(1);

MONT. CODE ANN. §§ 45-5-302, -303; NEV. REV. STAT. § 200.310; N.Y.

PENAL LAW §§ 135.00, .20, .25; OHIO REV. CODE ANN. § 2905.01; TENN.

CODE ANN. §§ 39-13-303, -304, -305; TEX. PENAL CODE ANN. §§ 20.01, 

.03, .04; UTAH CODE ANN. §§ 76-5-301, -302; WASH. REV. CODE §§ 

9A.40.010-.030.
17

require some additional element of added severity,5 such as 

requiring the perpetrator to move the victim for the crime to be 

considered kidnapping, and four states and the District of 

Columbia require nothing more than the intentional and unlawful 

restraint of the victim.6 

The enumerated nefarious purposes required by North 

Carolina are well within the heartland of generic kidnapping. 

The statute requires the perpetrator to specifically intend a 

heinous criminal act - the worst of the worst – abduction or 

restraint of victims for ransom or to further the commission of 

a felony, to terrorize victims or cause them bodily injury, or 

to hold them in involuntary servitude. See N.C. GEN. STAT. § 14-

39(a). It would be astonishing if restraint or removal of a 

victim for one of these nefarious purposes failed to constitute 

generic kidnapping. The North Carolina statute is not loosely or 

nebulously written nor does it broadly sweep in conduct not 

related to the above nefarious aims. We find it hard to conceive 

that a statute that requires the perpetrator to intend to engage 

in such specific egregious behavior might be too wide-ranging to 

be within the generic definition of kidnapping.

 5 CAL. PENAL CODE § 207 (kidnapper must move victim from one 

place to another); GA. CODE ANN. § 16-5-40 (same); IND. CODE § 35-

42-3-2 (same); MD. CODE ANN., CRIM. LAW § 3-502 (same).

6 See D.C. CODE § 22-2001; MISS. CODE ANN. § 97-3-53; OKLA.

STAT. tit. 21, § 741; S.C. CODE ANN. § 16-3-910; VA. CODE ANN. § 

18.2-47.
18

Flores-Granados takes issue with the fact that North 

Carolina’s specific purposes do not track exactly the specific 

nefarious purposes of the MPC. See Appellant’s Reply Br. at 9-

10. However, the categorical approach does not require us to 

match up the language word for word between the statute and the 

generic definition. Taylor requires only that the statutory 

definition “substantially corresponds” with the generic 

enumerated crime to be considered a crime of violence. 495 U.S. 

at 602. Further, we consider whether there is “a realistic 

probability, not a theoretical possibility, that the State would 

apply its statute to conduct that falls outside the generic 

definition of a crime.” Gonzales v. Duenas-Alvarez, 549 U.S. 

183, 193 (2007). Although it may not be a perfect match, the 

North Carolina statute is narrowly drawn and enumerates specific 

and serious crimes. We do not think it a realistic probability 

that convictions under the statute would sweep too broadly.

D.

Flores-Granados argues, however, that the generic 

definition must also, as the MPC does, encompass elements that 

embody a substantiality requirement in addition to any 

heightened intent requirement. We disagree. While a 

substantiality element may be sufficient to render a statute 

within the generic definition of kidnapping where it is the only 
19

additional aggravating factor, it is not necessary where the law 

includes specific nefarious purposes.

Twenty states do include a substantiality requirement, most 

commonly that the perpetrator must “restrict [the victim’s] 

movement in such a manner as to interfere substantially with the 

person’s liberty,”7 but a majority of states do not. See, e.g., 

HAW. REV. STAT. §§ 707-700 (definitions of terms in kidnapping and 

other criminal statutes), -720. Furthermore, of the minority of 

states that do have a substantiality requirement, significantly, 

only eleven are states in which both a specific nefarious 

purpose and a requirement of substantiality are mandatory for 

the offense to qualify as kidnapping.8

 Thus, we think, that 

where nefarious purposes are required – as they are here -

 7 See ALA. CODE §§ 13A-6-40, -43, -44; ALASKA STAT. §§

11.41.300(a)-(b), .370; ARIZ. REV. STAT. ANN. §§ 13-1301, -1304;

ARK. CODE ANN. § 5-11-102(a); CONN. GEN. STAT. §§ 53a-91, -92, -94;

DEL. CODE ANN. tit. 11, §§ 783, 783A, 786; HAW. REV. STAT. §§ 707-

700, -720(1); KY. REV. STAT. ANN. § 509.010, .040; ME. REV. STAT.

ANN. tit. 17-A, § 301; MO. REV. STAT. § 565.110(1); NEB. REV. STAT.

§§ 28-312, -313; N.J. REV. STAT. § 2C:13-1(a)-(b); N.Y. PENAL LAW §§ 

135.00, .20, .25; N.D. CENT. CODE § 12.1-18-01, -04; 18 PA. CONS.

STAT. ANN. § 2901(a); TENN. CODE ANN. §§ 39-13-303, -304, -305; TEX.

PENAL CODE ANN. §§ 20.01, .03, .04; UTAH CODE ANN. §§ 76-5-301, -302;

VT. STAT. ANN. tit. 13, §§ 2404, 2405(a); WASH. REV. CODE §§ 

9A.40.010-.030.

8 See ARIZ. REV. STAT. ANN. §§ 13-1301, -1304; ARK. CODE ANN. § 

5-11-102(a); DEL. CODE ANN. tit. 11, §§ 783, 783A, 786; HAW. REV.

STAT. §§ 707-700, -720(1); KY. REV. STAT. ANN. § 509.010, .040; MO.

REV. STAT. § 565.110(1); NEB. REV. STAT. §§ 28-312, -313; N.J. REV.

STAT. § 2C:13-1(a)-(b); N.D. CENT. CODE § 12.1-18-01, -04; 18 PA.

CONS. STAT. ANN. § 2901(a); VT. STAT. ANN. tit. 13, §§ 2404, 

2405(a).
20

additional aggravating elements, such as substantiality, are not 

necessary for the statute to be within the generic definition of 

kidnapping.

The defendant relies on Fifth Circuit precedents that 

rejected the assertion that “a specified purpose or intent is 

required for a state kidnapping conviction to constitute a crime 

of violence.” Gonzalez-Ramirez, 477 F.3d at 318. Those cases, 

defendant argues, demonstrate that where proof of “substantial 

interference with the victim’s liberty” or “circumstances 

exposing the victim to substantial risk of bodily injury, or 

confinement as a condition of involuntary servitude” is not 

required, a kidnapping statute is too broad to be considered 

within the generic definition. See United States v. MorenoFlorean, 542 F.3d 445, 452-56 (5th Cir. 2008). However, none of 

the statutes at issue in these cases included as an element the 

nefarious purposes required here by North Carolina. Thus, the 

court had to rely on whether each statute included a 

substantiality requirement to determine if it was too broad to 

be within the generic definition of kidnapping.

Contrary to defendant’s view, the Fifth Circuit cases fit 

nicely with our holding today. In Cervantes-Blanco, the Colorado 

statute, unlike North Carolina’s, required no additional 

aggravating factors beyond unlawful restraint by force, threat 

or fraud. See 504 F.3d at 586 (“The question therefore becomes 
21

whether a statute that contains only [the elements of removal or 

confinement by force, threat, or fraud] and lacks any additional 

aggravating elements, such as the specified purpose requirements 

of the MPC definition, qualifies [as a crime of violence].”); 

see also Najera-Mendoza, 683 F.3d at 630. Similarly in MorenoFlorean, that court found that “[a] two-element definition of 

kidnapping would sweep more broadly than the generic, 

contemporary meaning of [kidnapping.]” 542 F.3d at 454. Again, 

North Carolina’s is not a bare, two-element statute. The Sixth 

Circuit’s generic definition of kidnapping coincides with this 

explanation as well. See United States v. Soto-Sanchez 623 F.3d 

317, 322-24 (6th Cir. 2010) (finding the statute overly broad 

where only “forcible confinement of the victim [is] sufficient 

for a charge of kidnapping” without additional aggravating 

elements).

In addition, in Gonzalez-Ramirez and Iniguez-Barba, the 

court held only that a substantiality requirement was sufficient 

for a statute to be narrower than the generic definition of 

kidnapping, not that it was necessary. See Gonzalez-Ramirez, 

477 F.3d at 319 (“Tennessee’s kidnapping statute is . . . at 

least as restrictive, if not more restrictive, than a majority 

of state kidnapping statutes.”); United States v. Iniguez-Barba, 

485 F.3d 790, 792-93 (5th Cir. 2007) (finding that while 

specific purposes are not necessary, “the additional aggravating 
22

elements of substantial risk of injury or confinement as a 

condition of servitude” are sufficient for the New York 

kidnapping statute to be within the generic definition). 

Our holding is thus consistent with those of other 

circuits. At least one aggravator is required. But where an 

element of substantiality is present, the nefarious purposes may

not be necessary. See Gonzalez-Ramirez, 477 F.3d at 319;

Iniguez-Barba, 485 F.3d at 792. And this conclusion holds 

equally true in the inverse. Where a nefarious purpose or 

similar heightened intent requirement is present as an element, 

substantiality need not be required. See De Jesus Ventura, 565 

F.3d at 877; Gonzalez-Perez, 472 F.3d at 1161. To be within 

generic kidnapping, in addition to unlawful restraint by force, 

threat or fraud, a statute must contain as an element an 

additional aggravating factor such as nefarious purposes or 

substantial interference with the victim’s liberty, but need not 

require both. 

The laws of the states support this conclusion. Thirty 

state statutes include either a substantiality component or 

specific nefarious purposes as elements.9 Eleven and the MPC 

 9 See ALA. CODE §§ 13A-6-40, -43, -44; ALASKA STAT.

§§ 11.41.300(a)-(b), .370; ARIZ. REV. STAT. ANN. §§ 13-1301, -1304;

ARK. CODE ANN. § 5-11-102(a); CONN. GEN. STAT. §§ 53a-91, -92, -94; 

DEL. CODE ANN. tit. 11, §§ 783, 783A, 786; FLA. STAT. § 787.01(1);

HAW. REV. STAT. § 707-720; IOWA CODE § 710.1; KAN. STAT. ANN. § 21-

(Continued)
23

include both.10 An additional six states include as a requirement 

an element of heightened intent.11 Only four states and the 

District of Columbia include no additional aggravating factors12

– and at least two of those state statutes have been found to 

sweep broadly enough to be outside the generic definition. See

Najera-Mendoza, 683 F.3d at 630 (finding conviction under 

Oklahoma statute not within generic definition); De Jesus 

Ventura, 565 F.3d at 877 (finding Virginia statute outlaws 

conduct broader than generic definition). 

 

5408; KY. REV. STAT. ANN. § 509.010, .040; ME. REV. STAT. ANN. tit. 

17-A, § 301; MICH. COMP. LAWS § 750.349; MINN. STAT. § 609.25(1); 

MO. REV. STAT. § 565.110(1); NEB. REV. STAT. §§ 28-312, -313; N.H.

REV. STAT. ANN. § 633:1; N.J. REV. STAT. § 2C:13-1(a)-(b); N.M. STAT.

ANN. § 30-4-1; N.Y. PENAL LAW §§ 135.00, .20, .25; N.C. GEN. STAT.

§ 14-39(a). N.D. CENT. CODE § 12.1-18-01, -04; 18 PA. CONS. STAT.

ANN. § 2901(a); S.D. CODIFIED LAWS § 22-19-1; TENN. CODE ANN. §§ 39-

13-303, -304, -305; TEX. PENAL CODE ANN. §§ 20.01, .03, .04; UTAH 

CODE ANN. §§ 76-5-301, -302; VT. STAT. ANN. tit. 13, §§ 2404, 

2405(a); WASH. REV. CODE §§ 9A.40.010-.030; WYO. STAT. ANN. § 6-2-

201. 

10 See ARIZ. REV. STAT. §§ 13-1301, -1304; ARK. CODE ANN. § 5-

11-102(a); DEL. CODE ANN. tit. 11, §§ 783, 783A, 786; HAW. REV. STAT.

§§ 707-700, -720(1); KY. REV. STAT. ANN. § 509.010, .040; MO. REV.

STAT. § 565.110(1); NEB. REV. STAT. §§ 28-312, -313; N.J. REV. STAT.

§ 2C:13-1(a)-(b); N.D. CENT. CODE § 12.1-18-01, -04; 18 PA. CONS.

STAT. ANN. § 2901(a); VT. STAT. ANN. tit. 13, §§ 2404, 2405(a); see 

also MODEL PENAL CODE § 212.1.

11 See 720 ILL. COMP. STAT. 5/10-1; MASS. GEN. LAWS ch. 265, 

§ 26; OR. REV. STAT. §§ 163.225, .235; R.I. GEN. LAWS § 11-26-1; W.

VA. CODE § 61-2-14; WIS. STAT. § 940.31(1). 12 See D.C. CODE § 22-2001; MISS. CODE ANN. § 97-3-53; OKLA.

STAT. tit. 21, § 741; S.C. CODE ANN. § 16-3-910; VA. CODE ANN. § 

18.2-47.
24

IV.

We do not suggest the approach we have taken here is the 

only way to characterize the nature of a predicate offense. 

Because this is a sentencing procedure, no mechanical exercise 

can ever fully supplant the common sense and good judgment of 

the sentencing judge. A “simple strategy of ‘counting noses’ 

will [not] control the outcome of the categorical approach in 

all cases for all crimes.” United States v. Rangel-Castaneda, 

709 F.3d 373, 379 (4th Cir. 2013). The greater the variations in 

state statutes, moreover, the more difficult a single 

paradigmatic act may be to find. Id. (“Our federal system allows 

the various states to define offenses as they see fit, 

unencumbered by overly stringent federal sentencing standards. 

That is precisely why ‘minor variations in terminology’ must be 

respected.” (quoting Taylor, 495 U.S. at 599)). In this case, 

our review of state laws has served to identify the North 

Carolina act as a mainstream statute, not an outlier. Because it 

is limited to conduct for a specific nefarious purpose, it 

proscribes criminal activity that is well within the generic 

definition of kidnapping and thus constitutes a crime of 

violence. Put simply, the statute is what we mean when we say 

“kidnapping.” As such, the addition of a 16-level enhancement to 

Flores-Granados’ sentence for reentry after a prior conviction 
25

for a crime of violence was proper and the judgment of the 

district court is hereby affirmed.

AFFIRMED