IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 11-40582

UNITED STATES OF AMERICA, 

 Plaintiff - Appellee

v.

JOSE BENITEZ-OSORIO, 

 Defendant - Appellant

Appeal from the United States District Court

for the Southern District of Texas

USDC No. 7:11-CR-264-1

Before JONES, DENNIS, and HIGGINSON, Circuit Judges.

PER CURIAM:*

Appellant Jose Benitez-Osorio challenges his sentence for pleading guilty

to unlawful presence in the United States following deportation. 8 U.S.C.

§ 1326(a) & (b). Because he also pled guilty in 1998 to attempted kidnapping in

violation of §§ 664 and 209(b) of the California Penal Code,1the base offense was

enhanced by sixteen levels for a prior conviction involving a crime of violence. 

United States Court of Appeals

Fifth Circuit

F I L E D

February 21, 2013

Lyle W. Cayce

Clerk

* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not

be published and is not precedent except under the limited circumstances set forth in 5TH CIR.

R. 47.5.4.

1 Appellant contends the district court erred by considering the charged conduct of car

jacking, cf. Shepard v. United States, 544 U.S. 13, 125 S. Ct. 1254 (2005), but this unpreserved

error is harmless. The defendant admitted to car jacking but we consider here only his plea.

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The district court sentenced Benitez-Osorio to 46 months imprisonment—a

bottom of the guidelines sentence—and he timely appealed. Finding no

reversible error, we AFFIRM.

DISCUSSION

Interpretations of the Sentencing Guidelines are reviewed de novo. United

States v. Bonilla, 524 F.3d 647, 651 (5th Cir. 2008). When error is properly

preserved, this court “review[s] the district court’s application of the Guidelines

de novo and its factual findings for clear error.” United States v. Neal, 578 F.3d

270, 273 (5th Cir. 2009).2

The Sentencing Guidelines impose a sixteen-level enhancement to an

illegal reentry count whenever a defendant previously committed a “crime of

violence.” U.S.S.G. § 2L1.2(b)(1)(A)(ii). A prior offense qualifies as such if it is

either (1) listed as an enumerated offense—which includes kidnapping—or

(2) falls under the residual clause implicating crimes perpetrated through the

“use, attempted use, or threatened use of physical force.” Id. § 2L1.2 cmt.

n.1(B)(iii). This case is resolved under prong one.

Attempted kidnapping under the California Penal Code is equivalent to

the enumerated crime of kidnapping in the Guidelines. To reach this conclusion,

we compare both California attempt (§ 664) and kidnapping (§ 209(b)) to the

generic, contemporary definitions of those crimes.3 The generic definitions of the

enumerated crimes come from a “common-sense” meaning divined by surveying

sources such as the Model Penal Code (“MPC”), legal treatises, modern state

cases, and dictionaries. United States v. Gonzalez-Ramirez, 477 F.3d 310, 316

2 Finding no error, we need not decide whether the defendant’s objection below was

sufficient to warrant de novo review of this issue.

3

“[A] conviction for attempted ‘kidnapping’ may qualify as the enumerated offense of

kidnapping for purposes of section 2L1.2(b)(1)(A).” United States v. Gonzalez-Ramirez,

477 F.3d 310, 312 (5th Cir. 2007).

2

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(5th Cir. 2007). In this case, §§ 664 and 209(b) align with these generic

definitions.

First, California’s version of attempt is in conformity with the generic

definition of attempt represented in the MPC’s “substantial step” formulation. 

See United States v. Saavedra-Velazquez, 578 F.3d 1103, 1107–09 (9th Cir. 2009)

(suggesting California’s definition may be even more exacting). Citing People v.

Decker, 157 P.3d 1017 (Cal. 2007), Appellant argues for a theoretical difference

between “substantial step” and the “slight acts” conception of attempt found in

California case law. That case, however, actually involves the same actus reus

as the MPC. In Decker, the California Supreme Court required a specific intent

and a direct but ineffectual act done toward its commission.4Id. at 1021. These

attempt elements dovetail with this court’s recent interpretation of “substantial

step” in United States v. Sanchez, 667 F.3d 555, 563 (5th Cir. 2012): intent and

some act beyond just preparation, even a small one. California attempt is thus

tantamount to generic attempt.

Second, the California aggravated kidnapping statute5fits comfortably

within this circuit’s understanding of the generic definition of kidnapping. 

United States v. Gonzalez-Ramirez, 477 F.3d 310, 319 (5th Cir. 2007), which

analyzed Tennessee’s kidnapping statute, controls this inquiry. After the statute

there was held to not sweep more broadly than the generic definition, its four

4 The slight but ineffectual act in Decker was soliciting a police officer to carry out a

murder. The court said it was enough of an actus reus to qualify under other inchoate crimes

such as conspiracy had the defendant been dealing with an actual hired killer.

5 CAL. PENAL CODE ANN. § 209(b) (West 1998):

(1) Any person who kidnaps or carries away any individual to commit robbery,

rape, spousal rape, oral copulation, sodomy, or rape by instrument . . . shall be

punished . . . .

(2) This subdivision shall only apply if the movement of the victim is beyond

that merely incidental to the commission of, and increases the risk of harm to the

victim over and above that necessarily present in, the intended underlying offense.

3

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elements became the standard in this circuit for comparing other states’ laws.6

Generic kidnapping includes (1) knowing confinement; (2) substantial

interference with the victim’s liberty; (3) use of force, threat, or fraud; and (4) a

substantial risk of bodily injury. We reject Appellant’s argument that only

elements one and three are present here. As interpreted, § 209(b) requires the

offender to move the victim a substantial distance without the victim’s consent.

People v. Dominguez, 140 P.3d 866, 874 (Cal. 2006). This satisfies GonzalezRamirez’s second factor. The California statute’s requirement of increased “risk

of harm to the victim over and above that necessarily present in, the intended

underlying offense” may also meet the fourth. Given the physical nature of the

aggravating acts listed in the California statute, the risk of harm appears to be

bodily.

7 While California’s simple kidnapping statute—§ 207(a)—was previously

held not to be a crime of violence, United States v. Moreno-Florean, 542 F.3d 445,

456 (5th Cir. 2008), that statute lacked aggravating factors present here. 

Because the Gonzalez-Ramirez elements are substantially present in § 209(b),

and because an aggravating factor of robbery or sexual assault is explicitly

required, the statute meets any “common-sense” definition of kidnapping easily.

8

6 See, e.g., United States v. Cervantes-Blanco, 504 F.3d 576, 586 (5th Cir. 2007) (relying

on Gonzalez-Ramirez but noting that though none of the “elements are essential, the court did

emphasize that where the specified purposes of the MPC kidnapping definition are lacking,

some aggravating elements are necessary to bring a statute closer to the MPC definition”).

7 Cf. United States v. Iniguez-Barba, 485 F.3d 790, 791–92 (5th Cir. 2007) (per curiam)

(holding that satisfaction of only the first three Gonzalez-Ramirez factors was sufficient for

concluding that a New York kidnapping statute was equivalent to the enumerated offense).

8 Appellant argues that the MPC requires a felony purpose and that some of the sexual

offenses listed in the California statute could be misdemeanors. There are several reasons to

reject this. First, the presumption on these sexual offense “wobblers” is that they are felonies.

Second, and more importantly, the MPC—to the extent that it must control—requires a

specific (felony) purpose or some other aggravating factor. The underlying offense for felony

kidnapping need not be a felony itself in order to satisfy a “common-sense” definition.

4

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CONCLUSION

For the foregoing reasons, we AFFIRM the district court’s sentence.

5

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