1

 The Honorable Harry F. Barnes, United States District Judge for the Western

District of Arkansas.

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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No. 09-1420

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United States of America, *

*

Appellee, *

* Appeal from the United States

v. * District Court for the

* Western District of Arkansas.

Sergio Martinez-Hernandez, *

*

Appellant. *

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Submitted: December 14, 2009

Filed: January 29, 2010

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Before LOKEN, Chief Judge, ARNOLD and BENTON, Circuit Judges.

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BENTON, Circuit Judge.

Sergio Martinez-Hernandez pled guilty to transporting his 11-year-old stepdaughter from Arkansas to Florida to engage in sexual activity. He is already serving

a 20-year state sentence for the attempted sexual battery of his step-daughter in

Florida. At federal sentencing, the district court1

 applied a four-level enhancement

because Martinez-Hernandez abducted his victim. See U.S.S.G. § 2A3.1(b)(5). The

court sentenced him to 235 months (plus 10 days), the bottom of the applicable
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 The dissent notes that the abduction enhancement changes the advisory

guideline range by upwards of seven years. In terms of the sentence actually imposed,

it should be noted that it is concurrent with the (longer) state sentence, gives credit for

time served, and represents the bottom of the advisory guideline range – without

considering the district court’s power to vary from it.

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guideline range. The federal sentence runs concurrent with the (longer) state sentence,

with credit for time served.2

 Martinez-Hernandez contests the abduction enhancement

in this appeal under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a)(2). According to him,

his step-daughter never asked to go home, and in fact asked not to be taken home.

On appeal, this court reviews “a sentence for an abuse of discretion, giving due

deference to the district court’s decision.” United States v. Miller, 588 F.3d 560, 564

(8th Cir. 2009). Relevant here is the first step of review: to “ensure that the district

court did not commit a significant procedural error, such as miscalculating the

Guidelines range, treating the Guidelines as mandatory, failing to consider the §

3553(a) factors, selecting a sentence based on clearly erroneous facts, or failing to

adequately explain why a sentence was chosen.” Id. In reviewing a sentence for

procedural errors, this court reviews the district court’s findings of facts for clear

error, and its application of the guidelines to the facts de novo. See United States v.

Saknikent, 30 F.3d 1012, 1013 (8th Cir. 1994).

“[T]he abduction adjustment requires only that force necessary to overcome the

particular victim’s will.” Id. at 1014. Force need not be physical: “To ‘force’ means

to compel ‘by physical, moral, or intellectual means,’ or ‘to impose’ or ‘to win one’s

way.’” Id. See also United States v. Hefferon, 314 F.3d 211, 226-27 (5th Cir. 2002)

(finding abduction through “veiled coercion” where the defendant “was able to isolate

the victim by dominating her lack of intellectual ability, and also by appealing to the

credulous nature of a seven-year-old.”); United States v. Romero, 189 F.3d 576, 590

(7th Cir. 1999) (“abduction under § 2A3.1(b)(5) means kidnaping -- whether
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kidnaping was committed by force or by the use of a force substitute such as

inveigling.”). 

In Saknikent, the defendant encountered the victim, a mentally-retarded nineyear-old, at a convenience store half a block from her home. 30 F.3d at 1013. She

was found hours later and miles out of town, walking with Saknikent. Id. He pled

guilty to aggravated sexual abuse, but argued that the district court improperly applied

the abduction enhancement at sentencing because no evidence indicated he

(physically) forced the girl to accompany him. This court affirmed, reasoning that

“[a]bduction increases the gravity of sexual assault or other crimes because the

perpetrator’s ability to isolate the victim increases the likelihood that the victim will

be harmed. Any concomitant assault is tangential to the rationale for the increased

penalty.” Id. This court concluded the facts that the victim was mentally impaired,

resided close to the store, habitually visited it, and had rarely been outside of town

“combine[d] to support the inference that Saknikent’s taking the victim out of town

was against her will.” Id. at 1014-15.

 

Here, Martinez-Hernandez, a 26-year-old, had authority over the victim as her

stepfather in her residence. He took her 1,100 miles from her home and mother

(whom he did not tell of the trip). The victim had no money, no phone, and was

totally dependent on him during the trip. Martinez-Hernandez admits that, before

taking her to Florida, he was sexually involved with her for four months, and wrote

notes to her saying, among other things:

• “I wish you and I could already be together to demonstrate to you how much

I love you.”

• “I love you very much my little love, little kisses on your sexy mouth.”

• “You are the only girl for me.”

• “I hope that you behave well with me because if not, I’m going to spank you

and I am going to get you naked and I’m going to torture your body. It’s a

joke.”

• “Now I do believe that you love me because you decided to go with me.”
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In context, these notes amount to force through trickery and deceit. The district court

noted:

In this instance, we’ve got someone the child looks up to. I feel this

defendant could certainly manipulate that child to a point or to a degree

of force necessary to overcome that child’s desire, if the child did desire

to leave.

Martinez-Hernandez relies on United States v. Beith, 407 F.3d 881 (7th Cir.

2005), where a former principal fled from Indiana to Nevada with an 11-year-old

student in order to continue their sexual relationship. The Seventh Circuit recognized

that “‘[i]nveigling,’ or imposing one’s will through ‘trickery’ or ‘gentle urging’ or

flattery, is a proper basis for applying the [abduction] enhancement,” but found “no

tenable connection between the manner in which Beith pursued [the victim] in

molesting her and his ultimate act of driving her to Nevada that could justify a finding

of abduction.” 407 F.3d at 893.

Beith is distinguishable. In Beith, the student actually “called to warn Beith of

the police’s intent to interview and possibly arrest him,” leading to their interstate

travel. Id. Further, Beith “made no false promises to her, and his overtures, while

undeniably vile, were cloaked in neither deceit nor trickery.” Id. Here, MartinezHernandez used flattery, deceit, and parental authority to get his victim to leave with

him, as evidenced by his notes and the other facts of this case.

The district court did not commit a significant procedural error by applying the

abduction enhancement. The judgment is affirmed.
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ARNOLD, Circuit Judge, dissenting.

Sergio Martinez-Hernandez was sentenced to 235 months in prison for

transporting an eleven-year-old girl in interstate commerce with the intent to engage

in sexual activity with her. His guilt is not in dispute, and the sole issue on appeal is

the propriety of the district court's imposition of a sentencing enhancement because

Mr. Martinez-Hernandez abducted his victim. The enhancement added upwards of

seven years to the sentence, and so its applicability deserves careful and deliberate

attention. As the relevant guideline notes, Mr. Martinez-Hernandez is not eligible for

this enhancement unless he "forced" his victim to accompany him to another location.

See U.S.S.G. §§ 2A3.1(b)(5), 1B1.1, cmt. n.1(A).

We have held that the government need not prove that a perpetrator used or

threatened to use physical force in abducting a victim for the enhancement to apply,

and that the use of trickery, deceit, flattery, inveigling, overreaching, and other kinds

of enticements can in some circumstances serve as proper predicates for the

enhancement. See United States v. Saknikent, 30 F.3d 1012, 1013-15 (8th Cir. 1994).

But there is no substantial record evidence of any enticement that induced the victim

in this case to go to Florida, unless the nature of the relationship itself somehow

supplies it; that would mean, however, that the enhancement would apply anytime a

perpetrator takes a victim across a state line if the victim is young and in the care of

the perpetrator. This seems to me to carry the idea of force well beyond what the

words of the relevant guideline provision can justify or support, and the court does not

suggest that this is the basis of its holding.

I think that this case is much like United States v. Beith, 407 F.3d 881, 893 (7th

Cir. 2005), where the court observed that for the enhancement to apply there must be

force that is identifiably associated with the victim's change of location itself. Even

though the highly reprehensible way in which Mr. Martinez-Hernandez dealt with his
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victim might well count as force under our precedents and he would thus be guilty of

the offense of which he was convicted if his actions induced her to leave with him,

there is no evidence that they did. What is missing from this record is a tenable

connection between Mr. Martinez-Hernandez's activities and his victim's trip to

Florida that would justify a conclusion that he forced her to go there. There is not

even any evidence that he asked her to.

The government's duty to produce proof sufficient to support a sentencing

enhancement bears emphasis here. See United States v. Hansel, 524 F.3d 841, 847

(8th Cir. 2008). Mr. Martinez-Hernandez testified at the sentencing hearing that his

victim begged to go with him and even threatened to harm herself if he did not take

her. There is other record evidence that supports his story because the victim wrote

him a note imploring him, "Daddy don't leave me with mommy. Love you so much."

But it is not necessary to believe Mr. Martinez-Hernandez's testimony to conclude that

the enhancement is not applicable because the government failed to show that actions

that could count as force induced her to go to Florida. It is telling that the district

court noted in its abbreviated findings that Mr. Martinez-Hernandez "could certainly

manipulate" his victim into going with him, but that is far from finding that he actually

did, a conclusion that the record would not in any case support. And though the court

here adverts to the fact that the victim was dependent on Mr. Martinez-Hernandez

during their trip, it is mere surmise that he resorted to acts that could be construed as

force in keeping her with him.

One additional point deserves mention. The court seems to suggest that if there

is any error here it is not significant because Mr. Martinez-Hernandez had already

been sentenced to a longer term in Florida and the district court made its sentence run

concurrent with the state one. But we cannot know how much time Mr. MartinezHernandez will actually serve on his state sentence and so any conclusion that the

error here is not significant for the reason that the court gives is simple speculation.

We review a district court's interpretation and application of the guidelines de novo,
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and if we determine that there was error we will remand for resentencing unless the

error was harmless. See United States v. Tomac, 567 F.ed 383, 85-86 (8th Cir. 2009).

Because the appropriate guideline range did not include the sentence that the district

court chose, the error here is not harmless.

I would vacate the sentence and remand to the district court for resentencing.

I therefore respectfully dissent.

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