United States Court of Appeals

Fifth Circuit

FILED

January 30, 2007

Charles R. Fulbruge III

Clerk

In the United States Court of Appeals

for the Fifth Circuit

No. 04-51355

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

ROBERTO GONZALEZ-RAMIREZ, also known as Roberto Gonzalez, also known as

Emerlindo Santos Castro-Castro,

Defendant-Appellant.

Appeal from the United States District Court

for the Western District of Texas

Before JOLLY, PRADO and OWEN, Circuit Judges.

PRISCILLA R. OWEN, Circuit Judge:

The defendant contends that a conviction for attempted kidnapping under Tennessee

law is not a “crime of violence” for purposes of section 2L1.2 of the United States

Sentencing Guidelines. Because Tennessee’s statutory definition of kidnapping falls within

the generic, contemporary meaning of “kidnapping,” an enumerated offense in the

commentary to section 2L1.2, the district court did not err in applying a crime-of-violence

enhancement in this case. The defendant’s sentence is affirmed.
1Compare 8 U.S.C. § 1326(a) with id. § 1326(b).

2

530 U.S. 466 (2000).

2

I

The government charged Roberto Gonzalez-Ramirez with illegally re-entering the

United States in violation of 8 U.S.C. § 1326. The government then filed a “Notice of Intent

to Seek Increased Statutory Penalty” under § 1326(b)(2), which increases the maximum

statutory penalty fromtwo yearsimprisonment to twenty yearsimprisonment if the defendant

was previously deported following an aggravated felony conviction.1 This request was based

on Gonzalez-Ramirez’s prior conviction under Tennessee law for attempted kidnapping. 

Gonzalez-Ramirez pleaded guilty to violating section 1326, but at sentencing, he

objected to being sentenced under subsection 1326(b)(2). Gonzalez-Ramirez argued that

Apprendi v. NewJersey2precludes a court from increasing the maximum statutory sentence

based on a prior conviction that was not alleged in the indictment. Gonzalez-Ramirez did

not otherwise object to the application of subsection 1326(b)(2) or a 16-level

crime-of-violence enhancement in calculating the advisory guideline sentencing range, as

recommended in the presentence investigation report. 

The district court rejected the Apprendi objection, applied the crime-of-violence

enhancement under U.S.S.G. § 2L1.2(b)(1)(A)(ii) based on the attempted kidnapping

conviction, and sentenced Gonzalez-Ramirez to 46 months imprisonment. On appeal,

Gonzalez-Ramirez asserts error in both the application of 8 U.S.C. § 1326(b)(2) and the
3

523 U.S. 224 (1998). 

4United States v. Torres-Diaz, 438 F.3d 529, 538 (5th Cir.) (holding that a challenge to

section 1326(b) based on Apprendi is foreclosed by Almendarez-Torres), cert. denied, 126 S. Ct.

1487 (2006).

5United States v. Alfaro, 408 F.3d 204, 207 (5th Cir.), cert. denied, 126 S. Ct. 271 (2005).

6United States v. Cotton, 535 U.S. 625, 631 (2002).

7

Id. at 631-32 (quoting Johnson v. United States, 520 U.S. 461, 467 (1997)). 

3

Guidelines’ crime-of-violence enhancement. Gonzalez-Ramirez concedes, however, that his

Apprendi objection to the application of the statutory sentencing provision is foreclosed by

Almendarez-Torres v. United States3and circuit precedent.4 Therefore, the only issue we

consider on appeal is whether Gonzalez-Ramirez’s prior conviction for attempted kidnapping

under Tennessee law is a “crime of violence” under section 2L1.2. Because this argument

was raised for the first time on appeal, the plain-error standard of review applies.5

II

Under the plain-error standard, a defendant must establish error that is plain and

affects substantial rights.6If these conditions are met, an appellate court may exercise its

discretion to notice the forfeited error only if “‘the error seriously affect[s] the fairness,

integrity, or public reputation of judicial proceedings.’”7 For the reasons that follow, we

conclude that the district court did not err in treating Gonzalez-Ramirez’s conviction as a

crime of violence under section 2L1.2.

Section 2L1.2 of the Sentencing Guidelines authorizes a 16-level sentence

enhancement “[i]f the defendant previously was deported, or unlawfully remained in the
8UNITED STATES SENTENCING GUIDELINES MANUAL § 2L1.2(b)(1)(A)(ii) (2003)

(“U.S.S.G.”).

9

Id. § 2L1.2, cmt. n.1(B)(iii) (emphasis added).

10Stinson v. United States, 508 U.S. 36, 38 (1993) (“[C]ommentary in the Guidelines Manual

that interprets or explains a guideline is authoritative unless it violates the Constitution or a federal

statute, or is inconsistent with, or a plainly erroneous reading of, that guideline.”).

11See United States v. Mendez-Villa, 346 F.3d 568, 570 (5th Cir. 2003) (applying a plain

meaning approach to interpreting the federal sentencing guidelines and commentary).

4

United States, after . . . a conviction for a felony that is . . . a crime of violence.”8 The term

“crime of violence” is not defined in section 2L1.2. But according to the Guidelines

commentary, 

“Crime of violence” means any of the following: murder, manslaughter,

kidnapping, aggravated assault, forcible sex offenses, statutory rape, sexual

abuse of a minor, robbery, arson, extortion, extortionate extension of credit,

burglary of a dwelling, or any offense under federal,state, or local law that has

as an element the use, attempted use, or threatened use of physical force

against the person of another.9

We regard the Guidelines commentary as authoritative,10 and when interpreting it, we apply

the plain, ordinary and commonly understood meaning of the words.11

In this case, the government does not contend that Gonzalez-Ramirez was convicted

of an offense “that has as an element the use, attempted use, or threatened use of physical

force against the person of another.” The government asserts only that Gonzalez-Ramirez’s

conviction constitutesthe enumerated offense of kidnapping. According to the government,

if the state statute of conviction is labeled “kidnapping” or “attempted kidnapping,” the
12MODEL PENAL CODE § 212.1 (2001).

13U.S.S.G. § 2L1.2, cmt. n.5.

5

conviction automatically qualifies as kidnapping within the meaning of the Guidelines

commentary.

In contrast, Gonzalez-Ramirez argues that labels have varying definitions under

differing state statutes and, therefore, cannot be conclusive. According to GonzalezRamirez, the enumerated offense of kidnapping incorporates the Model Penal Code’s

definition, which requires removal or confinement for certain specified purposes.12 Unlike

the Model Penal Code, the Tennessee statute under which Gonzalez-Ramirez was convicted

does not require removal or confinement for any specified purpose. Therefore, according

to Gonzalez-Ramirez, he was not convicted of kidnapping as that term is used in the

Guidelines.

A

In evaluating these arguments, we first note that a conviction for attempted

“kidnapping” may qualify as the enumerated offense of kidnapping for purposes of

section 2L1.2(b)(1)(A). The commentary to section 2L1.2 states, “Prior convictions of

offenses counted under subsection (b)(1) include the offenses of aiding and abetting,

conspiring, and attempting, to commit such offenses.”13 Gonzalez-Ramirez has not

challenged the requirements for an attempt under Tennessee law. Thus, our analysis is not
14See United States v. Morales-Perez, 467 F.3d 1219, 1221 (9th Cir. 2006) (holding under

section 2L1.2 that “a ‘drug trafficking offense’ also includes the crime of attempt to commit a drug

trafficking offense”); United States v. Phillips, 413 F.3d 1288, 1291 (11th Cir. 2005) (same), cert.

denied, 126 S. Ct. 1594 (2006).

15United States v. Ashburn, 20 F.3d 1336, 1347 (5th Cir. 1994).

16Koon v. United States, 518 U.S. 81, 113 (1996);see also 28 U.S.C. § 991(b)(1)(B) (2000)

(“The purposes ofthe United States Sentencing Commission are to . . . provide certainty and fairness

inmeeting the purposes ofsentencing, avoiding unwarranted sentencing disparities among defendants

with similar records who have been found guilty of similar criminal conduct while maintaining

sufficient flexibility to permit individualized sentences when warranted by mitigating or aggravating

factors not taken into account in the establishment of general sentencing practices . . . .”).

6

affected by the fact that Gonzalez-Ramirez was convicted of attempted kidnapping rather

than kidnapping.14

B

Turning now to the definition of kidnapping, as enumerated for purposes of

section 2L1.2, we conclude that state-law labels do not control. The crime-of-violence

enhancement incorporates crimes with certain elements, not crimesthat happen to be labeled

“kidnapping” or “attempted kidnapping” under state law. “The Guidelines were enacted to

bring uniformity and predictability to sentencing.”15 The goal is “to reduce unjustified

disparities and so reach toward the evenhandedness and neutrality that are the distinguishing

marks of any principled system of justice.”16 These goals would not be accomplished by

treating state-law labels of kidnapping as controlling.

State-by-state, the definitions of felony kidnapping vary dramatically. For example,

in Maryland, when the victim is a competent adult, the defendant must “by force or fraud,

carry or cause [the] person to be carried in or outside the State with the intent to have the
17MD. CODE ANN., CRIM. LAW § 3-502 (LexisNexis 2002); see also State v. Stouffer, 721

A.2d 207, 215 (Md. 1998) (“[T]he Maryland kidnapping statute, [formerly] § 337, requires a

carrying of the victim. To that extent, it is unlike the allied crime of false imprisonment and other

kidnapping statutesthat punish certain unlawful detentions and concealments, even in the absence of

an asportation.”).

18S.C. CODE ANN. § 16-3-910 (2003).

19HAW. REV. STAT. ANN. §§ 707-700, -720 (Westlaw through 2006 legislation).

20Id.

7

person carried or concealed in or outside the State.”17 In contrast, “carrying” is not required

in South Carolina. There, kidnapping means to “unlawfully seize, confine, inveigle, decoy,

kidnap, abduct or carry away any other person by any means whatsoever without authority

of law . . . .”18 Like South Carolina, Hawaii does not require “carrying.” In Hawaii,

kidnapping includes any restriction on movement that substantially interferes with the

person’sliberty.19 But under Hawaii law, the restraint must be accomplished by force, threat,

or deception when the victim is a competent adult, and in all cases, it must be done with a

specific intent, such as to hold for ransom, use as a shield or hostage, or inflict bodily

injury.20 Thus, a defendant who unlawfully restrained but did not “carry” another adult has

not committed felony kidnapping under Maryland law. But the defendant has committed

felony kidnapping under South Carolina law. Under Hawaii law, whether the defendant

committed felony kidnapping will depend on the means and intent.

These provisions illustrate only a few of the many differences in state kidnapping

laws. Given these differences, a defendant “would, or would not, receive a sentence

enhancement based on exactly the same conduct, depending on whether the State of his prior
21Cf. Taylor v. United States, 495 U.S. 575, 590-91 (1990).

22See id. at 592.

23TENN. CODE ANN. §§ 39-13-303, -304, -305 (2003).

24Id. § 39-13-302.

25Id. § 39-13-301(2).

8

conviction happened to call that conduct” kidnapping.21 We conclude that when a sentencing

enhancement under the Guidelines is based on an enumerated but undefined offense, and

when the states’ definitions of that offense vary significantly, the offense “must have some

uniform definition independent of the labels employed by the various States’ criminal

codes.”22 In other words, when determining whether a defendant has been convicted of

kidnapping for purposes of section 2L1.2, state-law labels do not control.

C

We must now determine whether Gonzalez-Ramirez’s attempted kidnapping

conviction under Tennessee law qualifies as “kidnapping” for purposes ofsection 2L1.2. In

Tennessee, all three degrees of kidnapping are defined with reference to false

imprisonment.23 False imprisonment means “knowingly remov[ing] or confin[ing] another

unlawfully so as to interfere substantially with the other’s liberty.”24

“Unlawful” means, with respect to removal or confinement, one which is

accomplished by force, threat or fraud, or, in the case of a person who is under

the age of thirteen (13) or incompetent, accomplished without the consent of

a parent, guardian or other person responsible for the general supervision of

the minor’s or incompetent’s welfare.25
26Id. § 39-13-303.

27Id. § 39-13-301(1).

28Id. § 39-13-301(2),

29Id. § 39-13-304.

9

Under section 39-13-303 of Tennessee’s Code, “kidnapping” is “false

imprisonment . . . (1) [u]nder circumstances exposing the other person to substantial risk of

bodily injury; or (2) [w]here the confinement of another is in a condition of involuntary

servitude.”26 “‘Involuntary servitude’ means the condition of a person who is compelled by

force, coercion or imprisonment and against the person’s will to labor for another, whether

paid or not . . . .”27 Although the condition of involuntary servitude may result from force,

coercion or imprisonment, it is not “kidnapping” unless the victim’s confinement was

procured “unlawfully,” which requires the use of force, threat or fraud.28

Tennessee defines “aggravated kidnapping” as false imprisonment committed:

(1) To facilitate the commission of any felony or flight thereafter; 

(2) To interfere with the performance of any governmental or political

function;

(3) With the intent to inflict serious bodily injury on or to terrorize the victim

or another; 

(4) Where the victim suffers bodily injury; or 

(5) While the defendant is in possession of a deadly weapon or threatens the

use of a deadly weapon.29

“Especially aggravated kidnapping” is defined as false imprisonment:
30Id. § 39-13-305.

31Shepard v. United States, 544 U.S. 13, 15 (2005); see also United States v. Garza-Lopez,

410 F.3d 268, 274 (5th Cir.) (applying Shepard to U.S.S.G. § 2L1.2), cert. denied, 126 S. Ct. 298

(2005).

10

(1) Accomplished with a deadly weapon or by display of any article used or

fashioned to lead the victim to reasonably believe it to be a deadly weapon; 

(2) Where the victim was under the age of thirteen (13) at the time of the

removal or confinement;

(3) Committed to hold the victim for ransom or reward, or as a shield or

hostage; or

(4) Where the victim suffers serious bodily injury.30

When determining which provision of Tennessee law was the basis for GonzalezRamirez’s conviction, this court “is generally limited to examining the statutory definition,

charging document, written plea agreement, transcript of plea colloquy, and any explicit

factual finding by the trial judge to which the defendant assented.”31In this case, the

Tennessee indictment charged Gonzalez-Ramirez with aggravated kidnapping under TENN.

CODEANN.§ 39-13-304,subsections(3) [intent to inflictserious bodily injury or to terrorize]

and (4) [serious bodily injury inflicted]. But Gonzalez-Ramirez did not plead guilty to that

charge. Instead, he pleaded guilty to attempted kidnapping under section 39-13-303. The

record does not reflect whether a new indictment was issued, and if so, what factual

circumstances were alleged. Because Gonzalez-Ramirez never pleaded guilty to the

indictment charging aggravated kidnapping, that indictment cannot be used to determine
32See United States v. Turner, 349 F.3d 833, 836 (5th Cir. 2003) (refusing to consider the

indictment for enhancement purposes under U.S.S.G. § 4B1.2 because the defendant pleaded guilty

to a lesser offense and was never reindicted on the lesser count); cf. United States v. Martinez-Vega,

471 F.3d 559, 562-63 (5th Cir. 2006) (looking to the indictment to determine the offense of

conviction even though the defendant pleaded guilty to a lesser offense because the judgment of

conviction stated that the defendant had pleaded guilty to “the lesser charge contained in the

indictment”).

33See United States v. Houston, 364 F.3d 243, 246 (5th Cir. 2004) (“If an indictment is silent

as to the offender’s actual conduct, we must proceed under the assumption that his conduct

constituted the least culpable act satisfying the count of conviction.”).

11

whether Gonzalez-Ramirez’s conviction was for a crime of violence under U.S.S.G.

§ 2L1.2.32

The record contains no appropriate document, transcript, or assented-to fact-finding

indicating the precise basis for Gonzalez-Ramirez’s conviction under section 39-13-303.

Specifically, no appropriate source clarifies(1) whetherthe offense involved “circumstances

exposing the other person to substantial risk of bodily injury” or “a condition of involuntary

servitude” or (2) whether the imprisonment was accomplished by force, threat, or fraud or

involved a child or an incompetent adult restrained without the requisite consent. 

Absent clarification regarding the offense and conviction, this courtmust considerthe

entire definition of “kidnapping” provided in section 39-13-303 of Tennessee’s Code. We

consider each aspect of that definition, including the alternative bases for conviction, and

determine whether the least culpable act constituting a violation of that statute constitutes

“kidnapping” for purposes of U.S.S.G. § 2L1.2.33 Because kidnapping is not defined in the

Guidelines, we employ a common-sense approach and define the term according to its
34See United States v. Sanchez-Ruedas, 452 F.3d 409, 412 (5thCir.), cert. denied, 127 S. Ct.

315 (2006).

35Id.

36MODEL PENAL CODE § 212.1 explanatory note (2001).

37Id.

383 WAYNE R. LAFAVE, SUBSTANTIVE CRIMINAL LAW § 18.1(a), p.5 (2d ed. 2003).

39MODEL PENAL CODE § 212.3 (2001).

40Id. § 212.2.

12

generic, contemporary meaning.34 “For sources of generic[,] contemporary meaning, we

consider, inter alia, the Model Penal Code, Professors LaFave and Scott’s treatise, modern

state cases, and dictionaries.”35 Although our objective is to ascertain the contemporary

meaning, we are not required to apply the most nuanced, restrictive, or cutting-edge

interpretation.

The pertinent provisions of the Model Penal Code were“primarily designed to effect

a majorrestructuring of the law of kidnapping.”36 The Code’s drafters commented that many

state “kidnapping statutes combined severe sanctions with extraordinarily broad coverage,

to the effect that relatively trivial restraints carried authorized sanctions of death or life

imprisonment.”37 To change the status quo, the Model Penal Code drafters divided

imprisonment offenses into three categories. “[C]onduct of a most serious nature” was

labeled kidnapping.38 The least serious conduct, “knowingly restrain[ing] another unlawfully

so as to interfere substantially with his liberty,” was labeled false imprisonment.39 The

intermediate offense was called felonious restraint.40
41Id. § 212.1 (emphasis added).

42Id. § 212.2.

13

The Model Penal Code’s most serious imprisonment offense, kidnapping, is defined

as 

unlawfully remov[ing] another from his place of residence or business, or a

substantial distance from the vicinity where he is found, or . . . unlawfully

confin[ing] another for a substantial period in a place of isolation, with any of

the following 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.

. . . A removal or confinement is unlawful within the meaning of this Section

if it is accomplished by force, threat or deception, or, in the case of a person

who is under the age of 14 or incompetent, if it is accomplished without the

consent of a parent, guardian or other person responsible for general

supervision of his welfare.41

As thus defined, kidnapping does not occur under the Model Penal Code absent one of the

specifically enumerated purposes. In contrast, no specific purpose is required for the

intermediate offense of felonious restraint, which means “knowingly: (a) restrain[ing]

another unlawfully in circumstances exposing him to risk of serious bodily injury; or

(b) hold[ing] another in a condition of involuntary servitude.”42
43TENN. CODE ANN. §§ 39-13-301(2), -302, -303 (2003).

44See MODEL PENAL CODE § 212.1 (“A removal or confinement is unlawful within the

meaning of this Section if it is accomplished by force, threat or deception, or, in the case of

a person who is under the age of 14 or incompetent, if it is accomplished without the consent

of a parent, guardian or other person responsible for general supervision of his welfare.”

(emphasis added)).

14

Relying on the foregoing definitions, Gonzalez-Ramirez argues he was not convicted

of attempted “kidnapping” as that term is used in U.S.S.G. § 2L1.2 because the Tennessee

statute of conviction does not require a specified purpose. He maintains that Tennessee’s

statute corresponds more closely to the Model Penal Code’s definition of feloniousrestraint.

But Gonzalez-Ramirez ignoressignificant distinguishing factors between Tennessee’s basic

kidnapping statute and the Model Penal Code’s definition of felonious restraint. Unlike the

Model PenalCode’s definition of felonious restraint, Tennessee’s kidnapping statute requires

the use of force, threat or fraud or, for incompetents or children under the age of 13, the

absence of consent.43 In comparison, these aggravating factors are comparable to essential

elements of the Model Penal Code’s definition of kidnapping.44 The Tennessee statute thus

falls somewhere between what the Model Penal Code calls “felonious restraint” and

“kidnapping.” But in terms of the egregiousness of the conduct required for conviction,

Tennessee’s statute is closer to the latter than the former.

Of course, the Model Penal Code is not the exclusive standard by which we define

the terms used in the Sentencing Guidelines; it is but one source to be considered in

ascertaining the “generic, contemporary meaning” of a specifically enumerated offense. We
45ARIZ.REV.STAT.ANN. § 13-1304 (2001); ARK.CODEANN. § 5-11-102 (2006); DEL.CODE

ANN. tit. 11, §§ 783, 783A (2001) (requiring specific intent other than to take or confine except for

children under age 16); FLA.STAT.ANN. § 787.01 (West Supp. 2006);HAW.REV.STAT.ANN. § 707-

720 (LexisNexis 2003); IND. CODE ANN. § 35-42-3-2 (West 2004) (requiring specific intent other

than to confine except when hijacking a vehicle); KAN. STAT. ANN. § 21-3420 (1995); KY. REV.

STAT. ANN. § 509.040 (LexisNexis Supp. 2005); MICH. COMP. LAWS § 750.349 (Westlaw through

2006 legislation); MINN.STAT.ANN. § 609.25 (West 2003); MO.ANN.STAT. § 565.110 (West Supp.

2006); NEB. REV. STAT. § 28-313 (1995); N.H. REV. STAT. ANN. § 633:1 (LexisNexis Supp. 2006);

N.J. STAT. ANN. § 2C:13-1 (Westlaw through 2006 legislation); N.M. STAT. § 30-4-1 (2004); N.C.

GEN. STAT. § 14-39 (Westlaw through 2006 legislation); N.D. CENT. CODE § 12.1-18-01 (1997); 18

PA. CONS. STAT. ANN. § 2901 (West 2000); S.D. CODIFIED LAWS §§ 22-19-1, -1.1 (Supp. 2006)

(requiring specific intent other than to take or conceal except for children under age 14); VT. STAT.

ANN. tit. 13, § 2405 (1998) (requiring specific intent other than to keep “for a substantial period”

except for children under age 16); W. VA. CODE ANN. §§ 61-2-14, -14a (LexisNexis 2005); WYO.

STAT. ANN. § 6-2-201 (2005). See also IOWA CODE ANN. § 710.1(4) (West 2003) (precluding a

conviction for kidnapping absent an Model Penal Code-like purpose unlessthe perpetrator intended

to secretly confine the victim).

46ALASKA STAT. § 11.41.300(a)(2), .370(3) (2004); CAL. PENALCODE § 207(a) (West Supp.

2006); COLO. REV. STAT. ANN. § 18-3-302(1) (West 2004); GA. CODE ANN. § 16-5-40(a) (Supp.

2006); 720 ILL. COMP. STAT. ANN. 5/10-1(a)(1) (West 2002); LA. REV. STAT. ANN. §§ 14:44.1,

:45(A)(1) (1997); ME. REV. STAT. ANN. tit. 17-A, § 301(1)(B)(2006);MD.CODEANN.,CRIM.LAW

§ 3-502(a) (LexisNexis 2002); MASS.GEN.LAWSANN. ch. 265, § 26 (West 2000);MISS.CODEANN.

§ 97-3-53 (2006); MONT. CODE ANN. § 45-5-302(1) (2005); OHIO REV. CODE ANN. § 2905.01(B)

(West 1997);R.I.GEN.LAWS § 11-26-1(a) (2002); S.C.CODEANN. § 16-3-910 (2003); TENN.CODE

ANN. § 39-13-303(a) (2003); UTAH CODE ANN. § 76-5-301(1) (2003).

15

must also, and more importantly, review other states’ kidnapping statutes. Having done so,

we are persuaded that Tennessee’s basic kidnapping statute requires conduct that is wellwithin what is commonly considered to be “kidnapping.”

Like the Model Penal Code, a significant number of states distinguish kidnapping

from other offenses by requiring a specified purpose other than to confine or restrain, even

for the least culpable means of conviction.45 But the majority of states do not. Several states

do not require purposessuch as those in the Model Penal Code at all,46 and many others only
47ALA.CODE §§ 13A-6-40, -44(a) (LexisNexis 2005) (requiring intent to prevent liberation);

CONN. GEN. STAT. ANN. §§ 53a-91, -94(a) (West 2001) (same); IDAHO CODE ANN. §§ 18-4501(1),

-4503 (2004); IOWA CODE ANN. § 710.1(4) (West 2003) (kidnapping includes an act accompanied

by the intent to secretly confine); NEV. REV. STAT. § 200.310(2) (2005); N.Y. PENAL LAW

§§ 135.00(2), .20 (McKinney 2004); OR. REV. STAT. § 163.225(1) (2005); TEX. PENALCODE ANN.

§§ 20.01(2), .03(a) (Vernon 2003 &Supp. 2006); VA.CODEANN. § 18.2-47(A) (2004);WASH.REV.

CODEANN. §§ 9A.40.010, .030(1) (West 2000 & Supp. 2006); WIS. STAT. ANN. § 940.31(1) (West

2005); cf. OKLA. STAT. ANN. tit. 21, § 741 (West Supp. 2007) (intent to cause the victim to be sent

out of the state against the victim’s will); see also 3 WAYNE R. LAFAVE, SUBSTANTIVE CRIMINAL

LAW § 18.1(e), p.20 (2d ed. 2003) (“The [Model Penal Code] position is that the best way to

distinguish kidnapping from lesser crimes (under the Code’s scheme, felonious restraint and false

imprisonment) is ‘to specify nefarious purposes’ with which the kidnapping defendant must have

acted. While a minority of states do not utilize such a list in their kidnapping law, the others do,

either to distinguish kidnapping from any lesser offenses carrying other labels or else to distinguish

the highest grade of kidnapping from one or more lesser degrees of that offense.”) (footnotes

omitted). 

48See S.C. CODE ANN. § 16-3-910 (2003) (“Kidnapping. Whoever shall unlawfully seize,

confine, inveigle, decoy, kidnap, abduct or carry away any other person by any means whatsoever

without authority of law, except when a minor is seized or taken by his parent, is guilty of a

felony . . . .”).

16

use those types of purposesto distinguish between higher and lesser degrees of kidnapping.47

Although there is a broad spectrum of conduct that is classified as “kidnapping” by various

state statutes, a majority of states have rejected a specified purpose requirement for

kidnapping crimes. We therefore cannot conclude that a specified purpose or intent is

required for a state kidnapping conviction to constitute a crime of violence under

section 2L1.2.

By the same token, we would not conclude that the term “kidnapping” encompasses

any unlawful confinement, based on the broadest and most basically written state kidnapping

statute.48 But we are not presented with such a statute in this case. The conduct proscribed
49See MODEL PENAL CODE § 212.1 explanatory note (2001).

50TENN. CODE ANN. §§ 39-13-301, -302(a), -303(a) (2003).

51See, e.g., ALA. CODE §§ 13A-6-40(1)(b), -44(a) (LexisNexis 2005); ALASKA STAT.

§§ 11.41.300(a)(2), .370(3) (2004); COLO. REV. STAT. ANN. § 18-3-302(2) (West 2004); CONN.

GEN. STAT. ANN. §§ 53a-91, -94(a) (West 2001); DEL. CODE ANN. tit. 11, §§ 783(6), 783A(6), 786

(2001); IDAHO CODEANN. §§ 18-4501(2), -4503 (2004); 720 ILL.COMP. STAT. ANN. 5/10-1(a), (b),

5/10-2(a)(2) (West 2002); LA. REV. STAT. ANN. § 14:45(A)(3) (1997); MASS. GEN. LAWS ANN. ch.

265, § 26 (West 2000); MISS.CODEANN. § 97-3-53 (2006) (requiresthat the offense be “against the

will” ofthe legal custodian);NEV.REV.STAT. § 200.310(1) (2005); N.H.REV.STAT.ANN. § 633:1(Ia) (LexisNexis Supp. 2006); N.Y. PENAL LAW §§ 135.00, .20 (McKinney 2004); OHIO REV. CODE

ANN. § 2905.01(B) (West 1997); TEX. PENALCODE ANN. §§ 20.01, .03(a) (Vernon 2003 & Supp.

2006); UTAH CODE ANN. § 76-5-301(1)(d), (2) (2003); WASH. REV. CODE ANN. §§ 9A.40.010,

.030(1) (West 2000 & Supp. 2006); see also GA. CODE ANN. § 16-5-40(a) (Supp. 2006) (requiring

similar or lesser elements for all victims, regardless of age or competency); IOWA CODE ANN.

§ 710.1(4) (West 2003) (same); KY. REV. STAT. ANN. § 509.040(1)(f) (LexisNexis Supp. 2005)

(requiring intent to deprive the lawful custodian of the victim); ME. REV. STAT. ANN. tit. 17-A,

§ 301(1)(B) (2006) (requiring similar or lesser elements for all victims, regardless of age or

competency);MD.CODEANN.,CRIM.LAW§ 3-502(a) (LexisNexis 2002) (same);MONT.CODEANN.

§ 45-5-302(1) (2005) (same); OKLA. STAT. ANN. tit. 21, § 741 (West Supp. 2007) (same); OR. REV.

STAT. §§ 163.215, .225(1) (2005) (requiring intent to interfere substantiallywith the victim’sliberty);

17

by Tennessee’s kidnapping statute cannot be characterized as “relatively trivial restraints.”49

To the contrary, the elements of Tennessee’s kidnapping offense include:

(1) knowing removal or confinement; 

(2) substantial interference with the victim’s liberty; 

(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; and 

(4) (a) circumstances exposing the victim to substantial risk of bodily injury, or

(b) confinement as a condition of involuntary servitude, meaning “the

condition of a person who is compelled by force, coercion or imprisonment

and against the person’s will to labor for another, whether paid or not.”50

Tennessee’s kidnapping statute isin line with a majority of otherstates with regard to victims

who are children or legally incompetent,51 and it is at least as restrictive, if not more
R.I. GEN. LAWS §§ 11-26-1(a), -1.4 (2002 & Supp. 2005) (requiring similar or lesser elements for

all victims, regardless of age or competency); S.C. CODE ANN. § 16-3-910 (2003) (same); S.D.

CODIFIED LAWS §§ 22-19-1(5), -1.1(5) (Supp. 2006) (requiring taking or enticing a child with intent

to detain and conceal);VT. STAT. ANN. tit. 13, § 2405(a)(2) (1998) (requiring intent to keep a child

for a substantial period); VA. CODE ANN. § 18.2-47(A) (2004) (requiring similar or lesser elements

for all victims, regardless of age or competency); WIS. STAT. ANN. § 940.31(1) (West 2005) (same).

52See, e.g., ALA. CODE §§ 13A-6-40, -44(a) (LexisNexis 2005); ALASKA STAT.

§§ 11.41.300(a)(2), .370(3) (2004); CAL. PENAL CODE § 207(a) (West Supp. 2006); COLO. REV.

STAT. ANN. § 18-3-302 (West 2004); CONN. GEN. STAT. ANN. §§ 53a-91, -94(a) (West 2001); GA.

CODE ANN. § 16-5-40(a) (Supp. 2006); IDAHO CODE ANN. §§ 18-4501(1), -4503 (2004); 720 ILL.

COMP. STAT. ANN. 5/10-1(a) (West 2002); IOWA CODE ANN. § 710.1(4) (West 2003); LA. REV.

STAT. ANN. § 14:45(A)(1) (1997); ME. REV. STAT. ANN. tit. 17-A, § 301(1)(B) (2006); MD. CODE

ANN.,CRIM.LAW§ 3-502(a) (LexisNexis 2002); MASS.GEN.LAWSANN.ch. 265, § 26 (West 2000);

MISS. CODE ANN. § 97-3-53 (2006); MONT. CODE ANN. § 45-5-302(1) (2005); NEV. REV. STAT.

§ 200.310(2) (2005); N.Y. PENALLAW §§ 135.00(2), .20 (McKinney 2004); OHIO REV. CODEANN.

§ 2905.01(B) (West 1997); OKLA. STAT. ANN. tit. 21, § 741 (West Supp. 2007); OR. REV. STAT.

§ 163.225(1) (2005);R.I.GEN.LAWS § 11-26-1(a) (2002); S.C.CODEANN. § 16-3-910 (2003);TEX.

PENAL CODE ANN. §§ 20.01, .03 (Vernon 2003 & Supp. 2006); UTAH CODE ANN. § 76-5-301(1)

(2003); VA.CODEANN. § 18.2-47(A) (2004); WASH.REV.CODEANN. §§ 9A.40.010, .030(1) (West

2000 & Supp. 2006); WIS. STAT. ANN. § 940.31(1) (West 2005); see also OHIO REV. CODE ANN.

§ 2905.02 (West 1997) (defining “abduction” as knowingly holding in involuntary servitude,

knowingly removing by force or threat, or knowingly restraining by force or threat under

circumstances that create a risk of physical harm or place the victim in fear).

53See MODEL PENAL CODE § 212.2 (2001) (felonious restraint); id. § 212.3 (false

imprisonment).

18

restrictive, than a majority of state kidnapping statutes asto competent adults.52 In this latter

regard, it is significant that Tennessee requires the use of force, threat or fraud along with

the additional aggravating elements ofsubstantialrisk ofinjury or confinement as a condition

of involuntary servitude. These are significant factors that distinguish Tennessee’s

kidnapping statute from the lesser offenses identified by the Model Penal Code53and
54TENN. CODE ANN. §§ 39-13-301(2), 39-13-302.

55See, e.g., COLO.REV.STAT.ANN. § 18-3-303 (West 2004) (elevating the offense to a felony

if force or threat of force is used or if the victim is detained for at least 12 hours); GA. CODE ANN.

§ 16-5-41 (Supp. 2006); IDAHO CODE ANN. § 18-2901 (2004); IOWA CODE ANN. § 710.7 (West

2003); ME.REV.STAT.ANN.tit. 17-A, § 302(1)(B)(1) (2006);MONT.CODEANN. § 45-5-301 (2005);

NEV. REV. STAT. § 200.460 (2005) (elevating the offense to a felony under certain circumstances,

including when a deadly weapon is used); OHIO REV. CODE ANN. § 2905.03 (West 1997); TEX.

PENALCODEANN. § 20.02 (Vernon 2003) (elevating the offense to a felony if the victimisrecklessly

exposed to a substantial risk ofserious bodily injury); UTAH CODE ANN. § 76-5-304 (2003); WASH.

REV. CODE ANN. § 9A.40.040 (West 2000); WIS. STAT. ANN. § 940.30 (West 2005); see also CAL.

PENALCODE §§ 210.5, 236 (West 1999) (defining both false imprisonment and “false imprisonment

for purposes of protection from arrest or use as shield”); 720 ILL. COMP. STAT. ANN. 5/10-3, -3.1

(West 2002) (defining unlawful restraint as aggravated if a deadly weapon is used); LA. REV. STAT.

ANN. §§ 14:46, :46.1 (1997) (increasing the penalty for false imprisonment while “armed with a

dangerous weapon”). But see ALA. CODE § 13A-6-41(a) (LexisNexis 2005) (defining unlawful

imprisonment in the first degree asrequiring restraint “under circumstances which expose the [victim]

to a risk of serious physical injury”); CONN. GEN. STAT. ANN. § 53a-95 (West 2001) (defining

unlawful restraint in the first degree as restraint “under circumstances which expose [the victim] to

a substantialrisk of physicalinjury”);N.Y.PENALLAW§ 135.10 (McKinney2004) (defining unlawful

imprisonment in the first degree asrequiring restraint “under circumstances which expose the [victim]

to a risk of serious physical injury”).

19

criminalized in Tennessee54 and other states.55 We conclude that Tennessee’s statute does

not sweep more broadly than the generic, contemporary meaning of the term “kidnapping.”

* * * *

For the foregoing reasons, the district court did not err in determining that GonzalezRamirez’s prior conviction for attempted kidnapping was a crime of violence for purposes

of U.S.S.G. § 2L1.2(b)(1)(A)(ii). Gonzalez-Ramirez’s sentence is AFFIRMED.