FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, 

Plaintiff-Appellee, No. 05-10693

v. D.C. No.  CR-04-01554-JMR ABEU GONZALEZ-PEREZ, A.K.A.

Oscar Ortiz-Garcia, OPINION

Defendant-Appellant. 

Appeal from the United States District Court

for the District of Arizona

John M. Roll, District Judge, Presiding

Argued and Submitted

September 11, 2006—San Francisco, California

Filed January 10, 2007

Before: Ferdinand F. Fernandez, William A. Fletcher, and

Johnnie B. Rawlinson, Circuit Judges.

Opinion by Judge Rawlinson

257
COUNSEL

Jon M. Sands, Federal Public Defender, Tracy Friddle, Asst.

Federal Public Defender (argued), Phoenix, Arizona, for the

defendant-appellant. 

Paul K. Charlton, United States Attorney, Christina M.

Cabanillas, Appellate Chief, Bruce M. Ferg, Asst. United

States Attorney (argued), Tucson, Arizona, for the plaintiffappellee.

OPINION

RAWLINSON, Circuit Judge: 

On appeal, Abeu Gonzalez-Perez challenges his sentence

UNITED STATES v. GONZALEZ-PEREZ 259
on the basis that the district court erred in applying a 16-level

enhancement to his sentence for a false-imprisonment conviction under Florida law. Specifically, Gonzalez-Perez contends

that his prior conviction under Florida’s false imprisonment

statute does not constitute a “crime of violence” under

§ 2L1.2(b)(1)(A)(ii) of the Sentencing Guidelines.1 We agree.

Accordingly, we reverse the district court’s imposition of the

16-level enhancement, vacate the sentence and remand for

resentencing. We affirm the district court’s other rulings made

during the sentencing proceedings.

I.

Gonzalez-Perez pled guilty to illegal re-entry following

deportation in violation of 8 U.S.C. § 1326(a). At sentencing,

over Gonzalez-Perez’s objection, the district court applied a

16-level crime-of-violence enhancement based on a prior conviction for false imprisonment under Fla. Stat. § 787.02(1)(a).

See U.S.S.G. § 2L1.2(b)(1)(A)(ii). “We review de novo a district court’s decision that a prior conviction is a crime of violence under the Sentencing Guidelines.” United States v.

Velasquez-Reyes, 427 F.3d 1227, 1229 (9th Cir. 2005) (citation omitted).

II.

[1] A 16-level increase in a defendant’s offense level is

warranted where the defendant was previously removed after

conviction for a “crime of violence.” U.S.S.G. § 2L1.2(b)(1)

(A)(ii). In determining “whether a defendant’s prior offense

constitutes a crime of violence for purposes of U.S.S.G.

§ 2L1.2(b)(1)(A)(ii),” this Court applies the categorical

approach set forth in Taylor v. United States, 495 U.S. 575

(1990). United States v. Pimentel-Flores, 339 F.3d 959, 968

(9th Cir. 2003) (citation and internal quotation marks omitted). Under Taylor’s categorical approach, to determine

1All references are to the Guidelines effective on November 1, 2004. 

260 UNITED STATES v. GONZALEZ-PEREZ
whether a conviction qualifies as a crime of violence, we do

not examine the facts underlying the prior offense, but “look

only to the fact of conviction and the statutory definition of

the prior offense.” Taylor, 495 U.S. at 602. 

The Application Note to § 2L1.2(b)(1)(A)(ii) of the Sentencing Guidelines, defines crime of violence as:

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. 

U.S.S.G. § 2L1.2 cmt. n. 1(B)(iii). 

[2] Accordingly, Gonzalez-Perez’s prior conviction qualifies as a “crime of violence” if Florida’s false imprisonment

statute, Fla. Stat. § 787.02(1)(a): (1) “has as an element the

use, attempted use, or threatened use of physical force against

the person of another,” or (2) constitutes “kidnapping” in its

generic sense. U.S.S.G. § 2L1.2 cmt. n. 1(B)(iii); see also

United States v. Pereira-Salmeron, 337 F.3d 1148, 1151 (9th

Cir. 2003) (noting that “[a]ny offense listed in [the Guidelines’ definition] is inherently deemed to be a ‘crime of violence’ for purposes of this Guideline, whether or not the use,

attempted use, or threatened use of force against the person of

another . . . is an element of the given offense.”). 

[3] The Florida statute defines false imprisonment as “forcibly, by threat, or secretly confining, abducting, imprisoning,

or restraining another person without lawful authority and

against her or his will.” Fla. Stat. § 787.02(1)(a). The government argues that a conviction under § 787.02(a) “implicitly

UNITED STATES v. GONZALEZ-PEREZ 261
contain[s] as an element the use . . . of . . . force.” We disagree. 

[4] “[T]he force necessary to constitute a crime of violence

must actually be violent in nature.” United States v. LopezMontanez, 421 F.3d 926, 929 (9th Cir. 2005) (citation, alteration, and internal quotation marks omitted). However,

because under Fla. Stat. § 787.02(1)(a) false imprisonment

can be effectuated “secretly,” a conviction under Florida’s

false imprisonment statute need not involve the use of force.

See Robinson v. State, 462 So.2d 471, 476 (Fla. Dist. Ct. App.

1984) (rejecting an argument that there was insufficient evidence to support a kidnapping charge against the defendant

because there was no evidence of the use of any physical

force or threat in transporting the victim); see also Corner v.

State, 868 So.2d 553, 556 (Fla. Dist. Ct. App. 2004) (same);2

cf. United States v. Hernandez-Hernandez, 431 F.3d 1212,

1217 (9th Cir. 2005) (holding that California’s false imprisonment statute, which is similar to Florida’s, did not categorically constitute a crime of violence). 

[5] Alternatively, the government urges us to hold that false

imprisonment under Florida law qualifies as a crime of violence within the meaning of the Sentencing Guidelines

because the offense effectively constitutes “kidnapping.”

Again, we disagree. Taylor instructs that where, as here, the

enhancement provision does not specifically define the enumerated offense, we must define it according to its “generic,

contemporary meaning.” Taylor, 495 U.S. at 598. We must

then compare the state’s definition of a crime, “with the

generic definition of that crime to determine if the defendant’s

conviction is a crime of violence pursuant to the Sentencing

2Although Robinson and Corner analyze Florida’s kidnapping statute,

Fla. Stat. § 787.01, it is appropriate to consider these cases because “proof

of the elements of the kidnapping statute . . . constitutes proof of the elements of false imprisonment.” McCutcheon v. State, 711 So.2d 1286, 1288

(Fla. Dist. Ct. App. 1998) (citations omitted). 

262 UNITED STATES v. GONZALEZ-PEREZ
Guidelines.” Velasquez-Reyes, 427 F.3d at 1229 (citations

omitted). The government proposes that the generic, contemporary definition of kidnapping should be “the unlawful

deprivation of another person’s liberty of movement.” However, the generic definition of kidnapping encompasses, at a

minimum, the concept of a “nefarious purpose[ ]” motivating

restriction of the victim’s liberty. See Wayne R. LaFave, 3

Substantive Criminal Law § 18.1(e), at 20, n.154 (2d ed.

2003) (noting that only eleven states do not specify that kidnapping requires a nefarious purpose); see also Model Penal

Code § 212.1 (providing that a defendant is guilty of kidnapping only if his or her purpose is “(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.”). The Florida false imprisonment statute contains

no nefarious purpose element whatsoever. See Fla. Stat.

§ 787.02(1)(a) (defining false imprisonment as “forcibly, by

threat, or secretly confining, abducting, imprisoning, or

restraining another person without lawful authority and

against her or his will.”); cf. Fla. Stat. § 787.01(1)(a) (defining

kidnapping as “forcibly, secretly, or by threat confining,

abducting, or imprisoning another person against her or his

will and without lawful authority, with intent to: (1) [h]old for

ransom or reward or as a shield or hostage[;] (2) [c]ommit

or facilitate commission of any felony; (3) [i]nflict bodily

harm upon or to terrorize the victim or another person; (4)

[i]nterfere with the performance of any governmental or

political function.”) (emphasis added). Accordingly, Florida’s

false imprisonment statute, Fla. Stat. § 787.02(1)(a), does not

conform to the generic, contemporary definition of kidnapping, and does not constitute a categorical crime of violence

for the purposes of applying U.S.S.G. § 2L1.2(b)(1)(A)(ii).3

3The government conceded that Gonzalez-Perez’s conviction does not

qualify as a crime of violence under the modified categorical approach

described in Taylor. See Taylor, 495 U.S. at 602. 

UNITED STATES v. GONZALEZ-PEREZ 263
Accordingly, the district court erred when it applied the 16-

level enhancement under U.S.S.G. § 2L1.2(b)(1)(A)(ii) in calculating Gonzalez-Perez’s sentence. See Lopez-Montanez,

421 F.3d at 932.

III.

[6] Gonzalez-Perez also contends that his sentence was

unreasonable under 18 U.S.C. § 3553(a)(6) given that his codefendant in the Florida false imprisonment case received a

sentence of only 60 days after separately reentering the

United States. We disagree. The district court’s finding that

18 U.S.C. § 3553(a)(6) was not implicated is consistent with

the reasonableness requirement articulated in United States v.

Booker, 543 U.S. 220 (2005). The district court reasonably

relied on the facts that Gonzalez-Perez’s former co-defendant

was processed under a “fast-track” procedure, and was

charged with violating a different statute to explain any disparity in the respective sentences imposed. See United States

v. Banuelos-Rodriguez, 215 F.3d 969, 978 (9th Cir. 2000); see

also United States v. Marcial-Santiago, 447 F.3d 715, 717-19

(9th Cir. 2006). 

[7] Finally, “a [district] court’s silence regarding [its]

authority to depart is not sufficient to indicate that the court

believed it lacked power to depart.” United States v. You, 382

F.3d 958, 967 (9th Cir. 2004) (citations and internal quotation

marks omitted). In the absence of a clear expression to the

contrary, we assume that the district court is aware of its discretionary authority to depart. See United States v. GarciaGarcia, 927 F.2d 489, 491 (9th Cir. 1991). 

IV.

Conclusion

We hold that the district court erred when it applied a 16-

level sentencing enhancement predicated upon a determina264 UNITED STATES v. GONZALEZ-PEREZ
tion that Gonzalez-Perez’s conviction for false imprisonment

under Florida law constituted a crime of violence under

U.S.S.G. § 2L1.2(b)(1)(A)(ii). Accordingly, we REVERSE

the district court’s imposition of the enhancement, VACATE

the sentence and REMAND for resentencing. We AFFIRM

the other rulings made by the district court in the course of the

sentencing proceedings.

UNITED STATES v. GONZALEZ-PEREZ 265