PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 14-4249

UNITED STATES OF AMERICA,

Plaintiff Appellee,
v.
MARLON FLORESGRANADOS,
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
opinion, in which Judge King and Judge Duncan joined.

wrote

the

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.

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

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

Securitys

Immigration and Customs Enforcement.

Flores-Granados

reentered

the

United

States

illegally

at

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

2

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 16level 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 8level enhancement instead. After argument from both parties, the
district

judge

enhancement

was

agreed

with

proper,

the

finding

government
that

that

the

defendants

16-level

conviction

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

of violence under the Guidelines. The court stated that:

[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,

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

U.S.S.G.

2L1.2(b)(1)(A)(ii).

crime

of

conviction

violence

as

any

receives

of

The
a

criminal
application

list

of

history
notes

enumerated

points.
define

offenses,

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

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

force

against

the

person

Application Notes 1(B)(iii).

of

another.

U.S.S.G.

2L1.2

Flores-Granados contends on appeal

that the district court erred in finding his prior conviction in

North

Carolina

qualified

as

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 courts 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)).

When

considering

whether

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

Flores-

Granados 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
6

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

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

7

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

statutes

Shepard-approved

elements

documents

are

present

divisible,

in

the

there

record.

are

no

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

courts

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
8

contends

that

although

the

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

convicted

Carolina
with

the

statute

under

generic,

which

Flores-Granados

contemporary

meaning

of

was
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.] 1443.12 . . . 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)
9

(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.

accomplished

14-39,
by

"kidnapping

fraudulent

means

can

be

just

as

as

by

the

use

effectively
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).
10

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

offense

of

human

is

the

being

unlawful
for

confinement,

certain

restraint

proscribed

or

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 [ 1439], 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
Carolinas

statute

sweeps

more

broadly

than

the

generic

definition of kidnapping because it can be accomplished by fraud

or

trickery

substantial

alone

and

it

interference

does
with
11

not
the

include
victims

as

an

element

liberty

or

circumstances exposing the victim to substantial risk of bodily

injury or confinement as a condition of involuntary servitude.
Appellants 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

crime

of

definition

of

violence.
B.
The
kidnapping

elements
present

necessary
a

to

question

of

the

generic

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
12

include

(1)

an

act

of

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

nefarious
intent,

or

parent

purpose
(4)

in

or

or
a

guardian,

with

manner

(3)

similar
that

either
element

constitutes

for

specific

of

heightened

substantial

interference with the victims liberty. Here, because the North

13

Carolina

statute

requires

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 MPCs definition of kidnapping, which
requires unlawful removal of an individual from his place of
residence

or

vicinity

where

business,
he

is

or

found,

substantial
or

unlawful

distance

from

confinement

the

for

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

14

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

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 victims 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,
define

twenty-one
kidnapping

state
as

statutes,
unlawful

15

including

removal

or

North

Carolina's,

confinement

for

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

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

See ARIZ. REV. STAT. ANN. 13-1304; ARK. CODE ANN. 5-11102(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.
16

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. 1439(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 3542-3-2 (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.
17

Flores-Granados

takes

issue

with

the

fact

that

North

Carolinas specific purposes do not track exactly the specific

nefarious purposes of the MPC. See Appellants Reply Br. at 910. However, the categorical approach does not require us to
match up the language word for word between the statute and the
generic

definition.

definition

Taylor

substantially

requires

only

corresponds

that

the

with

statutory

the

generic

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

at

602.

Further,

we

consider

whether

there

is

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

heightened

substantiality
intent

requirement

requirement.

We

in

addition

disagree.

to
While

any
a

substantiality element may be sufficient to render a statute

within the generic definition of kidnapping where it is the only

18

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

victims]

movement in such a manner as to interfere substantially with the

persons 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

specific

nefarious

purpose and a requirement of substantiality are mandatory for

the offense to qualify as kidnapping. 8
where

nefarious

purposes

are

required

Thus, we think, that

as

they

are

here

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. 707700, -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).
19

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

victims

liberty

or

circumstances

exposing the victim to substantial risk of bodily injury, or

confinement

as

condition

of

involuntary

servitude

is

not

required, a kidnapping statute is too broad to be considered

within

the

generic

definition.

See

United

States

v.

Moreno-

Florean, 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

substantiality requirement to determine if it was too broad to

be within the generic definition of kidnapping.
Contrary to defendants view, the Fifth Circuit cases fit
nicely with our holding today. In Cervantes-Blanco, the Colorado
statute,

unlike

North

Carolinas,

required

no

additional

aggravating factors beyond unlawful restraint by force, threat

or fraud. See 504 F.3d at 586 (The question therefore becomes
20

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 Carolinas is not a bare, two-element statute. The Sixth
Circuits 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

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.
477

F.3d

at

319

(Tennessees

See Gonzalez-Ramirez,

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

21

elements

of

condition

substantial

of

risk

servitude

of

are

injury

or

sufficient

confinement

for

the

New

as

York

kidnapping statute to be within the generic definition).

Our

holding

circuits.

At

is

least

thus

one

consistent

aggravator

is

with

those

required.

of

But

other

where

an

element of substantiality is present, the nefarious purposes may

not

be

necessary.

Iniguez-Barba,
equally

true

See

485
in

Gonzalez-Ramirez,

F.3d

the

at

792.

inverse.

And

Where

477

this
a

F.3d

at

conclusion

nefarious

319;
holds

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

additional

fraud,

statute

aggravating

must

factor

contain

such

as

as

an

nefarious

element

an

purposes

or

substantial interference with the victims liberty, but need not

require both.
The
state

laws

statutes

of

the

include

states

support

either

specific nefarious purposes as

this

conclusion.

substantiality

elements. 9 Eleven

Thirty

component

or

and the MPC

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)
22

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 factors 12

and at least two of those state statutes have been found to
sweep broadly enough to be outside the generic definition. See
Najera-Mendoza,
Oklahoma

statute

Ventura,

565

683

F.3d

F.3d

not
at

at

within
877

630

(finding

generic

(finding

conviction

definition);

Virginia

De

statute

under
Jesus
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. 3913-303, -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. 6-2201.
10
See ARIZ. REV. STAT. 13-1301, -1304; ARK. CODE ANN. 511-102(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.
23

IV.
We do not suggest the approach we have taken here is the
only

way

to

characterize

the

nature

of

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

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

specific

nefarious

purpose,

it

proscribes criminal activity that is well within the generic

definition

of

kidnapping

and

thus

constitutes

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

24

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

district court is hereby affirmed.
AFFIRMED

25