     Case: 11-40582       Document: 00512150870           Page: 1    Date Filed: 02/21/2013




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                                              FILED
                                                                          February 21, 2013
                                       No. 11-40582
                                                                            Lyle W. Cayce
                                                                                 Clerk
UNITED STATES OF AMERICA,

                                                   Plaintiff - Appellee

v.

JOSE BENITEZ-OSORIO,

                                                   Defendant - Appellant



                    Appeal from the United States District Court
                         for the Southern District of Texas
                              USDC No. 7:11-CR-264-1


Before JONES, DENNIS, and HIGGINSON, Circuit Judges.
PER CURIAM:*
       Appellant Jose Benitez-Osorio challenges his sentence for pleading guilty
to unlawful presence in the United States following deportation. 8 U.S.C.
§ 1326(a) & (b). Because he also pled guilty in 1998 to attempted kidnapping in
violation of §§ 664 and 209(b) of the California Penal Code,1 the base offense was
enhanced by sixteen levels for a prior conviction involving a crime of violence.


       *
         Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
       1
         Appellant contends the district court erred by considering the charged conduct of car
jacking, cf. Shepard v. United States, 544 U.S. 13, 125 S. Ct. 1254 (2005), but this unpreserved
error is harmless. The defendant admitted to car jacking but we consider here only his plea.
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                                     No. 11-40582

The district court sentenced Benitez-Osorio to 46 months imprisonment—a
bottom of the guidelines sentence—and he timely appealed.                    Finding no
reversible error, we AFFIRM.
                                    DISCUSSION
       Interpretations of the Sentencing Guidelines are reviewed de novo. United
States v. Bonilla, 524 F.3d 647, 651 (5th Cir. 2008). When error is properly
preserved, this court “review[s] the district court’s application of the Guidelines
de novo and its factual findings for clear error.” United States v. Neal, 578 F.3d
270, 273 (5th Cir. 2009).2
       The Sentencing Guidelines impose a sixteen-level enhancement to an
illegal reentry count whenever a defendant previously committed a “crime of
violence.” U.S.S.G. § 2L1.2(b)(1)(A)(ii). A prior offense qualifies as such if it is
either (1) listed as an enumerated offense—which includes kidnapping—or
(2) falls under the residual clause implicating crimes perpetrated through the
“use, attempted use, or threatened use of physical force.” Id. § 2L1.2 cmt.
n.1(B)(iii). This case is resolved under prong one.
       Attempted kidnapping under the California Penal Code is equivalent to
the enumerated crime of kidnapping in the Guidelines. To reach this conclusion,
we compare both California attempt (§ 664) and kidnapping (§ 209(b)) to the
generic, contemporary definitions of those crimes.3 The generic definitions of the
enumerated crimes come from a “common-sense” meaning divined by surveying
sources such as the Model Penal Code (“MPC”), legal treatises, modern state
cases, and dictionaries. United States v. Gonzalez-Ramirez, 477 F.3d 310, 316




       2
          Finding no error, we need not decide whether the defendant’s objection below was
sufficient to warrant de novo review of this issue.
       3
        “[A] conviction for attempted ‘kidnapping’ may qualify as the enumerated offense of
kidnapping for purposes of section 2L1.2(b)(1)(A).” United States v. Gonzalez-Ramirez,
477 F.3d 310, 312 (5th Cir. 2007).

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(5th Cir. 2007).      In this case, §§ 664 and 209(b) align with these generic
definitions.
       First, California’s version of attempt is in conformity with the generic
definition of attempt represented in the MPC’s “substantial step” formulation.
See United States v. Saavedra-Velazquez, 578 F.3d 1103, 1107–09 (9th Cir. 2009)
(suggesting California’s definition may be even more exacting). Citing People v.
Decker, 157 P.3d 1017 (Cal. 2007), Appellant argues for a theoretical difference
between “substantial step” and the “slight acts” conception of attempt found in
California case law. That case, however, actually involves the same actus reus
as the MPC. In Decker, the California Supreme Court required a specific intent
and a direct but ineffectual act done toward its commission.4 Id. at 1021. These
attempt elements dovetail with this court’s recent interpretation of “substantial
step” in United States v. Sanchez, 667 F.3d 555, 563 (5th Cir. 2012): intent and
some act beyond just preparation, even a small one. California attempt is thus
tantamount to generic attempt.
       Second, the California aggravated kidnapping statute5 fits comfortably
within this circuit’s understanding of the generic definition of kidnapping.
United States v. Gonzalez-Ramirez, 477 F.3d 310, 319 (5th Cir. 2007), which
analyzed Tennessee’s kidnapping statute, controls this inquiry. After the statute
there was held to not sweep more broadly than the generic definition, its four




       4
         The slight but ineffectual act in Decker was soliciting a police officer to carry out a
murder. The court said it was enough of an actus reus to qualify under other inchoate crimes
such as conspiracy had the defendant been dealing with an actual hired killer.
       5
        CAL. PENAL CODE ANN. § 209(b) (West 1998):
              (1) Any person who kidnaps or carries away any individual to commit robbery,
       rape, spousal rape, oral copulation, sodomy, or rape by instrument . . . shall be
       punished . . . .
              (2) This subdivision shall only apply if the movement of the victim is beyond
       that merely incidental to the commission of, and increases the risk of harm to the
       victim over and above that necessarily present in, the intended underlying offense.

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                                        No. 11-40582

elements became the standard in this circuit for comparing other states’ laws.6
Generic kidnapping includes (1) knowing confinement; (2) substantial
interference with the victim’s liberty; (3) use of force, threat, or fraud; and (4) a
substantial risk of bodily injury. We reject Appellant’s argument that only
elements one and three are present here. As interpreted, § 209(b) requires the
offender to move the victim a substantial distance without the victim’s consent.
People v. Dominguez, 140 P.3d 866, 874 (Cal. 2006). This satisfies Gonzalez-
Ramirez’s second factor. The California statute’s requirement of increased “risk
of harm to the victim over and above that necessarily present in, the intended
underlying offense” may also meet the fourth. Given the physical nature of the
aggravating acts listed in the California statute, the risk of harm appears to be
bodily.7 While California’s simple kidnapping statute—§ 207(a)—was previously
held not to be a crime of violence, United States v. Moreno-Florean, 542 F.3d 445,
456 (5th Cir. 2008), that statute lacked aggravating factors present here.
Because the Gonzalez-Ramirez elements are substantially present in § 209(b),
and because an aggravating factor of robbery or sexual assault is explicitly
required, the statute meets any “common-sense” definition of kidnapping easily.8




       6
       See, e.g., United States v. Cervantes-Blanco, 504 F.3d 576, 586 (5th Cir. 2007) (relying
on Gonzalez-Ramirez but noting that though none of the “elements are essential, the court did
emphasize that where the specified purposes of the MPC kidnapping definition are lacking,
some aggravating elements are necessary to bring a statute closer to the MPC definition”).
       7
        Cf. United States v. Iniguez-Barba, 485 F.3d 790, 791–92 (5th Cir. 2007) (per curiam)
(holding that satisfaction of only the first three Gonzalez-Ramirez factors was sufficient for
concluding that a New York kidnapping statute was equivalent to the enumerated offense).
       8
         Appellant argues that the MPC requires a felony purpose and that some of the sexual
offenses listed in the California statute could be misdemeanors. There are several reasons to
reject this. First, the presumption on these sexual offense “wobblers” is that they are felonies.
Second, and more importantly, the MPC—to the extent that it must control—requires a
specific (felony) purpose or some other aggravating factor. The underlying offense for felony
kidnapping need not be a felony itself in order to satisfy a “common-sense” definition.

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




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