                                                                           FILED
                           NOT FOR PUBLICATION                              AUG 17 2012

                                                                        MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



UNITED STATES OF AMERICA,                        No. 11-50406

              Plaintiff - Appellee,              D.C. No. 3:11-cr-00918-JAH-1

  v.
                                                 MEMORANDUM *
JOSE ANTONIO MARTINEZ-FLORES,

              Defendant - Appellant.



                    Appeal from the United States District Court
                       for the Southern District of California
                     John A. Houston, District Judge, Presiding

                       Argued and Submitted August 9, 2012
                               Pasadena, California

Before: REINHARDT, SILVERMAN, and WARDLAW, Circuit Judges.

       Jose Antonio Martinez-Flores appeals the sentence imposed by the district

court following his guilty plea to being a deported alien found in the United States

in violation of 8 U.S.C. § 1326(a). We affirm.




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
      Martinez-Flores argues that the district court erred in determining that his

2007 conviction for felony false imprisonment, Cal. Penal Code §§ 236/237,

constituted a “crime of violence” under U.S.S.G. § 2L1.2(b)(1)(A). For the

purposes of § 2L1.2, the term “crime of violence” means “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). The requisite degree of physical force is “force capable of causing

physical pain or injury to another person.” Johnson v. United States, 130 S. Ct.

1265, 1271 (2010).

      As the government correctly concedes, California felony false imprisonment

is not a crime of violence under the categorical approach, because it may be

committed by means of “fraud” or “deceit.” Cal. Penal Code § 237. However,

Martinez-Flores’s prior conviction qualifies as a crime of violence under the

modified categorical approach. Martinez-Flores admitted in his guilty plea that he

“unlawfully used violence to violate the personal liberty of another.” Under

California law, false imprisonment by violence necessarily requires “the use of

force beyond that required for simple restraint.” People v. Babich, 18 Cal. Rptr. 2d

60, 65 (Ct. App. 1993). Where, as here, a defendant argues that a state offense is

overbroad, “he must at least point to his own case or other cases in which the state


                                           2
courts in fact did apply the statute in the special (nongeneric) manner for which he

argues.” Gonzales v. Duenas-Alvarez, 549 U.S. 183, 193 (2007). Martinez-Flores

has not pointed to, nor can we find, a single California case imposing a conviction

for false imprisonment by violence in the absence of “force capable of causing

physical pain or injury to another person.” Johnson, 130 S. Ct. at 1271 (emphasis

added). Nor has Martinez-Flores offered any cases in support of his theory that

false imprisonment by violence may be effected by means of violence against

property. We therefore conclude that false imprisonment by violence, Cal. Penal

Code § 237, is a crime of violence for the purposes of U.S.S.G. § 2L1.2(b)(1)(A).

      AFFIRMED.




                                          3
                                                                            FILED
United States v. Martinez-Flores, No. 11-50406                               AUG 17 2012

                                                                         MOLLY C. DWYER, CLERK
REINHARDT, Circuit Judge, dissenting:                                     U .S. C O U R T OF APPE ALS




      The majority holds that felony false imprisonment by violence under

California Penal Code §§ 236, 237 is categorically a “crime of violence” under

§ 2L1.2(b)(1)(A)(ii) of the United States Sentencing Guidelines (“U.S.S.G.”). To

be a crime of violence under the Guidelines, that offense must have “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). We have interpreted “physical force”

to mean “violent force – that is, force capable of causing physical pain or injury to

another person.” United States v. Villavicencio-Burruel, 608 F.3d 556, 561-62 (9th

Cir. 2010) (internal quotation marks and citation omitted) (emphasis added).

      False imprisonment by violence, as interpreted by the California courts, does

not categorically have as an element the use, attempted use, or threatened use of

violent force. “Violence” for purposes of false imprisonment is defined as “the

exercise of physical force used to restrain over and above the force reasonably

necessary to effect such restraint.” People v. Babich, 18 Cal. Rptr. 2d 60, 63 (Cal.

Ct. App. 1993). In People v. White, No. E031297, 2003 WL 21235557 (Cal. Ct.

App. May 28, 2003), the California Court of Appeal held that this “violence”

element could be satisfied by the act of locking a door. In that case, the defendant


                                           1
sexually assaulted a young girl while she was in his car; at some point during the

attack, he locked the doors using an electronic key button and the victim was

unable to manually open the doors. Id. at *1-*2. The defendant argued on appeal

that the evidence was insufficient to support his conviction for felony false

imprisonment by violence, but the California Court of Appeal disagreed, holding:

“Locking the SUV doors impeded the victim from making a quick escape and thus

constituted additional force beyond that reasonably necessary to restrain the

victim.” Id. at *2-*3. Notably, the court did not cite to the physical force used in

connection with the sexual assault to uphold the charge of false imprisonment. Nor

did it cite the totality of circumstances. Finally, it did not hold that the act of

locking the car doors constituted a threat of harm to the victim; it did not hold that

the defendant was guilty of felony false imprisonment by menace, rather than

violence. Instead, it plainly and unmistakably held that the simple unadorned act of

locking the car doors, and that act alone, constituted “violence” for the purpose of

false imprisonment, and that the defendant was thus guilty of felony false

imprisonment by violence. In short, the California court held that the act of locking

the doors constituted the “physical force . . . over and above the force reasonably

necessary to effect such restraint.” Babich, 18 Cal. Rptr. 2d at 63.

       That act, however, is not violent force “capable of causing physical pain or


                                             2
injury to another person.” Villavicencio-Burruel, 608 F.3d at 561-62 (internal

quotation marks and citation omitted). That is, the force used to lock the car doors

is not in itself capable of causing pain or injury to a person. (That it might lead to

further harms to the victim caused by other physical force used against her is a

different matter.) Felony false imprisonment by violence, therefore, as interpreted

by the California Court of Appeal in White, does not have “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).

      It will not do to say that because the case is one in which the underlying

crime involved the use of physical force against the victim for purposes of the

crime of rape, the California court could have found that the underlying force

constituted violence for purposes of false imprisonment. Maybe it could have, but

it didn’t. That was not what the California court held and whether or not it could

have done so is wholly irrelevant. The court clearly posed the question of whether

locking the doors to keep someone in the car, without more, constituted violence

for purposes of the crime of false imprisonment. It held that it did. Nothing more.

Nothing less.1


      1
       In a section entitled “Sufficiency of Evidence of Felony False
Imprisonment,” the court held:


                                            3
      All that Martinez-Flores need do to succeed on his challenge is “point to at

least one case in which the state courts applied the statute in the manner that he

posits.” United States v. Ruiz-Apolonio, 657 F.3d 907, 914 (9th Cir. 2011)

(emphasis added); see also Nunez v. Holder, 594 F.3d 1124, 1130 n.2 (9th Cir.

2010) (discussing that one case is sufficient). White represents that one case: in

White, the felony false imprisonment by violence statute was applied in a way that

does not meet the definition of “crime of violence” under the Guidelines. Whatever

the majority wishes that case had done, it held simply that locking the doors



      The narrow question here is whether there was sufficient evidence that
      defendant used violence over and above that force necessary to
      effectuate false imprisonment upon the victim. The prosecution argued
      defendant’s act of locking the SUV doors constituted additional force
      beyond that reasonably necessary to restrain the victim. The defendant
      argues this did not constitute additional force for purposes of convicting
      him of felony false imprisonment because the victim could manually
      unlock the SUV door.

      We conclude there was sufficient evidence of restraint over and above
      the force reasonably necessary to restrain the victim. Locking the SUV
      doors impeded the victim from making a quick escape and thus
      constituted additional force beyond that reasonably necessary to restrain
      the victim. The victim testified at trial that shortly after she got in the
      SUV, defendant locked the SUV doors with an electronic lock button on
      the driver’s side and, when she tried to unlock the door, she could not
      open it because the locks were “deep down inside”; “[t]here was no way
      I could open it.”

White, 2003 WL 21235557, at *3.

                                           4
constitutes violence. That does not meet the requirements of U.S.S.G. § 2L1.2(b). I

therefore dissent.




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