     Case: 11-50187    Document: 00511881786         Page: 1     Date Filed: 06/08/2012




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

                                                                           FILED
                                                                           June 8, 2012
                                      No. 11-50187
                                                                          Lyle W. Cayce
                                                                               Clerk
UNITED STATES OF AMERICA,

                                                  Plaintiff - Appellee
v.

IVETH NAJERA-MENDOZA, also known as Iveth Najera,

                                                  Defendant - Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas


Before GARZA, DENNIS, and HIGGINSON, Circuit Judges.
DENNIS, Circuit Judge:
        Iveth Najera-Mendoza pleaded guilty to one count of attempted illegal
reentry into the United States after having been deported, in violation of
8 U.S.C. § 1326, and one count of false personation, in violation of 18 U.S.C.
§ 1546(a), and was sentenced to concurrent terms of 46 months of incarceration.
She now appeals her sentence, contending that the district court erred in
applying a sixteen-level sentencing enhancement based on its conclusion that
her prior Oklahoma kidnapping conviction was a “crime of violence” under
§ 2L1.2(b)(1)(A)(ii) of the United States Sentencing Guidelines.1 We conclude
that the district court erred because the Oklahoma offense does not constitute


       1
          Najera-Mendoza also contends that under Apprendi v. New Jersey, 530 U.S. 466
(2000), 8 U.S.C. § 1324(b) unconstitutionally treats prior felony convictions as sentencing
factors rather than elements of the offense. However, she acknowledges that this argument
is foreclosed by Almendarez-Torres v. United States, 523 U.S. 224, 235 (1998), and she raises
the issue to preserve it for future Supreme Court review.
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                                   No. 11-50187

any of the enumerated offenses that are crimes of violence; nor does it have an
element of “physical force,” as that term was defined in Johnson v. United
States, 130 S. Ct. 1265 (2010), to mean “force capable of causing physical pain
or injury to another person,” id. at 1271. Thus, we VACATE Najera-Mendoza’s
sentence and REMAND to the district court for resentencing.


                                         I.
                                         A.
      “We review the district court’s characterization of a prior offense as a
crime of violence de novo.” United States v. Flores-Gallo, 625 F.3d 819, 821 (5th
Cir. 2010) (per curiam) (citing United States v. Sanchez-Ruedas, 452 F.3d 409,
412 (5th Cir. 2006)). We give controlling weight to the Sentencing Guidelines
commentary unless it is plainly erroneous or inconsistent with the Guidelines.
Id. (citing United States v. Velasco, 465 F.3d 633, 637 (5th Cir. 2006)).
      Section 2L1.2 of the Sentencing Guidelines prescribes a sixteen-level
increase to the defendant’s base offense level if the defendant was previously
deported after a conviction for a “crime of violence.” U.S.S.G. § 2L1.2(b)(1)(A)(ii);
see United States v. Miranda-Ortegon, 670 F.3d 661, 662 (5th Cir. 2012). “The
Guidelines commentary defines a crime of violence as (1) any of a list of
enumerated offenses, which include ‘kidnapping,’ or (2) ‘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.’” United States
v. Cervantes-Blanco, 504 F.3d 576, 578 (5th Cir. 2007) (quoting U.S.S.G. § 2L1.2
cmt. n.1(B)(iii)). Thus, for Najera-Mendoza’s Oklahoma kidnapping offense to
be a “crime of violence” under § 2L1.2, “it must be an offense which either
belongs to the list of enumerated offenses, or has as an element the use,
attempted use, or threatened use” of physical force. Flores-Gallo, 625 F.3d
at 821.

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                                  No. 11-50187

      In analyzing whether a prior offense qualifies as a crime of violence, this
court applies a “categorical inquiry” that “‘looks to the elements of the crime, not
to the defendant’s actual conduct in committing it.’” Miranda-Ortegon, 670 F.3d
at 663 (emphasis in original) (quoting United States v. Calderon-Pena, 383 F.3d
254, 257 (5th Cir. 2004) (en banc)). “[I]f the statute of conviction contains a
series of disjunctive elements, this court may look beyond the statute to certain
records made or used in adjudicating guilt to determine which subpart of the
statute formed the basis of the conviction.” United States v. Moreno-Florean, 542
F.3d 445, 449 (5th Cir. 2008); see also Miranda-Ortegon, 670 F.3d at 663 (“We
may take a modified categorical approach, permitting consultation of the
allegations in the charging instrument, if the statute of conviction has
disjunctive elements. But we may look beyond the elements and the fact of
conviction only for the limited purpose of ascertaining which of the disjunctive
elements the charged conduct implicated.” (footnote omitted)). The records we
will consider “are generally limited to the charging document, written plea
agreement, transcript of the plea colloquy, and any explicit factual findings by
the trial judge to which the defendant assented.” Moreno-Florean, 542 F.3d at
449 (internal quotation marks omitted).
      The parties in this case agree that Najera-Mendoza was convicted of
violating title 21, section 741 of the Oklahoma Statutes. That section provides:
      Any person who, without lawful authority, forcibly seizes and
      confines another, or inveigles or kidnaps another, with intent,
      either:

      First. To cause such other person to be confined or imprisoned in
      this state against the will of the other person; or

      Second. To cause such other person to be sent out of this state
      against the will of the other person; or




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                                    No. 11-50187

      Third. To cause such person to be sold as a slave, or in any way
      held to service against the will of such person . . . .
21 Okla. Stat. § 741. Since the statute has disjunctive elements, we may look to
the charging document “only for the limited purpose of ascertaining which of the
disjunctive elements the charged conduct implicated.” Miranda-Ortegon, 670
F.3d at 663. Najera-Mendoza acknowledges that she pleaded guilty to an
amended information which charged her with “forcibly seizing [the victim] . . .
and confining [him] in a residence . . . without lawful authority and with the
intent to cause [him] to be confined/imprisoned against his will.” In Oklahoma,
“[a] plea of guilty admits the facts pleaded in the Information.” Collins v.
Oklahoma, 521 P.2d 826, 828 (Okla. Crim. App. 1974). Thus, the elements of
Najera-Mendoza’s prior Oklahoma kidnapping offense are: “[W]ithout lawful
authority, forcibly seizes and confines another . . . with intent . . . [t]o cause such
other person to be confined or imprisoned against the will of the other person.”
21 Okla. Stat. § 741.
      We now turn to consider whether this offense meets the definition of
“crime of violence” under § 2L1.2 of the Guidelines by constituting the
enumerated offense of “kidnapping,” or by having as an element the use,
attempted use, or threatened use of “physical force.”


                                          B.
      We first agree with Najera-Mendoza that her Oklahoma kidnapping
offense does not constitute the enumerated offense of “kidnapping.”                   In
determining whether a prior state offense is one of the enumerated offenses,
“[s]tate-law labels do not control this inquiry because the [crime of violence]
enhancement incorporates crimes with certain elements, not crimes that happen
to be labeled ‘kidnapping’ . . . under state law.” Moreno-Florean, 542 F.3d at 449
(second alteration in original) (internal quotation marks omitted). Instead, we


                                          4
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                                        No. 11-50187

look to whether the elements of the offense of conviction satisfy the “generic,
contemporary meaning of kidnapping.” Id. (internal quotation marks omitted).
       In Moreno-Florean, this court held that the California offense of
kidnapping—which is substantially similar to the Oklahoma kidnapping offense
at issue here—did not meet the generic, contemporary definition of kidnapping.
Id. at 456.2 The panel held that the California offense was not the enumerated
offense of “kidnapping” because, even though the California offense required
force or the threat of force, it could be violated without proof of two elements that
are part of the generic, contemporary definition of kidnapping: (1) substantial
interference with the victim’s liberty, and (2) circumstances exposing the victim
to substantial risk of bodily injury or confinement as a condition of involuntary
servitude. Id. at 452-56. Similarly, the Oklahoma kidnapping offense at issue
here could be violated without proof of these two elements; and thus, it does not
meet the generic, contemporary definition of kidnapping.                      See id. at 456.
Accordingly, we conclude that Najera-Mendoza’s Oklahoma kidnapping offense
is not the enumerated offense of kidnapping under U.S.S.G. § 2L1.2.


                                               C.
       We also agree with Najera-Mendoza that her Oklahoma kidnapping
offense did not have as an element the use, attempted use, or threatened use of
“physical force.” In Johnson v. United States, 130 S. Ct. 1265 (2010), the
Supreme Court held that “the phrase ‘physical force’ means violent force—that


       2
         Compare the elements of the California kidnapping offense in Moreno-Florean, 542
F.3d at 454 (“‘Every person who forcibly, or by any other means of instilling fear, steals or
takes, or holds, detains, or arrests any person in this state, and carries the person into another
country, state, or county, or into another part of the same county, is guilty of kidnapping.’”
(quoting Cal. Penal Code § 207(a)), with the elements of Najera-Mendoza’s Oklahoma
kidnapping conviction, supra at 4 (“Any person who without lawful authority forcibly seizes
and confines another . . . with intent . . . [t]o cause such other person to be confined or
imprisoned against the will of the other person . . . .” (quoting 21 Okla. Stat. § 741)).

                                                5
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                                        No. 11-50187

is, force capable of causing physical pain or injury to another person.” 130 S. Ct.
at 1271 (emphasis in original). Because the Florida battery offense at issue in
Johnson included an element of force that could be “satisfied by any intentional
physical contact, no matter how slight,” the Court held that it lacked an element
of “physical force.” Id. at 1269-71 (emphasis and internal quotation marks
omitted).3
       Recently, in United States v. Miranda-Ortegon, 670 F.3d 661 (5th Cir.
2012), another panel of this court applied the Johnson definition of “physical
force” to hold that an Oklahoma assault and battery offense was not a crime of
violence because it lacked the necessary element of physical force. Id. at 663
(quoting Flores-Gallo, 625 F.3d at 823, in turn quoting Johnson, 130 S. Ct. at
1271). The court explained that even though the Oklahoma assault and battery
statute has an element of “force or violence,” that element could be satisfied by
“only the slightest touching.” Id. (internal quotation marks omitted). Thus, the
offense was not a crime of violence merely because it included as an element the
word “force.” Instead, the determinative issue was whether the amount of force
necessary to satisfy that element of the crime could only be satisfied by “force
capable of causing physical pain or injury to another person.” Id.
       Following Johnson and Miranda-Ortegon in the instant case leads us to
conclude that Najera-Mendoza’s Oklahoma kidnapping conviction lacks the
requisite element of physical force. The pertinent “force” element of Najera-
Mendoza’s Oklahoma kidnapping conviction is, “forcibly seizes and confines


       3
         Although Johnson addressed the definition of “violent felony” under the Armed Career
Criminal Act, 18 U.S.C. § 924(e), that term has the same definition as “crime of violence” in
U.S.S.G. § 2L1.2. Accordingly, in United States v. Flores-Gallo, 625 F.3d 819 (5th Cir. 2010),
this court adopted the Johnson definition of “physical force” for that same term in the
definition of “crime of violence.” Id. at 822-23 (“‘[P]hysical force’ in the context of defining a
‘crime of violence’ for the purposes of construing the Sentencing Guidelines requires ‘force
capable of causing physical pain or injury to another person.’” (quoting Johnson, 130 S. Ct. at
1271)).

                                                6
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                                       No. 11-50187

another,” 21 Okla. Stat. § 741. Although Oklahoma does not define “forcibly” by
statute, and no Oklahoma case that we are aware of defines this term within the
context of the state’s kidnapping statute, the common law definition of
kidnapping, caselaw interpreting other states’ kidnapping statutes, and
Oklahoma’s interpretation of “force” in other penal laws indicate that “forcibly”
can be satisfied by conduct other than the type of force stated in Johnson.
       Under the common law, the commission of kidnapping had to be “forcible,”
but did not require force capable of causing physical pain or injury; and in
Oklahoma, as elsewhere, it is the rule that “in construing a statute containing
words which have a fixed meaning at common law, and the statute nowhere
defines such words, that they will be given the same meaning they have at
common law.” Axhelm v. United States, 60 P. 98, 99 (Okla. 1900); see also
Johnson, 130 S. Ct. at 1270 (“[A] common-law term of art should be given its
established common-law meaning.”). The universally accepted definition of the
common-law offense of kidnapping is: “The forcible abduction or stealing away
of [a person] from [his] own country, and selling [him] into another.”4 In
discussing this definition, commentators have explained that such an offense
could be “forcible” without involving actual physical force, much less force
capable of causing physical pain or injury.5 Similarly, the commission of other


       4
        4 Wm. Blackstone, Commentaries on the Laws of England 219 (1769); see also 2 Joel
Prentiss Bishop, Commentaries on the Criminal Law § 750, at 427 (7th ed. 1882); Collier v.
Vaccaro, 51 F.2d 17, 19 (4th Cir. 1931).
       5
          See Bishop, supra, §§ 748-52, at 426-28 (“[K]idnapping is a false imprisonment . . .
aggravated by carrying of the person imprisoned to some other place,” and “there need be no
manual touch . . . in false imprisonment.” (internal quotation marks omitted)); 2 Charles E.
Torcia, Wharton’s Criminal Law §§ 206-07 (15th ed. 1994) (same); cf. Moody v. People, 20 Ill.
315, 318-19 (1858) (“The statute defines kidnapping to be the forcible abduction or stealing
away of a man, woman or child from his or her own country, and sending or taking him or her
into another. While the letter of the statute requires the employment of force to complete this
crime, it will undoubtedly be admitted by all that physical force and violence are not necessary
to its completion. . . . The crime is more frequently committed by threats and menaces than
by the employment of actual physical force and violence. If the crime may be committed

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                                         No. 11-50187

common law crimes, such as burglary, could be considered “forcible” without
involving any physical contact or violence.6 Therefore, the common-law meaning
of “forcible” supports the conclusion that the element of “forcibly” in Oklahoma’s
modern kidnapping statute encompasses lesser degrees of force than that
capable of causing physical pain or injury.
       Moreover, Oklahoma courts routinely look to other state laws and judicial
interpretations when construing its own statutes, see, e.g., Perry v. State, 853
P.2d 198, 201 (Okla. Crim. App. 1993); Steele v. State, 778 P.2d 929, 931 (Okla.
Crim. App. 1989); and courts in other states have interpreted “forcibly” or “force”
in their own states’ kidnapping statutes to not require actual physical contact,
or only the most minimal force. For instance, California’s kidnapping statute
uses the term “forcibly” just as Oklahoma’s does, see Cal. Penal Code § 207; and
the California Supreme Court has held that a kidnapping is forcible if
accomplished through inducing fear, i.e., “the force used against the victim need
not be physical.” People v. Majors, 92 P.3d 360, 363 (Cal. 2004) (internal
quotation marks omitted); see also People v. Hovarter, 189 P.3d 300, 326 (Cal.
2008) (“The movement is forcible where it is accomplished through the giving of
orders which the victim feels compelled to obey because he or she fears harm or
injury from the accused and such apprehension is not unreasonable under the
circumstances.” (internal quotation marks omitted)).                    The same is true of




without actual violence, by menaces, it would seem that any threats, fraud, or appeal to the
fears of the individual, which subject the will of the person abducted, and places such person
as fully under the control of the other, as if actual force were employed, would make the
offense as complete as by the use of force and violence.”).
       6
        See, e.g., Ducher v. State, 18 Ohio 308, 317 (1849) (“[A]t common law, force was always
implied in breaking into a house . . . . [Thus,] [w]hether the offender gain an entrance by open
violence or by deceiving the inmates and knocking at the door after the manner of a
peac[e]able citizen, if the intent be felonious, the law implies a forcible breaking of the barriers
erected for the security of the dwelling.” (citing 4 Blackstone, supra, 226)).

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                                         No. 11-50187

kidnapping statutes in Kansas,7 Massachusetts,8 and New Mexico.9 On the other
hand, we are unaware of a judicial interpretation of “force” or “forcibly” in a
definition of kidnapping that includes only force capable of causing physical pain
or injury. Thus, the interpretations of other kidnapping statutes lends further
support to our conclusion that minimal force or no actual physical force is
required to satisfy the “forcibly” element of kidnapping in Oklahoma.
       Finally, Oklahoma defines the term “force” in its other penal laws to
encompass any slight touching.10               Thus, the term “force” in other crime
definitions in Oklahoma includes degrees of force less than that capable of
causing physical pain or injury to another person. See Miranda-Ortegon, 670
F.3d at 663; United States v. Smith, 652 F.3d 1244, 1247 (10th Cir. 2011); United
States v. Cruz, No. 11-4212, 2012 WL 836135, at*4 (4th Cir. Mar. 14, 2012)


       7
         See State v. Tillery, 606 P.2d 1031, 1034 (Kan. 1980) (holding that “force” element of
state’s kidnapping statute “may be accomplished by using minimal force”).
       8
         See Commonwealth v. Boyd, 897 N.E.2d 71, 75 (Mass. App. Ct. 2008) (“[T]he elements
of the crime of kidnapping required the Commonwealth to prove beyond a reasonable doubt
that the defendant [inter alia] forcibly confined the victim . . . . Forcible conduct includes acts
of actual physical force or the display of potential force.” (citing Commonwealth v. Caracciola,
569 N.E.2d 774 (Mass. 1991), in which the Supreme Judicial Council of Massachusetts held
that the defendant’s pretending to be a police officer and threatening to arrest the victim
constituted “force”)).
       9
         See State v. Clark, 455 P.2d 844, 845-46 (N.M. 1969) (“‘Kidnaping is the unlawful
taking, restraining or confining of a person, by force or deception . . . . [We are not] persuaded
that ‘force’ should be construed to mean violent or deadly force, as might be suggested. It
could not have been the legislative intention to so limit the statute, for, many kidnappings are
accomplished by the use of only minimal force, as, for example, where a child is abducted.”).
       10
          See Miranda-Ortegon, 670 F.3d at 663 (“[T]he Oklahoma Court of Criminal Appeals
has held that ‘only the slightest touching is necessary to constitute the “force or violence”
element of battery.’” (quoting Steele, 778 P.2d at 931)); id. (“[T]he definition of ‘force’ in
[Oklahoma’s] uniform jury instructions for assault and battery offenses states: ‘Any touching
of a person regardless of how slight may be sufficient to constitute force.’” (quoting Okla. Jury
Inst. 4-28)); Steele, 778 P.2d at 931 (“[W]hen addressing the degree of force necessary to
constitute a robbery, the legislature has stated [that] the degree of force is immaterial.” (citing
21 Okla. Stat. § 793 (1981)); see also 21 Okla. Stat. § 793 (2002) (“When force is employed [to
commit a robbery] the degree of force employed is immaterial.” (footnote omitted)).

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                                   No. 11-50187

(unpublished). It comports, therefore, with Oklahoma statutory and decisional
law to apply this same definition of “force” to the term “forcibly” in the state’s
kidnapping statute. See Steele, 778 P.2d at 931 (Defining the element of “force”
in battery by looking to the definition of “force” in other Oklahoma penal laws:
“Adoption of the general rule that only the slightest force or touching is
necessary to constitute the requisite element of force is consistent with . . . other
statutory provisions regarding the definition of force.”); see also 25 Okla.
Stat. § 2 (“Whenever the meaning of a word or phrase is defined in any statute,
such definition is applicable to the same word or phrase wherever it occurs,
except where a contrary intention plainly appears.”). Thus, interpreting the
“forcibly” element of the Oklahoma offense of kidnapping to encompass any
amount of force—not just force capable of causing physical pain or injury—is
consistent with Oklahoma law.


                                         D.
      In sum, the elements of Najera-Mendoza’s Oklahoma kidnapping
conviction do not satisfy the generic, contemporary meaning of kidnapping; and
there is strong legal authority that a defendant may “forcibly” kidnap another
person under Oklahoma law without using “physical force” as defined by
Johnson, i.e., “force capable of causing physical pain or injury to another person.”
130 S. Ct. at 1271; see also Flores-Gallo, 625 F.3d at 822.                   Thus,
Najera-Mendoza’s Oklahoma kidnapping conviction does not satisfy either
definition of “crime of violence” under U.S.S.G. § 2L1.2. In determining whether
a prior offense is a crime of violence, we must apply a categorical approach,
which permits us to look only at the statutory elements of the offense, and not
at the defendant’s underlying conduct.        Moreno-Florean, 542 F.3d at 449.
Therefore, we conclude that this prior offense was not a crime of violence, and



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                                       No. 11-50187

that the district court erred in enhancing Najera-Mendoza’s sentence as if it
were.


                                             II.
        The dissent relies on the Sixth Circuit’s decision in United States v. Soto-
Sanchez, 623 F.3d 317 (6th Cir. 2010), to conclude that Najera-Mendoza’s
Oklahoma kidnapping offense includes an element of “physical force” because it
required “forcible seizure and confinement.” Dissent Op. at 5-6. However, that
opinion is unpersuasive because it fails to follow Johnson. In Soto-Sanchez, the
Sixth Circuit held that because the Michigan “false imprisonment kidnapping
offense . . . requires that the victim be imprisoned or confined ‘forcibly[,]’ [b]y its
clear terms, then, it ‘has as an element the use, attempted use, or threatened use
of physical force against the person of another.’” 623 F.3d at 325. That is the
exact analysis though that the Supreme Court rejected in Johnson; instead, the
Court held that to have an element of “physical force,” the state-law offense must
include an element that requires “force capable of causing physical pain or injury
to another person.” 130 S. Ct. at 1271. The Sixth Circuit did not cite or apply
Johnson in its perfunctory analysis that the Michigan offense included an
element of physical force.11 By contrast, our court in Miranda-Ortegon applied
the proper analysis, dictated by Johnson, and held that the inclusion of an
element labeled “force” did not render the Oklahoma statute at issue there a
crime of violence. 670 F.3d at 663-64. We are bound by this precedent of the
Supreme Court in Johnson and our court in Miranda-Ortegon, not the erroneous
analysis of the Sixth Circuit.



        11
          The Sixth Circuit cited Johnson only for the proposition that “[t]his Court is bound
by the Michigan Supreme Court’s interpretation of state law, including its determination of
the elements of a Michigan statute.” Soto-Sanchez, 623 F.3d at 324 (citing Johnson, 130 S. Ct.
at 1269).

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                                  No. 11-50187

      The dissent also reasons that Najera-Mendoza’s Oklahoma kidnapping
offense must encompass only physical force of the type specified in Johnson
because “Oklahoma separately criminalizes kidnapping, yet without a forcible
seizure and confinement requirement, if the kidnapping occurs through
inveigling.” Dissent Op. at 6. Thus, in the dissent’s view, the Oklahoma
kidnapping statute encompasses only two kinds of conduct: kidnapping
committed by inveiglement and kidnapping committed by violent force, viz., force
capable of causing physical pain or injury. But this overlooks the Supreme
Court’s explanation that there are types of force other than violent force.
Johnson, 130 S. Ct. at 1270 (recognizing that the element of “force” in the
common-law crime of battery could “be satisfied by even the slightest offensive
touching”); see also supra notes 5-9 (citing cases recognizing that an element of
“force” in the offense of kidnapping could be satisfied by minimal force). The
dissent’s interpretation of the Oklahoma statute would therefore lead to absurd
results by creating a lacuna between kidnapping by inveiglement and
kidnapping by violent force, viz., force capable of causing physical pain or injury.
Thus, for example, following the dissent’s view, child snatching would not
constitute kidnapping in Oklahoma because picking up a child from her stroller
or carrying a child away from a nursery does not require force capable of causing
physical pain or injury, nor does it involve inveigling. It is unsurprising that
other courts have rejected such a narrow construction of state kidnapping
statutes. See, e.g., State v. Clark, 455 P.2d 844, 846 (N.M. 1969) (“[We are not]
persuaded that ‘force’ should be construed to mean violent or deadly force, as
might be suggested. It could not have been the legislative intention to so limit
the statute, for, many kidnappings are accomplished by the use of only minimal
force, as, for example, where a child is abducted.”); see also supra notes 6-8. The
maxim that “[a]bsurd results are to be avoided,” e.g., McNeill v. United States,



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                                No. 11-50187

131 S. Ct. 2218, 2223 (2011) (internal quotation marks omitted), requires us to
reject the dissent’s view of Oklahoma’s kidnapping statute.


                                     III.
      For the foregoing reasons, we VACATE Najera-Mendoza’s sentence and
REMAND to the district court for resentencing.




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                                            No. 11-50187

HIGGINSON, Circuit Judge, dissenting.
        Defendant Iveth Najera-Mendoza pleaded guilty to a two-count indictment
charging her with attempting to reenter the United States unlawfully after
removal, in violation of 8 U.S.C. § 1326, and knowingly personating another in
immigration matters, in violation of 18 U.S.C. § 1546. At sentencing, the district
court enhanced Najera-Mendoza’s offense level by sixteen levels based on its
conclusion that Najera-Mendoza’s prior Oklahoma conviction for kidnapping was
a conviction for a crime of violence within the meaning of section
2L1.2(b)(1)(A)(ii) of the United States Sentencing Guidelines.1 Najera-Mendoza
challenges that conclusion, which we review de novo. See United States v.
Cervantes-Blanco, 504 F.3d 576, 578 (5th Cir. 2007). For the reasons that follow,
I would affirm Najera-Mendoza’s sentence.
        For violations of 8 U.S.C. § 1326, section 2L1.2(b)(1)(A)(ii) of the
Sentencing Guidelines provides for a sixteen-level increase to a defendant’s base
offense level when the defendant was previously deported following a conviction
for a felony that is a crime of violence. The Sentencing Guidelines commentary,
in turn, defines a crime of violence as (1) any offense in a list of enumerated
offenses, which includes “kidnapping,” or (2) “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
We use “different tests when analyzing whether a particular offense amounts to
a [crime of violence], and the test used depends on whether the offense is an


        1
         “If the defendant previously was deported, or unlawfully remained in the United
States, after . . . a conviction for a felony that is . . . a crime of violence . . . increase by 16 levels
if the conviction receives criminal history points under Chapter Four . . . .” U.S.S.G. §
2L1.2(b)(1)(A)(ii).
        2
         The commentary to § 2L1.2 is binding and is equivalent in force to the Guidelines
language itself, as long as the language and the commentary are not inconsistent. United
States v. Rayo-Valdez, 302 F.3d 314, 318 n.5 (5th Cir. 2002) (internal citations omitted).

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                                        No. 11-50187

enumerated one or has physical force as an element.” United States v. Moreno-
Florean, 542 F.3d 445, 449 (5th Cir. 2008) (citing United States v. Mendoza-
Sanchez, 456 F.3d 479, 481-82 (5th Cir. 2006)).
       “In determining whether the [state] crime at issue here is the enumerated
offense of ‘kidnapping,’ we look to the ‘generic, contemporary’ meaning of
kidnapping, employing a ‘common sense approach’ that looks to the Model Penal
Code, the LaFave and Scott treatises, modern state codes, and dictionary
definitions.” United States v. Iniguez-Barba, 485 F.3d 790, 791 (5th Cir. 2007)
(internal citations omitted). “When comparing the state conviction with the
generic, contemporary meaning of the crime, we examine the elements of the
statute of conviction rather than the specifics of the defendant’s conduct. We
look only to the particular subdivision of the statute under which the defendant
was convicted.” United States v. Fierro-Reyna, 466 F.3d 324, 327 (5th Cir. 2006)
(citing United States v. Fernandez-Cusco, 447 F.3d 382, 385 (5th Cir. 2006)).3
       “In determining whether an offense has as an element the use, attempted
use, or threatened use of physical force against the person of another, this court
uses the categorical approach set forth in Taylor v. United States, 495 U.S. 575,
600-02 (1990), and examines the elements of the offense, rather than the facts
underlying the conviction.” Mendoza-Sanchez, 456 F.3d at 482.
       Importantly in this case, when considering whether an offense is an
enumerated one or has physical force as an element, if the statute of conviction
contains a series of disjunctive elements, this court may look beyond the statute
to certain records made or used in adjudicating guilt to determine which subpart

       3
         Under current law, state-law designations do not control this inquiry because “[t]he
crime-of-violence enhancement incorporates crimes with certain elements, not crimes that
happen to be labeled ‘kidnapping’ . . . under state law.” United States v. Gonzalez-Ramirez, 477
F.3d 310, 313 (5th Cir. 2007). “‘When the statute of conviction encompasses prohibited
behavior that is not within the plain, ordinary meaning of the enumerated offense,’ the
conviction is not a crime of violence as a matter of law.” Fierro-Reyna, 466 F.3d at 327 (quoting
United States v. Izaquirre-Flores, 405 F.3d 270, 276-77 (5th Cir. 2005)).

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                                     No. 11-50187

of the statute formed the basis of the conviction. United States v.
Mungia-Portillo, 484 F.3d 813, 815 (5th Cir. 2007). In this case, the parties
agree that Najera-Mendoza’s kidnapping conviction occurred pursuant to
Oklahoma Statute title 21, section 741, which defines kidnapping disjunctively
as:
                Any person who, without lawful authority, forcibly
                seizes and confines another, or inveigles or kidnaps
                another, with intent, either:

                First. To cause such other person to be confined or
                imprisoned in this state against the will of the other
                person; or

                Second. To cause such other person to be sent out of
                this state against the will of the other person; or

                Third. To cause such person to be sold as a slave, or in
                any way held to service against the will of such person
                ....

21 OKLA. STAT. ANN. § 741. Since the statute contains several disjunctive
elements, we look to the charging document to see which subpart formed the
basis of the conviction in order to classify it as a crime of violence. See Mungia-
Portillo, 484 F.3d at 815.
        On November 18, 2008, Oklahoma filed a Second Amended Information
charging Najera-Mendoza with kidnapping, “on or about the 4th day of May,
2008, by forcibly seizing R.G. from the City of Oklahoma City, Oklahoma
County, Oklahoma, and confining R.G. in a residence located at 310 E. 5th
Street, City of Hennessey, Kingfisher County, Oklahoma, without lawful
authority and with the intent to cause R.G. to be confined/imprisoned against his
will . . . .”
        On April 16, 2009, Najera-Mendoza pleaded guilty to violating 21 OKLA.
STAT. ANN. § 741. In Oklahoma, “[a] plea of guilty admits the facts pleaded in

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                                        No. 11-50187

the Information.” Collins v. Oklahoma, 521 P.2d 826, 828 (Okla. Crim. App.
1974).     Accordingly, through reference to the charging document and the
subsequent guilty plea, the statute of conviction can be narrowed to: “Any person
who, without lawful authority, forcibly seizes and confines another . . . with
intent . . . [t]o cause such other person to be confined or imprisoned against the
will of the other person . . . .”
       We have not previously addressed whether a kidnapping offense that
explicitly requires not only a showing of forcible seizure and forcible
confinement, but also a state of mind to confine the kidnapped person against
that victim’s will, satisfies the “use of physical force” element for §
2L1.2(b)(1)(A)(ii) crime of violence enhancement purposes.4                       A review of
Oklahoma caselaw provides no decisive guidance as to whether forcibly seizing
and confining, with intent to confine against the victim’s will, necessarily
equates to physical force, yet our court, applying Supreme Court law, has made
clear that physical force in this context means “violent force–that is, force
capable of causing physical pain or injury to another person.” See United States
v. Flores-Gallo, 625 F.3d 819, 823 (5th Cir. 2010) (“‘physical force’ in the context
of defining a ‘crime of violence’ for purposes of construing the Sentencing




       4
         In United States v. Moreno-Florean, 542 F.3d 445 (5th Cir. 2008), we considered a
kidnapping statute from California that also contained the word “forcibly.” Id. at 449-50.
Precisely because we were unable to narrow the statute of conviction through reference to the
guilty plea and the abstract of judgment to one involving force, we were required to consider
“‘whether the least culpable act constituting a violation of that statute constitutes ‘kidnapping’
for the purposes of U.S.S.G. § 2L1.2.” Id. at 452 (quoting Gonzalez-Ramirez, 477 F.3d at 315-
316). Because kidnapping pursuant to Cal. Penal Code § 207(a), with all its disjunctive
elements, could be accomplished without committing the offense “forcibly,” we held that the
defendant’s conviction did not satisfy the “use of physical force” element of U.S.S.G. § 2L1.2
under the categorical approach. Id. Opposite to Moreno-Florean, however, through reference
to the charging document and the subsequent guilty plea, we are able to narrow Najera
Mendoza’s statute of conviction to a forcible seizure and confinement, with intent to confine
against the victim’s will, as distinct from kidnapping through inveiglement.

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                                   No. 11-50187

Guidelines requires ‘force capable of causing physical pain or injury to another
person.’”) (quoting Johnson v. United States, 130 S.Ct. 1265, 1271 (2010)).
      Needless to say, every forcible seizure and forcible confinement kidnapping
prosecution reported in Oklahoma caselaw involves physical force, indeed, force
that is physical, force that is more than minimal, and force that is capable of
pain and injury, hence violent under any conception of violence. Tragically, too
many involve rape and murder. Perhaps more instructively, no forcible seizure
and forcible confinement kidnapping prosecution reported in Oklahoma caselaw
involves force that is a mere slight touch-and-take, say of an infant too young to
understand its circumstance, which some might conceive to be incapable of
causing pain or injury. Perhaps because of this reason—the incongruity of
declaring forcible confinement non-forceful—the Sixth Circuit recently held that
Michigan’s nearly identical kidnapping statute has as an element of the offense
“the use, attempted use, or threatened use of physical force against another.”
In United States v. Soto-Sanchez, 623 F.3d 317 (6th Cir. 2010), the court was
presented with an older version of Michigan’s kidnapping statute, which
criminalized “forcibly confining or imprisoning any other person within the state
against his will[,]” if done wilfully, maliciously, and without lawful authority. Id.
at 323-24 (citing People v. Wesley, 365 N.W.2d 692, 694-95 (Mich. 1984) and
People v. Jaffray, 519 N.W.2d 108, 113 (Mich. 1994)).           The Sixth Circuit
recognized that the Michigan and Oklahoma kidnapping statutes, unlike many
other states’ kidnapping statutes, permit the forcible confinement of the victim
without any other aggravating factors to be sufficient for a charge of kidnapping.
Id. at 323-24. Nevertheless, the Sixth Circuit concluded:
             The false imprisonment kidnapping offense under §
             750.349, however, requires that the victim be
             imprisoned or confined “forcibly.” By its clear terms,
             then, it “has as an element the use, attempted use, or
             threatened use of physical force against the person of


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                                        No. 11-50187

               another.” See U.S.S.G. § 2L1.2 cmt. n. 1(B)(iii). In this
               way, it still qualifies as a crime of violence subjecting
               [the defendant] to a sixteen-level enhancement to his
               offense level under the residual clause to the definition
               of “crime of violence” in § 2L1.2. See id.

Id. at 325 (footnote omitted).
       I find this conclusion strong and forcible and applicable to Najera-
Mendoza’s sentencing and specifically her prior kidnapping conviction as limited
to the Section § 741's forcible seizure and confinement subdivision, coupled with
an intent to confine against the victim’s will. I think this conclusion is reinforced
by the fact that Oklahoma separately criminalizes kidnapping, yet without a
forcible seizure and confinement requirement, if the kidnapping occurs through
inveigling. Oklahoma’s criminal pattern jury instructions and caselaw explain
that kidnapping through inveiglement comprehends takings of others through
trickery, inclusive of minimal physical force seizures of other people. Oklahoma
Uniform Jury Instructions - Criminal § 4-110 (2010), Committee Comments
(citing Ratcliff v. State, 289 P.2d 152 (Okla. Crim. App. 1955) (12-year-old girl
enticed into a car and held there by a man whom she thought to be a friend)).
Najera-Mendoza’s guilty plea to kidnapping, again, we properly must discern,
was to Oklahoma’s subdivision which requires a forcible seizure and
confinement, coupled with the intent to confine against a victim’s will.
Accordingly, I would hold that the district court did not err in determining that
Najera-Mendoza’s prior conviction for kidnapping was a crime of violence for
purposes of sentence enhancement pursuant to U.S.S.G. § 2L1.2(b)(1)(A)(ii).5

       5
         Because I conclude that Najera-Mendoza’s kidnapping conviction has “as an element,
the use, attempted use, or threatened use of physical force against the person of another,” as
is required by the catch-all prong of the crime of violence definition, I do not reach whether the
conviction matches Section 2L1.2’s enumerated offense of kidnapping. To be sure, Oklahoma’s
kidnapping statute comprehends less variability even than federal kidnapping under 18 U.S.C.
§ 1201(a), but state kidnapping convictions bedevil sure analysis about when kidnapping is
kidnapping under the enumerated crime of kidnapping as shown by the complexity of
outcomes described in Moreno-Florean. 542 F.3d at 452-56.

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