                              PUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                             No. 14-4249


UNITED STATES OF AMERICA,

                Plaintiff − Appellee,

           v.

MARLON FLORES−GRANADOS,

                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      wrote   the
opinion, in which Judge King and Judge Duncan joined.


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 single-

count    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     a       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 second-

degree 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 second-

degree 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    Security’s

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 16-

level 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 8-

level enhancement instead. After argument from both parties, the

district   judge    agreed   with   the   government    that    the    16-level

enhancement   was    proper,   finding     that   defendant’s        conviction

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

of violence under the Guidelines. The court stated that:



                                      3
     [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,     a    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     conviction      receives       criminal      history       points.

U.S.S.G.     § 2L1.2(b)(1)(A)(ii).          The    application       notes     define    a

crime   of   violence     as   any    of    a    list    of   enumerated       offenses,

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

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


                                            4
force    against    the     person    of   another.”       U.S.S.G.   §   2L1.2

Application Notes 1(B)(iii).          Flores-Granados contends on appeal

that the district court erred in finding his prior conviction in

North    Carolina   qualified    as   a    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 court’s 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)).



                                       5
       When        considering      whether          a      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       a    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   statute’s      elements       are    divisible,         there       are    no

Shepard-approved        documents    present          in     the    record.       A    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   court’s      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        contends         that     although         the

                                           8
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   Carolina     statute   under      which   Flores-Granados    was

convicted     with   the   “generic,        contemporary   meaning”   of   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.] 14-
            43.12 . . . 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.     §    14-39,     "kidnapping      can     be   just    as   effectively

accomplished         by   fraudulent     means     as     by    the   use   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     offense        is    the    unlawful     confinement,          restraint     or

removal   of     a    human    being       for    a   certain    proscribed         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 [§ 14-

39], 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

Carolina’s       statute       sweeps       more       broadly     than       the    generic

definition of kidnapping because it can be accomplished by fraud

or    trickery       alone    and    it     does      not    include     as    an    element

“substantial         interference          with       the     victim’s        liberty”     or

                                                 11
“circumstances exposing the victim to substantial risk of bodily

injury or confinement as a condition of involuntary servitude.”

Appellant’s Reply Br. at 5-6 (quoting United States v. Najera-

Mendoza, 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     a    crime     of

violence.

                                       B.

       The    elements    necessary        to    the    generic       definition      of

kidnapping     present    a     question    of    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       include       “(1)     an    act     of

                                       12
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    a   parent       or    guardian,         (3)   either    for      a    specific

nefarious         purpose     or     with     a    similar        element      of    heightened

intent,      or    (4)   in     a    manner       that       constitutes       a     substantial

interference with the victim’s liberty. Here, because the North

                                                  13
Carolina    statute       requires    a    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 MPC’s definition of kidnapping, which

requires unlawful removal of an individual “from his place of

residence    or     business,    or    a    substantial    distance   from   the

vicinity    where    he   is   found,”     or   unlawful   confinement   “for   a

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. Gonzalez-

Ramirez, 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    a    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 victim’s 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,    twenty-one      state      statutes,         including       North       Carolina's,

define    kidnapping         as   unlawful         removal    or     confinement        for    a



                                              15
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   a   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



       2
        See ARIZ. REV. STAT. ANN. § 13-1304; ARK. CODE ANN. § 5-11-
102(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. § 14-

39(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 § 35-
42-3-2 (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

Carolina’s specific purposes do not track exactly the specific

nefarious purposes of the MPC. See Appellant’s Reply Br. at 9-

10. However, the categorical approach does not require us to

match up the language word for word between the statute and the

generic     definition.        Taylor   requires     only     that     the    statutory

definition       “substantially          corresponds”         with      the      generic

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

at   602.    Further,     we    consider    whether      there    is    “a    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      a   substantiality          requirement      in      addition      to     any

heightened        intent        requirement.       We      disagree.          While     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    victim’s]

movement in such a manner as to interfere substantially with the

person’s 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       a   specific    nefarious

purpose and a requirement of substantiality are mandatory for

the offense to qualify as kidnapping. 8                       Thus, we think, that

where      nefarious      purposes   are    required      –   as   they   are   here   -


       7
         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. §§ 707-
700, -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        victim’s      liberty”      or     “circumstances

exposing the victim to substantial risk of bodily injury, or

confinement      as   a   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    a

substantiality requirement to determine if it was too broad to

be within the generic definition of kidnapping.

     Contrary to defendant’s view, the Fifth Circuit cases fit

nicely with our holding today. In Cervantes-Blanco, the Colorado

statute,       unlike     North       Carolina’s,         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 Moreno-

Florean, 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 Carolina’s is not a bare, two-element statute. The Sixth

Circuit’s 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   a    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.                     See Gonzalez-Ramirez,

477   F.3d    at    319    (“Tennessee’s       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        substantial        risk      of    injury       or     confinement         as    a

condition          of    servitude”           are     sufficient          for        the    New    York

kidnapping statute to be within the generic definition).

      Our         holding       is     thus      consistent            with        those    of    other

circuits.         At    least       one    aggravator        is    required.          But    where      an

element of substantiality is present, the nefarious purposes may

not     be    necessary.            See    Gonzalez-Ramirez,              477        F.3d    at    319;

Iniguez-Barba,            485       F.3d    at      792.    And        this    conclusion         holds

equally      true       in    the     inverse.            Where    a    nefarious          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    fraud,       a     statute       must     contain          as    an     element      an

additional         aggravating            factor     such     as       nefarious         purposes       or

substantial interference with the victim’s liberty, but need not

require both.

      The     laws       of     the    states       support        this       conclusion.         Thirty

state     statutes           include       either     a     substantiality            component         or

specific nefarious purposes as                           elements. 9 Eleven              and the MPC


      9
         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,       683     F.3d     at    630    (finding      conviction       under

Oklahoma   statute         not   within      generic    definition);        De     Jesus

Ventura,   565      F.3d    at   877    (finding     Virginia      statute       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. §§ 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; WYO. STAT. ANN. § 6-2-
201.
      10
         See ARIZ. REV. STAT. §§ 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); 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    a    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       a      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    a     specific          nefarious    purpose,       it

proscribes criminal activity that is well within the generic

definition      of      kidnapping         and    thus     constitutes           a    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
