The statute includes as an aggravated felony “an offense described in § § 875, 876, 877, or 1202 of title 18, United States Code (relating to the demand for or receipt of ransom).”[826]  Since this definition specifically refers to several federal statutes, a state conviction must have identical elements to one of these federal statutes, or all the conduct encompassed by the minimum conduct required to violate the state statute must fall within the federal statute, for a state conviction to be considered an aggravated felony under this theory.

 

The offenses punished under the listed statutes include demands for money or property through kidnapping, extortion,[827] threats of violence to persons or property, threats to a person’s reputation, and threats to falsely accuse another of a crime.

 

                Note that in the illegal re-entry sentencing context, a “kidnapping” conviction can result in a 16-level increase, even if it is not an aggravated felony,[828] because kidnapping is specifically included in the sentencing guidelines definition of “crime of violence.”  In the sentencing context “kidnapping” is not defined by reference to federal statutes, and is therefore subject to a “generic definition” analysis.[829]  Therefore, the aggravated felony and sentencing definitions of “kidnapping” may not include all the same offenses.

[826] INA § 101(a)(43)(H), 8 U.S.C. § 1101(a)(43)(H).

[827] 18 U.S.C. § 1951 defines “extortion” as: “the obtaining of property from another, with his consent, induced by wrongful use of actual or threatened force, violence, or fear, or under the color of official right.”

[828] U.S.S.G. § 2L1.2(b)(1)(A) (2006).

[829] United States v. Gonzalez-Ramirez, 477 F.3d 310 (5th Cir. Jan. 30, 2007) (Tennessee conviction for violation of Tenn. Code Ann. § 39-13-303 [“false imprisonment . . . (1) [u]nder circumstances exposing the other person to substantial risk of bodily injury; or (2) [w]here the confinement of another is in a condition of involuntary servitude] meets generic definition of “kidnapping,” [adopting model penal code definition] for purposes of the “crime of violence” definition used in enhancing a sentence upon illegal re-entry prosecution).  See § 19.9, supra.

Fifth Circuit

AGGRAVATED FELONY - KIDNAPPING
United States v. Cervantes-Blanco, 504 F.3d 576 (5th Cir. Oct. 12, 2007) (Colorado conviction for attempted second-degree kidnapping, in violation of C.R.S. 18-3-302(1), is not a crime of violence for illegal re-entry sentencing purposes; the generic definition of kidnapping requires (1) knowing removal or confinement, (2) substantial interference with the victim's liberty, and (3) force, threat, or fraud, while the Colorado kidnapping statute does not require a substantial interference with the victims liberty), following United States v. Iniguez-Barba, 485 F.3d 790, 791-93 (5th Cir. 2007).

AGGRAVATED FELONY - CRIME OF VIOLENCE - KIDNAPPING
United States v. Iniguez-Barba, ___ F.3d ___, 2007 WL 1207046 (5th Cir. April 25, 2007) (per curiam) (New York conviction for kidnapping in the second degree, in violation of New York Penal Law 135.20, was a "crime of violence" under U.S.S.G. 2L1.2. for purposes of 16-level enhancement of illegal reentry sentence, even though the statute does not require the kidnapping be conducted with a specific intent), following United States v. Gonzalez-Ramirez, 477 F.3d 310, 317 (5th Cir. 2007) (Tennessee conviction of "kidnapping" was a crime of violence under U.S.S.G. 2L1.2, for purposes of 16-level enhancement of illegal reentry sentence, even though the Model Penal Code requires a specific purpose for an act to be "kidnapping" - such as a desire for ransom, an intent to facilitate another felony or flight, etc. - since the generic, contemporary meaning of kidnapping does not include such a purpose).

AGGRAVATED FELONY - KIDNAPPING
United States v. Iniguez-Barba, ___ F.3d ___, 2007 WL 1207046 (5th Cir. April 25, 2007) (per curiam) (finding violation of a statute requiring as elements: (1) knowing removal or confinement; (2) substantial interference with the victim's liberty; and (3) force, threat, or fraud, or, if the victim is incompetent or under age thirteen, lack of consent from the person responsible for the general supervision of the victim's welfare, to be sufficient to qualify as "kidnapping" for purposes of meeting the "crime of violence" definition under U.S.S.G. 2L1.2; a "specific purpose" such as a desire for ransom, an intent to facilitate another felony or flight, etc. is not required). See also United States v. Gonzalez-Ramirez, 477 F.3d 310 (5th Cir.2007).

AGGRAVATED FELONY - KIDNAPPING - FALSE IMPRISONMENT
United States v. Iniguez-Barba, ___ F.3d ___, 485 F.3d 790 (5th Cir. April 25, 2007) (per curiam) (finding violation of a statute requiring as elements: (1) knowing removal or confinement; (2) substantial interference with the victim's liberty; and (3) force, threat, or fraud, or, if the victim is incompetent or under age thirteen, lack of consent from the person responsible for the general supervision of the victim's welfare, to be sufficient to qualify as "kidnapping" for purposes of meeting the "crime of violence" definition under U.S.S.G. 2L1.2; a "specific purpose" such as a desire for ransom, an intent to facilitate another felony or flight, etc. is not required; the court noted that just because a state labels an offense "false imprisonment" does not mean it is not "kidnapping" if it otherwise meets the elements listed above). See also, United States v. Gonzalez-Ramirez, 477 F.3d 310 (5th Cir.2007).

Sixth Circuit

AGGRAVATED FELONY " CRIME OF VIOLENCE " ATTEMPTED KIDNAPPING
United States v. Soto-Sanchez, 623 F.3d 317 (6th Cir. Oct. 5, 2010) (Michigan conviction of attempted kidnapping, in violation of M.C.L.A. 750.349, constituted a crime of violence under U.S.S.G. 2L1.2(b)(1)(A), for illegal re-entry sentencing purposes, since all six offenses punished by the kidnapping statute either fall within the generic, contemporary meaning of kidnapping or have an element involving the use of force).

Ninth Circuit

AGGRAVATED FELONY - CRIME OF VIOLENCE - KIDNAPPING
Delgado-Hernandez v. Holder, 581 F.3d 1059 (9th Cir. Sept. 9, 2009) (California conviction of kidnapping, in violation of California Penal Code 207(a), constitutes a crime of violence under 18 U.S.C. 16(b), and is thus an aggravated felony under INA 101(a)(43)(F), 8 U.S.C. 1101(a)(43)(F); kidnapping inherently involves a direct confrontation with a victim who is forced or frightened into being moved involuntarily, which creates a substantial risk of the use of force). NOTE: This decision seems to ignore a form of kidnapping, explicit in the statute, that would not involve a risk of force: "For purposes of those types of kidnapping requiring force, the amount of force required to kidnap a resisting infant or child is the amount of physical force required to take and carry the child away a substantial distance for an illegal purpose or intent." California Penal Code 207(e).

DC Circuit

AGGRAVATED FELONY - KIDNAPPING - GENERIC DEFINITION
United States v. Ventura, 565 F.3d 870 (D.C. Cir. May 15, 2009) (generic definition of "kidnapping," under Guidelines, requires "(1) an act of restraining, removing, or confining another; and (2) an unlawful means of accomplishing that act [i.e., by force] . . . . The most common approach defines kidnapping to include [in addition] a particular nefarious purpose. And the majority approach requires some kind of heightened intent beyond the mere intent to restrain the victim's liberty. Most critically, a substantial majority of jurisdictions-forty-four out of fifty-two-require some additional element of intent or severity.").