United States v. Abeu Gonzalez-Perez, A.K.A. Oscar Ortiz-Garcia, 472 F.3d 1158 (9th Cir. 2007). · Go Syfert
United States v. Abeu Gonzalez-Perez, A.K.A. Oscar Ortiz-Garcia, 472 F.3d 1158 (9th Cir. 2007). Cases Citing This Book View Copy Cite
46 citation events (46 in the last 25 years) across 6 distinct courts.
Treatment trajectory · 2007 → 2026 · click a year to view as-of
2007 2016 2026
Cited for
At page 1161 Determining if false imprisonment constitutes a crime of violence12 citing cases“encompasses, at a minimum, the concept of a 'nefarious purpose' motivating restriction of a victim's liberty”3 citing courts quote it · 11 listed here
  • United States v. Florentino Marquez-Lobos, No. 10-10470 (9th Cir. Sept. 21, 2012).published
    In United States v. Gonzalez-Perez, 472 F.3d 1158, 1161 (9th Cir. 2007), we held that the generic definition of kidnap- ping “encompasses, at a minimum, the concept of a ‘nefarious purpose’ motivating restriction of a victim’s liberty” in…
  • United States v. Florentino Marquez-Lobos, 683 F.3d 1061 (9th Cir. 2012).published
    In United States v. Gonzalez-Perez, 472 F.3d 1158, 1161 (9th Cir.2007), we held that the generic definition of kidnapping “encompasses, at a minimum, the concept of a ‘nefarious purpose’ motivating restriction of a victim’s liberty” in add…
  • United States v. Marquez-Lobos, 697 F.3d 759 (9th Cir. 2012).published
    In United States v. Gonzalez-Perez, 472 F.3d 1158, 1161 (9th Cir.2007), we held that the generic definition of kidnapping “encompasses, at a minimum, the concept of a ‘nefarious purpose’ motivating restriction of a victim’s liberty” in add…
  • United States v. Soto-Sanchez, 623 F.3d 317 (6th Cir. 2010).published
    In United States v. Gonzalez-Perez, 472 F.3d 1158, 1161 (9th Cir.2007), the Ninth Circuit held that Florida's false imprisonment statute does not constitute generic kidnapping.
  • United States v. Antonio-Cruz, 262 F. App'x 825 (9th Cir. 2008).unpublished
    See Taylor v. United States, 495 U.S. 575, 598 , 110 S.Ct. 2143 , 109 L.Ed.2d 607 (1990); United States v. Gonzalez-Perez, 472 F.3d 1158, 1161 (9th Cir.2007). .
  • United States v. Robert Vederoff, 914 F.3d 1238 (9th Cir. 2019).published
    See United States v. Gonzalez-Perez, 472 F.3d 1158, 1161 (9th Cir. 2007); see also United States v. Esparza-Herrera, 557 F.3d 1019 , 1022-25 (9th Cir. 2009) (defining the generic offense of “aggravated assault” for the purposes of U.S.S.G.…
  • United States v. Rosales-Bruno, 676 F.3d 1017 (11th Cir. 2012).published
    (holding that the district court erred in applying a sixteen-level enhancement because "Florida’s false imprisonment statute ... does not constitute a categorical crime of violence for the purposes of applying U.S.S.G. §…)
  • United States v. De Jesus Ventura, 565 F.3d 870 (D.C. Cir. 2009).published
    See United States v. Gonzalez-Perez, 472 F.3d 1158, 1161 (9th Cir.2007).
  • United States v. Fernandez-Serrano, 327 F. App'x 9 (9th Cir. 2009).unpublished 2 cites
    See United States v. Gonzalez-Perez, 472 F.3d 1158, 1161 (9th Cir. 2007).
  • United States v. Mendoza-Granades, 259 F. App'x 987 (9th Cir. 2007).unpublished
    (holding that the district court “reasonably relied on the facts that Gonzalez-Perez’s former co-defendant was processed under a ‘fast-track’ procedure, and was charged with violating a different statute to explain any d…)
Show 1 more citing case
  • United States v. Marlon Flores-Granados, 783 F.3d 487 (4th Cir. 2015).published
    (Because the “Florida false imprisonment statute contains no nefarious purpose element whatsoever ... [it] does not conform to the generic, contemporary definition of kidnapping.)
At page 1160 Determining crime of violence under sentencing guidelines5 citing cases“kidnapping in its generic sense.”2 citing courts quote it
  • United States v. Florentino Marquez-Lobos, 683 F.3d 1061 (9th Cir. 2012).published
    In United States v. Gonzalez-Perez, 472 F.3d 1158, 1161 (9th Cir.2007), we held that the generic definition of kidnapping “encompasses, at a minimum, the concept of a ‘nefarious purpose’ motivating restriction of a victim’s liberty” in add…
  • United States v. Marquez-Lobos, 697 F.3d 759 (9th Cir. 2012).published
    In United States v. Gonzalez-Perez, 472 F.3d 1158, 1161 (9th Cir.2007), we held that the generic definition of kidnapping “encompasses, at a minimum, the concept of a ‘nefarious purpose’ motivating restriction of a victim’s liberty” in add…
  • United States v. Luis Narvaez-Gomez, AKA Manuel Gomez-Feliz, 489 F.3d 970 (9th Cir. 2007).published
    United States v. Gonzalez-Perez, 472 F.3d 1158, 1160 (9th Cir.2007).
  • United States v. Narvaez-Gomez, No. 05-50501 (9th Cir. June 5, 2007).published
    United States v. Gonzalez- Perez, 472 F.3d 1158, 1160 (2007).
  • United States v. Bell, 158 F. Supp. 3d 906 (N.D. Cal. 2016).published
    (same, with respect to U.S.S.G. § 2L1.2)
At page 1159 Defining crime of violence for sentencing enhancement3 citing cases
At page 1162 Analyzing co-defendant's sentence under 3553(a)(6)4 citing casesanalyzing disparate sentence of co-defendant under 3553(a)(6) and concluding that the disparity was warranted because the co-defendant “was processed under a ‘fast-track’ procedure, and was charged with violating a different statute2 citing courts put it this way · 3 listed here
  • United States v. Jovani Felix-Lopez, 358 F. App'x 797 (9th Cir. 2009).unpublished
    “In the absence of a clear expression to the contrary, we assume that the district court is aware of its discretionary authority to depart.” United States v. Gonzalez-Perez, 472 F.3d 1158, 1162 (9th Cir.2007).
  • United States v. Carter, 560 F.3d 1107 (9th Cir. 2009).published 2 cites
    (analyzing disparate sentence of co-defendant under 3553(a)(6) and concluding that the disparity was warranted because the co-defendant “was processed under a ‘fast-track’ procedure, and was charged with violating a diff…)
  • United States v. Navarro-Marin, 264 F. App'x 661 (9th Cir. 2008).unpublished
    See United States v. Gonzalez-Perez, 472 F.3d 1158, 1162 (9th Cir.2007).
Retrieving the full opinion text from the archive…
UNITED STATES of America, Plaintiff-Appellee,
v.
Abeu GONZALEZ-PEREZ, A.K.A. Oscar Ortiz-Garcia, Defendant-Appellant
05-10693.
Court of Appeals for the Ninth Circuit.
Jan 10, 2007.
Published opinion
472 F.3d 1158
2007 U.S. App. LEXIS 441
2007 WL 60388
Jon M. Sands, Federal Public Defender, Tracy Friddle, Asst. Federal Public Defender (argued), Phoenix, AZ, for the defendant-appellant., Paul K. Charlton, United States Attorney, Christina M. Cabanillas, Appellate Chief, Bruce M. Ferg, Asst. United States Attorney (argued), Tucson, AZ, for the plaintiff-appellee.
Fernandez, Fletcher, Rawlinson.
Cited by 25 opinions  |  Published
RAWLINSON, Circuit Judge.

On appeal, Abeu Gonzalez-Perez challenges his sentence on the basis that the district court erred in applying a 16-level enhancement to his sentence for a false-imprisonment conviction under Florida law. Specifically, Gonzalez-Perez contends that his prior conviction under Florida’s false imprisonment statute does not constitute a “crime of violence” under § 2L1.2(b)(1)(A)(ii) of the Sentencing Guidelines. [1] We agree. Accordingly, we reverse the district court’s imposition of the 16-level enhancement, vacate the sentence and remand for resentencing. We affirm the district court’s other rulings made during the sentencing proceedings.

I.

Gonzalez-Perez pled guilty to illegal reentry following deportation in violation of 8 U.S.C. § 1326(a). At sentencing, over Gonzalez-Perez’s objection, the district court applied a 16-level erime-of-violence enhancement based on a prior conviction for false imprisonment under Fla. Stat. § 787.02(l)(a). See U.S.S.G. § 2L1.2(b)(l)(A)(ii). “We review de novo a district court’s decision that a prior conviction is a crime of violence under the Sentencing Guidelines.” United States v. Velasquez-Reyes, 427 F.3d 1227, 1229 (9th Cir.2005) (citation omitted).

[*1160] II.

A 16-level increase in a defendant’s offense level is warranted where the defendant was previously removed after conviction for a “crime of violence.” U.S.S.G. § 2L1.2(b)(l)(A)(ii). In determining “whether a defendant’s prior offense constitutes a crime of violence for purposes of U.S.S.G. § 2L1.2(b)(l)(A)(ii),” this Court applies the categorical approach set forth in Taylor v. United States, 495 U.S. 575, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990). United States v. Pimentel-Flores, 339 F.3d 959, 968 (9th Cir.2003) (citation and internal quotation marks omitted). Under Taylor’s categorical approach, to determine whether a conviction qualifies as a crime of violence, we do not examine the facts underlying the prior offense, but “look only to the fact of conviction and the statutory definition of the prior offense.” Taylor, 495 U.S. at 602, 110 S.Ct. 2143.

The Application Note to § 2L1.2(b)(l)(A)(ii) of the Sentencing Guidelines, defines crime of violence as:

any of the following: murder, manslaughter, kidnapping, aggravated assault, forcible sex offenses, statutory rape, sexual abuse of a minor, robbery, arson, extortion, extortionate extension of credit, burglary of a dwelling, or 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. l(B)(iii).

Accordingly, Gonzalez-Perez’s prior conviction qualifies as a “crime of violence” if Florida’s false imprisonment statute, Fla. Stat. § 787.02(l)(a): (1) “has as an element the use, attempted use, or threatened use of physical force against the person of another,” or (2) constitutes “kidnapping” in its generic sense. U.S.S.G. § 2L1.2 cmt. n. l(B)(iii); see also United States v. Pereira-Salmeron, 337 F.3d 1148, 1151 (9th Cir.2003) (noting that “[a]ny offense listed in [the Guidelines’ definition] is inherently deemed to be a ‘crime of violence’ for purposes of this Guideline, whether or not the use, attempted use, or threatened use of force against the person of another ... is an element of the given offense.”).

The Florida statute defines false imprisonment as “forcibly, by threat, or secretly confining, abducting, imprisoning, or restraining another person without lawful authority and against her or his will.” Fla. Stat. § 787.02(l)(a). The government argues that a conviction under § 787.02(a) “implicitly contain[s] as an element the use ... of ... force.” We disagree.

“[T]he force necessary to constitute a crime of violence must actually be violent in nature.” United States v. Lopez-Montanez, 421 F.3d 926, 929 (9th Cir.2005) (citation, alteration, and internal quotation marks omitted). However, because under Fla. Stat. § 787.02(l)(a) false imprisonment can be effectuated “secretly,” a conviction under Florida’s false imprisonment statute need not involve the use of force. See Robinson v. State, 462 So.2d 471, 476 (Fla.Dist.Ct.App.1984) (rejecting an argument that there was insufficient evidence to support a kidnapping charge against the defendant because there was no evidence of the use of any physical force or threat in transporting the victim); see also Corner v. State, 868 So.2d 553, 556 (Fla.Dist.Ct.App.2004) (same); [2] cf. United States v. Hernandez-Hernandez, 431 F.3d 1212, 1217 (9th Cir.2005) (holding that California’s false imprisonment statute, which is[*1161] similar to Florida’s, did not categorically constitute a crime of violence).

Alternatively, the government urges us to hold that false imprisonment under Florida law qualifies as a crime of violence within the meaning of the Sentencing Guidelines because the offense effectively constitutes “kidnapping.” Again, we disagree. Taylor instructs that where, as here, the enhancement provision does not specifically define the enumerated offense, we must define it according to its “generic, contemporary meaning.” Taylor, 495 U.S. at 598, 110 S.Ct. 2143. We must then compare the state’s definition of a crime, “with the generic definition of that crime to determine if the defendant’s conviction is a crime of violence pursuant to the Sentencing Guidelines.” Velasquez-Reyes, 427 F.3d at 1229 (citations omitted). The government proposes that the generic, contemporary definition of kidnapping should be “the unlawful deprivation of another person’s liberty of movement.” However, the generic definition of kidnapping encompasses, at a minimum, the concept of a “nefarious purpose[ ]” motivating restriction of the victim’s liberty. See Wayne R. LaFave, 3 Substantive Criminal Law § 18.1(e), at 20, n. 154 (2d ed.2003) (noting that only eleven states do not specify that kidnapping requires a nefarious purpose); see also Model Penal Code § 212.1 (providing that a defendant is guilty of kidnapping only if his or her purpose is “(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.”). The Florida false imprisonment statute contains no nefarious purpose element whatsoever. See Fla. Stat. § 787.02(l)(a) (defining false imprisonment as “forcibly, by threat, or secretly confining, abducting, imprisoning, or restraining another person without lawful authority and against her or his will.”); cf. Fla. Stat. § 787.01(l)(a) (defining kidnapping as “forcibly, secretly, or by threat confining, abducting, or imprisoning another person against her or his will and without lawful authority, with intent to: (l)[h]old for ransom or reward or as a shield or hostage[;] (2)[c]ommit or facilitate commission of any felony; (3)[i]nflict bodily harm upon or to terrorize the victim or another person; (f)[ijnterfere with the performance of any governmental or political function.”) (emphasis added). Accordingly, Florida’s false imprisonment statute, Fla. Stat. § 787.02(l)(a), does not conform to the generic, contemporary definition of kidnapping, and does not constitute a categorical crime of violence for the purposes of applying U.S.S.G. § 2L1.2(b)(l)(A)(ii). [3] Accordingly, the district court erred when it applied the 16-level enhancement under U.S.S.G. § 2L1.2(b)(l)(A)(ii) in calculating Gonzalez-Perez’s sentence. See Lopez-Montanez, 421 F.3d at 932.

III.

Gonzalezr-Perez also contends that his sentence was unreasonable under 18 U.S.C. § 3553(a)(6) given that his co-defendant in the Florida false imprisonment case received a sentence of only 60 days after separately reentering the United States. We disagree. The district court’s finding that 18 U.S.C. § 3553(a)(6) was not implicated is consistent with the reasonableness requirement articulated in United States v. Booker, 543 U.S. 220, 125 S.Ct.[*1162-1166] 738, 160 L.Ed.2d 621 (2005). The district court reasonably relied on the facts that Gonzalez-Perez’s former co-defendant was processed under a “fast-track” procedure, and was charged with violating a different statute to explain any disparity in the respective sentences imposed. See United States v. Banuelos-Rodriguez, 215 F.3d 969, 978 (9th Cir.2000); see also United States v. Marcial-Santiago, 447 F.3d 715, 717-19 (9th Cir.2006).

Finally, “a [district] court’s silence regarding [its] authority to depart is not sufficient to indicate that the court believed it lacked power to depart.” United States v. You, 382 F.3d 958, 967 (9th Cir.2004) (citations and internal quotation marks omitted). In the absence of a clear expression to the contrary, we assume that the district court is aware of its discretionary authority to depart. See United States v. Garcia-Garcia, 927 F.2d 489, 491 (9th Cir.1991).

IV.

Conclusion

We hold that the district court erred when it applied a 16-level sentencing enhancement predicated upon a determination that Gonzalez-Perez’s conviction for false imprisonment under Florida law constituted a crime of violence under U.S.S.G. § 2L1.2(b)(l)(A)(ii). Accordingly, we REVERSE the district court’s imposition of the enhancement, VACATE the sentence and REMAND for resentencing. We AFFIRM the other rulings made by the district court in the course of the sentencing proceedings.

1

. All references are to the Guidelines effective on November 1, 2004.

2

. Although Robinson and Comer analyze Florida's kidnapping statute, Fla. Stat. § 787.01, it is appropriate to consider these cases because "proof of the elements of the kidnapping statute ... constitutes proof of the elements of false imprisonment.” McCutcheon v. State, 711 So.2d 1286, 1288 (Fla.Dist.Ct.App.1998) (citations omitted).

3

. The government conceded that Gonzalez-Perez's conviction does not qualify as a crime of violence under the modified categorical approach described in Taylor. See Taylor, 495 U.S. at 602, 110 S.Ct. 2143.