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United States of America v. Florentino Marquez-Lobos

June 19, 2012

UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE,
v.
FLORENTINO MARQUEZ-LOBOS, DEFENDANT-APPELLANT.



Appeal from the United States District Court for the District of Arizona Roslyn O. Silver, District Judge, Presiding D.C. No. 2:09-cr-01584-ROS-1

The opinion of the court was delivered by: M. Smith, Circuit Judge:

FOR PUBLICATION

OPINION

Argued and Submitted

March 12, 2012-San Francisco, California

Before: John T. Noonan, Jr., M. Margaret McKeown, and Milan D. Smith, Jr., Circuit Judges.

Opinion by Judge Milan D. Smith, Jr.

OPINION

Florentino Marquez-Lobos appeals the 16-level enhancement of his sentence due to his prior 1985 conviction for kidnapping, under Arizona Revised Statute (ARS) § 13-1304. The district court found that his prior kidnapping conviction was a "crime of violence," as defined under the United States Sentencing Guidelines, U.S.S.G. § 2L1.2(b)(1)(A), and sentenced him to a term of 58 months in prison for illegally entering the country after deportation. On appeal, MarquezLobos contends that ARS § 13-1304 does not meet the generic definition of kidnapping, and therefore does not qualify as a "crime of violence" under either the categorical or modified categorical approach.

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 addition to "the unlawful deprivation of another person's liberty of movement." We hold that ARS § 13-1304 categorically meets this generic definition, and we affirm Marquez-Lobos's sentence.

FACTUAL AND PROCEDURAL BACKGROUND

Marquez-Lobos pled guilty to illegal re-entry after deportation, in violation of 8 U.S.C. § 1326(a). The probation office calculated the Sentencing Guidelines in the Presentence Report (PSR) as follows:

Base Offense Level: 8 Specific Offense Characteristics: 16 Adjusted Offense Level 24 Acceptance of Responsibility -3 Total Offense Level 21

The PSR recommended a 16-level enhancement because Marquez-Lobos's 1985 conviction for kidnapping under ARS § 13-1304 constituted a "crime of violence" under U.S.S.G. § 2L1.2(b)(1)(A). Marquez-Lobos objected to this enhancement at sentencing, but the district court overruled his objection, and sentenced Marquez-Lobos to a term of 58 months. Marquez-Lobos appealed.

JURISDICTION AND STANDARD OF REVIEW

We have jurisdiction under 28 U.S.C. § 1291.

We review de novo whether a conviction constitutes a "crime of violence" under the Sentencing Guidelines. United States v. Hermoso-Garcia, 413 F.3d 1085, 1089 (9th Cir. 2005).

DISCUSSION

I. Sentencing Guidelines and Arizona Revised Statute § 13-1304

[1] The crime of unlawfully entering the United States under 8 U.S.C. § 1326 carries a base offense level of 8 under the Sentencing Guidelines. U.S.S.G. § 2L1.2(a). A defendant's base offense level may be increased by 16 levels if he has a prior felony conviction that qualifies as a "crime of violence." Id. ...


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