MEMORANDUM OPINION RE REJECTION OF 16-LEVEL ENHANCEMENT.
WILLIAM ALSUP, District Judge.
Following conviction for illegal re-entry under 8 U.S.C. 1326, defendant filed objections to the presentence report prepared by the probation office. Defendant contends that his prior conviction for kidnapping under California Penal Code Section 207(a) does not constitute a "crime of violence" for purposes of Section 2L1.2(b)(1)(A) of the Sentencing Guidelines. As discussed below, this opinion agrees that, under the categorical approach, Section 207(a) does not constitute a "crime of violence" requiring a 16-level enhancement under the Sentencing Guidelines.
As set forth in prior orders, defendant Hermilo Palmerin-Zamudio, a citizen of Mexico, was previously removed from the United States (Dkt. Nos. 20 and 31). In July 2012, defendant was charged with illegal re-entry under 8 U.S.C. 1326. Defendant filed a motion to dismiss the criminal indictment based on a collateral attack of his prior removal order. The motion to dismiss was denied by a prior order herein, which determined that defendant was removable due to his criminal convictions for kidnapping and possession of a controlled substance ( ibid. ). In March 2013, a jury found defendant guilty of illegally re-entering the United States.
Prior to sentencing, defendant filed a number of objections to the presentence report prepared by the United States Probation Office. As to one, defendant objected that the presentence report improperly applied a 16-level enhancement due to defendant's 1994 conviction for kidnapping in violation of Section 207(a) of the California Penal Code, to which defendant had pled guilty and had been sentenced to three years in prison. See U.S.S.G. § 2L1.2(b)(1)(A)(ii). Defendant argues that his kidnapping conviction does not qualify as a "crime of violence" for which a 16-level increase should be applied. Instead, defendant contends that the kidnapping conviction constitutes an aggravated felony conviction, for which an eight-level increase is appropriate. See id. at § 2L1.2(b)(1)(C).
In response to defendant's objections, the government filed a sentencing memorandum arguing that defendant's conviction qualifies as a crime of violence because (1) kidnapping is among the crimes specifically enumerated in the application note to Section 2L1.2(b)(1)(A)(ii) of the Sentencing Guidelines and (2) kidnapping involves a risk of violence. The probation office provided its responses to defendant's objections in the presentence report. On May 28, a sentencing hearing lasting approximately one and a half hours was held before the undersigned judge and was continued on May 30 for further argument. For the reasons stated below, the Court has concluded that defendant's prior kidnapping conviction does not qualify as a crime of violence under Section 2L1.2(b)(1)(A)(ii) under the categorical approach, but does constitute an aggravated felony under Section 2L1.2(b)(1)(C). Accordingly, an eight-level enhancement is appropriate.
Under Section 2L1.2(b)(1)(A)(ii) of the Sentencing Guidelines, 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." The application note to Section 2L1.2(b)(1)(A)(ii) defines a "crime of violence" as:
[A]ny of the following offenses under federal, state, or local law: Murder, manslaughter, kidnapping, aggravated assault, forcible sex offenses (including where consent to the conduct is not given or is not legally valid, such as where consent to the conduct is involuntary, incompetent, or coerced), statutory rape, sexual abuse of a minor, robbery, arson, extortion, extortionate extension of credit, burglary of a dwelling, or any other 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.
Defendant was convicted of kidnapping under California Penal Code Section 207(a), which provides, as it did at the time of defendant's conviction, that:
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.
In determining whether a defendant's prior offense constitutes a crime of violence for purposes of Section 2L1.2(b)(1)(A)(ii), we must apply the categorical and modified categorical approaches set forth in Taylor v. United States, 495 U.S. 575 (1990). United States v. Gonzalez-Perez, 472 F.3d 1158, 1160 (9th Cir. 2007); United States v. Marquez-Lobos, 697 F.3d 759, 762 (9th Cir. 2012). Under the categorical approach, 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." Marquez-Lobos, 697 F.3d at 762 (quotation marks and citation omitted). "If the statutory definition of the prior offense criminalizes conduct that would not constitute a crime of violence, ' then the statute is not a categorical fit, and we must consider whether the prior conviction may still be used for a sentencing enhancement under the modified categorical approach." Id. at 762-63. Under the modified categorical approach, "the government has the burden to establish clearly and unequivocally the conviction was based on all of the elements of a qualifying predicate offense." United States v. Navidad-Marcos, 367 F.3d 903, 908 (9th Cir. 2004), overruled on other grounds by United States v. Snellenberger, 548 F.3d 699, 702 (9th Cir. 2008) (en banc).
As an initial matter, neither probation nor the government argues that defendant's conviction qualifies as a crime of violence under the modified categorical approach, and neither has provided the Court with judicially-noticeable documents of the type that may be considered under the modified categorical approach and that would shed light on the matter. See Young v. Holder, 697 F.3d 976, 983 (9th Cir. 2012). Accordingly, defendant's kidnapping conviction under Section 207(a) "could qualify categorically as a crime of violence' in one of two ways": (1) "if it has an element of use, attempted use or threatened use of physical force against ...