United States v. Franco-Fernandez ( 2008 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 06-3273
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
PETER FRANCO-FERNANDEZ,
Defendant-Appellant.
____________
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 06 CR 130—James F. Holderman, Chief Judge.
____________
ARGUED MAY 2, 2007—DECIDED JANUARY 2, 2008
____________
Before EVANS, WILLIAMS, and SYKES, Circuit Judges.
SYKES, Circuit Judge. This appeal requires us to
decide whether the Illinois offense of “putative father”
child abduction, 720 ILL. COMP. STAT. 5/10-5(b)(3), is either
a crime of violence or an aggravated felony for purposes
of the increased offense levels specified in U.S.S.G.
§ 2L1.2(b)(1)(A)(ii) and (b)(1)(C) for the crime of illegal
reentry after deportation. We hold that it is neither, and
therefore vacate Peter Franco-Fernandez’s sentence and
remand for resentencing.
I. Background
Peter Franco-Fernandez pleaded guilty to illegal reentry
by a removed alien in violation of 8 U.S.C. § 1326(a). His
2 No. 06-3273
Presentence Investigation Report (“PSR”) recommended
an advisory sentencing guidelines range of 70-87 months’
imprisonment based in large part on a 16-point increase
in his offense level premised upon his removal having
followed a conviction for a felony that is a “crime of vio-
lence.” U.S.S.G. § 2L1.2(b)(1)(A)(ii). The predicate of-
fense for this enhancement was Franco-Fernandez’s
2005 Illinois conviction for so-called “putative father”
child abduction, which is committed by one who:
Intentionally conceals, detains or removes the child
without the consent of the mother or lawful custodian
of the child if the person is a putative father and
either: (A) the paternity of the child has not been
legally established or (B) the paternity . . . has been
legally established but no orders relating to custody
have been entered.
720 ILL. COMP. STAT. 5/10-5(b)(3) (2004).
Two less significant offense-level enhancements were
also possible under section 2L1.2(b): an 8-level increase
if the conviction was for an “aggravated felony,” section
2L1.2(b)(1)(C), or a 4-level increase if the conviction was
for “any other felony,” section 2L1.2(b)(1)(D). Franco-
Fernandez objected to the PSR and maintained that his
“putative father” child abduction conviction did not
qualify for the 16-level increase for a crime of violence.
The government argued that the Illinois offense was
either a crime of violence or an aggravated felony and
Franco-Fernandez should receive the 16-level enhance-
ment applicable to the former or at least the 8-level
enhancement applicable to the latter. The district court
concluded that the 16-level increase was appropriate
and sentenced Franco-Fernandez to 70 months’ imprison-
ment, the bottom of the advisory range.
No. 06-3273 3
II. Discussion
Franco-Fernandez argues the district court erroneously
applied the 16-level enhancement for a crime of violence
under section 2L1.2(b)(1)(A)(ii) based on his Illinois
conviction for “putative father” child abduction. The
classification of a prior conviction under the sentencing
guidelines is a legal question subject to de novo review.
United States v. Golden, 466 F.3d 612, 613 (7th Cir. 2006).
The illegal reentry guideline, section 2L1.2, sets a
base offense level of 8 and then specifies five possible
offense-level enhancements if the defendant was de-
ported after being convicted of a crime. U.S.S.G.
§ 2L1.2(b)(1)(A)-(E). The size of the enhancement gen-
erally corresponds to the severity of the crime the alien
committed; the guideline instructs courts to apply the
greatest applicable enhancement. U.S.S.G. § 2L1.2(b)(1).
Three enhancements are at issue in this case: a 16-level
increase for a “crime of violence,” section 2L1.2(b)(1)(A)(ii);
an 8-level increase for an “aggravated felony,” section
2L1.2(b)(1)(C); and a 4-level increase for “any other fel-
ony,” section 2L1.2(b)(1)(D). Franco-Fernandez main-
tains his Illinois conviction for “putative father” child
abduction is simply “any other felony” and therefore only
the 4-level enhancement should have been applied. The
government contends that child abduction by a putative
father under Illinois law qualifies for either the 16-level
crime of violence enhancement or the 8-level aggravated
felony enhancement.
A. Crime of Violence
While the term “crime of violence” is used in various
contexts in the federal code and sentencing guidelines, the
illegal reentry guideline contains its own definition:
[M]urder, manslaughter, kidnapping, aggravated
assault, forcible sex offenses, statutory rape, sexual
4 No. 06-3273
abuse of a minor, robbery, arson . . . or any offense
under federal, state, or local law that has as an ele-
ment the use, attempted use, or threatened use of
physical force against the person of another.
U.S.S.G. § 2L1.2 cmt. n.1(B)(iii). The government urges
us to treat child abduction as a species of kidnapping
and hence a specifically enumerated crime of violence
under this guideline. The government asserts that kidnap-
ping under Illinois law, see 720 ILL. COMP. STAT. 5/10-1(a),
shares some of the same elements as child abduction by
a putative father under section 5/10-5(b)(3), and therefore
the latter crime should be considered a form of kidnapping
for purposes of the foregoing definition. We reject this
argument for two reasons.
First, child abduction does not appear as one of the
specifically enumerated offenses in the definition of a
crime of violence in section 2L1.2 cmt. n.1(B)(iii). That
some variations of child abduction may resemble kidnap-
ping does not bring the crime within the list of enumerated
offenses that explicitly qualify as crimes of violence. See
United States v. Jaimes-Jaimes, 406 F.3d 845, 849 (7th
Cir. 2005) (explaining that the first part of the crime of
violence definition in section 2L1.2 only applies to con-
victions for any of the specifically enumerated offenses).
Second, we question whether child abduction by a
putative father is indeed analogous to kidnapping under
Illinois law. Kidnapping in all its statutory forms re-
quires either actual or intended confinement of the
victim against the victim’s will. See 720 ILL. COMP. STAT.
§ 5/10-1(a)(1)-(3), (b). In contrast, child abduction by a
putative father does not require confinement against
the victim’s will, but is committed when the defendant
has the status of a putative father within the meaning of
the statute and either “conceals, detains, or removes the
child” without the consent of the mother or legal custodian.
No. 06-3273 5
See § 5/10-5(b)(3). Confinement against the victim’s will
is not required. See § 5/10-5(a)(2) (“ ‘Detains’ means taking
or retaining physical custody of a child, whether or not
the child resists or objects.”). Historically, biological
parents were excluded from the reach of kidnapping
statutes; Illinois enacted the parental child abduction
statute to punish conduct the kidnapping statute did not
cover. See People v. Algarin, 558 N.E.2d 457, 462 (Ill. App.
Ct. 1990) (“[T]he child abduction statute was not de-
signed to be coextensive with the kidnapping statute
but rather to open as a new frontier the area of parental
abduction which the kidnapping statute was not in-
tended to reach.”). In short, the Illinois offense of child
abduction by a putative parent is distinct from kidnap-
ping in name, origin, and definition.
This brings us to the more general definition of a crime
of violence, which encompasses any crime “that has as
an element the use, attempted use, or threatened use of
physical force.” U.S.S.G. § 2L1.2 cmt. n.1(B)(iii). Under
this definition force must be an element of the crime
and not simply a possible byproduct of it; section 2L1.2
thus adopts the “charge offense” approach to classifying
prior offenses. See Flores v. Ashcroft, 350 F.3d 666, 670
(7th Cir. 2003). Under this approach the focus is on the
statutory definition of the crime. See id. (confining inquiry
to Indiana’s statutory definition of battery to determine
whether alien was removable based on conviction for a
crime of violence under 18 U.S.C. § 16); cf. United States
v. Gilbert, 464 F.3d 674, 678 (7th Cir. 2006) (looking to
charging document to ascertain under which version of
Indiana’s criminal confinement offense defendant was
convicted for purposes of the enhanced penalties in the
Armed Career Criminal Act). The statutory definition of
“putative father” child abduction does not require force
(either actual, attempted, or threatened); it only requires
that the putative father conceal, detain, or remove the
6 No. 06-3273
child without the consent of the mother or legal custodian.
Because the use, attempt, or threat of force is not an
element of child abduction by a putative father,
Franco-Fernandez’s child abduction conviction is not a
crime of violence. See Gilbert, 464 F.3d at 679 (force is
not an element of criminal confinement because re-
moval of the victim can be accomplished with or with-
out force). The 16-level enhancement under section
2L1.2(b)(1)(A)(ii) should not have been applied.
B. Aggravated Felony
The government argues in the alternative that Franco-
Fernandez’s child abduction conviction qualifies as an
aggravated felony under section 2L1.2(b)(1)(C). While
section 2L1.2 contains its own definition of crime of
violence, it defines “aggravated felony” by reference to
the definition of that term in section 101(a)(43) of the
Immigration and Nationality Act, 8 U.S.C. § 1101(a)(43).
U.S.S.G. § 2L1.2 cmt. n.3(A). In relevant part, that
definition includes “a crime of violence (as defined in
[18 U.S.C. § 16] . . .) for which the term of imprison-
ment [is] at least one year.” 8 U.S.C. § 1101(a)(43)(F). The
result of this cross-referencing is that we must decide
whether child abduction by a putative father is a “crime
of violence” for the second time in this appeal. Only
instead of applying the narrower definition of that term
specified in section 2L1.2, we now apply the broader
definition found in 18 U.S.C. § 16. Jaimes-Jaimes, 406
F.3d at 849. That section defines “crime of violence” as:
(a) an offense that has as an element the use, at-
tempted use, or threatened use of physical force
against the person or property of another, or (b) any
other offense that is a felony and that, by its nature,
involves a substantial risk that physical force against
No. 06-3273 7
the person or property of another may be used in the
course of committing the offense.
18 U.S.C. § 16. We have already explained why child
abduction by a putative father does not meet the criteria
established in subsection (a); we move on to consider
whether it falls within the definition in subsection (b), that
is, whether it “involves a substantial risk that physical
force against the person . . . of another may be used.”
The government maintains that all child abductions
involve the risk of physical force. In support the govern-
ment relies primarily on United States v. Bryant, 310
F.3d 550 (7th Cir. 2002), and United States v. Wallace,
326 F.3d 881 (7th Cir. 2003), though neither case ad-
dressed child abduction. Bryant involved the federal
offense of escape and Wallace involved the Illinois offense
of unlawful confinement, both of which we concluded
were crimes of violence.1
The offense of escape is simply too dissimilar from child
abduction for Bryant to be persuasive here. See United
States v. Franklin, 302 F.3d 722, 724-25 (7th Cir. 2002)
(concluding that escape is a crime of violence due to the
potential violence inherent to a scenario in which an
1
Bryant addressed the definition of “crime of violence” in
U.S.S.G. § 2K2.1, and Wallace addressed the definition of “violent
felony” under the Armed Career Criminal Act. The relevant
definition in both cases required a “serious potential risk of
physical injury.” United States v. Bryant, 310 F.3d 550, 553 (7th
Cir. 2002); United States v. Wallace, 326 F.3d 881, 886 (7th Cir.
2003). The “crime of violence” definition in 18 U.S.C. § 16
requires a “substantial risk that physical force against the per-
son . . . of another may be used.” Our decision here need not
resolve whether there is any difference between a “serious
potential risk of physical injury” and a “substantial risk [of]
physical force against the person . . . of another.”
8 No. 06-3273
escapee feels threatened by police, citizens, or fellow
escapees). Wallace hits closer to the mark insofar as the
elements of unlawful confinement in Illinois more
closely resemble those of child abduction. See 720 ILL.
COMP. STAT. 5/10-3(a) (“A person commits the offense of
unlawful restraint when he knowingly without legal
authority detains another.”). But we premised our hold-
ing in Wallace on the fact that in committing criminal
confinement, “one person restrains another against his
or her will.” 326 F.3d at 887; see also People v. Bowen,
609 N.E.2d 346, 361 (Ill. App. Ct. 1993) (“The detention
must be wilful, against the victim’s consent, and prevent
movement from one place to another.”). Detaining a
person against his will involves a substantial risk of
force, “whether it be in the initial restraint or the
possible resulting confrontation between assailant and
victim if the victim attempts to leave.” Wallace, 326
F.3d at 887.
Child abduction by a putative father, on the other
hand, does not contain a similar requirement of restraint
against the victim’s will. The offense is committed when
a putative father simply “conceals, detains, or removes”
the child without the consent of the mother or legal
custodian.2 “Detains” is specifically defined in the
statute as “taking or retaining physical custody . . .
whether or not the child resists or objects.” 5/10-5(a)(2). In
Gilbert, we declined to apply Wallace to a subsection of
Indiana’s criminal confinement statute that similarly
lacked an against-the-victim’s-will requirement. 464 F.3d
2
It appears that Franco-Fernandez was charged and convicted
for the “concealing” version of the offense. We say “appears”
because the copy of the charging document in the record is
almost entirely illegible. Both parties’ briefs state that he was
convicted of concealing his ten-month-old son by taking him
from his babysitter without notifying the mother.
No. 06-3273 9
at 682 (holding that IND. CODE. § 35-42-3-3(a)(2), which
outlaws “remov[ing] another person, by fraud, enticement,
force, or threat of force, from one (1) place to another,” is
not a crime of violence); see also United States v. Hagenow,
423 F.3d 638, 644 (7th Cir. 2005) (“[C]riminal confine-
ment under Indiana law does not necessarily involve
conduct that presents a serious potential risk of injury
to another.” (quotations omitted)). We reach the same
conclusion here.
Aside from citing Wallace and Bryant, the govern-
ment makes no other attempt to explain why child abduc-
tion by a putative father involves a “substantial risk” of
physical force. Unlike the offense of unlawful restraint,
child abduction by a putative father necessarily involves
parties who stand in a familial relationship to each other;
the offense specifically targets nonforcible conduct by a
putative noncustodial father without regard to the
victim’s resistence, consent, or acquiescence. We con-
clude that the Illinois offense of child abduction by a
putative father does not involve a “substantial risk that
physical force against the person . . . of another may be
used.” See Dickson v. Ashcroft, 346 F.3d 44, 52 (2d Cir.
2003) (holding that a similar New York offense, unlawful
imprisonment of an incompetent person or child under
16 in violation of N.Y. PENAL LAW § 135.00(1) (McKinney
2003), did not involve a substantial risk of force and
thus was not a crime of violence). Accordingly, Franco-
Fernandez’s “putative father” child abduction conviction
is not an aggravated felony under section 2L1.2(b)(1)(C).
Franco-Fernandez’s 2005 child abduction conviction is
neither a crime of violence nor an aggravated felony, and
therefore neither the 16-level nor the 8-level enhancement
in section 2L1.2(b)(1)(A)(ii) or (b)(1)(C) applies. Because
Franco-Fernandez is only subject to the 4-level enhance-
ment in section 2L1.2(b)(1)(D) for “any other felony,” we
10 No. 06-3273
VACATE his sentence and REMAND this case to the dis-
trict court for resentencing in accordance with this opinion.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—1-2-08