Defendant-Appellant, Antwon Jenkins, was arrested and charged with Kidnapping, 18 U.S.C. § 1201(a), and Using or Carrying a Firearm to Commit a Federal Crime of Violence, 18 U.S.C. § 924(c)(1)(A)(ii).
After Jenkins filed his appeal and the parties argued the case before this panel, but before we decided the appeal, the Supreme Court issued its opinion in Johnson v. United States, — U.S. —,
I. ANALYSIS
A jury convicted Jenkins of using or possessing a weapon during the commission of a crime of violence, namely, kidnapping, under 18 U.S.C. § 924(c). Section 924(c)(3) defines a crime of violence as:
[A] felony and—
(A) has as an element the use, attempted use, or threatened use of physical force against the person or property of another, or
(B) that by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.
18 U.S.C. § 924(c)(3)(A), (B). Subsection A is commonly referred to as the “Force Clause” and Subsection B is referred to as the “Residual Clause.”
Jenkins now challenges his conviction under § 924(c), arguing that in light of Johnson, the Residual Clause is unconstitutionally vague and that the Force Clause does not apply to kidnapping because kidnapping under § 1201(a) does not include the use of physical force as an element. The Government responds that kidnapping is a crime of violence under the Force Clause and, in the alternative, under the Residual Clause and that we should not extend Johnson to § 924(c)(3)(B). Additionally, the Government argues that we should not even consider the vagueness challenge to § 924(c)(3)(B) because Jenkins has not brought it as an as applied challenge.
The parties agree that because Jenkins did not raise his challenge to § 924(c) in the district court, the proper standard of review is plain error. To reverse a trial court ruling for plain error, there must be “(1) an error or defect (2) that is clear or obvious (3) affecting the defendant’s substantial rights (4) and seriously impugning the fairness, integrity, or public reputation of judicial proceedings.” United States v. Jenkins,
A. Force Clause
There is no question as to the constitutionality of the Force Clause; Jenkins simply argues that it does not apply to kidnapping. The Force Clause defines a crime of violence as any felony that “has as an element the use, ‘attempted use, or threatened use of physical force against the person or property of another.” 18 U.S.C. § 924(c)(3)(A). In determining whether a crime fits this definition, a court may only look at the elements of the offense, not the underlying facts of conviction. United States v. Yang,
Section 1201(a) punishes for kidnapping: [w]hoever unlawfully seizes, confines, inveigles, decoys, kidnaps, abducts, or carries away and holds for ransom or reward or otherwise any person ... when the person is willfully transported in interstate or foreign commerce ...
18 U.S.C. § 1201(a).
The Government does not argue that the first element — unlawfully seizing, confining, inveigling, decoying, kidnapping, abducting, or carrying away — requires the use of force and rests its argument on the second element, “hold[ing] for ransom or reward or otherwise.” Id. The Government argues that because the holding must be unlawful, it necessarily requires at a minimum the threat of physical force. This is incorrect. Holding can be accomplished without physical force. For example, a perpetrator could lure his victim into a room and lock the victim inside against his or her will. This would satisfy the holding element of kidnapping under § 1201(a) without using, threatening to use, or attempting to use physical force. See United States v. Swanson,
The Government argues that even in cases where no force is actually used there is an ever-present risk that the situation will devolve to the point that the perpetrator will need to use force. But this argument conflates the Force Clause and the Residual Clause. The Force Clause only defines crimes of violence by the elements of those crimes, not by any inherent risk associated with the crime. While kidnapping very well may carry such inherent risks, one properly analyzes that argument only under the Residual Clause, rather than the Force Clause.
We are aware of this Court’s recent decision in United States v. Cureton,
Finally, the Government attempts to bolster its argument by citing to pre-John-son cases that held kidnapping to be a crime of violence. However, none of these cases found that kidnapping had physical force as an element, and one even expressly stated that it does not. See Delgado-Hernandez v. Holder,
B. Residual Clause
Jenkins also argues that in light of the Supreme Court’s decision in Johnson, — U.S. —,
C. Plain Error Analysis
Because § 1201(a) does not satisfy the Force Clause and the Residual Clause is unconstitutionally vague, we must determine if this error satisfies the plain error standard for reversing the conviction on the basis of an argument the defendant did not previously raise before the district court.
First we must determine if there was an error and if that error is clear and obvious. Jenkins,
Next, we must determine whether this error affected Jenkins’ substantive rights and seriously impugned the fairness of the judicial proceedings. Id. An error affects a defendant’s substantive rights if it resulted in the defendant receiving a longer sentence than he otherwise would have without the error. See id. at 1098-99
II. CONCLUSION
For the foregoing reasons, we REVERSE Jenkins’ conviction for Using or Carrying a Firearm to Commit a Federal Crime of Violence, 18 U.S.C. § 924(c)(1)(A)(ii), and REMAND for further proceedings consistent with this opinion.
Notes
. While not explicitly addressed by either party, Jenkins’ appeal relates only to evidence admitted in support of the firearm count, Count II of the indictment. We limit our analysis accordingly.
. The Cureton Court found that reversing the defendant’s conviction for the ransom demand would not affect the sentencing guidelines range for the remaining offenses and the district court would be well within its discretion to impose the same sentence on remand even without that conviction; therefore, the defendant failed to demonstrate that any error was harmful. Id. at 327.