United States v. Robert Paul Kaplansky

America, STATES UNITED

Plaintiff-Appellee, KAPLANSKY, Paul Robert Defendant-Appellant.

No. 92-3744. Appeals, Court Circuit. Sixth 15, 1994. Reargued June 2, 1994. Dec. Decided 2905.01,

§ provides that the crime of kidnapping may “force, threat, occur see Ohio Rev.Code Ann. deception,” (Anderson 1993), § 2905.01 satisfies either prong of the statute and is predi- therefore a cate crime under the ACCA. I. Veechiarelli, Nancy Atty. A. Asst. U.S. Defendant Robert Paul entered (briefed), Cleveland, (ar- OH, Connelly Sean plea being conditional a felon in briefed), Justice, gued Dept, firearm, possession of a in violation of 18 Div., DC, Washington, plaintiff- Criminal for § 922(g)(1). court, U.S.C. The district citing appellee. prior defendant’s three rape, convictions for Gold, Stifel, Gerald E. II (argued S. Orville gross imposition, sexual attempted kid- briefed), Gold, Rotatori, Schwartz & Gib- napping, imposed mandatory fifteen

bons, Cleveland, OH, defendant-appel- for years imprisonment parole without under the lant. penalty provisions enhancement of 18 U.S.C. 924(e). § Defendant at sentencing conceded MERRITT, Judge, Before: Chief prior rape conviction qualified for as KEITH, KENNEDY, MARTIN, JONES, felony,” argued “violent but prior that his MILBURN, GUY, NELSON, RYAN, gross imposition sexual BOGGS, NORRIS, SUHRHEINRICH, not, language because the of the statute is SILER, BATCHELDER, and such that the crime can be committed with- DAUGHTREY, Judges. Circuit out the use of force. He made a similar SUHRHEINRICH, J., delivered the argument regarding attempted kidnap- court, opinion KEITH, of the in which ping conviction because of the Ohio statute’s JONES, MILBURN, GUY, BOGGS, deception inclusion of as one of the means NORRIS, SILER, BATCHELDER, and kidnapping may which the crime of be com- DAUGHTREY, JJ., joined. NELSON, (p. J. mitted. 328), separate concurring opinion delivered a The district although court held that nei- RYAN, JJ., joined. in which KENNEDY and qualified felony” ther conviction aas “violent MERRITT, 328-30), (pp. C.J. delivered a “categorical approach,” under a the actual separate dissenting opinion, in which underlying conduct each conviction demon- MARTIN, J., joined, MARTIN, (pp. J. prior strated that each crime did in fact 330-31), delivering separate also dissenting presented involve force and otherwise a seri- opinion. ous risk of victim. In reaching SUHRHEINRICH, conclusion, Judge. Circuit the latter the court relied on the underlying presentence facts set forth in the Act, The Armed Career Criminal 18 U.S.C. report victims, testimony as well as the of the 924(e) (the “ACCA”), § provides that a felon given sentencing which was hearing. possession of a firearm who has been right Defendant exercised his reserved previously convicted of three or more “vio- appeal any sentencing adverse determina- subject lent felonies” is to an enhanced sen- tions and the district court’s denial of his felony” tence. “Violent defined suppress. motion to 924(e)(2)(B) § punishable by crime imprisonment exceeding year for a original term one panel three-member vacated use, attempted sentence, “has as an element holding defendant’s that the lower use, force,” threatened use of examining court erred in the actual conduct presents po- “involves conduct that underlying Kaplansky’s convictions, but oth- physical injury tential risk of agreed to another.” erwise with the district court’s con- (ii). 924(e)(2)(B)®, principal statutory issue be- possibility clusion of kid- en napping by fore the banc court is whether deception purpose com- kidnapping under mitting felony precluded Ohio Rev.Code Ann. a nonviolent defen- 924(e)(2)(B), subparagraph of either cate- under being from classified

dant’s conviction look to the statuto sentencing courts should either a “violent gorically as charged, rather crime ry of the 924(e)(2)(B). definition did not It therefore clause prior the actual facts individual’s than regarding his defendant’s address 600-02, 110 at Taylor, 495 U.S. conviction. imposition conviction. United gross sexual v. also United at 2159-60. See States 94-3744, S.Ct. 1993 WL Kaplansky, No. v. States (6th Cir.1990), Lane, 895, cert. F.2d 901 1993) (vacated). 909 (6th 22, Sept. Cir. 366362 977, denied, 1093, 112 S.Ct. 498 111 U.S. by de- kidnappings that all The felt dissent (1991). “categorical ap This purpose of commit- ones for the ception, even statuto with the proach,” which is consistent obstructing a or ting nonviolent a history, legislative ry language as well as the invariably present a government, of function practical “the difficulties designed to avoid is majority injury. of physical A “potential” for ap a unfairness of factual potential banc, rehearing there- en the voted court 495 prior Taylor, conviction. proach” to each judg- opinion and by vacating previous Lane, 2159; 601, 909 at 110 S.Ct. U.S. at v. original panel. United States ment of 901. (6th Cir.1993). F.2d at 177 Kaplansky, 5 F.3d an recognized Court also Supreme The II. in “a categorical approach exception to the jury a range of eases where narrow 924(e) above, a § mandates As noted of actually required to find all the elements” § 922(g), and person who violates 18 U.S.C. 602, felony. Taylor, 495 U.S. at the violent “vio- previous convictions for who has three situations, the In such 110 at 2160. S.Ct. felonies,” subject an enhanced shall be lent charging “the sentencing court look to defines “violent felo- The statute sentence. jury Id.1 paper and instructions.” When ny” as way conviction is of defendant’s by imprisonment for any punishable crime Taylor look to appropriate under plea, it is exceeding year ... that— a one term guilty plea. indictment and United (i) use, attempted as an element the has (10th Barney, F.2d 635 Cir. v. 955 States use, physical of force or threatened use Sweeten, 1992); 933 F.2d States v. United another; person of or against the (9th curiam); Cir.1991)(per United 765 (ii) extortion, arson, involves burglary, (5th Garza, 59, Cir.), F.2d 61 v. 921 involves explosives, use of or otherwise — denied, U.S. -, 91, 116 112 S.Ct. cert. presents potential a conduct (1991); v. Corneli L.Ed.2d United States 63 physical of to another.... (8th Cir.1991); us, 490, F.2d 494 United 931 924(e)(2)(B)(West 1994). The 18 U.S.C.A. (8th Cir.1990); Payton, 918 F.2d 54 States v. offenders,” targets so-called “career statute Gallman, 639, 645 v. United States very “present nature at those their who 908, (7th denied, Cir.1990), 499 n. 7 cert. U.S. persons.” of harm to least threat a (1991). 1110, 113 L.Ed.2d 219 See 111 S.Ct. States, 575, 587- Taylor v. 495 U.S. 1073, Bentley, 29 F.3d United States 2143, 2152, 109 607 110 S.Ct. L.Ed.2d Cir.) (court language of examined 1077-78 (1990). to ascertain whether indictment burglary generic of pled guilty to elements Supreme has The Court stated range proscribed statute broader deciding a crime is a “violent where state whether States, Court 110 S.Ct. at 2158. Taylor The 1. v. United (1990), Supreme that where the state statute also observed S.Ct. 109 L.Ed.2d 607 definition, generic prior such as bur- broader whether the than Court considered defendant’s entry glary automo- second-degree burglary which include an under Mis- statutes building, "burglary” a "if the indictment qualified bile as as a well souri law jury 924(e)(2)(B)(ii). show that instructions Court first that information held charged only burglary burgla- with a defendant was refers not to law federal statute common jury necessarily building, to find “generic burglary,” that the had ry, includes rather but convict, entry building then the Gov- unprivileged "the basic elements of unlawful or into, in, the conviction remaining building be allowed to use entry or struc- ernment should ture, at 2160. Taylor, Id. at 110 S.Ct. for enhancement." with intent to commit a crime.” — denied, conduct), U.S. -, (3) terrorize, cert. To or to inflict serious 130 L.Ed.2d 515 another; harm on the victim or (4) engage To activity, in sexual as de- fined in section 2907.01 of the III. Revised Code, with the against will; victim government concedes that the district hinder, To impede, or obstruct a in looking court erred at the actual facts of government, function of or to prior felony Despite convictions. action or part concession on gov- belief, district exception court’s authority. ernmental stops embracing short of the actual conduct Ohio Rev.Code Ann. (emphasis 2905.01 underlying prior Taylor, conviction. added). argues, Defendant and both the dis- at (legislative U.S. 110 S.Ct. at 2159 trict court original panel and the agreed, that 924(e) § history of Congress reflects that attempted because an kidnapping by decep- sentencing not intend for “engage courts to (2) (5) statutory tion for purpose or does not factfinding process in an regarding elaborate necessarily present “a potential serious risk prior offenses”); Payton, the defendant’s physical injury another,” of to Kaplansky’s (district F.2d at 56 court erred under conviction for kidnapping could statute, looking beyond charging pa- state not be felony classified as a violent per jury police report instructions to 924(e)(2)(B)(ii) § categorical under the ap- leading determine nature of conduct to con- proach. viction). Rather, government maintains We think this view overlooks the word that kidnapping because is a crime directed “potential” in provision the “otherwise” of at personally, categorically the individual it (ii), clause and also misunderstands the na- presents a serious risk of categorical ture of the approach. As the injury. government argues The also that a recently Tenth Circuit observed: sentencing properly court could conclude indictment, It worth plea emphasizing from the judgment that that 924(e)(2)(B)(ii) § only physically requires that Lally. harmed Colleen there “potential” be a serious application injury; We consider risk of categorical of approach require proof does not any inju- that actual Ohio Rev.Code Ann. 2905.01 occurred, ry nor categori- first. should it under a approach.

cal agree position We with the of plausible, the United States that it is A. likely, and indeed even that a nonconsen- government argue does not that sual, kidnapping unlawful under the Mis- necessary 2905.01 has as a element the souri potentially statute could result use, attempted use or threatened use of physical injury party. to an involved force. We therefore examine the statute ex Phelps, United v. States 17 F.3d clusively language requires that conduct (10th Cir.) (conviction under Missouri kid- presents that physical injury a serious napping predicate statute would be used as provides to another. The statute in relevant though physical even force is not part: crime, element of plausible because it is that (A) threat, person, by No force, decep- physical injury result), potentially could cert. tion, or, in the case of a victim under the — denied, -, 115 S.Ct. age mentally incompetent, thirteen or Phelps court found by any means, shall remove another from persuasive dicta from a Ninth Circuit deci- where he is found or restrain him sion, Sherbondy, liberty, any of his following of the Cir.1988). Sherbondy, purposes: court, anticipating categorical approach ransom, To hold for or as a shield or Court, adopted by later Supreme see hostage; Taylor, at 110 S.Ct. at 2159 (2) To facilitate the (citing Sherbondy approval), commission of observed thereafter; (ii) flight supplements scope clause really going and decide on figure out what’s through final “other- its “violent term resist, requiring perpetrator statutory in turn by reaching other provision, wise” if he is physical restraint resort to actual not covered law offenses and common Thus, poten- (i) similarly plan. criminal carry involve a out the generieally clause in- illustrate, is an against the court noted the victim risk. To tial for violence kidnapping, a aspect of the crime of herent recognized. legislature the Ohio fact which Code ways the Model Penal one of the to H Comment Committee See Commission “unlawfully re- kidnapping is defines (kidnap- §Ann. 2905.01 Ohio Rev.Code resi- from his mov[ing] another among the offense ping is “the most serious business, distance or a substantial dence code”) and in the [Ohio] Penal offenses ...” Model abduction where he is found from Ann. Code, not an to Ohio Rev.Code 212.1. Violence is Committee Comment Section (lesser offenses, way, such as defined included element 2905.02 trickery restraint, through person are “distin- for removal of unlawful abduction and as abduction degree poten- can be as unlawful mainly by or deceit the lesser guished (i) Thus, victim”). would subsection gunpoint. It is for this harm- to the tial kidnap- under the apply to a conviction not unper- the dissent’s reason that Nevertheless, kidnapping ping statute. injury actual force or Just because suasive. physical potential risk of entails a “serious may particular in a instance not surface victim, making offense a injury” (i.e., initiated kidnapping in those instances (ii). felony” under subsection “violent that it is not an by deception) does not mean having the seri- undercurrent offense also Sherbondy, 865 F.2d at 1009. See Unit (9th rising Lonczak, potential of to the surface. Cir. ous v. 993 F.2d 180 ed States 1993)(ehild stealing under California law pur reasoning a “crime of violence” for with

qualified as is consistent This determining status poses of career offender categorical approach, where the focus of the 4B1.2(l)(ii) (an § sentencing guideline under the offense rather we look to the nature of 924(e)(2)(B)), § analogous provision facts to determine wheth than individualized by though can be achieved fraud the crime felony.” Because qualifies as a “violent er force, it “offers without because abduction kidnapping “type” of offense we think is the physical potential risk of the same serious physical injury to the vic where the risk of kidnapping does injury child as to the stolen invariably that a present, we conclude tim is Sherbondy adopting kidnapped person”; ato Ann. under Ohio Rev.Code crime committed Patino, dicta); 962 F.2d 263 States v. United force, force, 2905.01, § threat of whether (2d kidnap qualifies as Cir.)(conspiraey categorically qualifies as a “vio deception, 924(c), under because “crime of violence” 924(e)(2)(B)(ii). Fur lent of vio kidnapping unquestionably is crime thermore, merely did not because defendant lence; conspiracy to com and when a exists kidnapping does not diminish complete the violence, conspiracy itself mit a crime of to the victim. violence), risk” of cert. poses a “substantial Lane, (attempted burglary 909 F.2d at 903 — denied, 354, -, 121 113 U.S. S.Ct. felony; law constituted violent under Ohio (1992). L.Ed.2d 268 complete offense fact that defendant didn’t potential risk of did not diminish serious recognize, the foregoing As the cases attempt); injury arising from the requiring another to essence of is Cir.)(at 185,188 Fish, v. will; against or her something do breaking entering under Michi tempted usually is physical force or restraint because felony under gan qualified as violent another, law way the will of the best to overbear Lane), clause; relying cert. latent, on “otherwise” physical force or threat of force is a — 115, denied, -, actual, companion of the coer but more often (1991). hold that We therefore may deception That be used cive element. attempted kidnapping defendant’s kidnapping does not erase the effect the to enhance his sentence. properly used ever-present possibility that the victim vailing B. First, nonetheless for two reasons. by pleading guilty to the state law government’s position alternative Kaplansky has admitted all well-plead- particular conviction for defendant’s ed facts in the indictment. Department of kidnapping qualifies predicate as a attempted Santucci, Liquor Control v. 17 Ohio St.2d exception Taylor crime under cases (1969); Eckle, 246 N.E.2d Click v. necessarily jury found all the where ele 174 Ohio St. 186 N.E.2d 733-34 felony. ments of a violent The indictment (1962); Sacks, Rodriguez 173 Ohio St. underlying alleges the conviction in our ease 184 N.E.2d 27, 1979, September about on or defen an act in dant committed violation of Ohio Second, language the cited cannot be §§ Rev.Code Ann. 2905.01 and 2923.02 when surplusage, considered because it is material he charged. law, to the crime Under Ohio “[a]n force, attempt deception threat or attempt aggravated felony to commit an Lally removed Colleen from the [sic] degree aggravated first or second is an where she was found or her of restrained felony of aggravated degree the next lesser liberty purpose facilitating for the aggravated than felony attempted.” felony flight the commission of a or the 2923.02(E). Ohio Rev.Code Ann. In other terrorizing, inflicting thereafter and/or words, the fact that defendant was convicted Lally, harm on Colleen degree of a attempt second means that he engaging activity in sexual and/or first-degree kidnapping. to commit Lally against her -willand failed to Colleen 2905.01(C)(“Whoever §See violates this sec release the victim in a un- tion kidnapping, aggravated harmed. degree. of the first If the offender support that of its defendant’s unharmed, in place releases the victim a safe attempted kidnapping constituted a “violent kidnapping aggravated felony is an felony,” government focuses on the fact degree.”). second Had this fact not been alleged only that the indictment here not that material, Kaplansky would have been kidnapping defendant but also charged example, with another crime. For if that he to release the victim in a “failed safe defendant had released the in victim a safe (cid:127)place government unharmed.” The main- unharmed, degree kidnapping a second plea that tains defendant’s includes charged he would have been and, minimum, admitting this element at a degree third attempted kidnapping. By establishes that the crime a risk of involved pleading guilty indictment, to this defendant injury to the victim. necessarily has also admitted that he at causing Defendant counters that harm to tempted degree some physi use of actual the victim is not an element of the crime of Thus, restraining Lally. cal force Colleen law, allega under Ohio and this view, Kaplansky’s in our conviction satisfies surplusage tion is mere which 924(e)(2)(B) Tay both clauses under the pled guilty. Bridges not admit when he See exception. lor States, 209, 222-23, v. United 346 U.S. 73 1055, 1063, (1953)(inser- 97 L.Ed. S.Ct. IY. surplus tion of words in indictment does not offense); change nature of the United States Because of its determination that the Cir.1968)(same), Levinson, attempted kidnapping conviction was not a denied, ACCA, predicate t. origi crime under the cer (1969). Granted, panel 23 L.Ed.2d 219 nal had no reason to consider defen challenge ruling under Ohio law the issue of whether defen dant’s to the district court’s gross imposition dant “releases the victim in a that sexual conviction felony.” unharmed” is matter of affirmative defense was also a “violent The district and not an element of the crime. State v. court based its conclusion on the text of the Leslie, App.3d testimony 14 Ohio 471 N.E.2d indictment and the of the victim. stated, Although, already Defendant’s contention is una- consideration of “I. testimony improper, we victim’s that the offense the district court agree with evening of on the At around 9 o’clock felony under the a violent may be considered 11, 1992, called January Debra Richards the indictment Taylor exception because police department Cuyahoga Falls unequivocally pled guilty suspicious van in presence of a report the “unlawfully pur- that defendant states Richards told parking lot. apartment her contact with Vivian Smith posely had sexual had been dispatcher that a man police person to by compelling such spouse not his time,’ and watching ‘the entire in the van (Empha- or threat submit offorce.” coming ‘keeps man in the van that added.)2 Thus, prior convic- defendant’s sis minute later called back one around.’ She imposition under Ohio gross sexual tion for had followed her report the van felony” is a “violent Ann. 2907.05 Rev.Code couple year daughter ‘a old fourteen (i) 924(e)(2)(B), quali- under clause night it followed that that had times’ and for a “vio- prior third fies as the house. daughter to a friend’s the federal statute. lent patrol all police dispatcher radioed suspi- there was ‘a in the area that cars V. van, as a in a blue described cious male challenge Finally, note that defendant’s we pony tail and a beard’ white male with denial of his motion

to the district court’s parking lot. Guld- apartment Officers the en was not the focus of suppress, which Curtis, patrol driving separate man and court, Finding no unresolved. banc remains cars, They responded to the broadcast. however, we question, reason to revisit time, approach- arrived at about the same original portion hereby adopt entrances. As Officer ing from different unpublished in the panel’s as set out decision lot pulled parking into the he Guldman opinion. appendix to this backing parking a blue van out of noticed on his space. Guldman turned Officer patrol car in front of lights pulled VI. approached the the van. Officer Curtis herein, judg- For the reasons stated side, parked other be- van from the AFFIRMED. district court is ment of the hind the van. AFFIRMED; judgment The of conviction radioing in was the As Officer Guldman AFFIRMED, but for the sentence plate, Kaplansky, a van’s license white provided by the than those reasons other beard, pony with a tail and exited the male court. district van, leaving open. door the driver’s side request, Kaplansky At Officer Guldman’s APPENDIX told produced his driver’s license. He the cur- that the license indicated his PER CURIAM. officer address, anyone not know rent that he did hereby address the appendix, In this we area, that had driven to the in the he remaining by appeal. this Be- issue raised argument an with his wife. area after district Kaplansky’s contention that the cause questioning was holding police that the had While Officer Guldman court erred in approached Curtis justify “Terry stop” Kaplansky, a Officer suspicion to reasonable flashlight in win- panel He shined his thoroughly original in the van. was covered Merritt, passenger side door and saw hereby adopt dow of the by Judge we decision gun appeared to be the butt of a entirety what it in its here. Defendant(s), imposi- or about the date of charging gross named on sexual 2. The indictment above, County tion reads follows: in the the offense set forth Jury Cuyahoga, unlawfully purposely the Grand of the State The Jurors of had sexu- Ohio, body County within and for the spouse by al contact with Vivian Smith not aforesaid, oaths, IN THE NAME AND on their compelling person such to submit OF BY OF THE STATE THE AUTHORITY threat of force. OHIO, present, above Do find and that the dispatcher’s basis of the knowledge. See 231, id. at 105 S.Ct. at 681. protruding from under the driver’s seat. open He then walked around driv- dispatcher specif- knew sufficient door, flashlight er’s side shined his under ic, articulable justify facts to ordering an seat,

the driver’s suspi- and confirmed his investigatory stop Kaplansky. Debra The officers Kaplan- cion. then arrested reported Richards Kaplansky kept sky carrying a weapon. concealed coming apartment around complex, ap- parently just to sit in his van and “watch.’ II. When Ms. Richards dispatcher called the Kaplansky’s initial contention is that the time, the second reported she that the van court holding district erred in had followed year her fourteen daugh- old police suspicion had reasonable justify a once, ter more than ‘Terry stop.’ government and that responds had fol- (1) argument by defendant daughter waived lowed her earlier that night to a (2) failing court, it in raise the district friend’s house. contends that police suspicion have reasonable this behavior is consistent with a number justifying Terry stop, a police explanations: of innocent that he awas with Kaplansky encounter not ‘stop’ a private investigator, process server, a a or ‘seizure’ under the Fourth Amendment. repossession agent, jealous boyfriend, police we find that Because had rea- cooling someone off from an Ohio, suspicion Terry sonable v. with his wife.1 88 S.Ct. 20 L.Ed.2d 889 (1968), argu- we do not address the other explanations Most of these complete- are government. raised ments ly incompatible man, thirty over Terry v. Ohio examines the circum years beard, old with a full repeatedly police stances under which a officer following year a fourteen girl old around investigatory stop an suspicious make of a neighborhood in a van. Even if the short of Investigating individual arrest. plausible defendant could assert a innocent specific, officers must be aware of articula- explanation behavior, for his this would not creating facts suspicion ble reasonable preclude police investigating from activity criminal investigatory before an possibility that planning defendant was stop Terry, is allowed. 392 U.S. at type activity. some of criminal As the 1879; Hardnett, United States v. concedes, police need not Cir.1986), cert. de every rule out innocent emanation nied, 107 S.Ct. suspicious behavior in justify order to In a case such as this investigatory stop. E.g., United one, where officers are investigate told to Thomas, (9th Cir.1988). 622, being situation without told all of the facts justifying investigation, the court must We conclude police stop that the was beyond specific the look facts known to the justified by suspicion reasonable under officers on the scene to the facts known to Ohio, Terry v. and therefore affirm the dispatcher. See United States v. district court’s denial of defendant’s motion Hensley, 469 U.S. 105 S.Ct. suppress entry judgment its of. (1985). permissible It was conviction.” Officers Guldman rely upon Curtis dispatcher’s conclusion that SO ORDERED. ‘suspicious’ was inquiring without into the indicates, 1. however, Defendant further contends that his behavior Research that Mr. Loesser’s 'girl watching,’ could be construed thoughts as innocent 'girl watching’ on the innocence have citing limited, overruled, Frank Loesser’s directly immortal number 'Stand- been if not more ing See, on Happy the Comer’ from Broadway Most Fella e.g., Stephen recent musicals. ('Brother, you go Sondheim, jail you're can't for what ‘Pretty Lady,’ Pacific Overtures thinking/Or your (1976), eye.'). for the accompanying “Ooooh” look in scene. MERRITT, Judge, dissenting. NELSON, Chief Judge, Circuit A. DAVID concurring. obvious has made an The en banc court governing Su- interpretation under A of the court’s error of in all Part III

I concur but case. precedent in this preme I do not Court "with an issue opinion, which deals need to reach. think we 15-year term of mandatory minimum A law, Armed Career imprisonment Part III B of Under Ohio Act, kidnap- 922(g), imposed distinguishes explains, what U.S.C. opinion Criminal kidnapping of has three degree from who ping of the first convicted defendant on failure to release degree is the second for “violent felonies.” Sec- prior convictions 924(e)(2)(B) unharmed. The defen- place in a safe victim term “violent defines the tion guilty to a pleaded in the case bar dant felony that “has as an element felony” as a attempt to commit charge of ... physical use of the ... threatened which, fol- not have been because would arson, extortion, involves burglary, or is in a safe of the victim lowed a release involves con- explosives, or otherwise use of unharmed, necessarily have would place potential risk presents a serious duct degree. The another_” of the first qualified as a The Su- allegation in the indictment materiality of the mandatory interpreted preme has Court in a to release the victim regarding failure restrietively to mean minimum statute beyond dispute; thus place safe unharmed is only sentencing may “look to the court disregarded as mere allegation cannot be statutory definition conviction and the fact of surplusage. prior v. United offense.” States, admits, as this defen- a defendant Where 109 L.Ed.2d 607 Court did, kidnap his that he dant in range in a narrow of cases explained that releasing place in a safe without victim ele- provide alternative which statute “unharmed,” to me that the it seems obvious ments, mandatory satisfy the some of which risk of “presents offense do provisions and others of which minimum meaning of those physical injury” within the not, sentencing may look to the court 924(e)(2)(B)(ii).. as used in 18 U.S.C. words jury instruc- indictment or information kidnapping in Any attempt at which jury whether the neces- tions to determine that his victim be perpetrator does not intend “violence” sarily had to find the element of (and none in a unharmed released If satisfies the statute. catego- in examples falls of the dissent’s question may committed without vio- be potential ry) to entail a serious is bound then lence under the definition of injury. a risk whether or It entails such may not be used for enhance- the conviction ultimately hap- perpetrator’s intent not the Thus, “categori- adopted a ment. the Court or an- pens to be frustrated for one reason specific ap- approach, cal” not a offense other. proach. admit- the defendant this case Because question presented in this case is did not intend that his victim be ted he prior conviction for whether the defendant’s unharmed, the at- released in a safe attempted kidnapping, Rev. degree first Ohio tempted kidnapping one that would car- 2905.01, felony a “violent” Code constitutes injury if ry potential a serious risk of even 924(e), year mandato- requires a 15 for question whether we answered “no” to the sentence, at ry minimum when the offense kidnapping by deception carries such a risk by decep- “kidnapping issue criminalizes ipso I see no reason to therefore facto. categorical approach, this Using tion.” the question. latter decide the liberty, any of or restrain him of his kidnapping reads in relevant found 1. The Ohio statute part: following purposes: the ransom, (1) or (A) hold for or as shield To person by deception ... ... shall re- No hostage; place where he is move another from they does not have as an element are In example, statute arrested. this the de- fendant, by physical deception, of threatened use because the removed the.woman place from the where she may by “decep- of was found in order statute be violated means to facilitate the prostitution, commission of by tion” as well as force or threat. Under and he failed to alternative, release the victim in a safe deception ways of the some place apprehended unharmed because he was violate the statute are violent to felonies before he could release the It is woman. provides others are not. therefore difficult to discern how such a crime could be that a court should review the indictment to a “violent poses which “a serious determine whether the defendant was actual- potential physical of to the victim ly felony. convicted of a violent or another.” But precisely these facts fit pled guilty The defendant here to the fol- within the Ohio language statute and the of lowing charge: They the indictment. fit the indictment like ... ... attempt The glove involve no for violence force, deception threat or [to] remove[] whatever. Lally place Colleen from the where she example, As a second a defendant and his liberty was found or restrained her of her partner-in-crime plan to steal art work from purpose facilitating the commis- of employer’s the wall of the defendant’s office felony flight sion or the of thereafter Saturday on a afternoon when no one is at terrorizing, inflicting and/or arrive, they the office. they When discover physical Lally, harm on Colleen en- and/or employer’s teenage daughter gaging activity in Lally sexual with Colleen working employer’s computer. against her will and to release the failed defendant decides to daughter away lure the (Em- place victim in a unharmed. give from the in partner office order to his added). phasis opportunity to steal the art work. The charges The indictment the offense of child, defendant offers to take the who he may have been committed de- him, previous knows from contacts with to ception purpose facilitating for the “the parlor the ice cream or another destination. flight commission of a or the thereaf- agrees, The child per- and the defendant ter,” be done without violence as stay long suades the child to with him for mandatory defined the federal minimum enough give partner opportunity his statute. job. heist, pull Midway through off the example, any following For one of the non- however, partner apprehended violent crimes comes within the Ohio statute police tells the where the defendant and the language and the of the in this indictment gone. police child have find the defen- pimp case: The defendant is a and the victim sitting dant and the child in the ice cream works for the defendant as parlor apprehended. and the defendant is prostitute. agrees accompa- The woman has, example, by decep- the defendant ny the defendant across state lines after he tion, removed the from child where Cincinnati, they going tells her that are from purpose facilitating she was found for the Covington, Kentucky Ohio to to meet a the commission of the theft. He further friend, taking when in fact his reason for failed to release the victim in a safe Kentucky engage prostitution. is to appre- unharmed because defendant was defendant, Unknown to the the “friend” is an opportunity hended before he had the agent undercover and when the defendant release child. I fail to see how either the home, and the woman example arrive at the friend’s possibly first this theft case could (2) part governmental To facilitate the commission of felo- concession on the au- thereafter; ny flight thority. (3) terrorize, (C) To or to inflict serious Whoever violates this section is another; kidnapping, aggravated felony harm on the victim or the first engage activity degree. To in sexual ... with the If the offender releases the victim in a will; unharmed, against place aggra- victim is an hinder, impede, felony degree. To or obstruct a function vated of the second government, any or to force action or Ohio Rev.Code 2905.01. nonviolent. The above we describe as “presents a serious ties which considered one be that fact. So examples demonstrate injury.” set of potential risk of legal fiction: “de- simply creates a the court a case in which example is A third equals found” ceptive removal from the defendant, a court order not who is under always “possible” that it is “violence” because child, custody his minor interfere with “might” it occur. deception to leave by child his minor induces in or other eases I not reach out would him. The defen- and live with her mother legal fiction to through the creation of a in child to assist “kidnapped” dant uses mandatory minimum impose long sentences. felony theft committing such as a nonviolent “violence,” say as a not fictionalize I would mail, arrested and he is of a check from that conduct is “violent” categorical matter attempt. There is no violence during the I it it In such cases would leave when is not. he was ar- for violence. Because arrive at up to the district court defendant did during the rested imposed tying the to be without sentence place un- in a safe “release the child not year mandatory minimum judge down to a 15 harmed.” enlarging point of sentence. What is the examples, fit within In all of these which mandatory minimum sentences reach precise language of the the Ohio statute and legal good is no through fictions? There case, many other in this indictment I reason to do so that can see. formulated, possible it is cases which can be Kaplansky convicted of first to have been Jr., MARTIN, Judge, F. Circuit BOYCE com- degree attempted kidnapping without dissenting. by mitting a violent is defined join Judge I with Merritt in dissent and 924(e). Why auto- should he be sentenced my separately point own. write to add matically mandatory minimum based on to a Congress a case where and we as This is crimes are vio- violence when none of these today missing citizens are the boat. We have any risk of violence? lent or involve “serious” peniten- ill federal sent a rather citizen by Taylor to supposed are to be bound We tiary years expense at an in excess for fifteen employ categorical approach and not to in fact he taxpayer of a million dollars when the conviction than the look further behind facility, hospitalized in a state should be indictment, required interpret and we are obviously the state of Ohio does not strictly. statutes Under such enhancement have available. our rush to answer rationale, it seems obvious again cry everywhere, we have crime is the “removal-from- Kaplansky could commit duty mentally ill or emotion- neglected our charged in the instant the-place-found” crime ally citizens who commit crimes. disturbed what- without risk of violence indictment again expediency good over We have used standards, Kaplansky’s these soever. Under judgment by incarcerating citizens in a such en- conviction should not have been used to pos- penitentiary prisoners who federal hance his sentence. way I full faculties. In no do sess their that Robert Paul has lived out to sentence the believe The court has reached do, however, mandatory exemplary a life of behavior. I to a minimum sen- here, reading Robert hap- believe from this record that happened tence. has as has What history, Kaplansky suffers from mental and pened legal is that the Paul so often our treated legal problems It has emotional that are better court has created a fiction. through hospitalization or medication. As potential” for “vio- ordained that a “serious Kaplansky’s opinion always “invariably present” evidenced lence” must be DiFranco, treating Kaplan- psychologist, Dr. aspect and “an inherent of the crime” when- sky in all likelihood serve his fifteen “by deception person removes another will ever expense, approach- years taxpayers’ now he is found.” We know from the where $25,000 only ing per year rising, to re- deception will as a matter of fact that such turn to the same behavior which is caused “invariably” to violence or create not lead imagine I Con- many activi- his mental disorder. cannot any more risk of violence than

331-359 a wasteful result as that gress intended such today majority’s decision

required 924(e). Congress If when it enacted Section result, it should have deter- intended this constructed so that mined that facilities be Kaplansky could at persons like Robert Paul given opportunity be for reasonable least assistance, thereby avoiding the medical tragic present him to us circumstances felon.

as a three-time convicted I therefore dissent. Wayne O’GUINN, Kenneth Petitioner- Appellee/Cross-Appellant, DUTTON, Respondent-

Michael Appellant/Cross-Appellee. 93-5578, Nos. 93-5620. Appeals, Court of

Sixth Circuit.

March 1995. MERRITT, Judge; Before: Chief KENNEDY, KEITH, MARTIN, JONES, MILBURN, NELSON, RYAN, BOGGS, NORRIS, SUHRHEINRICH, SILER, BATCHELDER, DAUGHTREY, Judges. Circuit

ORDER majority Judges

A of this Court regular active service have voted for rehear- ing Rule of this case en banc. Sixth Circuit provides as follows: granting hearing of a en

The effect of the previous opin- banc shall be to vacate the court, stay judgment ion and of this mandate and to restore the case on the pending appeal. docket as a sheet Accordingly, pre- that the is ORDERED judgment of this court is vious decision and vacated, stayed and this case the mandate pending appeal. as a is restored to the .docket parties to file The Clerk will direct the supplemental and will briefs schedule possible. as soon as ease for oral

Case Details

Case Name: United States v. Robert Paul Kaplansky

Court Name: Court of Appeals for the Sixth Circuit

Date Published: Dec 2, 1994

Citation: 42 F.3d 320

Docket Number: 92-3744

Court Abbreviation: 6th Cir.