UNITED STATES of America, Appellee, v. Sergio MARTINEZ-HERNANDEZ, Appellant, 593 F.3d 761

BENTON, Circuit Judge. Sergio Martinez-Hernandez pled guilty to transporting his 11-year-old stepdaughter from Arkansas to Florida to engage in sexual activity. He is already serving a 20-year state sentence for the attempted sexual battery of his step-daughter in Florida. At federal sentencing, the district court applied a four-level enhancement because Martinez-Hernandez abducted his victim. See U.S.S.G. § 2A3.1(b)(5). The court sentenced him to 235 months (plus 10 days), the bottom of the applicable guideline range.

The federal sentence runs concurrent with the (longer) state sentence, with credit for time served. Martinez-Hernandez contests the abduction enhancement in this appeal under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a)(2). According to him, his stepdaughter never asked to go home, and in fact asked not to be taken home. On appeal, this court reviews “a sentence for an abuse of discretion, giving due deference to the district court’s decision.” United States v. Miller, 588 F.3d 560, 564 (8th Cir.2009).

Relevant here is the first step of review: to “ensure that the district court did not commit a significant procedural error, such as miscalculating the Guidelines range, treating the Guidelines as mandatory, failing to consider the § 3553(

a) factors, selecting a sentence based on clearly erroneous facts, or failing to adequately explain why a sentence was chosen.” Id. In reviewing a sentence for procedural errors, this court reviews the district court’s findings of facts for clear error, and its application of the guidelines to the facts de novo. See United States v. Saknikent, 30 F.3d 1012, 1013 (8th Cir.1994). “[T]he abduction adjustment requires only that force necessary to overcome the particular victim’s will.” Id. at 1014.

Force need not be physical: “To ‘force’ means to compel ‘by physical, moral, or intellectual means,’ or ‘to impose’ or ‘to win one’s way.’ ” Id. See also United States v. Hefferon, 314 F.3d 211, 226-27 (5th Cir.2002) (finding abduction through “veiled coercion” where the defendant “was able to isolate the victim by dominating her lack of intellectual ability, and also by appealing to the credulous nature of a seven-year-old.”); United States v.

Rome ro, 189 F.3d 576, 590 (7th Cir.1999) (“abduction under § 2A3.1(b)(5) means kidnaping—whether kidnaping was committed by force or by the use of a force substitute such as inveigling”). In Saknikent, the defendant encountered the victim, a mentally-retarded nine-year-old, at a convenience store half a block from her home. 30 F.3d at 1013. She was found hours later and miles out of town, walking with Saknikent. Id.

He pled guilty to aggravated sexual abuse, but argued that the district court improperly applied the abduction enhancement at sentencing because no evidence indicated he (physically) forced the girl to accompany him. This court affirmed, reasoning that “[a]bduction increases the gravity of sexual assault or other crimes because the perpetrator’s ability to isolate the victim increases the likelihood that the victim will be harmed. Any concomitant assault is tangential to the rationale for the increased penalty.” Id.

This court concluded the facts that the victim was mentally impaired, resided close to the store, habitually visited it, and had rarely been outside of town “combine[d] to support the inference that Saknikent’s taking the victim out of town was against her will.” Id. at 1014-15. Here, Martinez-Hernandez, a 26-year-old, had authority over the victim as her stepfather in her residence. He took her 1,100 miles from her home and mother (whom he did not tell of the trip). The victim had no money, no phone, and was totally dependent on him during the trip.

Martinez-Hernandez admits that, before taking her to Florida, he was sexually involved with her for four months, and ■wrote notes to her saying, among other things: • “I wish you and I could already be together to demonstrate to you how much I love you.” • “I love you very much my little love, little kisses on your sexy mouth.” • ‘You are the only girl for me.” • “I hope that you behave well with me because if not, I’m going to spank you and I am going to get you naked and I’m going to torture your body.

It’s a joke.” • “Now I do believe that you love me because you decided to go with me.” In context, these notes amount to force through trickery and deceit. The district court noted: In this instance, we’ve got someone the child looks up to. I feel this defendant could certainly manipulate that child to a point or to a degree of force necessary to overcome that child’s desire, if the child did desire to leave. Martinez-Hernandez relies on United States v.

Beith, 407 F.3d 881 (7th Cir.2005), where a former principal fled from Indiana to Nevada with an 11-year-old student in order to continue their sexual relationship. The Seventh Circuit recognized that “ ‘[ijnveigling,’ or imposing one’s will through ‘trickery’ or ‘gentle urging’ or flattery, is a proper basis for applying the [abduction] enhancement,” but found “no tenable connection between the manner in which Beith pursued [the victim] in molesting her and his ultimate act of driving her to Nevada that could justify a finding of abduction.” 407 F.3d at 893. Beith is distinguishable.

In Beith, the student actually “called to warn Beith of the police’s intent to interview and possibly arrest him,” leading to their interstate travel. Id. Further, Beith “made no false promises to her, and his overtures, while undeniably vile, were cloaked in neither deceit nor trickery.” Id. Here, Martinez-Hernandez used flattery, deceit, and parental authority to get his victim to leave with him, as evidenced by his notes and the other facts of this case. The district court did not commit a significant procedural error by applying the abduction enhancement. The judgment is affirmed. . The Honorable Harry F.

Barnes, United States District Judge for the Western District of Arkansas. . The dissent notes that the abduction enhancement changes the advisory guideline range by upwards of seven years. In terms of the sentence actually imposed, it should be noted that it is concurrent with the (longer) state sentence, gives credit for time served, and represents the bottom of the advisory guideline range—without considering the district court’s power to vary from it.