Fernandez-Serrano

MEMORANDUM **

Edwardo Fernandez-Serrano appeals his sentence after his conviction for being a deported alien found in the United States in violation of 8 U.S.C. § 1326 . We review de novo his contention that the district court erred in holding his conviction for kidnapping under California Penal Code § 207 to categorically be a crime of violence for purposes of a 16-level guidelines enhancement under U.S.S.G. § 2L1.2. *11 We agree, and accordingly vacate his sentence and remand for resentencing. We reject Fernandez-Serrano’s other arguments.

Fernandez-Serrano’s § 207 conviction is not categorically a crime of violence because the conviction lacked the “nefarious purpose” element of the generic crime of kidnapping. See United States v. Gonzalez-Perez, 472 F.3d 1158, 1161 (9th Cir. 2007). The conviction also does not have as an element the use, attempted use, or threatened use of physical force against the person of another. See United States v. Lopez-Montanez, 421 F.3d 926, 931 (9th Cir.2005). We decline to apply the modified categorical approach to Fernandez-Serrano’s § 207 conviction, but remand to the district court on an open record to determine whether to apply the modified…