United States of America, Plaintiff-appellee, v. Jeronimo Meliton Madrigal-maceda, Defendant-appellant, 26 F.3d 134 (9th Cir. 1994)

MEMORANDUM^** 

Jeronimo Meliton Madrigal-Maceda appeals his 136-month sentence imposed after a jury found him guilty of kidnapping in violation of 18 U.S.C. § 1201(a) (1). Madrigal-Maceda contends the district court erred by increasing his offense level by six levels pursuant to U.S.S.G. Sec. 2A4.1(b) (1) for making a ransom demand because the ransom was not his motive for the kidnapping. We have jurisdiction under 28 U.S.C. § 1291 and affirm.

First, we address the government's contention that Madrigal-Maceda failed to preserve his claim for appeal because he did not present this argument to the district court. The record does not support this assertion. Madrigal-Maceda argued in the district court that the enhancement should not be imposed, among other reasons, because ransom was not his motive for kidnapping his ex-girlfriend's four-year-old nephew. Accordingly, he preserved this issue for appeal.

We review de novo the district court's application of the Guidelines. United States v. Anderson, 942 F.2d 606, 609 (9th Cir. 1991) (en banc). The guideline setting forth the penalty for kidnapping provides: "If a ransom demand or a demand upon the government was made, increase [the offense level] by 6 levels." U.S.S.G. Sec. 2A4.1(b) (1).

Madrigal-Maceda's argument that section 2A4.1(b) (1) should not be construed literally in light of the background commentary is meritless.¹  A guideline and its commentary should be construed, if possible, as consistent with each other, and with the other guidelines in the same part; if they are in conflict, the court should follow the guideline. Anderson, 942 F.2d at 612-14; see also Stinson v. United States, 113 S. Ct. 1913, 1918 (1993).

Section 2A4.1(b) (1) clearly and unequivocally directs the sentencing court to impose a six-level increase if a ransom demand was made. The background note, by stating that the offense level is increased where the kidnapping is for ransom, does not make the adjustment dependant on the defendant's motive. If it did, it would be inconsistent with the rest of section 2A4.1(b), which directs the sentencing court to increase the offense level for specific offense characteristics based solely on the defendant's conduct and its impact on the victim. See, e.g., U.S.S.G. Sec. 2A4.1(b) (2) (injury to victim); (b) (5) (sexual exploitation of victim); (b) (7) (placing minor in care of person without custody). Accordingly, the court did not err by imposing an upward adjustment based on its finding that Madrigal-Maceda made a ransom demand. See U.S.S.G. Sec. 2A4.1(b) (1); Anderson, 942 F.2d at 613-14.

AFFIRMED.