                                                           [DO NOT PUBLISH]


               IN THE UNITED STATES COURT OF APPEALS

                       FOR THE ELEVENTH CIRCUIT                    FILED
                         ________________________         U.S. COURT OF APPEALS
                                                            ELEVENTH CIRCUIT
                                                               November 4, 2008
                               No. 08-13290                  THOMAS K. KAHN
                           Non-Argument Calendar                 CLERK
                         ________________________

                    D. C. Docket No. 07-00419-CR-CC-1-1

UNITED STATES OF AMERICA,

                                                                 Plaintiff-Appellee,

                                    versus

ANGEL CASTILLO-VILLAGOMEZ,
a.k.a. Jesus Villagomez-Castillo,

                                                           Defendant-Appellant.

                         ________________________

                  Appeal from the United States District Court
                     for the Northern District of Georgia
                       _________________________

                              (November 4, 2008)

Before BIRCH, HULL and MARCUS, Circuit Judges.

PER CURIAM:

      Angel Castillo-Villagomez appeals from his 18-month sentence for illegal

reentry into the United States following deportation, in violation of 8 U.S.C. §
1326(a), (b)(2). He argues that the district court erroneously applied the eight-

level aggravated-felony enhancement in U.S.S.G. § 2L1.2(b)(1)(C), rather than the

four-level “any other felony” enhancement in § 2L1.2(b)(1)(D), for his prior guilty

plea in Georgia state court to three counts of cruelty to children. After careful

review, we affirm.

      A district court must begin the sentencing process by correctly calculating

the applicable guidelines range. Gall v. United States, 128 S.Ct. 586, 596 (2007).

The government bears the burden of proving the applicability of any guidelines

enhancements. United States v. Ndiaye, 434 F.3d 1270, 1300 (11th Cir. 2006). On

review, we must “ensure that the district court committed no significant procedural

error, such as failing to calculate (or improperly calculating) the Guidelines range.”

Gall, 128 S.Ct. at 597. Questions of law raised at sentencing are reviewed de novo.

United States v. DeVegter, 439 F.3d 1299, 1303 (11th Cir. 2006).

      Under U.S.S.G. § 2L1.2(b)(1)(C), if the defendant was previously deported

after conviction for an aggravated felony, eight levels should be added to the base

offense level. Application Note 3(A) explains that “‘aggravated felony’ has the

meaning given that term in 8 U.S.C. § 1101(a)(43).”            That section of the

Immigration and Nationality Act (“INA”) lists various crimes that qualify as

aggravated felonies, including “a crime of violence (as defined in section 16 of



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Title 18, but not including a purely political offense) for which the term of

imprisonment [is] at least one year.”          8 U.S.C. § 1101(a)(43)(F).    Crime of

violence is defined in 18 U.S.C. § 16(b) as “any other offense that is a felony and

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.”

“[Section] 16(b) plainly does not encompass all offenses which create a

‘substantial risk’ that injury will result from a person’s conduct. The ‘substantial

risk’ in § 16(b) relates to the use of force, not to the possible effect of a person’s

conduct.” Leocal v. Ashcroft, 543 U.S. 1, 10 n.7 (2004).

      The Georgia Code defines the offense of cruelty to children -- the offense of

which Castillo-Villagomez was previously convicted -- as follows:

      (a) A parent, guardian, or other person supervising the welfare of or
      having immediate charge or custody of a child under the age of 18
      commits the offense of cruelty to children in the first degree when
      such person willfully deprives the child of necessary sustenance to the
      extent that the child’s health or well-being is jeopardized.

      (b) Any person commits the offense of cruelty to children in the first
      degree when such person maliciously causes a child under the age of
      18 cruel or excessive physical or mental pain.

      (c) Any person commits the offense of cruelty to children in the
      second degree when such person with criminal negligence causes a
      child under the age of 18 cruel or excessive physical or mental pain.

      (d) Any person commits the offense of cruelty to children in the third
      degree when:

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             (1) Such person, who is the primary aggressor, intentionally
             allows a child under the age of 18 to witness the commission of
             a forcible felony, battery, or family violence battery; or

             (2) Such person, who is the primary aggressor, having
             knowledge that a child under the age of 18 is present and sees
             or hears the act, commits a forcible felony, battery, or family
             violence battery.

O.C.G.A. § 16-5-70(a)-(d).

      In determining whether a prior conviction in state court meets a federal

violent-crime definition, we apply a formal categorical approach that looks at

statutory definitions rather than underlying facts. Taylor v. United States, 495 U.S.

575, 600 (1990); United States v. Llanos-Agostadero, 486 F.3d 1194, 1196-97

(11th Cir. 2007). In general, this requires us “to look only to the fact of conviction

and the statutory definition of the prior offense.”      Taylor, 495 U.S. at 602.

However, in a narrow range of cases, the state statute will include multiple

offenses, only some of which would meet the federal violent-crime definition. Id.

In such cases, we may take a limited look behind the fact of conviction, to the

charging papers and jury instructions, to determine whether the jury was actually

required to find all the elements of an offense that would meet the violent-crime

definition. Id.; Llanos-Agostadero, 486 F.3d at 1197. If the state conviction was

the result of a guilty plea, we review the statutory definition, the terms of the

charging document, the terms of a written plea agreement or transcript of the plea

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colloquy, or explicit factual findings by the trial judge to which the defendant

assented. Shepard v. United States, 544 U.S. 13, 26 (2005).

      Before his 1998 deportation, Castillo-Villagomez pled guilty to three counts

of cruelty to children.   The plain language of the cruelty-to-children statute,

O.C.G.A. § 16-5-70, identifies a variety of offenses, only some of which could

give rise to a substantial risk that physical force would be used in their

commission; because of this ambiguity, we must look to the charging documents

and plea agreement or transcript to determine which section of the statute Castillo-

Villagomez previously violated. Shepard, 544 U.S. at 26. Castillo-Villagomez

pled to the following count as it appeared in the indictment: “the offense of

CRUELTY TO CHILDREN [on grounds that he] did unlawfully and maliciously

cause Anna Castillo . . . cruel and excessive mental pain by threatening to hit her,

saying he would hate her and telling her he would not give her money anymore, if

she told anyone he touched her vagina and vaginal area.” The record gives no

indication that his plea referenced a particular subsection number or degree of the

offense, but it does indicate that he pled to maliciously causing cruel or excessive

mental pain, one of the several first-degree-cruelty offenses identified in § 16-5-




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70(b).1 Moreover, the count plainly says that Castillo-Villagomez “threaten[ed] to

hit” the child.

       Although maliciously causing cruel or excessive mental pain may be a non-

physical offense, we conclude that “maliciously caus[ing] a child under the age of

18 cruel or excessive physical or mental pain” is nonetheless a felony which

involves a substantial risk that physical force may be used against the victim in the

course of committing the offense. See Ramsey v. I.N.S., 55 F.3d 580, 583 (11th

Cir. 1995) (holding that a conviction for attempted lewd assault of a person less

than sixteen years old under Florida law involves a “substantial risk that physical

force may be used” and thus constitutes a crime of violence under 18 U.S.C. §

16(b)). Cf. United States v. Arellano-Ramirez, 61 F. App’x 119 (5th Cir. 2003)

(unpublished opinion) (upholding district court’s determination that Georgia’s

cruelty-to-children statute, O.C.G.A. § 16-5-70(b), constitutes a crime of violence

under 18 U.S.C. § 16(a) because although the offense does not require proof of

physical force, a crime of violence may be perpetrated by the attempted or

threatened use of force); U.S. v. Spencer, 271 F. App’x 977, 978-979 (11th Cir.

2008) (unpublished opinion) (upholding district court’s determination that



       1
        At sentencing for the instant illegal-reentry conviction, the government introduced no
documentation regarding two of the three child-cruelty counts, so the record reflects nothing
about them except that they were lesser included offenses to other charges.

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conviction under Florida’s felony child abuse statute -- which requires (a) the

intentional infliction of physical or mental injury upon a child; (b) an intentional

act that could reasonably be expected to result in physical or mental injury to a

child; or (c) active encouragement of any person to commit an act that results or

could reasonably be expected to result in physical or mental injury to a child -- as a

crime of violence under the career criminal enhancement, since sexual offenses

against minors “always present a substantial risk that physical force will be used to

ensure a child’s compliance with an adult’s sexual demands”) (quotations omitted).

Indeed, as the plea documents show, Castillo-Villagomez pled to maliciously

causing “cruel and excessive mental pain by,” among other things, a blatant use of

force: “threatening to hit her.”     Therefore, the district court did not err in

concluding that the felony to which Castillo-Villagomez pled was an aggravated

felony.

      AFFIRMED.




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