     Case: 11-51139    Document: 00512114898      Page: 1    Date Filed: 01/16/2013




        IN THE UNITED STATES COURT OF APPEALS
                 FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                 Fifth Circuit

                                                                    FILED
                                                                  January 16, 2013

                                  No. 11-51139                     Lyle W. Cayce
                                                                        Clerk

UNITED STATES OF AMERICA,

                                             Plaintiff-Appellee
v.

LEODEGARIO RESENDIZ-MORENO,

                                             Defendant-Appellant



                 Appeal from the United States District Court
                      for the Western District of Texas



Before DAVIS, JONES, and SMITH, Circuit Judges.
W. EUGENE DAVIS, Circuit Judge:
      Defendant Leodegario Resendiz-Moreno (“Resendiz-Moreno”) appeals his
sentence imposed by the district court after pleading guilty to illegal reentry into
the United States. He contends the district court erroneously enhanced his
sentence based on his conviction under Georgia Code § 16-5-70(b), which the
court concluded was a crime of violence. Because the statute under which
Resendiz-Moreno was convicted does not require a showing of physical force, we
VACATE the sentence and REMAND for resentencing.
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                                   No. 11-51139

                                          I.
      In 2011, Resendiz-Moreno pleaded guilty to one charge of illegal reentry
into the United States. Resendiz-Moreno’s sentencing range was subsequently
calculated on the basis of a total offense level of 21. This offense level included
a 16-level upward adjustment based upon the judge’s determination that
Resendiz-Moreno’s prior Georgia conviction for first-degree cruelty to children
constituted a crime of violence.
                                         II.
      We review the district court’s interpretation of the Sentencing Guidelines
de novo. United States v. Bonilla, 524 F.3d 647, 651 (5th Cir. 2008).
                                         III.
      Resendiz-Moreno’s only argument on appeal is that the district court erred
in its determination that his prior cruelty to children conviction was a crime of
violence.
      United States Sentencing Guidelines § 2L1.2(b)(1)(A)(ii) permits a 16-level
upward adjustment to a defendant’s offense level “[i]f the defendant previously
was deported . . . after a conviction for a felony that is . . . a crime of violence.”
“Crimes of violence” include certain enumerated offenses as well as offenses that
have “as an element the use, attempted use, or threatened use of physical force
against the person of another.” United States v. Calderon-Pena, 383 F.3d 254,
256 (5th Cir. 2004) (en banc) (quoting U.S.S.G. § 2L1.2 cmt. n.1(B)(ii)).
      To determine whether a defendant’s prior conviction qualifies as a crime
of violence, we “look[] to the elements of the crime.” Id. at 257. “The elements of
an offense of course come from the statute of conviction.” Id. In this case, the
crime of violence upon which Resendiz-Moreno’s sentencing enhancement was
predicated was the Georgia crime of first-degree cruelty to children. The Georgia
statute of conviction provides, “Any person commits the offense of cruelty to
children in the first degree when such person maliciously causes a child under

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                                     No. 11-51139

the age of 18 cruel or excessive physical or mental pain.” GA. CODE ANN. § 16-5-
70(b) (2010). As interpreted by Georgia courts, the crime of first-degree child
cruelty thus requires proof of the following elements: (1) the minority of the
child, (2) the child suffers mental or physical pain, (3) the pain was cruel or
excessive, (4) the defendant caused the pain, (5) and malice. Brewton v. State,
465 S.E.2d 668, 669 (Ga. 1996).
       “If any set of facts would support a conviction without proof of that
component, then the component most decidedly is not an element—implicit or
explicit—of the crime.” United States v. Vargas-Duran, 356 F.3d 598, 605 (5th
Cir. 2004) (en banc). In the instant case, the language of the statute makes clear
that “the use, attempted use, or threatened use of physical force” is not
necessary to commit the crime. Specifically, a person can commit first-degree
child cruelty and maliciously inflict excessive pain upon a child by depriving the
child of medicine or by some other act of omission that does not involve the use
of physical force.1 Indeed, Georgia courts have repeatedly recognized such forms
of cruelty as violations of this very statute. See, e.g., Garrett v. State, 685 S.E.2d
355, 359 (Ga. Ct. App. 2009) (“[T]he evidence supports [defendant’s] conviction
of first degree cruelty to children for failure to seek medical attention.”);
Freeman v. State, 667 S.E.2d 652, 654 (Ga. Ct. App. 2008) (“The failure to
procure proper medical attention for a child’s injuries constitutes sufficient proof
of cruelty to children.”).
       The government nonetheless asserts that § 16-5-70 is a disjunctive statute
which permits reference to the indictment to determine whether the statute was




      1
        See United States v. Andino-Ortega, 608 F.3d 305, 311 (5th Cir. 2010) (finding that
Texas child endangerment statute could be violated “without the use of physical force by
putting poison or another harmful substance in a child’s food or drink.”).

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                                       No. 11-51139

actually violated in a way which involved the use of physical force.2 Under the
“modified categorical approach” employed by this Court, if a statute defines
multiple crimes or contains disjunctive elements, a limited inquiry into the
charging documents is permitted to determine which statutory variant of the
crime was committed. See Perez-Munoz v. Keisler, 507 F.3d 357, 361 (5th Cir.
2007). The government contends that § 16-5-70(b) is disjunctive because it may
be violated by causing physical pain or mental pain. However, even if we were
to read § 16-5-70(b) as disjunctive in that sense, a person can still violate the
statute by inflicting physical or mental pain without the use of physical force.
Because § 16-5-70(b) does not describe an offense—disjunctively or
otherwise—which requires the use of physical force, there is no basis for
inquiring into the charging documents.
       Moreover, any argument that we may use facts alleged in the charging
documents where the statute does not contain divisible crimes or disjunctive
elements is foreclosed by our en banc decision in Calderon-Pena. 383 F.3d at
257–60. In that case, this Court considered whether a defendant’s prior
conviction under Texas’s child endangerment statute qualified as a crime of
violence under the Sentencing Guidelines.3 Id. Just like the instant case, the
relevant inquiry was whether the prior conviction was a crime of violence that
required the use, attempted use or threatened use of physical force. See id. The



       2
         Resendiz-Moreno’s indictment indicates that his conviction was due to the use of
physical force which would otherwise qualify his conduct as a crime of violence: “[Defendant]
did unlawfully . . . MALICIOUSLY CAUSE JULIAN RESENDIZ, A CHILD UNDER THE
AGE OF 18, CRUEL PHYSICAL AND MENTAL PAIN BY PLACING THE HAND OVER THE
FACE OF SAID CHILD AND SQUEEZING, THEN STRIKING THE CHILD WITH THE
ACCUSED’S HAND CAUSING MARKS, BRUISING AND A CUT TO THE FACIAL AREA.”
       3
          The Texas statute of conviction provided, “A person commits an offense if he
intentionally, knowingly, recklessly, or with criminal negligence, by act or omission, engages
in conduct that places a child younger than 15 years in imminent danger of death, bodily
injury, or physical or mental impairment.” TEX. PEN. CODE ANN. § 22.041(c).

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                                      No. 11-51139

Court first emphasized that this inquiry “looks to the elements of the crime, not
to the defendant’s actual conduct in committing it.” Id. at 257. Turning to the
Texas statute of conviction, we held that even when a statute defines a crime
disjunctively, if none of the described offenses requires the use, attempted use,
or threatened use of force, inquiry into the underlying facts or charging
documents is not permitted.4 Id. at 258 (citing Taylor v. United States, 495 U.S.
575, 578 (1990)). Based on the language of the statute, we concluded: “As a
matter of simple logic, the endangerment offense can—but need not—involve the
application of physical force to the child’s person.” Id. at 260.
       GA. CODE ANN. § 16-5-70(b) is indistinguishable in this respect from the
Texas statute we considered in Calderon-Pena. See Andino-Ortega, 608 F.3d at
311. We are thus precluded from considering the facts alleged in the charging
documents to determine whether Resendiz-Moreno actually used force and
committed a crime of violence. Any sentencing enhancement relying on such an
inquiry is improper.
                                            IV.
       For the reasons stated above, we VACATE the sentence imposed by the
district court and REMAND for resentencing.




       4
         Our caselaw is admittedly not in complete harmony on this point. We have previously
issued an unpublished opinion that can be read as permitting reference to the charging
document in other circumstances. See United States v. Arellano-Ramirez, 61 F. App’x 119 (5th
Cir. 2003). However, we are bound by our en banc opinion in Calderon-Pena and therefore
follow the rule we established in that case.

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                                  No. 11-51139

EDITH H. JONES, Circuit Judge, concurring:

      Judge Davis’s opinion sets forth Fifth Circuit law correctly in this case,
and I must concur. But it is hard to see how this defendant’s sentence, based on
the lower guidelines range that will be required, fulfills the purposes of criminal
sentencing. He does not deny that his Georgia crime of maliciously causing
extreme physical pain to a child was based on an incident in which he squeezed
a three year old’s face, then struck the child with his hand, causing marks,
bruising and a facial cut. If this isn't a crime of violence, what is? Moreover,
this defendant's crime “had as an element the threatened use of physical force”
against the victim. Otherwise, he could not have been convicted for what he did.

      We are hamstrung, however, by the way in which our court has applied
the “modified categorical approach,” an approach adopted by the U.S. Supreme
Court to interpret federal criminal statutes, not the sentencing guidelines.
Without reiterating all that law, the pertinent parts of which are summarized
by Judge Davis’s opinion, we may not rely on the uncontested description of the
defendant’s conduct from the PSR because we lack the appropriate Shepard
documentation. We may not disentangle the broad language of the Georgia
statute to demonstrate that while force need not be used to commit the crime
there described, it was in fact used brutally here, and Resendiz-Moreno could not
have pleaded guilty to a felony violation except on the basis I have stated. In
sum, we are blinkered against the reality of this defendant’s prior conviction,
and he receives an unjust windfall in his sentence.

      If we were to start over, I would advocate the position recently adopted by
the Ninth Circuit en banc and by Judge Niemeyer in regard to these sentencing
issues. See United States v. Aguila-Montes de Oca, 655 F.3d 915 (9th Cir. 2011)
(en banc); United States v. Gomez, 690 F.3d 194, 203-15 (4th Cir. 2012)
(Niemeyer, J., dissenting). This position would authorize more liberal use of


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                                   No. 11-51139

Shepard-compliant documents to “pare down” an indictment or plea document
to the facts that necessarily undergird the defendant’s prior conviction. The
basis for this position is, in sum, that the Supreme Court has never excluded this
possibility; that the goals and procedures of sentencing under the guidelines are
different from the interpretation of federal criminal liability in the first instance;
and that preventing “mini-trials” and unfairness to defendants is minimized by
this method. Other circuits currently apply this more realistic approach. See,
e.g., United States v. Ventura-Perez, 666 F.3d 670 (10th Cir. 2012); United States
v. Armstead, 467 F.3d 934 (6th Cir. 2006).
      Candidly, even under the position I support, Resendiz-Moreno might avoid
an enhancement unless the government could adduce the appropriate Shepard
documents. But in many of the numerous cases we decide, such documents
exist, and we are prevented by our law from relying on them.
      Given the split among the circuits on this issue, perhaps the Supreme
Court will step in.




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