                                                          [DO NOT PUBLISH]




             IN THE UNITED STATES COURT OF APPEALS
                                                          FILED
                      FOR THE ELEVENTH CIRCUIT   U.S. COURT OF APPEALS
                        ________________________   ELEVENTH CIRCUIT
                                                       APRIL 1, 2008
                                                    THOMAS K. KAHN
                              No. 07-14116
                                                         CLERK
                          Non-Argument Calendar
                        ________________________

                  D. C. Docket No. 06-00349-CR-J-33-MCR

UNITED STATES OF AMERICA,

                                                     Plaintiff-Appellee,

                                   versus

KEVIN SPENCER,

                                                    Defendant-Appellant.

                        ________________________

                 Appeal from the United States District Court
                     for the Middle District of Florida
                      _________________________

                               (April 1, 2008)

Before DUBINA, MARCUS and WILSON, Circuit Judges.

PER CURIAM:

     Appellant Kevin Spencer appeals his sentence of 151 months imprisonment
for the distribution of cocaine, in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(C).

Spencer argues that the district court erred in determining that his prior conviction

for felony child abuse was a crime of violence under U.S.S.G. § 4B1.2(a) and that

he thus qualified as a career offender under U.S.S.G. § 4B1.1(a). Spencer argues

that the district court should not have relied on the predicate offense description

from the PSI, but rather could only rely on the state’s factual proffer of the offense

from the sentencing transcript, which did not clearly indicate the use of physical

force or infliction of physical injury, as required by § 4B1.2(a).

      We review a district court’s interpretation and application of the Sentencing

Guidelines de novo. United States v. Chavarriya-Mejia, 367 F.3d 1249, 1251

(11th Cir. 2004). The interpretation of Florida’s statute for felony child abuse is a

question of law and is also subject to de novo review. United States v. Murrell,

368 F.3d 1283, 1285 (11th Cir. 2004).

      Pursuant to U.S.S.G. § 4B1.1, a defendant qualifies as a “career offender” if

he was at least 18 years of age at the time of the commission of the instant offense,

the instant offense is a crime of violence or a controlled substance offense, and he

has at least two prior felony convictions for crimes of violence or controlled

substance offenses. U.S.S.G. § 4B1.1(a). A “crime of violence” is defined as any

offense under federal or state law, punishable by imprisonment for a term



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exceeding one year, that

      (1)    has as an element the use, attempted use, or threatened use of physical
             force against the person of another, or

      (2)    is burglary of a dwelling, arson, or extortion, involves use of
             explosives, or otherwise involves conduct that presents serious
             potential risk of physical injury to another.


U.S.S.G. § 4B1.2(a). An application note in the commentary to § 4B1.2 clarifies

that an offense is a crime of violence if “the conduct set forth (i.e., expressly

charged) in the count of which the defendant was convicted . . . , by its nature,

presented a serious potential risk of physical injury to another.” U.S.S.G. § 4B1.2

comment. (n.1). The application notes also provide that the “offense of conviction

(i.e., the conduct of which the defendant was convicted) is the focus of inquiry” for

determining whether an offense is a crime of violence. Id. comment. (n.2). “We

treat the commentary in the sentencing guidelines as authoritative.” United States

v. Ivory, 475 F.3d 1232, 1234 n.2 (11th Cir. 2007).

      We have interpreted § 4B1.2(a) as providing two alternative approaches for

classifying an offense as a crime of violence. United States v. Searcy, 418 F.3d

1193, 1196 (11th Cir. 2005). “The first approach is to determine whether the use,

attempted use or threatened use of physical force against another is an element of

[the offense].” Id. The second approach is to determine “whether [the offense]



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involves conduct that, by its nature, presents a serious potential risk of physical

injury to another.” Id.

      In determining whether an offense is a crime of violence, a district court can

look to the conduct and circumstances underlying the conviction only if

“ambiguities in the judgment make the crime of violence determination impossible

from the face of the judgment itself.” United States v. Spell, 44 F.3d 936, 939

(11th Cir. 1995). In such a case, the district court “may rely only on the ‘charging

document, written plea agreement, transcript of plea colloquy, and any explicit

factual finding by the trial judge to which the defendant assented.’” United States

v. Aguilar-Ortiz, 450 F.3d 1271, 1274 (11th Cir. 2006) (quoting Shepard v. United

States, 544 U.S. 13, 15, 125 S. Ct. 1254, 1257 (2005)). For purposes of

sentencing, the district court may also base its factual findings on undisputed

statements in the PSI. United States v. Bennett, 472 F.3d 825, 832 (11th Cir.

2006). Facts contained in a PSI are considered undisputed unless the defendant

makes a challenge to those facts “with specificity and clarity.” Id. at 832-33

(noting that an objection to the probation officer’s use of non-Shepard materials in

preparation of the PSI did not amount to a dispute of the facts).

      We have noted that, under § 4B1.2(a)(2), the definition of “conduct that

presents a serious potential risk of physical injury to another” is broadly interpreted



                                           4
“to include crimes that do not fit neatly into a category of hostile, aggressive acts.”

United States v. McGill, 450 F.3d 1276, 1280 (11th Cir. 2006). We have also

noted that “the specific language of § 4B1.2(a)(2) concerns the potential risk of

physical injury rather than the actual use of force against another.” Id. at 1281.

We have emphasized that 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.” Ivory, 475 F.3d at 1238 (holding that statutory rape, a

“nonconsensual act of sexual penetration,” inherently involves some physical force

and is a crime of violence) (internal quotations and citations omitted). Using this

reasoning, we have held that § 4B1.2(a)(2)’s definition of a crime of violence

includes lewd assault on a minor, United States v. Rutherford, 175 F.3d 899, 905

(11th Cir. 1999), and persuading, inducing, enticing, or coercing a minor to engage

in unlawful sexual activity, Searcy, 418 F.3d at 1197 (noting that the offense

“presents the possibility of an encounter that could result” in serious risk of

physical injury and that “physical injury need not be [certain] for a crime to pose a

serious risk of physical injury”) (citation omitted).

      Under Florida law, the elements of the crime of felony child abuse are

      (a)    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

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      (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.

Fla. Stat. § 827.03(1). The Florida statute further provides that “[a] person who

knowingly or willfully abuses a child without causing great bodily harm,

permanent disability, or permanent disfigurement to the child commits a felony of

the third degree.” Id.

      Because we conclude that Spencer’s predicate conviction for felony child

abuse involved a serious potential risk of physical injury to another, we agree with

the district court’s classification of that predicate offense as a crime of violence

under § 4B1.2(a) and the application of the career offender enhancement to

Spencer under § 4B1.1(a). Accordingly, we affirm Spencer’s sentence.

      AFFIRMED.




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