                  IN THE UNITED STATES COURT OF APPEALS
                          FOR THE FIFTH CIRCUIT



                               No. 02-40645
                             Summary Calendar



UNITED STATES OF AMERICA,

                                         Plaintiff-Appellee,

versus

ALBERTO ARELLANO-RAMIREZ,

                                         Defendant-Appellant.

                        --------------------
            Appeal from the United States District Court
                 for the Southern District of Texas
                           (M-01-CR-786-1)
                        --------------------
                          January 28, 2003

Before DAVIS, WIENER, and EMILIO M. GARZA, Circuit Judges.

PER CURIAM:*

     Defendant-Appellant      Alberto    Arellano-Ramirez   appeals      his

sentence imposed following his guilty plea to illegal re-entry into

the United States.      He had been deported following conviction for

an aggravated felony.      Arellano-Ramirez contends that the district

court    erred    in   imposing   the   16-level   enhancement   under    §

2L1.2(b)(1)(A) of the guidelines because first degree cruelty to

children, under GA. CODE ANN. § 16-5-70(b) is not a crime of

violence.        As Arellano-Ramirez concedes, he lodged no timely

     *
        Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
objection, so we review his enhancement for plain error only.

United States v. Miranda, 248 F.3d 434, 443 (5th Cir. 2001).

      Section 2L1.2(b)(1)(A)(2001) of the guidelines requires the

addition of 16 levels to the base offense level if the defendant

was   previously    deported      after       the    commission     of    a    crime   of

violence.   The application notes define a crime of violence as “an

offense . . . that has an element the use, attempted use, or

threatened use of physical force against the person of another” and

other   enumerated     crimes.         U.S.S.G.         §    2L1.2,      comment.      (n.

1(B)(ii)(I) and (II)); 18 U.S.C. § 16(a).                         Under the Georgia

statute, the subject offense occurs when any person “maliciously

causes a child under the age of 18 cruel or excessive physical or

mental pain.”      GA. CODE ANN. § 16-5-70(b).

      Arellano-Ramirez argues that Georgia law does not require

proof of physical force to sustain a conviction under this statute.

This argument fails, because a crime of violence may be perpetrated

not only    by   the   use   of   force       but     also   by   the    attempted      or

threatened use of force.           He also argues that the offense of

malicious cruelty to a child can be committed by omission, as, for

example, failing to seek medical care for a child.                            See United

States v. Gracia-Cantu, 302 F.3d 308, 311-13 (5th Cir. 2002).                           If

the statute did not require malice as an element, this argument

might have some persuasive force.                   Failure to seek medical care

with the malicious intent of causing a child to suffer excessive

physical or      mental   pain    is   not,     however,      a    simple      omission.

                                          2
Rather, it is, in effect, an act of physical force equivalent to a

beating.    The sentence imposed by the district court based on the

finding that the Georgia statute of first degree cruelty to a child

defines a crime of violence is not even clear, much less plain

error.   See Miranda, 248 F.3d at 443.

     Arelleano-Ramirez also contends that the felony and aggravated

felony provisions of § 1326(b)(1) and (2) are unconstitutional,

both facially and as applied in this case.        This argument is

foreclosed by Almendarez-Torres v. United States, 523 U.S. 224

(U.S. 1998), a decision that we are constrained to follow unless

and until it should be overruled by the Supreme Court.       United

States v. Dabeit, 231 F.3d 979, 984 (5th Cir. 2000).

AFFIRMED.




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