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.
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Appeal from the United States District Court
for the Southern District of Texas
(M-01-CR-786-1)
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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this opinion should not be published and is not precedent except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.
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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.
3