Georgia Cruelty to Children Conviction Not COV Under § 2L1.2

United States v. Resendiz-Moreno, No. 11-51139 (5th Cir. 2013) (Davis, Jones, Smith)

The panel employed the categorical approach to analyze whether a conviction under Georgia Code § 16-5-70(b) is a crime of violence under U.S.S.G. § 2L1.2. Since the statute does not require a showing of physical force, the panel vacated the sentence and remanded for resentencing.

The decision is a refreshing reminder of the categorical approach, looking only to the elements of the crime and not looking at the underlying facts or charging documents if the statute does not describe an offense that requires the use of physical force. While the Georgia statute requires proof that "the child suffers mental or physical pain," "the pain was cruel or excessive," and "the defendant caused the pain," "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." The panel was unpersuaded by the Government’s argument that the Georgia statute is a disjunctive statute which permits reference to the indictment to determine whether the defendant violated the statute in a way that involved physical force. Even if the statute was disjunctive, the panel reasoned, "a person can still violate the statute by inflicting physical or mental pain without the use of physical force." Therefore, the panel did not go behind the statute of conviction.

Of course, this decision that favored the defendant included a concurrence by Judge Jones criticizing the way the Fifth Circuit has applied the modified categorical approach. Judge Jones advocates a position recently adopted by the Ninth Circuit in United States v. Aguila-Montes de Oca, 655 F.3d 915 (9th Cir. 2011) that authorizes more liberal use of Shepard-compliant documents instead of only looking to those documents when the statute of conviction includes but is broader than a crime of violence. In her words, "we are blinkered against the reality of this defendant’s prior conviction [that he used force to squeeze and strike a toddler’s face], and he receives an unjust windfall in his sentence."