* 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this opinion should not be published and is not precedent except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.

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
2

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.
3

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.