United States v. Angel Castillo-Villagomez , 316 F. App'x 874 ( 2008 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
November 4, 2008
No. 08-13290 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 07-00419-CR-CC-1-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ANGEL CASTILLO-VILLAGOMEZ,
a.k.a. Jesus Villagomez-Castillo,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
_________________________
(November 4, 2008)
Before BIRCH, HULL and MARCUS, Circuit Judges.
PER CURIAM:
Angel Castillo-Villagomez appeals from his 18-month sentence for illegal
reentry into the United States following deportation, in violation of 8 U.S.C. §
1326(a), (b)(2). He argues that the district court erroneously applied the eight-
level aggravated-felony enhancement in U.S.S.G. § 2L1.2(b)(1)(C), rather than the
four-level “any other felony” enhancement in § 2L1.2(b)(1)(D), for his prior guilty
plea in Georgia state court to three counts of cruelty to children. After careful
review, we affirm.
A district court must begin the sentencing process by correctly calculating
the applicable guidelines range. Gall v. United States, 128 S. Ct. 586, 596 (2007).
The government bears the burden of proving the applicability of any guidelines
enhancements. United States v. Ndiaye, 434 F.3d 1270, 1300 (11th Cir. 2006). On
review, we must “ensure that the district court committed no significant procedural
error, such as failing to calculate (or improperly calculating) the Guidelines range.”
Gall, 128 S. Ct. at 597. Questions of law raised at sentencing are reviewed de novo.
United States v. DeVegter, 439 F.3d 1299, 1303 (11th Cir. 2006).
Under U.S.S.G. § 2L1.2(b)(1)(C), if the defendant was previously deported
after conviction for an aggravated felony, eight levels should be added to the base
offense level. Application Note 3(A) explains that “‘aggravated felony’ has the
meaning given that term in 8 U.S.C. § 1101(a)(43).” That section of the
Immigration and Nationality Act (“INA”) lists various crimes that qualify as
aggravated felonies, including “a crime of violence (as defined in section 16 of
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Title 18, but not including a purely political offense) for which the term of
imprisonment [is] at least one year.” 8 U.S.C. § 1101(a)(43)(F). Crime of
violence is defined in 18 U.S.C. § 16(b) as “any other offense that is a felony and
that, by its nature, involves a substantial risk that physical force against the person
or property of another may be used in the course of committing the offense.”
“[Section] 16(b) plainly does not encompass all offenses which create a
‘substantial risk’ that injury will result from a person’s conduct. The ‘substantial
risk’ in § 16(b) relates to the use of force, not to the possible effect of a person’s
conduct.” Leocal v. Ashcroft, 543 U.S. 1, 10 n.7 (2004).
The Georgia Code defines the offense of cruelty to children -- the offense of
which Castillo-Villagomez was previously convicted -- as follows:
(a) A parent, guardian, or other person supervising the welfare of or
having immediate charge or custody of a child under the age of 18
commits the offense of cruelty to children in the first degree when
such person willfully deprives the child of necessary sustenance to the
extent that the child’s health or well-being is jeopardized.
(b) Any person commits the offense of cruelty to children in the first
degree when such person maliciously causes a child under the age of
18 cruel or excessive physical or mental pain.
(c) Any person commits the offense of cruelty to children in the
second degree when such person with criminal negligence causes a
child under the age of 18 cruel or excessive physical or mental pain.
(d) Any person commits the offense of cruelty to children in the third
degree when:
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(1) Such person, who is the primary aggressor, intentionally
allows a child under the age of 18 to witness the commission of
a forcible felony, battery, or family violence battery; or
(2) Such person, who is the primary aggressor, having
knowledge that a child under the age of 18 is present and sees
or hears the act, commits a forcible felony, battery, or family
violence battery.
O.C.G.A. § 16-5-70(a)-(d).
In determining whether a prior conviction in state court meets a federal
violent-crime definition, we apply a formal categorical approach that looks at
statutory definitions rather than underlying facts. Taylor v. United States, 495 U.S.
575, 600 (1990); United States v. Llanos-Agostadero, 486 F.3d 1194, 1196-97
(11th Cir. 2007). In general, this requires us “to look only to the fact of conviction
and the statutory definition of the prior offense.” Taylor, 495 U.S. at 602.
However, in a narrow range of cases, the state statute will include multiple
offenses, only some of which would meet the federal violent-crime definition. Id.
In such cases, we may take a limited look behind the fact of conviction, to the
charging papers and jury instructions, to determine whether the jury was actually
required to find all the elements of an offense that would meet the violent-crime
definition. Id.; Llanos-Agostadero, 486 F.3d at 1197. If the state conviction was
the result of a guilty plea, we review the statutory definition, the terms of the
charging document, the terms of a written plea agreement or transcript of the plea
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colloquy, or explicit factual findings by the trial judge to which the defendant
assented. Shepard v. United States, 544 U.S. 13, 26 (2005).
Before his 1998 deportation, Castillo-Villagomez pled guilty to three counts
of cruelty to children. The plain language of the cruelty-to-children statute,
O.C.G.A. § 16-5-70, identifies a variety of offenses, only some of which could
give rise to a substantial risk that physical force would be used in their
commission; because of this ambiguity, we must look to the charging documents
and plea agreement or transcript to determine which section of the statute Castillo-
Villagomez previously violated. Shepard, 544 U.S. at 26. Castillo-Villagomez
pled to the following count as it appeared in the indictment: “the offense of
CRUELTY TO CHILDREN [on grounds that he] did unlawfully and maliciously
cause Anna Castillo . . . cruel and excessive mental pain by threatening to hit her,
saying he would hate her and telling her he would not give her money anymore, if
she told anyone he touched her vagina and vaginal area.” The record gives no
indication that his plea referenced a particular subsection number or degree of the
offense, but it does indicate that he pled to maliciously causing cruel or excessive
mental pain, one of the several first-degree-cruelty offenses identified in § 16-5-
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70(b).1 Moreover, the count plainly says that Castillo-Villagomez “threaten[ed] to
hit” the child.
Although maliciously causing cruel or excessive mental pain may be a non-
physical offense, we conclude that “maliciously caus[ing] a child under the age of
18 cruel or excessive physical or mental pain” is nonetheless a felony which
involves a substantial risk that physical force may be used against the victim in the
course of committing the offense. See Ramsey v. I.N.S., 55 F.3d 580, 583 (11th
Cir. 1995) (holding that a conviction for attempted lewd assault of a person less
than sixteen years old under Florida law involves a “substantial risk that physical
force may be used” and thus constitutes a crime of violence under 18 U.S.C. §
16(b)). Cf. United States v. Arellano-Ramirez, 61 F. App’x 119 (5th Cir. 2003)
(unpublished opinion) (upholding district court’s determination that Georgia’s
cruelty-to-children statute, O.C.G.A. § 16-5-70(b), constitutes a crime of violence
under 18 U.S.C. § 16(a) because although the offense does not require proof of
physical force, a crime of violence may be perpetrated by the attempted or
threatened use of force); U.S. v. Spencer, 271 F. App’x 977, 978-979 (11th Cir.
2008) (unpublished opinion) (upholding district court’s determination that
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At sentencing for the instant illegal-reentry conviction, the government introduced no
documentation regarding two of the three child-cruelty counts, so the record reflects nothing
about them except that they were lesser included offenses to other charges.
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conviction under Florida’s felony child abuse statute -- which requires (a) the
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 (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 -- as a
crime of violence under the career criminal enhancement, since 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”) (quotations omitted).
Indeed, as the plea documents show, Castillo-Villagomez pled to maliciously
causing “cruel and excessive mental pain by,” among other things, a blatant use of
force: “threatening to hit her.” Therefore, the district court did not err in
concluding that the felony to which Castillo-Villagomez pled was an aggravated
felony.
AFFIRMED.
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