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'Cruelty to Children' Not a Crime of Violence?

By Robyn Hagan Cain on January 18, 2013 | Last updated on March 21, 2019

In 2011, Leodegario Resendiz-Moreno pleaded guilty to one charge of illegal reentry. His sentencing range was calculated at a total offense level of 21, which included an upward adjustment based upon the judge’s determination that a prior Georgia conviction for first-degree cruelty to children constituted a crime of violence.

The Fifth Circuit Court of Appeals disagreed with that finding, and vacated the sentence. Sure, a child cruelty conviction may support the argument that Resendiz-Moreno is a terrible person, but it doesn’t support a finding that he committed a crime of violence.

Here’s why.

To determine whether a defendant's prior conviction qualifies as a crime of violence, the Fifth Circuit "looks to the elements of the crime." In this case, the relevant Georgia statute provides: 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.

In Brewton v. State, a Georgia appellate court ruled that the crime of first-degree child cruelty requires proof of the following elements: (1) the minority of the child, (2) the child suffers mental or physical pain, (3) the pain was cruel or excessive, (4) the defendant caused the pain, (5) and malice. Noticeably absent from that list? An element requiring a threat of force or violence.

The Fifth Circuit explained in United States v. Vargas-Duran, that "if any set of facts would support a conviction without proof of that component, then the component most decidedly is not an element -- implicit or explicit -- of the crime."

The language of the Georgia statute makes clear that "the use, attempted use, or threatened use of physical force" is not necessary to commit the crime. Specifically, a person can commit first-degree child cruelty and maliciously inflict excessive pain upon a child by depriving the child of medicine or by some other act of omission that does not involve the use of physical force.

The government nonetheless argued that the Georgia law is a disjunctive statute which permits reference to the indictment to determine whether the statute was actually violated in a way which involved the use of physical force. Under the Fifth Circuit's "modified categorical approach," if a statute defines multiple crimes or contains disjunctive elements, a limited inquiry into the charging documents is permitted to determine which statutory variant of the crime was committed.

Here, the Fifth Circuit noted that the Georgia statute does not describe an offense -- disjunctively or otherwise -- which requires the use of physical force, so there was no basis for inquiring into the charging documents.

Is child cruelty a terrible crime? Absolutely. Does it justify a sentence enhancement as a crime of violence? The answer depends on the state statute.

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