United States v. Leodegario Resendiz-Moreno, 705 F.3d 203

Defendant Leodegario Resendiz-Moreno pleaded guilty in 2011 to illegal reentry into the United States.
The district court applied a 16-level enhancement based on a prior Georgia conviction for first-degree cruelty to children.
Georgia Code § 16-5-70(b) crime can be committed without the use of physical force, per its statutory language and Georgia case law.
The government argued the Georgia statute is disjunctive and may be evaluated under a modified categorical approach via charging documents.
The Fifth Circuit vacated the sentence and remanded for resentencing, holding the prior conviction does not necessarily qualify as a crime of violence under the guidelines.
The concurrence acknowledges sentencing concerns but agrees with the main result, while noting split circuit authority on the use of Shepard documents.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the Georgia conviction qualifies as a crime of violence	Resendiz-Moreno argues the crime does not require force.	The government contends the statute is disjunctive and can involve force, fitting crime of violence.	Prior conviction does not require force; not a crime of violence.
Whether a modified categorical approach applies when the statute does not require force	Facts in charging documents should not be used to imply force was used.	Statute’s disjunctive form allows examining charging documents to determine variant.	No reliance on charging documents; cannot treat as crime of violence.
Whether Calderon-Pena en banc controls the analysis of the prior conviction	We should consider broader conduct to determine violence if permissible.	En banc Calderon-Pena forecloses analysis of underlying facts via charging documents.	En banc Calderon-Pena controls; cannot look to underlying facts to force a violence conclusion.
Whether the sentence must be vacated and remanded	Factor not all elements support violence enhancement.	Remand is appropriate to reconsider the guideline level.	Sentence vacated and remanded for resentencing.

Calderon-Pena v. United States, 383 F.3d 254 (5th Cir. 2004) (en banc; elements-based inquiry; no look to charging documents when no force element)
United States v. Vargas-Duran, 356 F.3d 598 (5th Cir. 2004) (en banc; elements determine crime of violence; disjunctive statute limits inquiry)
United States v. Bonilla, 524 F.3d 647 (5th Cir. 2008) (de novo review of guideline interpretations)
Taylor v. United States, 495 U.S. 575 (1990) (statutory interpretation; foundation for avoiding factual substitutions)
United States v. Andino-Ortega, 608 F.3d 305 (5th Cir. 2010) (statute analysis similar to Calderon-Pena; no use of facts outside statute)
United States v. Arellano-Ramirez, 61 F. App’x 119 (5th Cir. 2003) (unpublished; Shepard-compliant approach discussed)