IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 02-40173 Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

GILBERTO SALDIVAR-GONZALEZ,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Southern District of Texas USDC No. B-01-CR-247-1 -------------------- January 7, 2003

Before KING, Chief Judge, and DeMOSS and BENAVIDES, Circuit Judges.

PER CURIAM:*

Gilberto Saldivar-Gonzalez appeals his sentence following

his guilty-plea conviction for illegally reentering the United

States after having been previously deported, in violation of

(a) and (b). Saldivar-Gonzalez argues, and the

Government correctly concedes, that the district court erred in

assessing a 16-level increase to Saldivar-Gonzalez’ offense score

pursuant to U.S.S.G. § 2L1.2(b)(1)(A)(ii) by determining that

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. No. 02-40173 -2-

Saldivar-Gonzalez’ prior state-court conviction for retaliation

constituted a “crime of violence.” We agree that the district

court committed reversible error when it determined that the

retaliation conviction constituted a “crime of violence” for

purposes of U.S.S.G. § 2L1.2(b)(1)(A)(ii). Accordingly,

Saldivar-Gonzalez’ sentence is VACATED and his case is REMANDED

to the district court for resentencing. See United States v.

Huerta,

(5th Cir. 1999).

Saldivar-Gonzalez also argues that the voluntary disclosure

of an offense is a permissible basis for a downward departure.

See U.S.S.G. § 5K2.16, p.s. If Saldivar-Gonzalez renews his

request for a downward departure on this ground, the district

court should determine whether he is entitled to such downward

departure. See United States v. Palmer,

(5th

Cir. 1997).

SENTENCE VACATED; REMANDED FOR RESENTENCING.