IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 01-21222 Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

FRANCISCO URIETA-BETANCOURT,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Southern District of Texas USDC No. H-01-CR-414-1 -------------------- February 17, 2003

Before JONES, STEWART, and DENNIS, Circuit Judges

PER CURIAM:*

Francisco Urieta-Betancourt (“Urieta”) appeals his 87-

month sentence following his guilty-plea conviction for illegal

reentry. The district court increased Urieta’s base offense level

by 16 on account of Urieta’s prior Texas felony conviction for

injury to a child, which the district court determined was an

“aggravated felony” pursuant to U.S.S.G. § 2L1.2(b)(1)(A) (2000).

Urieta was sentenced after the November 1, 2001, effective date of

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 01-21222 -2-

the amendment to U.S.S.G. § 2L1.2 and, thus, he should have been

sentenced under the 2001 version of the sentencing guidelines, not

the 2000 version. See

(a)(4)(A).

The Texas offense of bodily injury to a child is not a

“crime of violence” under

(a) or § 16(b), and thus is

not an aggravated felony meriting the 16-level enhancement provided

by U.S.S.G. § 2L1.2(b)(1)(A) (2000) or U.S.S.G. § 2L1.2(b)(1)(A)

(2001), which tracks the definition of

(a). United

States v. Gracia-Cantu, , ___ F.3d ___,

(5th Cir.

2002) (applying 2000 version of sentencing guidelines); see

U.S.S.G. § 2L1.2, comment. n.1(B)(ii)(I). Moreover, because the

offense is not a “crime of violence” under

(b), it

follows that it also is not an aggravated felony meriting an eight-

level enhancement under amended guideline U.S.S.G. § 2L1.2(b)(1)(C)

(2001), which incorporates the

definitions. See

Gracia-Cantu, ___ F.3d at ___; U.S.S.G. § 2L1.2 comment. n.2

(2001).

Although Urieta did not object to sentencing under the

2000 guidelines or to application of the 16-level enhancement, the

resulting sentencing error affected his substantial rights and

therefore constituted plain error. See Gracia-Cantu, ___ F.3d

at ___. On remand, however, the trial court may wish to consider

an upward departure given the circumstances of Urieta’s repeated

bad conduct, including the assaults of his pregnant wife and child. No. 01-21222 -3-

We VACATE Urieta’s sentence and REMAND for resentencing in

accordance with this opinion.