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.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. H-01-CR-414-1
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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that this opinion should not be published and is not precedent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
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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 18 U.S.C. § 3553(a)(4)(A).
The Texas offense of bodily injury to a child is not a
“crime of violence” under 18 U.S.C. § 16(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 18 U.S.C. § 16(a). United
States v. Gracia-Cantu, , ___ F.3d ___, 2002 WL 1827802 (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 18 U.S.C. § 16(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 18 U.S.C. § 16 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
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We VACATE Urieta’s sentence and REMAND for resentencing in
accordance with this opinion.