                      REVISED AUGUST 27, 2002

               IN THE UNITED STATES COURT OF APPEALS

                       FOR THE FIFTH CIRCUIT

                       _____________________

                            No. 01-41029
                       _____________________



     UNITED STATES OF AMERICA


                                     Plaintiff - Appellee

          v.

     JOSE PRISCILIANO GRACIA-CANTU


                                     Defendant - Appellant

_________________________________________________________________

           Appeal from the United States District Court
                for the Southern District of Texas
_________________________________________________________________
                          August 9, 2002


Before KING, Chief Judge, and PARKER, Circuit Judge, and ELLISON,
District Judge.*

KING, Chief Judge:

     Defendant–Appellant Jose Prisciliano Gracia-Cantu appeals

his sentence imposed by the district court for a violation of 8

U.S.C. § 1326(a) & (b) (2000).   For the following reasons, we

VACATE Gracia-Cantu’s sentence and REMAND for resentencing in

accordance with this opinion.

     *
        District Judge of the Southern District of Texas,
sitting by designation.
                I. FACTUAL AND PROCEDURAL HISTORY

     On April 14, 2001, the United States Border Patrol

discovered Defendant–Appellant Jose Prisciliano Gracia-Cantu at

the Falfurrias Border Patrol Checkpoint near Falfurrias, Texas.

Gracia-Cantu was charged with the offense of illegal re-entry

after deportation in violation of 8 U.S.C. § 1326(a) & (b).1    On

June 11, 2001, Gracia-Cantu pled guilty to the illegal re-entry

charge.




     1
         Gracia-Cantu was deported on October 9, 1998 and on
April 4, 2001. He did not have permission from the Attorney
General to re-enter the United States. Section 1326 reads in
relevant part:
          (a) Subject to subsection (b) of this
          section, any alien who –
               (1) has been denied admission, excluded,
               deported, or removed or has departed the
               United States while an order of
               exclusion, deportation, or removal is
               outstanding, and thereafter
               (2) enters, attempts to enter, or is at
               any time found in, the United States,
               unless . . . the Attorney General has
               expressly consented to such alien’s
               reapplying for admission . . .
          shall be fined under Title 18, or imprisoned
          not more than 2 years, or both.
          (b) Notwithstanding subsection (a) of this
          section, in the case of any alien described
          in such subsection –
               . . .
               (2) whose removal was subsequent to a
               conviction for commission of an
               aggravated felony, such alien shall be
               fined under such Title, imprisoned not
               more than 20 years, or both.
               . . .
8 U.S.C. § 1326.

                                2
     The sentencing guideline applicable to a violation of § 1326

calls for a base offense level of eight.    U.S. SENTENCING GUIDELINES

MANUAL § 2L1.2(a) (2000).2   This base offense level is increased

by sixteen levels if the defendant has a prior conviction for an

aggravated felony.   Id. § 2L1.2(b)(1)(A) (2000).    The presentence

report (the “PSR”) prepared by the United States Probation Office

recommended a base offense level of eight, an increase of sixteen

levels because of a prior Texas felony conviction for injury to a

child, and a decrease of three levels because of Gracia-Cantu’s

acceptance of responsibility, for a total offense level of

twenty-one.

     The district court adopted most of the findings of the PSR,

including the characterization of Gracia-Cantu’s state felony

conviction for injury to a child as an aggravated felony,

resulting in an offense level of twenty-one.3    The district court

sentenced Gracia-Cantu to seventy months of imprisonment, two

years of supervised release, and a mandatory special assessment

of $100.   This term of imprisonment is within the range


     2
         Because Gracia-Cantu was sentenced on August 15, 2001,
before the effective date of the 2001 version of the Sentencing
Guidelines, the 2000 version applies. See United States v. Hill,
258 F.3d 355, 356 n.1 (5th Cir. 2001).
     3
         After an objection by Gracia-Cantu, the district court
declined to adopt the PSR’s recommended criminal history category
of VI. The district court determined that a criminal history
category of V, rather than the recommended category of VI, was
appropriate. Gracia-Cantu’s criminal history category is not an
issue in this appeal.

                                  3
applicable to an offense level of twenty-one and a criminal

history category of V.    U.S. SENTENCING GUIDELINES MANUAL ch.5, pt. A

(sentencing table) (2000).

                            II.   DISCUSSION

     Gracia-Cantu appeals his sentence on the ground that the

district court improperly classified his felony conviction for

injury to a child as an aggravated felony and thus improperly

enhanced his sentence.    Because Gracia-Cantu raises this argument

for the first time on appeal, we review the district court’s

sentence enhancement for plain error.          United States v.

Calverley, 37 F.3d 160, 162 (5th Cir. 1994) (en banc).            We find

plain error only if: (1) there was an error; (2) the error was

clear and obvious; and (3) the error affected the defendant’s

substantial rights.   United States v. Olano, 507 U.S. 725, 732

(1993).   When these elements are present, we may exercise our

discretion to correct the error only if it “seriously affect[s]

the fairness, integrity, or public reputation of judicial

proceedings.”   Id. (internal citations and quotations omitted)

(alteration in original).

     Under the sentencing guidelines applicable to a conviction

for illegal re-entry pursuant to § 1326, a sixteen-level increase

in offense level applies if the defendant’s prior deportation

followed a conviction for an “aggravated felony.”         U.S. SENTENCING

GUIDELINES MANUAL § 2L1.2(b)(1)(A).       The commentary on § 2L1.2 of



                                      4
the sentencing guidelines adopts the definition of “aggravated

felony” in 8 U.S.C. § 1101(a)(43) (2000).   Under that definition,

“aggravated felony” includes “a crime of violence (as defined in

section 16 of Title 18, but not including a purely political

offense) for which the term of imprisonment [is] at least one

year.”   Id. § 1101(a)(43)(F).   Section 16 of Title 18 defines a

“crime of violence” as:

           (a) an offense that has as an element the
           use, attempted use, or threatened use of
           physical force against the person or property
           of another, or
           (b) any other offense that is a felony and
           that, by its nature, involves a substantial
           risk that physical force against the person
           or property of another may be used in the
           course of committing the offense.

18 U.S.C. § 16 (2000).4   The central issue in this appeal is

whether Gracia-Cantu’s state felony conviction for injury to a

child is an “aggravated felony” under this definition.

     The Texas statute under which Gracia-Cantu was convicted for

injury to a child provides in relevant part:

           (a) A person commits an offense if he
           intentionally, knowingly, recklessly, or with
           criminal negligence, by act or intentionally,
           knowingly, or recklessly by omission, causes


     4
        Compare United States v. Charles, No. 01-10113, 2002 WL
1764147, at *2 (5th Cir. July 31, 2002) (holding that “sentences
involving possession of a firearm by a felon, which also involve
a prior conviction for an alleged ‘crime of violence,’ are to
have the ‘crime of violence’ determination made only in
accordance with the definition in § 4B1.2(a) [of the Sentencing
Guidelines]” rather than in accordance with 18 U.S.C. § 16)
(internal citation omitted).

                                  5
          to a child, elderly individual, or disabled
          individual:
               (1) serious bodily injury;
               (2) serious mental deficiency,
                impairment, or injury; or
               (3) bodily injury.

TEX. PENAL CODE ANN. § 22.04(a) (Vernon 2002).5   Gracia-Cantu was

originally sentenced to five years of deferred adjudication

probation for his offense of injury to a child.      However, Gracia-

Cantu’s probation was revoked on November 4, 1996, and he was

sentenced to serve five years of imprisonment.      Consequently,

Gracia-Cantu’s prior conviction satisfies the part of the

definition of an aggravated felony requiring that the sentence

imposed for the conviction be a “term of imprisonment [of] at

least one year.”   See 8 U.S.C. § 1101(a)(43)(F).     Therefore, if

Gracia-Cantu’s prior offense for injury to a child constitutes a

“crime of violence” under 18 U.S.C. § 16(a) or (b), then the

offense is an aggravated felony supporting a sixteen-level

enhancement of Gracia-Cantu’s offense level.




     5
         In its brief, the government argues that, because the
PSR does not identify the specific Texas statutory section
pursuant to which Gracia-Cantu was convicted for injury to a
child, “this court cannot conclude that it was error for the
district court to order the enhancement or that the error was
obvious.” This argument is unpersuasive. The PSR states, in
paragraph twenty-three, that Gracia-Cantu “was convicted of
injury to a child.” Section 22.04 is the only Texas statute that
defines the offense of injury to a child.

                                  6
     A.   18 U.S.C. § 16(a)

     Gracia-Cantu persuasively argues that his prior offense does

not constitute a crime of violence under 18 U.S.C. § 16(a)

because section 22.04(a) of the Texas Penal Code, the statute

criminalizing injury to a child, does not require that the

perpetrator actually use, attempt to use, or threaten to use

physical force against a child.   Rather, section 22.04(a) is

results-oriented in that the culpable mental state must relate to

the result of a defendant’s conduct rather than to the conduct

itself.   See Patterson v. State, 46 S.W.3d 294, 301 (Tex.

App.–Fort Worth 2001, no pet.).   The government concedes that,

because the statutory definition of the offense does not

explicitly require the application of force as an element, 18

U.S.C. § 16(a) does not apply to Gracia-Cantu’s offense of injury

to a child.   Accordingly, we need not consider the issue further.

     B.   18 U.S.C. § 16(b)

     Gracia-Cantu further argues that his offense for injury to a

child is not a crime of violence under 18 U.S.C. § 16(b) because

there is not a substantial risk that physical force will be used

to effectuate the offense.    In support of his argument, Gracia-

Cantu cites numerous cases involving offenses under section 22.04

that were committed through omissions rather than conscious acts.

Gracia-Cantu argues that because an offense of injury to a child

often stems from an omission rather than an intentional use of



                                  7
force, such offense is not, by its nature, a crime of violence

within the meaning of 18 U.S.C. § 16(b).     We agree.

     In United States v. Chapa-Garza, 243 F.3d 921 (5th Cir.

2001), this court held that the Texas felony offense of driving

while intoxicated does not constitute a crime of violence under

18 U.S.C. § 16(b).   Id. at 927.   In reaching this conclusion, the

Chapa-Garza court emphasized that:

          [T]he words “by its nature” [in 18 U.S.C.
          § 16(b)] require us to employ a categorical
          approach when determining whether an offense
          is a crime of violence. This means that the
          particular facts of the defendant’s prior
          conviction do not matter, e.g.[,] whether the
          defendant actually did use force against the
          person or property of another to commit the
          offense. The proper inquiry is whether a
          particular defined offense, in the abstract,
          is a crime of violence under 18 U.S.C.
          § 16(b).

Id. at 924 (internal citation omitted).     Other decisions by this

court likewise stress this categorical approach.     See, e.g.,

United States v. Landeros-Gonzales, 262 F.3d 424, 426 (5th Cir.

2001) (noting that “the statutory phrase ‘by its nature’ compels

us to look only at the inherent nature of the offense to

determine whether the offense constitutes a crime of violence”)

(internal citation and quotation omitted); United States v.

Velazquez-Overa, 100 F.3d 418, 420-21 (5th Cir. 1996) (“[E]ither

a crime is violent ‘by its nature’ or it is not.     It cannot be a

crime of violence ‘by its nature’ in some cases, but not others,

depending on the circumstances.”).     We further clarified in


                                   8
Chapa-Garza that a crime of violence as defined by 18 U.S.C.

§ 16(b) must involve “the substantial likelihood that the

offender will intentionally employ force against the person or

property of another in order to effectuate the commission of the

offense.”    243 F.3d at 927.

       Utilizing the categorical approach endorsed by this court in

Chapa-Garza and other cases, we focus only on the offense of

injury to a child as defined under Texas law and not on the

particular facts of Gracia-Cantu’s conviction.     Section 22.04(a)

criminalizes acts or omissions that intentionally, knowingly,

recklessly, or negligently result in injury to a child.       See TEX.

PENAL CODE ANN. § 22.04(a).   Thus, as noted above, the culpable

mental state relates to the result of a defendant’s conduct

rather than to the conduct itself.     See Patterson, 46 S.W.3d at

301.

       Because the offense of injury to a child is results-

oriented, many convictions for this offense involve an omission

rather than an intentional use of force.     See Chapa-Garza, 243

F.3d at 926 (noting that “a parent who leaves a young child

unattended near a pool may risk serious injury to the child, but

the action does not involve an intent to use force or otherwise

harm the child”) (internal citation and quotation omitted); see

also Patterson, 46 S.W.3d at 294 (involving a mother’s conviction

under section 22.04(a) for reckless injury to a child for failing

to aid her children during their kidnapping); Dusek v. State, 978

                                   9
S.W.2d 129 (Tex. App.–Austin 1998, pet. ref’d) (involving a

mother’s conviction for intentional or knowing serious bodily

injury to a child for failing to remove her son from the presence

of her abusive boyfriend and for the failure to provide medical

care); Babers v. State, 834 S.W.2d 467 (Tex. App.–Houston [14th

Dist.] 1992, no pet.) (involving a conviction for intentional or

knowing injury to a child for failing to provide proper medical

care for a burned child).    As these examples illustrate, in many

cases the offense of injury to a child does not involve the

substantial likelihood of an intentional use of force.       Thus, the

offense is not, “by its nature,” a crime of violence under 18

U.S.C. § 16(b).    See Velazquez-Overa, 100 F.3d at 420-21.

Accordingly, the district court’s sixteen-level enhancement of

Gracia-Cantu’s offense level constitutes clear and obvious error.



     Absent a prior conviction for an aggravated felony, Gracia-

Cantu’s total offense level would have been ten (a base offense

level of eight, a four-level increase for a prior “nonaggravated”

felony conviction, and a two-level reduction for acceptance of

responsibility).   U.S. SENTENCING GUIDELINES MANUAL §§ 2L1.2(a),

(b)(1)(B) & 3E1.1(a) (2000).6    An offense level of ten

     6
          A defendant with a total offense level of ten is
entitled to a two-level reduction for accepting responsibility.
U.S. SENTENCING GUIDELINES MANUAL § 3E1.1(a). A defendant with a
total offense level greater than sixteen, however, may qualify
for a three-level reduction for accepting responsibility. Id. at
§ 3E1.1(b).

                                  10
corresponds to an imprisonment range of twenty-one to twenty-

seven months.   Id. ch.5, pt. A (sentencing table).       In contrast,

the offense level of twenty-one assigned to Gracia-Cantu

corresponds to an imprisonment range of seventy to eighty-seven

months, id., and the district court sentenced Gracia-Cantu to

seventy months of imprisonment.     The dramatic increase in the

recommended imprisonment range and in Gracia-Cantu’s actual term

of imprisonment affected his substantial rights.        See United

States v. Williamson, 183 F.3d 458, 464 (5th Cir. 1999)

(concluding that a two-fold increase in prison time affected the

defendant’s substantial rights).        Such a sentencing error also

seriously affects the fairness, integrity, or public reputation

of the judicial proceedings.      See United States v. Aderholt, 87

F.3d 740, 744 (5th Cir. 1996) (finding that “the fairness and

integrity of this judicial proceeding were seriously affected” by

sentencing calculation errors).     Thus, the district court’s

sixteen-level enhancement of Gracia-Cantu’s offense level

constituted plain error.

                           III.   CONCLUSION

     For the foregoing reasons, we conclude that the district

court’s sixteen-level enhancement of Gracia-Cantu’s offense level

constituted plain error.    Accordingly, we VACATE Gracia-Cantu’s

sentence and REMAND for resentencing in accordance with this

opinion.



                                   11
