               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that this opinion should not be published and is not precedent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 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
                               -3-

     We VACATE Urieta’s sentence and REMAND for resentencing in

accordance with this opinion.
