* District Judge of the Northern District of Texas, sitting by

designation.

1 UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

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No. 93-5225

_______________________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

ALBERT JACKSON,

Defendant-Appellant.

_________________________________________________________________

Appeal from the United States District Court

for the Western District of Louisiana

_________________________________________________________________

(May 30, 1994)

Before WI SDOM and JONES, Circuit Judges, FITZWATER *

, District

Judge.

EDITH H. JONES, Circuit Judge:

Albert Jackson was caught trafficking in cocaine but pled

guilty to using or carrying a firearm during and in relation to a

drug trafficking crime in violation of 18 U.S.C. § 924(c)(1) (1988)

and to being a felon in possession of a firearm in violation of 18

U.S.C. § 922(g) (1988). Jackson was sentenced to the mandatory 60

months of imprisonment under § 924(c)(1) to be served consecutively

with 54 months of imprisonment fo r the felon in possession1 In relevant part, § 2K2.1 provides for a base offense level of 20

"if the defendant -- (A) had one prior felony conviction of either a crime of

violence or a controlled substance offense ..." U.S.S.G. § 2K2.1(a)(4). Had the

sentencing court correctly classified his prior burglary conviction, Jackson

maintains that his base offense level would only have been 14, thereby resulting

in a lesser sentence. See U.S.S.G. § 2K2.1(a)(6).

2 violation. Jackson appeals only his sentence on the felon in

possession count. Because we agree that the district court erred

in characterizing the defendant's prior state court conviction for

burglary of a building as a "crime of violence" in calculating

Jackson's bas e offense level under the Guidelines, we VACATE

Jackson's sentence and REMAND to the district court for

resentencing consistent with this opinion.

Jackson maintains that the distri ct court erred in

assigning him a base offe nse level of 20 because his prior state

conviction for burglary of a building did not constitute a "crime

of violence." 1 S ee U.S.S.G. § 2K2.1(a)(4). Under the Guidelines,

a "crime of violence" is defined as:

any offense under federal or state law

punishable by imprisonment for a term

exceeding one year that

-- (i) ha s as an

element the use, attempted use, or threatened

use of phys ical force against the person of

another, or (ii) i s burglary of a dwelling

,

arson, or extortion, involves use of

explosives, or otherwise involves conduct that

presents a serious potential risk of physical

injury to another.

U.S.S .G. § 4B1.2(1) (emphasis added). The district court,

responding to the defendant's objections to the presentence report,

apparently read § 4B1 .2 to include any b urglary as a crime of

violence. The court noted that "[t]he specific facts of3

defendant's burglary do not change the classification as this as

[sic] a crime of violence." Id. at 289.

For his part, the appellant relies on the presentence

report's description of his prior burglary conviction. The report

states that Jackson was convicted in Texas state court of burglary

of a buildin g with intent to commit theft . Jackson was n ot

convicted of burglary of a dwelling

, which this court has

previously held is a "crime of violence" under § 4B1.2(1). S ee

United States v. Flores

, 875 F.2d 1110, 1113 (5th Cir. 1989).

Jackson also argues that the circumstances surrounding the

b urglary

-- the suspects were found in the backyard of a v acant

house from which they were trying to take parts from an air

condit ioning unit -- did not "involve[] conduct that presents a

serious poten tial risk of physical injury to another." U.S.S.G.

§4B1.2(1).

T he government focuses on the fact that the building

burglarized was a dwelling and urges that its lengthy vacancy does

not detract from its characterization as a dwelling. The

government further argues that Jackson's conduct did pose a serious

potential risk of physical injury "since any neighbor or passerby

or even the owner could happen upon the crime."

This court will uphold a sentence imposed under the

Guidelines so long as it is the product of a correct application of

the Guidelines to factual findings which are not clearly erroneous.

See Unite d States v. Alfaro , 919 F.2d 962, 964 (5th Cir. 1990).

Determination of legal principles are reviewed de novo and factual4

findings for clear error. S ee United States v. Mourning

, 914 F.2d

699, 704 (5th Cir. 1990).

In determining whether the offense is a "crime of

violence," the guideline commentary emphasizes the conduct of which

the defendant was convicted

. S ee § 4B1.2 n.2; see also Stinson v.

United States

, 113 S.Ct. 1913, 1915 (1993) (holding that commentary

in the Guidelines Manual "is authoritative unless it violates the

Constitu tion or a federal statute, or is inconsistent

with

. . . that guideline."). Jackson's offense of conviction,

burglary of a buildin g with intent to commit theft, is

distinguished under the Texas Penal Code from burglary of a

habitation. A habitation is defined in relevant part by the Code

as "a structure or vehicle that is adapted for the overnight

accommodation of persons." Tex. Penal Code Ann. § 30.01(1) (1989)

(emphasis added). By contrast, a building "means any enclosed

structure intended for use or occupation as a habitation or for

some purpose of trade, manufacture, ornament, or use." I d. at

§ 30.01(2) (emphasis added).

Relying on Flores

, supra

, this court has specifi cally

held that the burglary of a habitation under Tex. Penal Code Ann.

§ 30.02 ( 1989) is a "crime of violence" for purposes of § 4B1.2.

See United States v. Cruz

, 882 F.2d 922, 923 (5th Cir. 1989).

Critical to the conclusion in Flores and Cr uz is the idea that

"whenever a private residence is broken into, there is always a

substanti al risk that force will be used." F lores

, 875 F.2d at

1113; Cruz

, 882 F.2d at 923 (quot ing F lores ). However, when a5

burglary of a building is involved, it cannot be said that there is

always a substantial risk that force will be used. This

p roposition finds support in § 4B1.2 and accompanying commentary

which specify only a "burglary of a dwelling" as a "crime of

violence". In sum, the district court's apparent uniform treatment

of burglaries as "crimes of violence" is incorrect.

While not constituting burglary of a dwelling, Jackson's

conduct might still constitute a "crime of violence" if it

presented "a serious potential risk of physical injury to another."

The description of the burglary in the presentence report, however,

dispels any such notion. C f. Flores

, 875 F.2d at 1112 (concluding

that presentence report c o upled with testimony from probation

office employee was sufficiently reliable for district court to

rely upon). The house had been vacant for seven years; Jackson was

found in the back yard attempting to take some parts from an air

conditioning unit. Notwithstanding the government's assertions

that neighbors, passersby, or the owner were at risk, the report

provides absolutely no facts upon which to base a conclusion that

a serious potential risk of physical injury was posed to anyone.

Finally, the government's argument that the nature of the

dwelling did not change by vi rtue of the seven year vacancy is

unconvincing. Logically, whether by vacancy, physical

deterioration, altered use, or otherwise, a point in time exists at

which a dwelling loses its character as a residence and becomes a

"mere" building. Texas criminal law recognizes the distinction by

distinguishing burglary of a habitation and burglary of a building,6

and Jackson was convicted of the lesser offense of burglary of a

building. The district court therefore erred in considering

Jackson's prior state court conviction for burglary of a building

as a "crime of violence" for sentencing purposes.

Jackson raises two additional arguments that merit little

attention. First, Jackson argues that the sentencing court erred

in calculating his criminal history by adding two points for his

Feb. 14, 1978 conviction for auto theft. Under the Guidelines,

defendant's one-year sentence for auto theft must have been imposed

" within ten years of the defendant's commencement of the inst ant

offense" in order to be counted in the calculation of criminal

history points. U.S.S.G. § 4A1.2(e)(2) (emphasis added). Jackson

contends that his Feb. 14, 1978 sentence was not imposed within ten

years of Nov. 29, 1991, the date on which he was arrested with the

firearm in possession. Appellant defines "instant offense" to

include only the offenses to which he pled guilty

-- n amely the

firearms violations

-- and to exclude the dismissed conspiracy and

substantive drug offense counts.

We need not reach the merits of Jackson's argument. As

the government correctly points out and as counsel for Jackson

conceded at oral argument, even assuming that the guidelines were

applied incorrectly, reducing Jackson's criminal history points

from twelve to ten would leave him in the same criminal history

category and would not affect his sentence. Any error in

application is harmless.7 Similarly meritless is Jackson's final argument. At the

sentencing hearing, the government declined to file a "substantial

assistance" motion notwithstanding their admission that Jackson had

cooperated with DEA and Customs agents. S ee U.S.S.G. § 5K1.1.

Appellant now argues his cooperation merited such a motion.

Jackson's argument is foreclosed by W ade v. United

States

, 112 S.Ct. 1840 (1992). In Wade , the Supreme Court held

that district courts may review the government's refusal to file a

substantial assistance motion and grant a remedy "if they find that

the refusal was based on an unconstitutional motive." I d. at 1844.

Significantly, the Court further concluded "that a claim that a

defendant merely provided substantial assistance will not entitle

a defendant to a remedy or even to discovery or an evidentiary

hearing." I d. Jackson's claim is merely that his cooperation

merited the motion. He makes no claim of unconstitutional motive,

nor does he assert that the government breached its plea agreement,

which committed to its sole discretion the decision whether to move

for a downward departure.

For the foregoing reasons, we VACATE Jackson's sentence

and REMAND to the district court for resentencing consistent with

this opinion.

VACATED and REMANDED

.