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should not be published and is not precedent except under the limited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.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 08-40801

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee

v.

KELLY ARKADIE,

Defendant-Appellant

Appeal from the United States District Court

for the Southern District of Texas

USDC No. 2:02-CR-46-2

Before GARWOOD, SMITH and STEWART, Circuit Judges.

PER CURIAM:*

Kelly Arkadie appeals from the district court’s judgment revoking his

supervised release and sentencing him to 24 months of imprisonment. Arkadie

contends that his Texas conviction of retaliation was not a conviction of a “crime

of violence” and, therefore, did not constitute a Grade A violation for the purpose

of determining his advisory guideline sentencing range upon revocation.

United States Court of Appeals

Fifth Circuit

F I L E D

September 22, 2009

Charles R. Fulbruge III

Clerk
No. 08-40801

2

Because Arkadie did not raise this issue in the district court, our review

is for plain error. See United States v. Thompson, 454 F.3d 459, 464 (5th Cir.

2006). To show plain error, the appellant must show a forfeited error that is

clear or obvious and that affects his substantial rights. Puckett v. United States,

129 S. Ct. 1423, 1429 (2009). If the appellant makes such a showing, this court

has the discretion to correct the error but only if it seriously affects the fairness,

integrity, or public reputation of judicial proceedings. Id.

Our precedent and the relevant policy statement indicate that the issue

whether a violator has committed a “crime of violence” for purposes of a

supervised release revocation is based on the defendant’s actual conduct. U.S.

SENTENCING GUIDELINES MANUAL § 7B1.1, p.s., comment. (n.1); United States

v. Dominguez, 479 F.3d 348, 347 (5th Cir. 2007); United States v. Barber, No.

92-7737, 1993 WL 241855 (5th Cir. June 24, 1993) (unpublished precedential

opinion). The term includes any offense under state or federal law that is

punishable by more than a year in prison and (1) has as an element the use,

attempted use, or threatened use of physical force against the person of another

or (2) is burglary of a dwelling, arson . . . or otherwise involves conduct that

presents a serious potential risk of physical injury to another. U.S. SENTENCING

GUIDELINES MANUAL § 4B1.2(a)(1) & (2). The facts underlying Arkadie’s

retaliation conviction reflect that he threatened to use physical force against

another individual and to burn down that individual’s place of business.

Arkadie’s conduct arguably satisfies the criteria to be considered a crime of

violence under this court’s caselaw addressing what constitutes a crime of

violence in an initial sentencing proceeding. See United States v. Mohr, 554 F.3d

604, 609–10 (5th Cir. 2009), petition for cert. filed (Mar. 31, 2009) (No. 08-9578).

We need not, however, decide whether Arkadie’s conduct constituted a

crime of violence. To show that an error affected his substantial rights, Arkadie

must show “a reasonable probability” that, but for the error, he would have

received a different sentence. United States v. Garza-Lopez, 410 F.3d 268, 275
No. 08-40801

3

(5th Cir. 2005). Arkadie does not argue that he would have received a lesser

sentence absent the error. Nor does he point to anything in the record

demonstrating that a reasonable probability exists that the district court would

have imposed a lower sentence had it determined that the retaliation conviction

was a Grade B violation. Rather, it is evident from the record that the court was

aware of the statutory maximum imprisonment term of 24 months. Moreover,

the district court rejected Arkadie’s request to be sentenced to time served,

commenting that Arkadie’s criminal history included violent offenses and that

the revocation proceeding itself arose due to violent conduct. Arkadie has not

shown any reasonable probability that the district court would have imposed a

lesser sentence even if the applicable policy statement sentencing range

recommended a lower sentence, and he thus has failed to show that any error

affected his substantial rights. See id.

AFFIRMED.