UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 01-10617

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

VERSUS

DAVID EARL TURNER,

Defendant-Appellant.

Appeal from the United States District Court

For the Northern District of Texas, Fort Worth

September 6, 2002

Before DUHÉ, BARKSDALE and DENNIS, Circuit Judges.

DUHÉ, Circuit Judge:

David Turner appeals his sentence following a guilty plea to

possession of a firearm by a convicted felon. His appeal presents

the question whether a prior conviction of burglary of a building

constitutes a “crime of violence” for p urposes of increasing the

base offense level under the Sentencing Guidelines. Because that

determination turns on the conduct expressly cha rged in the

indictment for the prior conviction, which is not in the record, we

vacate and remand for resentencing.

The dist rict court determined Turner’s base offense level2

under Guideline § 2K2.1(a)(4)(A), which provides a level of 20 for

a defendant who has a pri or felony conviction of a “crime of

violence.” Application Note 5 following that section refers us to

Guideline § 4B1.2 for a def inition of “crime of violence.” We

review the district court's interpretation and application of the

Guidelines de novo. U nited States v. Charles

, No. 01-10113,

– F.3d

–, 2002 WL 1764147, at *2 (5th Cir. July 31, 2002)( en banc ). The

district court relied in part upon United States v. RodriguezGuzman

, 56 F.3d 18, 21 (5 t h Cir. 1995), which concluded that a

felony burglary of a nonresidential building under the Texas Penal

Code is a crime of violence as defined in 18 U.S.C. § 16(b). This

Court has recently repudiated use of jurisprudence under 18 U.S.C.

§ 1 6(b), however, in determining what constitutes a crime of

violence under the Guidelines. S ee Charles at *2 (overruling cases

conflating the 18 U.S.C. § 16(b) definition of “crime of violence”

with that of USSG § 4B1.2(a)).

Charles requires us to focus on only Guideline § 4B1.2 and its

accompanying commentary. C harles at *2. Section 4B1.2(a) defines

“crime of violence” as any offense under federal or state law

punishable by imprisonment for more than one year that “(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 extortion, involves use of explosives, or

otherwise involves conduct that presents a serious potential risk1 T aylor v. United States

, 49 5 U.S. 575, 110 S. Ct. 2143, 109

L.Ed.2d 607 (1990).

3 o f physical injury to another.” The Commentary enumerates

additional offenses and clarifies that an offense not listed is a

“crime of violence” either (A) if it has as an element the use,

attempted use, or threatened use of physical force against the

person of another, or (B) if “the conduct set forth ( i.e.

,

expressly charged) in the count of which the defendant was

convicted invol ved . . . explosives . . . or, by its nature,

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

USSG § 4B1.2, cmt. n.1 para. 2, parts (A)&(B).

The first aspect of the test is whether the elements include

the use of physical force. USSG § 4B1.2(a)(1). The Government

contends that under Taylor 1 the statutory elements of burglary of

a building make it a crime of violence per se. Defining “burglary”

as used in 18 U.S.C. § 924(e) for pur poses of the sentencing

enhancement for career criminals, Taylor noted preliminarily that

burglary “often creates the possibility of a violent

confrontation.” T aylor

, 495 U.S. at 588, 100 S. Ct. at 2153. This

observati on differs from the test for purposes of the Guideline,

which is whether the offense “has as an element the use [actual,

attempted, or threatened] of physical force against the person of

another.” USSG § 4B1.2(a)(1). The statutory elements of burglary

of a building do not make it a per se crime of vi olence, because

they do not necessarily involve use of physical force against the2 The elements of burglary in Texas are that a person must

without the effective consent of the owner . . . :

(1) enter[] . . . a building . . . not then open to the

public, with intent to commit a felony, theft, or an

assault; or

(2) remain[] concealed, with intent to commit a felony,

theft, or an assault, in a building . . . ; or

(3) enter[] a building

. . . and commit[] or attempt[] to

commit a felony, theft, or an assault.

Tex. Penal Code § 30.02 (West 1994 ). If the theft or felony

involved does not i nvolve the use of force against the person of

another, then the burglary would not be a crime of violence.

3 After making this initial determination, J ackson I then

considered the factual description of the burglary contained in the

PSR to determine whether the defendant’s conduct during the

particular burglary at issue presented a serious potential risk of

physical injury to another so as to constitute a crime of violence

under part (B) of the analysis. J ackson I at 585. This aspect of

Jackson I conflicts with United States v. Fitzhugh , 954 F.2d 253,

254 (5 th Cir. 1992), cert. denie d , 510 U.S. 895 (1993), which

requires that in determining whether the offense involves conduct

that presents a serious potential risk of physical injury to

another, we consider only whether the conduct described in the

charging instrument presents such a risk. Fitzhugh describes the

correct approach. B illiot v. Puckett

, 135 F.3d 311, 316 (5 t h

Cir.)(noting that if two previous opin ions conflict, the earlier

controls as binding precedent), cert. denied

, 525 U.S. 966 (1998).

See generally the discussion of Fitzhugh and Jackson I in United

States v. Jackson

, 220 F.3d 635, 637-39 (5 th Cir. 2000)(“ Jackson

II ”), cert. denied

, 532 U.S. 988, 121 S. Ct. 1640 (2001), overruled

on other grounds by Charles

, at *4.

4 person of another. S ee Tex. Pen. Code § 30.02(a) (West 1994) 2 ; see

also United States v. Jackson , 22 F.3d 583, 585 (5 t h Cir.

1994)( “ Jackson I ” ) 3 (rejecting uniform treatment of burglary of a

building as a crime of violence).

The second aspect of the test for crime of violence is whether

the offense is in the enumera ted list of crimes, involves

explosives, or meets the “otherwise” part of the definition of

crime of violence. USSG § 4B1.2(a)(2). Since this crime neither5

involves explosives nor is in the enumeration of crimes in the

Guideline or its Commentary, we must determine only whether the

offense “otherwise involv es conduct that presents a serious

potential risk of physical injury to another.” Id.

The Government maintains that burglary of a building presents

the sort of risk contemplated by the Guideline. The charging

instrument pertaining to defendant’s prior conviction is not in the

record. The Guidelines and our jurisprudence require that for this

part of the analysis, we consider only the conduct charged in the

count of which the defendant was convicted. We therefore must

remand for resentencing. S ee United States v. Kinder

, 980 F.2d

961, 963 (5 th Cir. 1992) (“We seek justice and truth and therefore

do not preclude the introduction of information helpful in

determining a proper sentence.”), cer t. denied , 508 U.S. 923

(1993). The district court can then make the required

determination whether the conduct set forth in the count of which

the defendant was convicted “presents a serious potential risk of

physical injury to another.” USSG § 4B1.2(a)(2); U nited States v.

Fitzhugh

, 954 F.2d 253, 254 (5 th Cir. 1992) (restricting

consideration to conduct in count, not other facts beyond the face

of the indictment), cert. denied , 510 U.S. 895 (1993); Charles at

*3 (same).

We therefore VACATE the judgment of sentence, and REMAND the

matter for resentencing in the light of this opinion.

VACATED and REMANDED.