                   UNITED STATES COURT OF APPEALS
                        For the Fifth Circuit



                             No. 01-40389


                       UNITED STATES OF AMERICA,

                                                  Plaintiff - Appellee,


                                 VERSUS


                            JAIME STEVENS,

                                                 Defendant - Appellant.




            Appeal from the United States District Court
                 For the Southern District of Texas
                            (B-00-CR-468-1)
                             May 10, 2002


Before WIENER and DENNIS, Circuit Judges, and DUPLANTIER,* District
Judge.
PER CURIAM:**
       On November 7, 2000, Mr. Jaime Stevens was charged in a four-
count indictment with knowingly and intentionally conspiring to
possess cocaine with an intent to distribute and with possessing


  *
     Judge of    the   Eastern   District   of   Louisiana,   sitting   by
designation.
  **
     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opinion should not be published and is not precedent except under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.

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cocaine with an intent to distribute.                 On January 4, 2001, Mr.
Stevens pleaded guilty to possessing and conspiring to possess less
than 500      grams    of    cocaine.      The    Pre-Sentencing     Report     (PSR)
recommended a criminal history category of VI, an offense level of
29 (a base offense level of 12; a 20-level enhancement for Mr.
Stevens’s     career        offender    status     because    of   his    two   prior
convictions of crimes of violence, i.e, aggravated assault and
retaliation;        and      a   3-level       reduction     for   acceptance      of
responsibility), and a recommended range of imprisonment of 151 to
188 months.
      In three court filings and at the sentencing hearing on
September 21, 2001, Mr. Stevens argued that he did not qualify as
a career offender because retaliation does not meet the definition
of a crime of violence.           Mr. Stevens’s retaliation conviction is
based upon the following statement to his probation officers:
“Quien cree ese vato que es, nadie me habla haci [sic] a mi . . .
yo soy un chavalon, vale mas que se cuide, proque [sic] me lo voy
a chingar . . . y a ti tambien!”1               In addition, Mr. Stevens later
stated that he would find out what vehicles his probation officers
drove and where they lived.
      Based    on     the    underlying    facts    surrounding     Mr.    Stevens’s
retaliation conviction, the district judge overruled the objection
and sentenced Mr. Stevens to 151 months’ imprisonment, 3 years’
supervised release, and a $100 special assessment.                       On April 2,


  1
    The probation officer translated this as, “Who does that guy
think he is, nobody talks to me like that. I’m a kid. He better
take care, because I’m going to beat him up and you too!” The
court interpreter, on the other hand, translated it as, “Who does
that dude think he is.    Nobody talks about me like that. I’m a
really tough guy. He better watch out because I’m going to get
even with him, fucking well get even with him, get back at home and
you, too.”

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2001, Mr. Stevens timely filed a notice of appeal.


                                  ANALYSIS
     “Application of the Sentencing Guidelines is a question of law
subject to de novo review.”         United States v. Deville, 278 F.3d
500, 509 (5th Cir. 2002).        Under U.S.S.G. § 4B1.1, a person is a
career offender if he is at least 18 years old at the time of the
instant offense, the offense is a felony that is either a crime of
violence or a controlled substance offense, and “the defendant has
at least two prior felony convictions for either a crime of
violence or a controlled substance offense.”                    U.S.S.G. § 4B1.1.
There is no dispute that Mr. Stevens was at least 18 years old at
the time of the instant offense, that the instant offense is a
controlled     substance     violation,      or   that    his    prior   crime   of
aggravated assault is a crime of violence.               Mr. Stevens challenges
only the classification of his retaliation conviction as a crime of
violence.
     In this circuit, we employ a three-step test for determining
whether a conviction constitutes a “crime of violence” under the
sentencing guidelines.        First, the court must ascertain whether,
under U.S.S.G. § 4B1.2(a)(1), the offense “has as an element the
use, attempted use, or threatened use of physical force against the
person of another. . . .”      U.S.S.G. § 4B1.2(a)(1) (emphasis added).
Under Texas law, “a person commits an offense [of retaliation] if
he intentionally or knowingly harms or threatens to harm another by
an unlawful act in retaliation for or on account of the service of
another   as    a   public    servant,       witness,    prospective     witness,
informant, or a person who has reported the occurrence of a crime.”
Tex. Penal Code § 36.06 (1991).          “‘Harm’ means anything reasonably
regarded as loss, disadvantage, or injury, including harm to

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another person in whose welfare the person affected is interested.”
Id. § 1.07(a)(16).        Although the harm involved in the crime of
retaliation may include the “threatened use of physical force
against the person of another,” retaliation does not have “as an
element” of the crime such a requirement.              “There is no requirement
the harm [involved in the crime of retaliation] be physical harm.”
Hudspeth v. State, 31 S.W.3d 409, 411 (Tex. Ct. App. 2000).                   Harm
may involve other less concrete injuries, such the filing of an
unfounded or fraudulently initiated lawsuit.              See, e.g., Fisher v.
State,     803   S.W.2d   828,    831    (Tex.   Ct.    App.    1991).     Because
retaliation does not, as a categorical matter, have as an element
of   the   crime    the   use    or    threatened   use    of   physical     force,
retaliation does not qualify as a crime of violence under the first
step of the test.
      Under the second step, we next determine whether, under
U.S.S.G. § 4B1.2(a)(2), the offense at issue is included among one
of   the   listed    offenses     in    the   sentencing       guidelines.     The
sentencing guidelines specifically enumerate as crimes of violence
the crimes of burglary of a dwelling, arson, extortion, or any
crime involving the use of explosives.                 Because retaliation is
clearly not listed, it does not qualify as a crime of violence
under step two.
      Finally, we move to the last step and examine whether, under
U.S.S.G. § 4B1.2(a)(2), the offense “involves conduct that presents
a serious potential risk of physical injury to another.”                 U.S.S.G.
§ 4B1.2(a)(2).      “[W]e should . . . consider first the categorical
issue” of whether “the statutory elements of the crime always
present the requisite risk” of physical injury to another.                   United
States v. Christopher Jackson, 220 F.3d 635, 638 n.3 (5th Cir.


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2000).    For example, in United States v. Ruiz, we held that the
crime    of   escape   from   the   custody    of    a   federal   prison     camp
constitutes a crime of violence because “[e]very escape scenario is
a powder keg, which may or may not explode into violence and result
in physical injury to someone at any given time, but which always
has the serious potential to do so.”              180 F.3d 675, 677 (5th Cir.
1999) (quoting United States v. Mitchell, 113 F.3d 1528, 1533 (10th
Cir. 1997). Here, however, every retaliation does not present such
a risk. Cf. Fisher, 803 S.W.2d at 831; Hudspeth, 31 S.W.3d at 411.
      Next, we examine whether the conduct described in the charging
instrument in this particular case presented the requisite risk to
be classified as a crime of violence.                 As this court and the
sentencing guidelines, themselves, have made clear, the relevant
scope of inquiry in assessing whether a specific act qualifies as
a crime of violence is limited to the indictment or charging
instrument. Christopher Jackson, 220 F.3d at 637-38; United States
v. Fitzhugh, 954 F.2d 253, 254 (5th Cir. 1992).                    That is, an
offense is a crime of violence if “the conduct set forth (i.e.,
expressly     charged)   in   the   count    of    which    the   defendant   was
convicted . . ., by its nature, presented a serious potential risk
of physical injury to another.”             U.S.S.G. § 4B1.2 App. Note 1.
“[Section] 4B1.2 does not intend to define ‘crime of violence’ by
reference to conduct underlying the offense when the defendant is
not charged and convicted of such conduct.”                Christopher Jackson,
220 F.3d at 637-38 (quoting Fitzhugh, 954 F.2d at 254).2


  2
    This was once a matter of dispute. Compare United States v.
Albert Jackson, 22 F.3d 583 (5th Cir. 1994) (holding that the
district court erred in classifying the defendant’s crime of
burglary of a building as a crime of violence because the facts of
the case presented no evidence upon which to base a conclusion that
the defendant posed a serious potential risk of physical injury to

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     Here the Probation Officer in the PSR and, more importantly,
the district judge at sentencing clearly looked beyond the charging
instrument and into the specific facts of this case in determining
that Mr. Stevens’s conduct posed a “serious potential risk of
physical injury to another.”    The district court, relying on the
PSR, stated as follows:
           [T]he threat to find out what kind of car they drive
     so that he could find out where they live, all of those
     things are consistent with the probation officers being
     concerned about their being physically harmed by your
     client. . . .   I believe that the probation officers had
     reason to be fearful for their safety and I feel like the
     evidence was consistent at the time for him to be found
     guilty of retaliation and that that threat of harm was .
     . .   real and I feel like the threat was real, that the
     probation officers had reason to believe and did believe
     that his words were something that he meant to follow up
     on if he could do so.   And so I’m going to overrule your
     objection and find that it is a crime of violence.
There is absolutely no evidence in the record to show that the


another), with United States v. Fitzhugh, 954 F.2d 253 (5th Cir.
1992) (holding that unlawful possession of a firearm is not a crime
of violence and that “it is inappropriate to look beyond the
indictment in considering this issue. . .”). “[T]he Sentencing
Commission [has since] made clear that only conduct ‘set forth in
the count of which the defendant was convicted’ may be considered
in determining whether the offense is a crime of violence. . . .
[T]he Commission, has repudiated . . . cases which held that a
sentencing court can look beyond the face of the indictment in
considering this issue.” Christopher Jackson, 220 F.3d at 637-38
(quoting Fitzhugh, 954 F.2d at 254).      Similarly, since Albert
Jackson, this court has unequivocally stated that “Fitzhugh
predates Jackson, and therefore Fitzhugh is the law of this
circuit.” Id. at 639.

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district   court   reviewed   the   retaliation    indictment,    and   the
charging instrument for Mr. Stevens’s retaliation conviction is not
included in the record before us.         In the absence of this vital
document, there is nothing from which either the district court or
this court could properly glean the specific conduct necessary to
establish a crime of violence.      Thus, the sentence imposed by the
district   court   is   VACATED,    and   this   case   is   REMANDED   for
resentencing, including examination of the retaliation indictment.




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