                                                          United States Court of Appeals
                                                                   Fifth Circuit
                                                                F I L E D
                IN THE UNITED STATES COURT OF APPEALS
                                                                March 28, 2005
                        FOR THE FIFTH CIRCUIT
                        _____________________               Charles R. Fulbruge III
                                                                    Clerk
                            No. 04-10635
                        _____________________

UNITED STATES OF AMERICA,

                                                 Plaintiff - Appellee,

                                versus

JAMES LEON McCALLEY,

                                            Defendant - Appellant.
__________________________________________________________________

           Appeal from the United States District Court
            for the Northern District of Texas, Dallas
                    USDC No. 3:03-CR-319-ALL-H
_________________________________________________________________

Before REAVLEY, JOLLY and PRADO, Circuit Judges.

PER CURIAM:*

     James Leon McCalley appeals his sentence imposed after his

guilty plea conviction as a felon in possession of a firearm.

Specifically,   he   contends   that   the   district   court   erred    in

characterizing his prior conviction for indecency with a child as

a “crime of violence” for purposes of a sentencing enhancement

under U.S.S.G. §§ 2K2.1(a)(4)(A) and 4B1.2(a)(2).        He also argues

that the enhancement of his sentence, under a mandatory Guidelines

regime, based on facts neither admitted by him nor found by a jury

violated his Sixth Amendment rights under United States v. Booker,


     *
       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this opinion should not be published and is not precedent except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.
   U.S.   , 125 S.Ct. 738 (2005).        We affirm McCalley’s sentence

because we hold that his prior conviction for indecency with a

child was a “crime of violence.” Furthermore, we reject his Booker

claim because he cannot show that there is a reasonable probability

that he would have received a lesser sentence under an advisory

Guidelines regime.

                                   I

     McCalley’s   sentence   was       calculated   under   U.S.S.G.   §

2K2.1(a)(4)(A), which provides for a base offense level of 20 “if

the defendant committed any part of the instant offense subsequent

to sustaining one felony conviction of either a crime of violence

or a controlled substance offense[.]” The applicable definition of

“crime of violence” is found in U.S.S.G. § 4B1.2(a), which states

that a crime of violence is an offense punishable by imprisonment

for at least one year and

          has as an element the use, attempted use, or
          threatened use of physical force against the
          person of another, or is 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.

Because the crime of indecency with a child under Texas Penal Code

§ 21.11(a)(1) does not have the use, attempted use, or threatened

use of physical force as an element, whether McCalley’s prior

conviction is a crime of violence depends on whether it “presents

a serious potential risk of physical injury to another.”



                                   2
     To answer this question, we take a categorical approach,

examining the conduct as alleged in the indictment.** United States

v. Serna, 309 F.3d 859, 862 (5th Cir. 2002).    The indictment for

McCalley’s conviction alleged that he sexually touched a child

younger than fourteen years.

     In United States v. Velazquez-Overa, 100 F.3d 418, 422 (5th

Cir. 1996), we noted that “when an older person attempts to

sexually touch a child under the age of fourteen, there is always

a substantial risk that physical force will be used to ensure the

child’s compliance.”   Velazquez-Overa concerned the definition of

crime of violence as provided in 18 U.S.C. § 16, which asks whether

the prior conviction presented a “substantial risk that physical

force against the person or property will be used[.]”    In United

States v. Kirk, 111 F.3d 390, 394 (5th Cir. 1997), we held that “in

situations in which there is a substantial risk that physical force

will be used, a serious potential risk of physical injury may also

exist.”   It is therefore clear that when an adult sexually touches

a child younger than fourteen years there is a serious potential

risk of physical injury.   We therefore reject McCalley’s arguments

to the contrary.


     **
      McCalley argues that the district court erred by failing to
apply this categorical approach. Specifically, he contends that
the district court looked to facts in the PSR to determine whether
his prior conviction was a crime of violence. The district court
noted that it reviewed the PSR, but it did not indicate that it
based its determination that the prior conviction was for a crime
of violence on facts other than those alleged in the indictment.

                                 3
                                     II

     Next, we address McCalley’s Sixth Amendment argument that the

district court erred by characterizing the nature of his prior

conviction   and   enhancing   his   sentence   on   the   basis   of   that

characterization under a mandatory Guidelines regime.          Because he

failed to object on these grounds at sentencing, our review is for

plain error.

     We first observe that it is not clear whether the district

court’s characterization of McCalley’s prior conviction was a

violation of his Sixth Amendment rights.        We have held that under

Apprendi v. New Jersey, 530 U.S. 466 (2000), there is no Sixth

Amendment violation where a district court considers the nature of

a prior conviction itself instead of presenting that question to

the jury.    United States v. Stone, 306 F.3d 241, 243 (5th Cir.

2002). The Supreme Court, however, has recently cast some doubt on

this holding in Shepard v. United States, ___ S.Ct. ___, 2005 WL

516494 (2005) (noting that “[w]hile the disputed fact here can be

described as a fact about a prior conviction, it is too far removed

from the conclusive significance of a prior judicial record, and

too much like the findings subject to” Apprendi).            We need not

determine the impact of Shepard because McCalley cannot show the

necessary prejudice to succeed under plain error review.

     To satisfy the third prong of the plain error analysis, a

defendant presenting a claim of error under Booker must demonstrate

a reasonable probability that the district court would have imposed

                                     4
a lesser sentence if it had been aware of its discretion to do so.

United States v. Mares, ___ F.3d ___, 2005 WL 503715 (5th Cir.

2005).     McCalley does not make such a showing.             Therefore, he

cannot satisfy the third prong of the plain error test.

                                     III

      In sum, we hold that the district court did not err in

determining that, based on the facts alleged in the indictment,

McCalley’s prior conviction for indecency with a child was a “crime

of violence” for purposes of U.S.S.G. § 4B1.2.          We also hold that

the   district   court   did   not   commit   plain   error   by   enhancing

McCalley’s sentence based on its determination of the nature of

McCalley’s prior conviction or by sentencing him under a mandatory

Guidelines regime. Therefore, the sentence imposed in the district

court is

                                                                   AFFIRMED.




                                      5
