IN THE UNITED STATES COURT OF APPEALS
                   FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                   Fifth Circuit

                                                FILED
                                                                 September 22, 2009
                                 No. 08-40801
                               Summary Calendar               Charles R. Fulbruge III
                                                                      Clerk

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.




      *
      Pursuant to 5 TH C IR. 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should not be published and is not precedent except under the limited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 5 TH C IR. R. 47.5.4.
                                   No. 08-40801

      Because Arkadie did not raise this issue in the district court, our review
is for plain error. See United States v. Thompson, 

, 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,

, 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. 

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.
S ENTENCING G UIDELINES M ANUAL § 7B1.1, p.s., comment. (n.1); United States
v. Dominguez, 

, 347 (5th Cir. 2007); United States v. Barber, No.
92-7737, 

(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. S ENTENCING
G UIDELINES M ANUAL § 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, 

, 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, 

, 275

                                          2
                                 No. 08-40801

(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