Criminal Practice – Prisons & Jails – Possession of Contraband – Shank in Shoe – Sentencing – Career Offender – Violent Crime

Listen to this article

U.S. v. Mobley (Lawyers Weekly No. 001-161-12, 21 pp.) (King, J.) No. 11-4391, July 13, 2012; USDC at Raleigh, N.C. (Britt, J.) 4^th Cir. Full-text opinion.

Holding: An inmate convicted of possessing contraband, after he was discovered with a shank in his shoe, can be sentenced as a career offender because possession of the shank qualified as a crime of violence under the federal sentencing guidelines, the 4^th Circuit says.

The trial court ruled that “there is no passive possession of a weapon in a prison setting,” and sentenced defendant under a range of 37 to 46 months, instead of 24-30 months, the range without the career offender enhancement under USSG § 4B1.1(a).

The primary issue in this appeal is whether the offense of conviction falls within the “residual clause” of USSG § 4B1.2(a)(2) – that is, whether possession of a shank while in prison at FCI Butner “otherwise involves conduct that presents a serious potential risk of physical injury to another.”

Defendant’s position on appeal relies heavily on U.S. v. Polk, 577 F.3d 515 (3^rd Cir. 2009), the only court of appeals decision to adopt the position advanced by defendant. Three of our sister circuits have addressed the same issue and reached a different conclusion.

Put simply, we agree with the 5^th, 8^th and 10^th Circuits that possession of a shank in prison, in contravention of 18 U.S.C. § 1791(a)(2), constitutes a crime of violence under USSG § 4B1.2(a)(2). That offense is similar in kind and degree of risk posed to the enumerated offenses, in that a prison inmate’s possession of a weapon constitutes a “purposeful, violent and aggressive” offense and serious and substantial risks are inherent to the crime.

We are convinced that possession of a shank by an inmate in prison is similar in kind and degree of risk posed to the offenses enumerated in the text of § 4B1.2 and in its binding commentary. We are therefore firmly of the view that defendant’s offense of conviction presents a serious potential risk of physical injury to another, and the offense of conviction constitutes a crime of violence for career offender enhancement.

Judgment affirmed.

Dissent

Wynn, J.: Possession of a shank is not a violent crime enumerated in the relevant provision, nor is it similar to the enumerated offenses – a requirement for application of the enhancement under controlling Supreme Court precedent. At the very least, whether the enhancement applies is ambiguous and must therefore be construed in defendant’s favor. I must respectfully dissent from the contrary view presented by my colleagues in the majority opinion.