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.) 4th 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 4th 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 (3rd 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 5th, 8th and 10th 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.
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.