United States v. Jermaine Mobley , 687 F.3d 625 ( 2012 )

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.  No. 11-4391
JERMAINE MOBLEY,
Defendant-Appellant.

Appeal from the United States District Court
for the Eastern District of North Carolina, at Raleigh.
W. Earl Britt, Senior District Judge.
(5:10-cr-00278-BR-1)
Argued: March 21, 2012
Decided: July 13, 2012
Before TRAXLER, Chief Judge, and KING and WYNN,
Circuit Judges.
Affirmed by published opinion. Judge King wrote the major-
ity opinion, in which Chief Judge Traxler joined. Judge Wynn
wrote a dissenting opinion.
COUNSEL
ARGUED: Eric Joseph Brignac, OFFICE OF THE FED-
ERAL PUBLIC DEFENDER, Raleigh, North Carolina, for
Appellant. Yvonne Victoria Watford-McKinney, OFFICE OF
2 UNITED STATES v. MOBLEY
THE UNITED STATES ATTORNEY, Raleigh, North Caro-
lina, for Appellee. ON BRIEF: Thomas P. McNamara, Fed-
eral Public Defender, G. Alan DuBois, Assistant Federal
Public Defender, OFFICE OF THE FEDERAL PUBLIC
DEFENDER, Raleigh, North Carolina, for Appellant. Thomas
G. Walker, United States Attorney, Jennifer P. May-Parker,
Assistant United States Attorney, OFFICE OF THE UNITED
STATES ATTORNEY, Raleigh, North Carolina, for Appel-
lee.
OPINION
KING, Circuit Judge:
On December 6, 2010, Jermaine Mobley pleaded guilty in
the Eastern District of North Carolina to the offense of pos-
session of a prohibited object in prison, in violation of 18
U.S.C. § 1791(a)(2). The sentencing court thereafter found
Mobley to be a career offender under § 4B1.1 of the Sentenc-
ing Guidelines and imposed a sentence of thirty-seven
months. On appeal, Mobley challenges his sentence, main-
taining that the court erred in ruling that his offense of convic-
tion constituted a crime of violence for purposes of the career
offender sentencing enhancement of the Guidelines. As
explained below, we reject Mobley’s contention and affirm.
I.
At the time of his offense, Mobley was serving a 151-
month sentence at FCI Butner, near Raleigh, North Carolina,
for his prior federal convictions of possession with intent to
distribute heroin and being a felon in possession of a firearm.
On September 14, 2009, Mobley visited Butner’s infirmary,
complaining of pain and numbness in his feet. During the
infirmary visit, an attending physical therapist picked up
Mobley’s right shoe to examine its insole. Mobley promptly
UNITED STATES v. MOBLEY 3
seized the shoe from the therapist and removed an eight-inch
"shank" that had been concealed in the shoe’s insole.1 The
therapist saw the shank and, despite Mobley’s efforts to hide
it under an examination table, the shank was recovered by the
prison staff.
On August 18, 2010, Mobley was charged in a single-count
indictment of, while an inmate at FCI Butner, "possess[ing]
a prohibited object, to wit, a shank, in violation of Title 18,
United States Code, Section 1791(a)(2)." J.A. 6.2 Section
1791(a)(2) provides, in part, that "whoever[,] being an inmate
of a prison, . . . possesses . . . a prohibited object [shall be
guilty of an offense against the United States]." The term
"prohibited object" is defined in § 1791 with a litany of spe-
cifics, including weapons, controlled substances, currency,
and telephones. Relevant to Mobley’s offense of conviction,
the statutory definition includes "an object that is designed or
intended to be used as a weapon or to facilitate escape from
a prison." 18 U.S.C. § 1791(d)(1)(B). Punishment for the
offense of conviction is a fine or "imprisonment for not more
than 5 years, or both." Id. § 1791(b)(3).
After Mobley pleaded guilty, a probation officer prepared
a presentence investigation report ("PSR"). The PSR calcu-
lated Mobley’s base offense level under the Guidelines as 13,
then applied the career offender sentencing enhancement to
1
Mobley acknowledges that a shank, which is an improvised sharpened
instrument, is a dangerous weapon. At sentencing, Mobley’s counsel
referred to the shank as a "weapon" with "the potential for serious injury."
J.A. 19; see also United States v. Perez-Jiminez, 654 F.3d 1136, 1142
(10th Cir. 2011) ("It is patent that such shanks are a deadly weapon."). The
prosecutor explained that shanks "are made by inmates from bits and
pieces of metal" and sharpened against concrete. J.A. 21. We have previ-
ously described a shank as a homemade knife or "a handmade sharp
instrument." United States v. Caro, 597 F.3d 608, 610 (4th Cir. 2010);
United States v. Perry, 335 F.3d 316, 318 (4th Cir. 2003).
2
Citations herein to "J.A.___" refer to the contents of the Joint Appen-
dix filed by the parties in this appeal.
4 UNITED STATES v. MOBLEY
increase his base offense level to 17. The PSR reduced the
offense level by three for acceptance of responsibility, result-
ing in a total offense level of 14. Mobley’s criminal history
category was VI, and the advisory sentencing range for an
offense level of 14 and a criminal history category of VI is
thirty-seven to forty-six months. If the career offender sen-
tencing enhancement had not been applied, Mobley’s total
offense level would have been 10, and his sentencing range
would have been twenty-four to thirty months. Pursuant to
§ 4B1.1 of the Guidelines, a convicted defendant is consid-
ered to be a career offender if:
(1) the defendant was at least eighteen years old at
the time the defendant committed the instant offense
of conviction;
(2) the instant offense of conviction is a felony that
is either a crime of violence or a controlled sub-
stance offense; and
(3) the defendant has at least two prior felony con-
victions of either a crime of violence or a controlled
substance offense.
USSG § 4B1.1(a).
Mobley was thirty-six years old at the time of his offense
of conviction, and he then had at least two prior felony con-
victions for controlled substance offenses. At his sentencing
hearing, Mobley objected to the district court’s application of
the career offender enhancement, contending that possession
of a shank in prison failed to qualify as a crime of violence.
The court overruled this objection, however, ruling that the
instant offense of conviction constitutes a crime of violence,
and explaining that "there is no passive possession of a
weapon in a prison setting." J.A. 24. Mobley filed a timely
notice of appeal, and we possess jurisdiction pursuant to 28
U.S.C. § 1291 and 18 U.S.C. § 3742(a).
UNITED STATES v. MOBLEY 5
II.
A determination of whether a defendant’s offense of con-
viction constitutes a crime of violence under § 4B1.2(a) of the
Guidelines is a legal issue that we review de novo. See United
States v. Jenkins, 631 F.3d 680, 682 (4th Cir. 2011).
III.
A.
The term "crime of violence" is defined in the Guidelines
as any offense "punishable by imprisonment for a term
exceeding one year," and that
(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 extortion,
involves use of explosives, or otherwise involves
conduct that presents a serious potential risk of phys-
ical injury to another.
USSG § 4B1.2(a). The primary issue in Mobley’s appeal is
whether his offense of conviction falls within the "residual
clause" of § 4B1.2(a)(2) — that is, whether possession of a
shank while in prison at Butner "otherwise involves conduct
that presents a serious potential risk of physical injury to
another."
On appeal, Mobley maintains that "mere possession" of a
shank in prison does not, under the relevant authorities,
involve the active or assaultive conduct required of a crime of
violence under the Guidelines. He asserts that mere posses-
sion of a shank in prison is a passive crime and does not con-
stitute confrontational conduct, and that the offense of
conviction does not present the serious risk of physical injury
6 UNITED STATES v. MOBLEY
contemplated by the Guidelines in defining a crime of vio-
lence.
In order to properly assess this issue, it is necessary to
briefly review the relevant legal principles and Guidelines
commentary. The Supreme Court has identified and explained
the principles underlying what constitutes a violent felony
under the Armed Career Criminal Act (the "ACCA"), or, for
the purposes of this appeal, a crime of violence under § 4B1.2
of the Guidelines. See, e.g., Sykes v. United States, 131 S. Ct.
2267 (2011); Chambers v. United States, 555 U.S. 122(2009); Begay v. United States, 553 U.S. 137 (2008).3
In Begay, the Supreme Court explained the ACCA’s enu-
merated offenses of burglary, arson, or extortion, "as limiting
the crimes that [the residual clause] covers to crimes that are
roughly similar, in kind as well as in degree of risk posed, to
the examples themselves," but it declined to include driving
under the influence as one of those "roughly similar" offenses.
Begay, 553 U.S. at 143. Last year, in Sykes, the Supreme
Court focused on the question of whether the offense of inten-
tional vehicular flight was comparable in degree of risk to the
enumerated offenses. Sykes, 131 S. Ct. at 2273. The Court
concluded in the affirmative, determining that a "[r]isk of vio-
lence is inherent to vehicle flight," is at least equal to the enu-
merated offenses of burglary and arson. Id. at 2274.4
3
We have frequently observed that the ACCA’s definition of a "violent
felony," set forth in 18 U.S.C. § 924(e)(2)(B), is nearly identical to the
Guidelines’ definition of "crime of violence" in § 4B1.2(a). See, e.g.,
United States v. Jenkins, 631 F.3d 680, 683 (4th Cir. 2011). As a result
of the similarities between the two definitions, we are entitled to "rely
upon precedents evaluating whether an offense constitutes a violent felony
under [the ACCA] interchangeably with precedents evaluating whether an
offense constitutes a crime of violence under [the Guidelines]." United
States v. Clay, 627 F.3d 959, 965 (4th Cir. 2010).
4
Mobley and the government disagree about whether and to what extent
Sykes limited the application of Begay’s similar-in-kind test. There is no
need to resolve that issue in this case, however, because, as we will
explain, Mobley’s sentence may be affirmed under Begay.
UNITED STATES v. MOBLEY 7
The commentary to § 4B1.2, more specifically Application
Note 1 thereof, expands upon the roster of enumerated
offenses by specifying additional ones, such as manslaughter
and kidnapping, that also constitute crimes of violence, see
USSG § 4B1.2, cmt. n.1 ("‘Crime of violence’ includes mur-
der, manslaughter, kidnapping, aggravated assault, forcible
sex offenses, robbery, arson, extortion, extortionate extension
of credit, and burglary of a dwelling."), and by identifying
various offenses that do not constitute crimes of violence,
such as unlawful possession of several types of firearms. See
id. ("‘Crime of violence’ does not include the offense of
unlawful possession of a firearm by a felon, unless the posses-
sion was of a firearm described in 26 U.S.C. § 5845(a).").5
The crimes specified in Application Note 1 of the commen-
tary to § 4B1.2 serve as additional enumerated offenses, or
"example crimes," to be considered when determining
whether a prior conviction or an instant offense of conviction
otherwise involves conduct that presents a serious potential
risk of physical injury to another. See Peterson, 629 F.3d at
438 ("Although the language of ACCA that was considered in
Begay is identical to the language in USSG § 4B1.2(a)(2), the
commentary to § 4B1.2(a)(2) adds to the list of example
crimes listed in § 4B1.2(a)(2)[.]"); accord United States v.
Marrero, 677 F.3d 155, 164 (3d Cir. 2012) ("[O]ffenses listed
in Application Note 1 [to USSG § 4B1.2] are ‘enumerated’
for purposes of the crime-of-violence analysis."). With these
principles in mind, we turn to the specifics of Mobley’s con-
tention.
1.
Mobley’s position on appeal relies heavily on the Third
Circuit’s decision in United States v. Polk, 577 F.3d 515 (3d
5
Application Note 1 of the commentary to § 4B1.2 is neither inconsis-
tent with nor an erroneous reading of § 4B1.2(a), and is therefore authori-
tative and binding. See United States v. Peterson, 629 F.3d 432, 435 (4th
Cir. 2011); United States v. Hood, 628 F.3d 669, 672-73 (4th Cir. 2010).
8 UNITED STATES v. MOBLEY
Cir. 2009). Like Mobley, Polk had been convicted of possess-
ing a shank in prison, in violation of 18 U.S.C. § 1791(a)(2).
The district court sentenced Polk as a career offender, charac-
terizing his instant offense of conviction as a crime of vio-
lence. The Third Circuit reversed, applying the Supreme
Court’s analysis in Begay and determining that possession of
a weapon — "even in a prison" — is not similar in kind or
degree of risk posed to the enumerated offenses and, thus,
does not constitute a crime of violence under the career
offender sentencing enhancement found in § 4B1.2 of the
Guidelines. The court of appeals explained:
While no doubt possession of a weapon in prison
involves a high degree of risk, Begay points out that
even a serious potential for injury is not enough to
qualify a crime for career offender enhancement; the
risk created must also be "similar in kind" to the
crimes set out [in Guidelines § 4B1.2(a)(2)]. They
involve overt, active conduct that results in harm to
a person or property. The possibility that one will
confront another person with violent results is not
sufficient.
***
While possessing a weapon in prison is purposeful,
in that we may assume one who possesses a shank
intends that possession, it cannot properly be charac-
terized as conduct that is itself aggressive or violent,
as only the potential exists for aggressive or violent
conduct.
Polk, 577 F.3d at 519 (citations omitted).
The Third Circuit, however, has been the only court of
appeals to adopt the position advanced by Mobley in this
case. Three other of our sister circuits, the Fifth, Eighth, and
Tenth, have addressed the same issue and reached a different
UNITED STATES v. MOBLEY 9
conclusion. See United States v. Marquez, 626 F.3d 214 (5th
Cir. 2010); United States v. Boyce, 633 F.3d 708 (8th Cir.
2011); United States v. Perez-Jiminez, 654 F.3d 1136 (10th
Cir. 2011). The Fifth Circuit in Marquez reasoned that posses-
sion of a deadly weapon by a prison inmate is similar in kind
and degree of risk posed to the crime of burglary because,
"(l)ike burglary, the ‘main risk’ of an inmate in possession of
a deadly weapon is ‘the possibility of a face-to-face confron-
tation’ with another person." Id. at 222 (quoting Begay, 553
U.S. at 144-45).
Similarly, in Boyce, the Eighth Circuit determined that pos-
session of a weapon in prison presents a serious potential risk
of physical injury to another, inasmuch as there is no lawful
reason for a prison inmate to ever have a weapon. See 633
F.3d at 711. The court concluded that possession of a weapon
in prison is roughly similar in kind and degree of risk posed
to the enumerated crimes of burglary, arson, and extortion. Id.
at 712. The Eighth Circuit thereby rejected the view taken by
the Third Circuit in Polk, reasoning that an inmate’s posses-
sion of a weapon in prison involves purposeful, violent, and
aggressive conduct, and that it creates a likelihood of future
violent confrontations, much like the enumerated offenses. Id.
at 711-12.
Finally, the Tenth Circuit, in Perez-Jiminez, rendered a
decision last year that is essentially on all fours with this
appeal, concluding, in a post-Sykes setting, that "possessing a
dangerous or deadly weapon in prison ‘enables violence.’"
654 F.3d at 1143 (quoting Boyce, 633 F.3d at 712). Perez-
Jiminez was, like Mobley, prosecuted for violating 18 U.S.C.
§ 1791(a)(2), and the court of appeals was called upon to
assess the very question we face, that is, whether possession
of a shank in prison constitutes a crime of violence under the
career offender sentencing enhancement.6 The Tenth Circuit
6
The Marquez and Boyce cases — unlike Perez-Jiminez and Mobley’s
case — involved the issue of whether a prior state conviction for posses-
sion of a shank in prison was a crime of violence. The analysis conducted
in Marquez and Boyce, however, is also governed by the Supreme Court’s
precedents and is the very analysis that we conduct here.
10 UNITED STATES v. MOBLEY
ruled that it did, observing that there is no innocent purpose
for the possession of a dangerous weapon by a prison inmate,
and concluding that such possession amounts to a crime of
violence for purposes of the career offender sentencing
enhancement. Id. at 1143-44. The court explained:
Outside of prison, [t]he felon who unlawfully pos-
sesses a firearm, although disobeying the law, may
have a legitimate use intended for the firearm, such
as target shooting or collecting. But there is no simi-
larly innocent purpose behind the possession of a
deadly weapon by a prison inmate, as [t]he confines
of prison preclude any recreational uses for a deadly
weapon.
[T]here is no legitimate purpose for a prisoner to
carry a weapon designed to kill, injure or disable
another. On the contrary, the only reason to carry
such a weapon is to use it to attack another or to
deter an attack.
Id. at 1143 (citations and internal quotation marks omitted).
Put simply, we agree with the Fifth, Eighth, and Tenth Cir-
cuits that possession of a shank in prison, in contravention of
§ 1791(a)(2), constitutes a crime of violence under
§ 4B1.2(a)(2) of the Guidelines. 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 "[s]erious
and substantial risks are . . . inherent" to the crime. Begay,
553 U.S. at 144-45; Sykes, 131 S. Ct. at 2276. As the govern-
ment emphasizes, we have recognized that "it is virtually
impossible to eliminate violence among the incarcerated."
Taylor v. Freeman, 34 F.3d 266, 273 n.6 (4th Cir. 1994). Like
the offense of burglary of a dwelling, the availability of con-
traband weapons in the prison context obviously facilitates
violence and injury. See Shrader v. White, 761 F.2d 975, 991
UNITED STATES v. MOBLEY 11
(4th Cir. 1985) (Sprouse, J., dissenting); see also Marquez,
626 F.3d at 221-22 (recognizing that possession of weapon in
prison is similar to burglary because violent aspects lie in
potential for confrontation). We therefore readily agree with
the Tenth Circuit’s summation in Perez-Jiminez that "[T]here
is no legitimate purpose for a prisoner to carry a weapon
designed to kill, injure or disable another. On the contrary, the
only reason to carry such a weapon is to use it to attack
another or to deter an attack." 654 F.3d at 1143.
2.
The identification of additional enumerated offenses in
Application Note 1 to the commentary to § 4B1.2 reinforces
our conclusion today. Although the unlawful possession of
most firearms is not a crime of violence for purposes of
§ 4B1.2, Application Note 1 specifies that "[u]nlawfully pos-
sessing a firearm described in 26 U.S.C. § 5845(a) (e.g., a
sawed-off shotgun or sawed-off rifle, silencer, bomb, or
machine gun) is a ‘crime of violence.’" USSG § 4B1.2, cmt.
n.1. When these offenses and the others listed in Application
Note 1 are included with those specified in the text of
§ 4B1.2(a)(2), see Peterson, 629 F.3d at 439, there are at least
eleven "enumerated offenses" identified for career-offender
purposes: (1) burglary of a dwelling; (2) arson; (3) extortion;
(4) crimes involving the use of explosives; (5) murder; (6)
manslaughter; (7) kidnapping; (8) aggravated assault, (9) forc-
ible sex offenses; (10) robbery; and (11) possession of a
sawed-off shotgun or sawed-off rifle, silencer, bomb, or
machine gun. Applying the Begay analysis to this expanded
list of enumerated offenses, the question is "whether the pred-
icate offense under consideration is ‘roughly similar, in kind,
as well as in degree of risk posed, to the examples.’" Peter-
son, 629 F.3d at 439 (quoting Begay, 553 U.S. at 143)).
Under the Begay analysis, the offense of possessing a shank
in prison is similar in kind to the offense of possessing a
§ 5845(a) weapon outside of prison. Both of these crimes pro-
12 UNITED STATES v. MOBLEY
hibit the possession of dangerous weapons in contexts where
they have no lawful purpose. Moreover, because a conviction
under § 1791(a)(2) requires proof that the inmate knowingly
possessed the prohibited object, see, e.g., United States v.
Holmes, 607 F.3d 332, 336-37 (3d Cir. 2010), § 1791(a)(2)
requires "purposeful" conduct. And while possession of a
shank in prison may not involve the same kind of "active"
violence and aggression reflected in certain of the other enu-
merated offenses — such as a murder or a forcible sexual
assault — it does involve a similar level of potential violence
and aggression reflected in the possession of the weapons,
such as a sawed-off shotgun, specified in 26 U.S.C. § 5845(a).
As a result, 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
Mobley’s offense of conviction "presents a serious potential
risk of physical injury to another," and that his offense of con-
viction constitutes a crime of violence for purposes of the
career offender enhancement. USSG § 4B1.2(a)(2).7
7
Finally, Mobley also contends on appeal that the residual clause of
USSG § 4B1.2(a)(2) should be stricken as unconstitutionally vague. In the
alternative, he argues that the residual clause is ambiguous and does not
apply to him because of the rule of lenity. We reject these contentions,
however, as the Supreme Court has already determined that the residual
clause falls "within congressional power to enact" and constitutes "an
intelligible principle [that] provides guidance that allows a person to ‘con-
form his or her conduct to the law.’" Sykes v. United States, 131 S. Ct.
2267, 2277 (2011) (citations omitted). Moreover, contrary to the view of
our good dissenting colleague, the rule of lenity does not apply in this
case. See United States v. Helem, 186 F.3d 449, 455 (4th Cir. 1999). Put
simply, there is no ambiguity in USSG § 4B1.2(a)(2), and the rule of len-
ity thus has no application here. The residual clause encompasses conduct
that creates a serious potential risk of injury to another, and, as we have
already explained, the possession of a shank in prison plainly creates such
a risk.
UNITED STATES v. MOBLEY 13
IV.
Pursuant to the foregoing, we affirm the judgment of the
district court.
AFFIRMED
WYNN, Circuit Judge, dissenting:
This case turns on whether mere possession of a shank in
prison is a crime of violence subject to enhanced sentencing
under the career offender provision of the United States Sen-
tencing Guidelines. 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 ambigu-
ous and must therefore be construed in Defendant’s favor.
Accordingly, I must respectfully dissent from the contrary
view presented by my colleagues in the majority opinion.
I.
Defendant Jermaine Mobley pled guilty to possession of a
shank in prison in violation of 18 U.S.C. § 1791(a)(2). He was
sentenced as a career offender pursuant to § 4B1.1(a) of the
United States Sentencing Guidelines ("U.S.S.G."), which pro-
vides, in relevant part:
A defendant is a career offender if (1) the defendant
was at least eighteen years old at the time (2) the
instant offense of conviction is . . . a crime of vio-
lence . . . and (3) the defendant has at least two prior
felony convictions of either a crime of violence or a
controlled substance offense.
U.S.S.G. § 4B1.1(a). The sentencing guidelines define a
"crime of violence" as any offense "punishable by imprison-
14 UNITED STATES v. MOBLEY
ment for a term exceeding one year that—has an element of
. . . force" or, "is burglary of a dwelling, arson, or extortion,
involves the use of explosives, or otherwise involves conduct
that presents a serious potential risk of physical injury to
another." U.S.S.G. § 4B1.2(a) (emphasis added). Mobley’s
possession of a shank in prison was classified as a violent
crime under the latter, emphasized clause ("residual clause").
It is this classification that Mobley challenges on appeal.
II.
Our interpretation of the career offender provision is
informed by precedent construing the Armed Career Criminal
Act ("A.C.C.A."). See United States v. Jarmon, 596 F.3d 228,
231 n.* (4th Cir. 2010) ("[P]recedents evaluating the
A.C.C.A. apply with equal force to U.S.S.G. § 4B1.2."). This
is because the A.C.C.A. definition of "violent felony" is
"nearly identical to the Career Offender Guidelines’ definition
of a ‘crime of violence.’" United States v. Polk, 577 F.3d 515,
518 (3d Cir. 2009)(citation omitted). See also United States v.
King, 673 F.3d 274, 279 n.3 (4th Cir. 2012) ("We rely on pre-
cedents evaluating whether an offense constitutes a ‘crime of
violence’ under the Guidelines interchangeably with prece-
dents evaluating whether an offense constitutes a ‘violent fel-
ony’ under the ACCA, because the two terms have been
defined in a manner that is ‘substantively identical.’" (citation
omitted)).
In the past four years, the Supreme Court has addressed
whether particular convictions were properly classified as "vi-
olent felonies" under the A.C.C.A.’s residual clause on three
separate occasions. See Sykes v. United States, 131 S. Ct.
2267 (2011); Chambers v. United States, 555 U.S. 122(2009); Begay v. United States, 553 U.S. 137 (2008). In con-
sidering whether particular offenses were "violent," the
Supreme Court "tailored [its opinion] to the crime at hand"
and declined to use a monolithic, bright-line test. United
States v. Herrick, 545 F.3d 53, 58 (1st Cir. 2008). Neverthe-
UNITED STATES v. MOBLEY 15
less, not only did no case overrule a predecessor, but in fact
all three cases spoke to the same core concern first identified
in Begay—namely that violent felonies must both "present[ ]
a serious potential risk of physical injury to another" and be
"similar, in kind as well as in degree of risk posed, to the
examples" set out in the statute. Begay, 553 U.S. at 141, 143.
The Supreme Court clarified what it meant by similar in kind,
explaining that each of the offenses enumerated in the statute
is characterized by "purposeful, violent, and aggressive con-
duct."1 Id. at 144-45.
In Chambers, the Supreme Court held that "‘failure to
report’ for penal confinement" was not a violent felony. 555
U.S. at 123. The Supreme Court reasoned that "the crime
amounts to a form of inaction, a far cry from the ‘purposeful,
violent, and aggressive’ conduct potentially at issue when an
offender uses explosives against property, commits arson, [or]
burgles a dwelling . . . ." Id. at 128 (citing Begay, 553 U.S.
at 144-45). The Supreme Court also explained that, while fail-
ure to report for confinement necessarily requires intentional
conduct, there is "no reason to believe" that the specific con-
duct constituting the crime is either violent or aggressive. Id.Indeed, the Supreme Court specifically rejected the prosecu-
tion’s argument that the failure to report demonstrated a
"strong aversion to penal custody" that suggested a possibility
or likelihood of future violence. Id.2
1
While the Supreme Court did not define "violent" and "aggressive," the
First Circuit has noted that the plain meaning of violent is "marked by
extreme force or sudden intense activity," and that the plain meaning of
aggressive is "tending toward or exhibiting aggression," with aggression
defined as "forceful action or procedure (as an unprovoked attack) esp.
when intended to dominate or master." Herrick, 545 F.3d at 58 (quotation
marks and citation omitted).
2
The Supreme Court further explained that "the question is whether
such an offender is significantly more likely than others to attack, or phys-
ically to resist an apprehender, thereby producing a serious potential risk
of physical injury." Chambers, 555 U.S. at 128-29. Here, there was no
showing that Defendant, or others in possession of shanks, are "signifi-
cantly more likely than others to attack." Id. On the contrary, the Govern-
ment even argued that possession outside the presence of any other person,
such as in an empty cell, would still constitute a crime of violence.
16 UNITED STATES v. MOBLEY
In Sykes, the Supreme Court held that "felony vehicle
flight" is properly categorized as a violent felony. While the
Supreme Court focused primarily on the risk inherent in the
act of fleeing arrest, it nevertheless recognized the relevance
of the Begay characterization of the enumerated offenses. See
Sykes, 131 S. Ct. at 2275 ("In many cases the purposeful, vio-
lent, and aggressive inquiry will be redundant . . . ."). Indeed,
the opinion underscored the nature of the conduct at issue in
felony vehicle flight, describing it as "entail[ing] intentional
release of a destructive force dangerous to others" and neces-
sarily consisting of "a provocative and dangerous act." Id. at
2273.
The conduct at issue in this case, possession of a shank in
prison, is simply not similar in kind to "burglary of a dwell-
ing, arson, or extortion" and crimes "involv[ing] the use of
explosives." U.S.S.G. § 4B1.2(a). I agree with the Third Cir-
cuit’s conclusion in Polk that there is a fundamental differ-
ence between the "purposeful, violent, and aggressive"
enumerated offenses and the "passive crime[ ]" of mere pos-
session. 577 F.3d at 519.
Possession of a shank in prison "amounts to a form of inac-
tion, a far cry from the ‘purposeful, violent, and aggressive’
conduct potentially at issue when an offender uses explosives
against property, commits arson, [or] burgles a dwelling
. . . ." Chambers, 555 U.S. at 128 (quoting Begay, 553 U.S.
at 144-45). It does not involve "initiating hostilities or
attacks," engaging in threatening behavior which "directly
impact[s] a victim," United States v. Marquez, 626 F.3d 214,
229 (5th Cir. 2010) (Dennis, J., dissenting), or "releas[ing] . . .
destructive force" against persons or property. Sykes, 131 S.
Ct. at 2273. Prisoners charged with possession alone need not
have attempted, or even threatened, to harm anyone.3 They
3
Indeed, it would seem likely that, where an inmate is charged with only
possession, he has not threatened or attempted to injure anyone. Presum-
ably, more aggressive and violent actions would result in more serious
charges, such as attempted assault.
UNITED STATES v. MOBLEY 17
may have obtained or fashioned a shank purely to protect
themselves in the event of an attack. Indeed, the Government
conceded at oral argument that its reasoning would allow
prosecutors to seek enhanced sentencing of an inmate if a
shank is discovered in his cell during a search for which he
is not even present. This scenario is particularly troubling
because it would allow for enhanced sentencing of a defen-
dant who leaves a shank in his cell, declining to carry it with
him where it could arguably endanger others, on the grounds
that he has committed a "crime of violence." I cannot agree
with the majority opinion that the career offender provision
allows for this.
The Government also argues, and the majority opinion
apparently agrees, that the prison context somehow trans-
forms a shank into an extremely dangerous weapon. This
argument seems to be premised on the fact that inmates can-
not lawfully possess or use weapons for any purpose. See
Polk 577 F.3d at 519. However, as the Third Circuit noted in
Polk, "Begay excludes that mode of analysis" by requiring
courts to consider the nature of the conduct constituting the
crime. Id. at 520. The mere fact that an act is categorically
unlawful does not necessarily render it a "dangerous and pro-
vocative act" that itself endangers others. Sykes, 131 S. Ct. at
2273. Indeed, failure to report for one’s penal confinement
cannot be accomplished in any lawful manner; but the
Supreme Court nevertheless declared it to be non-violent. See
Chambers, 555 U.S. at 128.
Congress has determined that mere possession of certain
narrowly defined weapons is a crime of violence. U.S.S.G. §
4B1.2 cmt. 1. Congress has found that these weapons are "in-
herently dangerous" because "possessed unlawfully, [they]
serve only violent purposes." Marquez, 626 F.3d at 232 (Den-
nis, J., dissenting) (quotation marks omitted). Examples of
these weapons include "sawed-off shotgun[s] or sawed-off
rifle[s], silencer[s], bomb[s], or machine gun[s]." U.S.S.G. §
4B1.2 cmt. 1. Not only are shanks (i.e., crude homemade
18 UNITED STATES v. MOBLEY
knives) not included in this list, but they are entirely dissimi-
lar to the weapons that are included.
The statutory purpose of the career offender provision, as
expressed in its title, is to provide enhanced sentencing for
career criminals. Yet nothing indicates that prisoners who
possess shanks are career offenders engaged in violent crimes,
as opposed to, e.g., ordinary inmates in jail on non-violent
drug charges with a crude weapon made for self-defense pur-
poses only. For these reasons, I cannot join the majority opin-
ion in concluding that mere possession of shank in prison is
a crime of violence under the career offender provision.
III.
While I do not believe that the language of the career
offender provision’s residual clause supports the majority
opinion’s interpretation, at the very least I find the provision
to be ambiguous. Such ambiguity in a penal statute requires
that we consider the rule of lenity, which is applicable in the
event of "‘grievous ambiguity or uncertainty’" as to a statute’s
meaning. United States v. Mitchell, 39 F.3d 465, 470 (4th Cir.
1994) (quoting Chapman v. United States, 500 U.S. 453, 463
(1991)).
A statute is not necessarily ambiguous if it is "possible to
articulate a construction more narrow than that urged by the
government," or because there is "a division of judicial
authority" on its interpretation. Moskal v. United States, 498
U.S. 103, 108 (1990) (emphasis omitted). However, these cir-
cumstances may evidence ambiguity, particularly when a stat-
ute can be reasonably interpreted in two different ways and
"the legislative history does not amount to much." United
States v. Hayes, 555 U.S. 415, 436 (2009) (Roberts, J., dis-
senting).
When a penal statute is ambiguous, we are not just permit-
ted, but rather we are "obliged to apply the rule of lenity and
UNITED STATES v. MOBLEY 19
resolve the conflict in the defendant’s favor." United States v.
Munn, 595 F.3d 183, 194 (4th Cir. 2010).The rule of lenity
serves as an important safeguard of defendants’ constitutional
rights by ensuring that they receive notice "‘in language that
the common world will understand, of what the law intends
to do if a certain line is passed . . . ." Yi v. Fed. Bureau of
Prisons, 412 F.3d 526, 535 (4th Cir. 2005) (quoting Babbitt
v. Sweet Home Chapter of Cmty. for a Great Or., 515 U.S.
687, 704 n.18 (1995)). Thus, we must take seriously "the
responsibility to derive from the text rules of application that
will provide notice of what is covered and prevent arbitrary
or discriminatory sentencing." See James v. United States,
550 U.S. 192, 216 (2007) (Scalia, J., dissenting). The rule of
lenity also goes to the separation of powers and preserves
accountability by ensuring that "‘legislatures and not courts
. . . define criminal activity.’" Yi, 412 F.3d at 535 (quoting
Babbitt, 515 U.S. at 704 n.18).
There is very little legislative history on the A.C.C.A. Con-
gress apparently adopted the act in an attempt to reduce crime
by targeting a "particular segment of the criminal population"
that habitually commits violent crime. H.R. Rep. 98-1073, at
2-3 (1985). However, there is little guidance as to the crimes
intended to be covered by the residual clause.
In the residual clause, Congress provided "four examples
[that] have little in common, most especially with respect to
the level of risk of injury they pose." James, 550 U.S. at 229(Scalia, J., dissenting); accord Begay, 553 U.S. at 142 (noting
that if Congress had intended risk-only analysis of crimes, it
would "likely have chosen examples that better illustrated the
degree of risk it had in mind") (quotation marks omitted). As
a result, several Supreme Court justices have vehemently crit-
icized the residual clause and called for its revision. See, e.g.,
Sykes, 131 S. Ct. at 2287 (Scalia, J., dissenting) (calling the
clause a "drafting failure" that is "is too vague to yield an
intelligible principle") (internal quotation marks omitted);
accord Begay, 553 U.S. at 155 (Alito, J., dissenting) (noting
20 UNITED STATES v. MOBLEY
that the clause "calls out for legislative clarification").4 More-
over, attempted application by circuit courts has resulted in
increased confusion. See Sykes, 131 S. Ct. at 2285 (Scalia, J.,
dissenting) (noting that all of the circuits have struggled to
apply the Supreme Court’s holdings regarding the residual
clause); James, 550 U.S. at 216 (Scalia, J., dissenting) ("It
will take decades, and dozens of grants of certiorari, to allo-
cate all the Nation’s crimes to one or the other side of this . . .
entirely indeterminate line.").
Given the residual clause’s ambiguity and the confusion
experienced, and created, by the courts, inmates lack suffi-
cient notice that simple possession of a shank constitutes a
crime of violence. Indeed, the first circuit to address convic-
tions under 18 U.S.C. § 17919(a)(2), the statute at issue in this
case, in relation to the career offender provision held that pos-
session of a shank in prison does not constitute a crime of vio-
lence. See Polk, 577 F.3d at 520. Since Polk, only one other
circuit has considered these precise provisions—and reached
the opposite conclusion. See United States v. Perez-Jiminez,
654 F.3d 1136 (10th Cir. 2011).5 While I acknowledge that
varying judicial interpretation is not dispositive, the fact that
federal appellate judges cannot agree on the ambit of a statute
is, I believe, relevant to the question of whether it provides
sufficient notice to the public. Because the residual clause
amounts to "a sentencing statute that does not ‘give a person
4
This Court has also had difficulty interpreting the provision. See, e.g.,
United States v. Vann, 660 F.3d 771, 787 (2011) (en banc) (Agee, J., con-
curring in judgment) ("[N]o matter how diligently and painstakingly my
colleagues and I labor over the mystery of the . . . residual clause, a black
hole of confusion and uncertainty stymies our best efforts.") (quotation
marks omitted).
5
Other circuits have considered similar state statutes and disagreed with
Polk. See, e.g., United States v. Boyce, 633 F.3d 708 (8th Cir. 2011) (hold-
ing that possession of a homemade weapon in prison prohibited by a state
statute is a violent felony under the A.C.C.A.), cert. denied, 132 S. Ct.
1002 (2012); United States v. Zuniga, 553 F.3d 1330 (10th Cir. 2009)
(same).
UNITED STATES v. MOBLEY 21
of ordinary intelligence fair notice’ of its reach," Sykes, 131
S. Ct at 2287 (Scalia, J., dissenting) (quoting United States v.
Batchelder, 442 U.S. 114, 123 (1979)), this Court is obligated
to apply the rule of lenity and construe the provision, as
applied to possession of a shank in prison, in Defendant’s
favor.
IV.
While I do not dispute the grave importance of penalizing
the possession of weapons in prison in the interest of safety,
I do not believe that it comports with the rules of statutory
construction, Supreme Court precedent, the rule of lenity, or
notions of fairness to punish an inmate with an enhanced
"crime of violence" sentence for mere possession of a shank
in prison. I would therefore vote to vacate Defendant’s sen-
tence and remand for re-sentencing. Accordingly, I must
respectfully dissent.