Decided: July 13, 2012
In this case, the Fourth Circuit held that a federal prisoner’s possession of a “shank” constituted a crime of violence under the career offender provision of the U.S. Sentencing Guidelines, thus requiring an enhancement to the length of a defendant’s prison sentence.
Jermaine Mobley, an inmate serving time at a correctional facility near Raleigh, North Carolina, was found by the prison staff to be in possession of a shank, which the court described as “an improvised sharpened instrument,” made from “bits and pieces of metal” that is basically “a homemade knife.” Mobley pleaded guilty to being a federal inmate in possession of a prohibited object in violation of 18 U.S.C. § 1791(a)(2), an offense that carries a punishment of “a fine or imprisonment for not more than 5 years, or both.” At Mobley’s sentencing hearing, the district judge applied the career offender sentencing enhancement under the Guidelines, resulting in a sentence range of thirty-seven to forty-six months as opposed to a range without the enhancement of twenty-four to thirty months. Because Mobley was over eighteen years old and had at least two prior felony convictions for controlled substances offenses, he clearly satisfied two of the three elements necessary to be considered a career offender under § 4B1.1 of the Guidelines. The district court also found that the third element was met, namely that the instant felony conviction for possessing the shank constituted a “crime of violence.”
On appeal, the Fourth Circuit examined the crime of violence definition in the Guidelines. Looking to the definition’s residual clause, the court framed the issue as whether Mobley’s “possession of a shank while in prison…involves conduct that presents a serious potential risk of physical injury to another.” The court reviewed other circuits that had decided the same issue—the Third Circuit held that possessing a shank was not a crime of violence, but the Fifth, Eighth, and Tenth Circuits, analogizing the possession of a deadly weapon with the Guidelines-enumerated crimes of burglary, arson and extortion, ruled that the offense was covered under the definition’s residual clause. The Fourth Circuit ultimately sided with the majority of these circuits, adopting from the Tenth Circuit the point that “there is no legitimate purpose for a prisoner to carry a weapon designed to kill, injure or disable another.” Because “serious and substantial risks are…inherent to the crime, possessing such a prohibited item should be considered a “purposeful, violent, and aggressive” offense. Accordingly, the court held that the possession of a shank in federal prison was a crime of violence and thus affirmed the district court’s imposition of the career offense enhancement to Mobley’s sentence.
In a dissenting opinion, Judge Wynn wrote that the possession of a shank in prison was substantially dissimilar from the offenses enumerated in the Guidelines as crimes of violence. The makeshift knife, which may have been created solely for personal protection, is completely different from weapons such as “sawed-off shotguns or sawed-off rifles, bombs, or machine guns,” that were deemed so “inherently dangerous” that their mere possession is considered a crime of violence. Judge Wynn also stated that the residual clause of the career offender’s definition of a crime of violence was ambiguous, and therefore, the rule of lenity required that the issue be resolved in the Defendant’s favor.
-John C. Bruton, III