United States v. Mobley

• Decision Date: 13 July 2012
• Docket Number: No. 11–4391.,11–4391.
• Citation: 687 F.3d 625
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. Jermaine MOBLEY, Defendant–Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

687 F.3d 625

UNITED STATES of America, Plaintiff–Appellee,

v.Jermaine MOBLEY, Defendant–Appellant.

No. 11–4391.

United States Court of Appeals,Fourth Circuit.

Argued: March 21, 2012.

Decided: July 13, 2012.

ARGUED:Eric Joseph Brignac, Office of the Federal Public Defender, Raleigh, North Carolina, for Appellant. Yvonne Victoria Watford–McKinney, Office of the United States Attorney, Raleigh, North Carolina, for Appellee. ON BRIEF:Thomas P. McNamara, Federal 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 Appellee.

Before TRAXLER, Chief Judge, and KING and WYNN, Circuit Judges.

Affirmed by published opinion. Judge KING wrote the majority opinion, in which Chief Judge TRAXLER joined. Judge WYNN wrote a dissenting opinion.

OPINION

KING, Circuit Judge:

On December 6, 2010, Jermaine Mobley pleaded guilty in the Eastern District of North Carolina to the offense of possession 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 § 4B 1.1 of the Sentencing Guidelines and imposed a sentence of thirty-seven months. On appeal, Mobley challenges his sentence, maintaining that the court erred in ruling that his offense of conviction 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 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. 6.²Section 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 specifics, 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 calculated Mobley's base offense level under the Guidelines as 13, then applied the career offender sentencing enhancement to increase his base offense level to 17. The PSR reduced the offense level by three for acceptance of responsibility, resulting 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 sentencing 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 § 4B 1.1 of the Guidelines, a convicted defendant is considered 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 substance offense; and

(3) the defendant has at least two prior felony convictions 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 convictions 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).

II.

A determination of whether a defendant's offense of conviction 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 physical 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 possession of a shank in prison is a passive crime and does not constitute confrontational conduct, and that the offense of conviction does not present the serious risk of physical injury contemplated by the Guidelines in defining a crime of violence.

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, ––– U.S. ––––, 131 S.Ct. 2267, 180 L.Ed.2d 60 (2011); Chambers v. United States, 555 U.S. 122, 129 S.Ct. 687, 172 L.Ed.2d 484 (2009); Begay v. United States, 553 U.S. 137, 128 S.Ct. 1581, 170 L.Ed.2d 490 (2008).³

In Begay, the Supreme Court explained the ACCA's enumerated 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, 128 S.Ct. 1581. Last year, in Sykes, the Supreme Court focused on the question of whether the offense of intentional 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 violence is inherent to vehicle flight,” is at least equal to the enumerated offenses of burglary and arson. Id. at 2274.⁴

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, seeUSSG § 4B1.2, cmt. n. 1 (“ ‘Crime of violence’ includes murder, 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 possession was of a firearm described in 26 U.S.C. § 5845(a).”).⁵ The crimes specified in Application Note 1 of the commentary 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 § 4B 1.2(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 contention.

1.

Mobley's position on appeal relies heavily on the Third Circuit's decision in United States v. Polk, 577 F.3d 515 (3d Cir.2009). Like Mobley, Polk had been convicted of possessing a shank in prison,...