Under the U.S. Sentencing Guidelines, a court may enhance a felon’s prison sentence if the felon qualifies as a career offender. The term “career offender,” in turn, refers to individuals with "at least two prior felony convictions of . . . a crime of violence,” among other things. USSG § 4B1.1(a). In last Friday’s United States v. Mobley, the Fourth Circuit was forced to decide whether an inmate who was caught with a shank in his shoe had committed a “crime of violence” justifying his enhanced sentence as a career offender. 5:10-cr-00278-BR-1 (4th Cir. July 13, 2012).
Not surprisingly, the commission responsible for drafting the Guidelines did not list “the possession of a shank while serving time" as among the crimes of violence explicitly identified by the Guidelines. Instead, the Guidelines punt to the courts by incorporating a vaguely worded residual clause under which any offense that “involves conduct that presents a serious potential risk of physical injury to another” may qualify as a crime of violence. USSG § 4B1.2(a)(2).
Relying in part on precedents evaluating a “nearly identical” provision in the Armed Career Criminal Act (ACCA), the Fourth Circuit held that a felon’s possession of a shank in prison constitutes a crime of violence because “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.”
Judge Wynn, however, disagreed with his colleagues, arguing instead that an inmate’s “[p]ossession of a shank is not a violent crime enumerated in the relevant provision, nor is it similar to the enumerated offenses . . . .” “At the very least,” the dissent adds, “whether the enhancement applies is ambiguous and must therefore be construed in Defendant’s favor.”
Satisfied with his application of the rule of lenity, Judge Wynn's dissent then directs the reader's attention to the widespread dissension over the scope of crimes covered by the residual clause. The dissent first points out that “several Supreme Court justices have vehemently criticized the residual clause and called for its revision" (referring to to Justices Scalia and Alito). Moreover, the dissent notes that the “attempted application by circuit courts has resulted in increased confusion,” offering the following summary of the confusion:
Given the residual clause’s ambiguity and the confusion experienced, and created, by the courts, inmates lack sufficient notice that simple possession of a shank constitutes a crime of violence. Indeed, the first circuit to address convictions under 18 U.S.C. § 17919(a)(2), the statute at issue in this case, in relation to the career offender provision held that possession of a shank in prison does not constitute a crime of violence. 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
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) (holding 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).
[*Hat tip to Steven M. Klepper.]
[**Image courtesy of Sodahead.]