United States v. Jermaine Mobley
2012 U.S. App. LEXIS 14388
| 4th Cir. | 2012Background
- Mobley pleaded guilty to possession of a shank in prison under 18 U.S.C. § 1791(a)(2).
- The district court sentenced Mobley as a career offender under USSG § 4B1.1 after finding the offense a crime of violence, imposing 37 months.
- Mobley had a prior 151-month sentence for prior federal drug and firearm offenses, and a shank was found during an infirmary search.
- PSR base offense 13; enhanced to 17 as career offender; total offense level 14 after acceptance of responsibility; criminal history VI; guideline range 37–46 months.
- Without the career-offender enhancement Mobley’s range would have been 24–30 months; Mobley objected that possession of a shank is not a crime of violence.
- On appeal, the Fourth Circuit majority held possession of a shank in prison constitutes a crime of violence under § 4B1.2(a)(2) residual clause; dissent argued the opposite and urged lenity.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether possession of a shank in prison is a crime of violence | Mobley argues shank possession is passive, not violent. | Mobley’s offense involves a weapon; it presents a serious risk and is similar to enumerated offenses. | Yes; the offense is a crime of violence under § 4B1.2(a)(2). |
| Use of Application Note 1 to § 4B1.2 in enumerating offenses | Polk’s view that prison weapon possession is not enumerated; should not broaden category. | Application Note 1 expands enumerated offenses; shank possession aligns with risk considerations. | Application Note 1 is binding and supports enumerating possession of a shank as a crime of violence. |
| Effect of Begay, Sykes, and related precedents on the residual clause | Begay shows only similar-in-kind offenses count; passive possession should fail. | The majority follows Begay’s framework and finds a similar level of risk and purposeful conduct. | The residual clause analysis supports finding possession of a shank as a crime of violence. |
| Constitutional vagueness and lenity arguments | Residual clause is vague; lenity favors Mobley. | Residual clause is intelligible; lenity does not apply. | Residual clause upheld; lenity rejected. |
Key Cases Cited
- Begay v. United States, 553 U.S. 137 (2008) (limits remaining within similar-in-kind risk for violent felonies)
- Sykes v. United States, 131 S. Ct. 2267 (2011) (risk of violence inherent in vehicle flight supports residual-clause analysis)
- Chambers v. United States, 555 U.S. 122 (2009) (failure to report for penal confinement not violent; emphasis on purposeful conduct)
- United States v. Polk, 577 F.3d 515 (3d Cir. 2009) (possession of a weapon in prison not necessarily a crime of violence under Begay framework)
- United States v. Perez-Jiminez, 654 F.3d 1136 (10th Cir. 2011) (possession of a dangerous weapon in prison can be a crime of violence)
- United States v. Marquez, 626 F.3d 214 (5th Cir. 2010) (possession of a weapon in prison discussed in Begay framework)
- United States v. Boyce, 633 F.3d 708 (8th Cir. 2011) (possession of a weapon in prison can be a crime of violence under ACCA/4B1.2)