United States v. Jermaine Mobley

(3d Cir.2004) Pilosi, F.3d

(Under law, Pennsylvania “[w]here contract clear of an insurance

language required unambiguous, a court (internal quotation language.”

enforce omitted)); Sunbeam, and citation

marks evidence of the (allowing A.2d at 1193 in- meaning” words within an

“special of Meyer v. CUNA Mut.

dustry); see (3d Cir.2011) Soc., 154, 167

Ins.

(“[U]nder law, cases, Pennsylvania in close meaning in-

a court should resolve provisions in favor of cover- policy

surance (citing Motley v. for the insured.”

age Co., Pa. Farm Mut. Auto. Ins.

State (1983))). A.2d

IY.

Conclusion affirm District Court’s hold-

We will the ALTA Endorsement insures

ing that loss from instru-

against any sustained plain language that is covered

ment ¶ 1(b)(2). return This case will Court for the determination

District

damages owed Nationwide. America,

UNITED STATES

Plaintiff-Appellee, MOBLEY, Defendant-

Jermaine

Appellant.

No. 11-4391. Appeals,

United States Court

Fourth Circuit. 21,

Argued: March 13, 2012. July

Decided:

OPINION KING, Judge: Circuit 6, 2010, Mobley On December Jermaine pleaded guilty the Eastern District of North Carolina to the offense of prohibited object violation prison, in 1791(a)(2). sentencing 18 U.S.C. The court thereafter found Mobley § 4B career offender under 1.1 of the Sen- tencing imposed Guidelines a sentence of thirty-seven months. On Mob- appeal, sentence, ley challenges maintaining his court ruling erred his offense of conviction constituted a crime of for purposes violence of the career offend- Joseph Brignae, ARGUED: Eric Office er enhancement of the Guide- Defender, Federal Public Raleigh, below, explained reject lines. As we Mob- Carolina, Appellant. North for Yvonne ley’s contention and affirm. Watford-McKinney, Victoria Office Attorney, Raleigh, North I. Carolina, Appellee. BRIEF: ON offense, Mobley At the time of his was McNamara, P. Thomas Public Federal De- serving a 151-month sentence at FCI But- fender, DuBois, Alan G. Federal Assistant ner, Carolina, Raleigh, near North for his Defender, Public Office of the Federal prior federal convictions of Defender, Carolina, Raleigh, Public North being intent to distribute heroin and Walker, Appellant. Thomas G. United felon in Sep- firearm. On Attorney, May-Parker, States Jennifer P. 14, 2009, Mobley tember Butner’s visited Attorney,

Assistant United States Office of infirmary, complaining pain and numb- States Attorney, Raleigh, United in his feet. During infirmary ness Carolina, North for Appellee. visit, an attending physical therapist picked Mobley’s up right shoe to examine TRAXLER, Judge, Before Chief Mobley its insole. promptly seized the WYNN, Judges. KING the therapist shoe from an and removed “shank”

eight-inch that had been concealed in the shoe’s insole.1 The therapist saw and, the shank despite Mobley’s efforts table, hide it under an examination shank recovered was staff. shank, Mobley acknowledges on.”). prosecutor explained that a which is that shanks instrument, improvised sharpened pieces ais "are made inmates from bits and dangerous weapon. sentencing, sharpened against At metal” and concrete. J.A. "weapon” counsel referred to the previously 21. We shank have described a shank as injury.” with "the sharp for serious J.A. a homemade knife or "a handmade 19; Perez-Jiminez, Caro, see also United States v. instrument.” United States v. 597 F.3d (10th Cir.2011) ("It (4th Cir.2010); v. Per- patent deadly Cir.2003). weap- ry, such shanks are a 2010, Mobley was is considered be a career offender dant August On of, if: single-count in a indictment charged (1) Butner, eighteen the defendant was at least “pos- an inmate FCI

while old at the time the defendant com- years wit, a object, to prohibited a sessing] conviction; instant mitted the offense of 18, shank, of Title United in violation (2) instant is a offense of conviction 1791(a)(2).” Code, J.A. 6.2 Section States either felony that is a crime of violence 1791(a)(2) provides, part, Section offense; a controlled substance or “whoever!,] being an inmate of a (3) prior the defendant has at least two object ... prohibited a possesses felony convictions of a crime of either guilty against of offense [shall a of- violence or controlled substance ob- “prohibited The term States].” fense. litany §in of 1791 with a ject” is defined 4Bl.l(a). § USSG including weapons, controlled specifics, thirty-six at the Mobley years was old substances, currency, telephones. conviction, his offense of and he time of conviction, Mobley’s offense of Relevant prior felony then had at least two convic- object statutory definition includes “an for controlled offenses. At tions substance as designed or to be used that is intended sentencing hearing, Mobley objected to his a escape or to facilitate from weapon a the district court’s of the ca- 1791(d)(1)(B). § Pun- 18 U.S.C. prison.” enhancement, contending reer offender is a for the offense of conviction ishment of a failed shank not more than 5 “imprisonment fine or as a crime violence. The qualify 1791(b)(3). or both.” years, Id. however, objection, overruled this court ruling that the instant of conviction offense Mobley pleaded guilty, probation a After violence, a crime of and ex- constitutes presentence investiga- prepared officer that “there is plaining passive posses- no (“PSR”). The PSR calculated report tion setting.” J.A. sion Mobley’s offense level under base Mobley timely appeal, filed notice of career applied as then Guidelines jurisdiction possess pursuant and we to 28 in- sentencing offender enhancement 3742(a). § 1291 and 18 U.S.C. U.S.C. 17. The his base offense level to crease three for PSR reduced offense level II. in a responsibility, resulting acceptance A determination of whether a de level of criminal total offense fendant’s offense conviction VI, category advisory was history and the 4B1.2(a) of violence a crime under range for an level of 14 sentencing offense legal is a issue that we review Guidelines history category a criminal of VI is Jenkins, See United de novo. forty-six months. If the thirty-seven (4th Cir.2011). enhancement career applied, Mobley’s not been total of- had III. 10, and his fense level would have been A. twenty- sentencing range would have been § 4B thirty months. four to Pursuant is de The term “crime of violence” Guidelines, any defen- offense 1.1 of the a convicted fined Guidelines -” appeal. parties in this 2. Citations herein to "J.A. refer to Appendix Joint contents of the filed by imprisonment “punishable for a term derlying what constitutes a felony exceeding year,” (the one and that under the Armed Career Criminal Act “ACCA”), or,

(1) purposes for the ap of this use, an element the attempted has as peal, a crime of violence under 4B1.2 of use, physical or threatened use of force See, the Guidelines. e.g., Sykes v. United another, against person or — States, U.S. -, (2) dwelling, (2011); L.Ed.2d 60 Chambers v. United extortion, use explosives, involves States, otherwise involves conduct that presents (2009); L.Ed.2d 484 Begay v. United physical injury a serious States, 553 U.S. to another. (2008).3 L.Ed.2d 490 4131.2(a). § primary USSG The issue in Mobley’s appeal is whether his offense of In Supreme explained conviction falls within the “residual clause” the ACCA’s enumerated offenses of bur- 4B1.2(a)(2) is, §of whether posses- —that arson, glary, extortion, limiting “as sion a prison of shank while in at Butner crimes that [the residual clause] covers to “otherwise involves conduct that presents similar, roughly crimes that are in kind as a serious physical injury well in degree as of posed, risk to the to another.” themselves,” examples but it declined to appeal, Mobley driving

On include under maintains that the influence “mere as one possession” not, of a shank in of those “roughly similar” does offenses. Be- authorities, gay, under the relevant involve the 128 S.Ct. 1581. Last year, Sykes, active or required Supreme assaultive conduct of a Court focused of question crime violence under of whether the Guidelines. offense of possession He asserts that intentional flight mere vehicular comparable of a was degree shank in a passive crime of risk to and does the enumerated of- conduct, Sykes, constitute fenses. confrontational 131 S.Ct. at and 2273. The affirmative, offense of conviction Court concluded in does not deter- present mining that a physical serious risk of “[r]isk violence is inherent contemplated by flight,” to vehicle Guidelines in is at defining equal least a crime of violence. enumerated offenses of and ar- son. Id. at 2274.4

In order to properly assess this issue, it necessary briefly review the commentary 4B1.2, § The spe- more legal relevant principles and Guidelines cifically Application thereof, Note ex- commentary. pands Court has upon the roster of enumerated of- identified and explained the principles un- by fenses specifying ones, additional such frequently 3. We have observed that of violence under [the Guidelines].” United ACCA’sdefinition a felony,” "violent set Clay, States v. Cir. 924(e)(2)(B), § forth in 18 U.S.C. nearly identical to the Guidelines’ definition of 4B1.2(a). See, § "crime of violence” in e.g., Mobley government disagree and the about Jenkins, United States v. whether Sykes and to what extent limited the (4th Cir.2011). As a result of the similarities Begay's similar-in-kind test. definitions, between the two we are entitled to There is no need to resolve that issue in this “rely upon precedents evaluating whether an case, however, because, explain, as we will offense felony under [the Mobley's may sentence be affirmed under Be- interchangeably precedents ACCA] eval- gay. uating whether an offense constitutes a crime 1791(a)(2). that also 18 U.S.C. The district court kidnapping, and manslaughter as violence, offender, see USSG crimes of Polk as a career char- constitute sentenced (“ 4B1.2, of violence’ cmt. n. ‘Crime acterizing his instant offense of conviction murder, kidnap- manslaughter, includes a crime of violence. The Third Circuit assault, of- forcible sex ping, aggravated reversed, applying the Supreme Court’s extortion, fenses, extor- robbery, analysis Begay determining credit, burglary of extension of tionate weapon pris- of a in a possession —“even identifying various dwelling.”), on”—is not similar kind or crimes of that do not constitute offenses and, posed risk to the enumerated offenses violence, possession such as unlawful thus, does not constitute a crime of vio- types of firearms. See id. several lence under the career offender (“ not include the of violence’ does ‘Crime enhancement found in 4B 1.2 of the of a firearm of unlawful offense appeals The court of ex- Guidelines. felon, unless the was plained: described 26 U.S.C. firearm While no doubt 5845(a).”).5 specified Ap- The crimes risk, prison high degree in involves a commentary Note plication Begay points out that even a serious § 4B1.2 serve as additional enumerated potential enough for is not crimes,” offenses, “example to be con- or a crime qualify for career offender en- determining prior when whether sidered hancement; the risk created must also of convic- or an instant offense conviction in be “similar kind” to the crimes set out pres- conduct that tion otherwise involves 4B1.2(a)(2) § They Guidelines in- [in ]. potential physical ents a serious overt, volve active conduct results Peterson, another. 629 F.3d injury to See person property. in harm to a or (“Although language the of ACCA at 438 possibility that one will confront another Begay in is identical that was considered person with violent is not suffi- results 4B1.2(a)(2), § in the language to the USSG cient. 1.2(a)(2) § 4B the commentary to adds to listed in example list crimes 4B1.2(a)(2)[.]”); § accord States v. United weapon prison in possessing a While (3d Cir.2012) Marrero, 677 F.3d may purposeful, that we assume one (“[Ojffenses Application [to listed Note possesses pos- who shank intends pur- for are ‘enumerated’ 4B1.2] USSG session, character- properly it cannot analysis.”). of the crime-of-violence poses aggressive ized as conduct that is itself mind, turn to principles these we With violent, only exists for the contention. specifics aggressive or violent conduct. (citations Polk, at 519 577 F.3d Circuit, however, has been The Third heavi- Mobley’s position appeal relies only appeals adopt court of Third decision United ly on the Circuit’s (3d Cir.2009). by Mobley advanced in this case. position v. 577 F.3d 515 circuits, of our sister Three other Mobley, Polk had been convicted of Like Fifth, Tenth, Eighth, have addressed prison, a shank in violation of possessing Peterson, (4th commentary Application States v. 629 F.3d Note 1 of Hood, Cir.2011); neither inconsistent nor F.3d 4B1.2 is United States v. 1.2(a), reading (4th Cir.2010). 4B and is there- erroneous 672-73 binding. authoritative and See fore the same issue and reached a different violating 1791(a)(2), ed for 18 U.S.C. Marquez, conclusion. See United States v. the court of appeals was upon called (5th Cir.2010); very face, United States assess question is, we (8th Cir.2011); Boyce, 633 F.3d 708 whether possession of a shank in prison Perez-Jiminez, constitutes a crime of violence under the Cir.2011). The Fifth Circuit career enhancement.6 Marquez possession did, reasoned of a The Tenth Circuit ruled that it observ- deadly by prison ing inmate is simi that there is no purpose innocent posed lar in kind and possession risk dangerous weapon by a )ike “(l because, burgla inmate, crime of prison concluding that such ry, the ‘main risk’ of an in posses inmate amounts to a crime of violence deadly weapon sion of a is ‘the possibility purposes of the career offender sen- of a face-to-face confrontation’ with anoth tencing enhancement. Id. at 1143-44. person.” er Id. at 222 (quoting Begay, 553 explained: The court 144-45, 128 U.S. at S.Ct. Outside of [t]he felon who unlaw- firearm, fully possesses a although diso- Similarly, in Boyce, Eighth law, beying may have a legitimate determined that of a weapon in firearm, use intended for the such as prison presents a serious potential risk of target shooting collecting. But there physical another, injury to inasmuch as similarly is no purpose innocent behind there no lawful reason for a deadly weapon by a weapon. inmate to ever have a See 633 prison inmate, as [t]he confines of F.3d at 711. The court concluded that preclude any recreational uses for possession weapon of a in prison roughly is deadly weapon. similar in degree kind and posed risk [Tjhere is no legitimate purpose the enumerated for a burglary, crimes of prisoner carry a weapon and designed extortion. Id. at 712. Eighth The kill, injure or disable another. thereby rejected On the the view taken contrary, only the carry the reason to Third Circuit in such a reasoning that weapon is to use it to attack possession weapon inmate’s in another or pris- to deter an attack. violent, purposeful, involves aggres- and conduct, sive and that it creates a likeli- (citations Id. at 1143 quota- and internal confrontations, hood of future violent much tion marks like the enumerated offenses. Id. at 711- Put simply, agree Fifth, we with the 12. Eighth, and Tenth Circuits possession that

Finally, Circuit, Tenth the in Perez- of a shank in contravention of Jiminez, year rendered a decision 1791(a)(2), last that constitutes a crime of vio- is essentially on all appeal, 4B1.2(a)(2) fours this lence under of the Guide- concluding, in a post-Sykes setting, lines. That offense is similar in kind and “possessing dangerous deadly ” weapon degree posed of risk to the enumerated in prison offenses, ‘enables violence.’ 654 F.3d at prison that a posses- inmate’s 712). (quoting Boyce, 633 F.3d at weapon sion of a constitutes a “purposeful, was, Perez-Jiminez like Mobley, proseeut- violent, aggressive” and offense and “[s]er- Marquez Boyce and cases—unlike analysis Marquez violence. The Perez- conducted in however, and Boyce, case—involved the issue governed Jiminez is also prior of whether a posses- state conviction precedents very Court’s and is the sion prison of a shank in analysis was a crime of that we conduct here. (5) explosives; use of mur- involving inher- risks are substantial ious and (6) (7) (8) der; manslaughter; 144- kidnapping; 553 U.S. at crime. to the ent” (9) 1581; assault, Sykes, 131 S.Ct. at aggravated forcible sex of- (10) (11) emphasizes, fenses; we government robbery; 2276. As the virtually impos- rifle, that “it is recognized shotgun have of a sawed-off or sawed-off the in- among to eliminate violence silencer, bomb, sible gun. Applying or machine Freeman, 34 F.3d Taylor v. carcerated.” Begay analysis expanded to this list of (4th Cir.1994). Like the n. 6 offenses, question is enumerated avail- dwelling, burglary offense of predicate offense con- “whether under weapons prison contraband ability of similar, kind, ‘roughly sideration obviously facilitates violence context posed, as in of risk well ” White, F.2d injury. See Shrader Peterson, examples.’ 629 F.3d at 439 (4th Cir.1985) J., (Sprouse, dis- Begay, 553 (quoting 626 F.3d at Marquez, senting); see (recognizing 221-22 Begay analysis, Under the offense similar to weapon possessing a shank is similar aspects lie in because possessing kind to the offense of confrontation). readily therefore We 5845(a) weapon prison. outside of Both summation with the Tenth Circuit’s agree prohibit these crimes “[Tjhere legiti- is no in Perez-Jiminez dangerous weapons they in contexts where carry a prisoner for a purpose mate Moreover, purpose. have no lawful be- kill, injure or disable weapon designed to 1791(a)(2) cause a conviction under re- contrary, only reason On the another. proof knowingly the inmate quires to use it to carry such a see, possessed prohibited object, e.g., or to deter an attack.” 654 attack another Holmes, F.3d at 1143. (3d 1791(a)(2) Cir.2010), § requires 336-37 posses- “purposeful” conduct. And while in prison may sion of a shank not involve additional enumer- The identification of the same kind of “active” violence and Application in Note ated offenses in aggression reflected certain of the other §to 4B1.2 reinforces our con- commentary enumerated offenses—such as a murder or pos- the unlawful today. Although clusion a forcible sexual assault —it does involve a firearms is not a crime of session of most potential ag- level of violence and similar 4B1.2, Applica- §of purposes violence for in of the gression reflected “[unlawfully specifies tion Note 1 shotgun, weapons, such as a sawed-off described in 26 possessing a firearm 5845(a). § specified in 26 U.S.C. 5845(a) (e.g., shotgun § a sawed-off U.S.C. result, pos- As a we are convinced that silencer, bomb, rifle, or ma- or sawed-off ” in session of a shank an inmate gun) chine is a ‘crime of violence.’ USSG posed of risk is similar kind and 4B1.2, § n. 1. these offenses cmt. When in the text of to the offenses enumerated Application the others listed Note binding commentary. § 4B1.2 and in its specified with those are included view that Peterson, firmly We are therefore of the 4B1.2(a)(2), § see text of “presents of conviction offense eleven “enu- F.3d at there are least physical injury potential serious identified for career-of- merated offenses” (1) another,” offense of conviction his burglary of dwell- purposes: fender (4) (2) (3) extortion; arson; pur- a crime of violence crimes ing; (“U.S.S.G.”), career offender enhancement. poses provides, of the Guidelines which 4B1.2(a)(2).7 part: § relevant USSG (1)

A defendant is a career offender if the defendant was at eighteen least IV. (2) years old at the time the instant foregoing, Pursuant to the we affirm the offense of conviction a crime of court. judgment of the district (3) violence ... and the defendant has at AFFIRMED least two prior felony convictions of ei-

ther a crime of violence or a controlled WYNN, substance offense. Judge, dissenting: 4Bl.l(a). U.S.S.G. sentencing on posses- This case turns whether mere guidelines define a “crime violence” as in prison sion of a shank is a crime of any “punishable by imprisonment offense subject violence enhanced exceeding year for a term one that —has provision under the career offender or, an element of ... force” “is Sentencing Guidelines. Pos- extortion, a dwelling, involves session of a shank is not a violent crime use of explosives, or otherwise involves provision, enumerated the relevant nor presents conduct that a serious it similar to the enumerated offenses—a risk physical to another.” requirement of the en- 4B1.2(a) added). U.S.S.G. (emphasis controlling hancement under Mobley’s possession of a shank in prison precedent. least, At very was classified as a violent crime under the applies whether the enhancement is am- latter, (“residual emphasized clause biguous and must therefore be construed clause”). It is this classification that Mob- in Defendant’s favor. Accordingly, must ley challenges appeal. respectfully contrary dissent from the view presented by my colleagues in majority II. opinion. interpretation Our of the career offender provision is by precedent informed con-

I. struing the Armed Career Criminal Act (“A.C.C.A.”). Mobley Defendant Jermaine pled guilty See United States v. Jar- * to mon, of a shank in Cir.2010) viola- 231 n. 1791(a)(2). (“[Pjrecedents tion of 18 U.S.C. He was evaluating the ap- A.C.C.A. sentenced as a career pursuant to ply equal 4B1.2.”). force to U.S.S.G. 4Bl.l(a) of the United States Sentencing This is because the A.C.C.A. definition of - States, Finally, Mobley -, 2267, appeal 2277, also contends on U.S. 131 S.Ct. that the (2011) (citations residual clause omitted). of USSG 180 L.Ed.2d 60 1.2(a)(2) Moreover, § 4B should be contrary stricken as unconsti- good to the view of our alternative, tutionally vague. In the he dissenting colleague, ar- lenity the rule of does gues ambiguous that the residual apply clause is not in this case. See United States v. Helem, apply 449, (4th and does Cir.1999). not to him because the rule 455 Put contentions, lenity. reject We these simply, howev- ambiguity there is no in USSG er, Supreme 1.2(a)(2), already as the Court has deter- 4B lenity and the rule of thus has mined that the residual clause falls “within no here. The residual clause en- congressional power compasses to enact” and constitutes po- conduct that creates a serious intelligible principle another, and, "an provides guid- [that] tential risk of as we person ance that allows a already to 'conform his or explained, have the ” Sykes her conduct to the law.’ prison plainly v. United shank in creates such a risk.

633 “nearly “presentf] the felonies felony” is identical to must both a “violent Offender Guidelines’ definition potential physical injury Career serious risk of ” United v. “similar, ‘crime of violence.’ kind another” as well as 577 F.3d (3d Cir.2009)(cita 515, 518 posed, of risk the examples” v. See also United States tion set out in the 553 statute. U.S. at Cir.2012) 274, n. King, 673 F.3d 279 3 141, 143, Supreme 128 S.Ct. 1581. The (“We rely precedents evaluating wheth what it similar Court clarified meant a ‘crime of vio er an offense constitutes kind, explaining that each of the offenses interchange lence’ under the Guidelines is enumerated statute characterized ably precedents evaluating whether violent, by “purposeful, aggressive 1 a un felony’ ‘violent an offense 144-45, at conduct.” Id. 128 S.Ct. 1581. ACCA, the the der because two terms Chambers, In Supreme Court held a been defined in manner that have “ ” penal that ‘failure to report’ for confine- (citation omit ‘substantively identical.’ felony. ment” was not a violent 555 U.S. ted)). 123,129 at Supreme S.Ct. 687. The Court years, the past Supreme In four that reasoned “the crime amounts to a particular has whether Court addressed inaction, form of a from cry ‘pur- far “vi properly convictions were classified as violent, poseful, and aggressive’ conduct olent felonies” under A.C.C.A.’sresidu potentially at issue when an offender uses separate al clause on three occasions. See explosives against property, — commits ar- States, U.S. -, v. 131 Sykes United son, burgles dwelling....” Id. at [or] 2267, (2011); S.Ct. 180 L.Ed.2d Cham (citing Begay, 129 S.Ct. 687 553 U.S. States, bers 144-45, Supreme 128 S.Ct. (2009); Begay S.Ct. L.Ed.2d that, explained Court while failure to States, v. United report necessarily confinement re- (2008). 1581, 170 In L.Ed.2d 490 consider conduct, quires intentional there is “no “vio ing particular whether offenses were specific reason to believe” that the conduct lent,” Supreme Court [its “tailored constituting the crime either violent or at hand” opinion] crime and declined monolithic, aggressive. Indeed, Supreme Id. bright-line to use test. Unit (1st Herrick, rejected the specifically prosecu- ed States F.3d Cir.2008). Nevertheless, tion’s failure to only argument report no did penal overrule a all demonstrated a aversion to predecessor, “strong case but fact spoke custody” suggested possibility three cases the same con core first Begay namely cern identified in likelihood future violence. Id.2 — attack, significantly likely 1. While Court did not define more others to than "aggressive," "violent” and physically First apprehender, to resist an there- plain meaning has noted of violent is by producing physi- a serious force “marked extreme or sudden intense Chambers, 128-29, injury.” cal U.S. at activity,” plain meaning ag- and that the Here, showing was there no gressive "tending exhibiting ag- toward or Defendant, in that or others gression,” aggression with defined as "force- shanks, "significantly likely are more than (as procedure unprovoked ful action or an contrary, attack.” Id. On the others to attack) esp. when intended to or dominate argued Government even out- Herrick, (quotation F.3d at master.” person, presence any side such other as and marks citation cell, empty in an constitute a crime would still of violence. Supreme explained 2. further question is "the is whether such an offender 131 S.Ct. at 2273. Prisoners erty. Sykes, Court held Supreme Sykes, In not possession alone need charged with properly catego- flight” is “felony vehicle threatened, attempted, or even the Su- have felony. While a violent rized as may have obtained anyone.3 They harm on the risk primarily focused preme Court arrest, purely protect a shank it or fashioned fleeing the act of inherent in an attack. In- in the event of themselves the relevance recognized nevertheless at oral deed, conceded the Government of the enumer- Begay characterization reasoning at that its would allow Sykes, argument See ated offenses. (“In enhanced purposeful, prosecutors vio- to seek many cases in his will be redun- inmate if a shank is discovered lent, aggressive inquiry of an and dant____”). Indeed, he is not opinion under- a search for which during cell particularly of the conduct at issue present. the nature even This scenario scored it “en- flight, describing as allow for en- felony vehicle it would troubling because release of a destructive tailing] intentional who sentencing of defendant hanced necessarily cell, and dangerous declining to others” force in his leaves a shank dangerous and consisting provocative of “a arguably it carry it him where could with 2273. act.” Id at others, that he grounds on the endanger of violence.” I committed a “crime has case, posses- at issue this The conduct majority opinion agree cannot with the simply of a shank sion provision that the career offender allows “burglary dwelling, similar in kind for this. arson, crimes “in- or extortion” and volving] explosives.” the use of U.S.S.G. argues, and The Government 4B1.2(a). agree with the Third Cir- agrees, majority opinion apparently in Polk that there is a cuit’s conclusion transforms a context somehow “pur- difference between the fundamental extremely dangerous weap- shank into an violent, aggressive” enumerat- poseful, premised argument This seems to be on. “passive crime[]” ed offenses and the lawfully on the fact that inmates cannot possession. mere 577 F.3d at 519. any purpose. possess weapons or use However, at 519. See Possession of a shank Polk, “Begay noted in the Third Circuit inaction, cry to a form of a far “amounts analysis” by requir- excludes that mode of violent, aggres ‘purposeful, from the nature of ing courts to consider the at an potentially sive’ conduct issue when at constituting the crime. Id. 520. conduct against property, explosives offender uses categorically The mere fact that an act is burgles a commits dwell [or] Chambers, necessarily render it a does not ...” at 129 unlawful ing. U.S. act” that itself “dangerous provocative at 144- (quoting S.Ct. 687 Sykes, 131 S.Ct. at endangers It does not involve others. Indeed, attacks,” report failure to for one’s engaging or “initiating hostilities accomplished cannot be threatening “directly penal im confinement behavior which manner; victim,” any but the v. Mar lawful pacts] (5th Cir.2010) it declared to be non- Court nevertheless quez, Chambers, (Dennis, J., violent. dissenting), “releas[ing] See persons prop- force” 129 S.Ct. 687. against destructive Indeed, that, anyone. Presumably, aggressive and likely more it would seem where charged only possession, actions would result in more serious he inmate charges, attempted assault. attempted injure such as has not threatened or

635 A pos- necessarily that mere statute is Congress ambiguous has determined not if narrowly weap- of certain defined is “possible it to articulate a session construction is a crime of violence. U.S.S.G. urged by ons more than gov narrow that has Congress ernment,” § 4B1.2 cmt. found or because there is “a division of “inherently weapons dangerous” are these judicial authority” its interpretation. on “possessed unlawfully, [they] because States, 103, 108, Moskal United 498 U.S. only purposes.” Marquez, serve (1990) (em 461, 111 S.Ct. 112 L.Ed.2d 449 (Dennis, J., dissenting) F.3d at 232 626 omitted). However, phasis these circum omitted). Examples marks of (quotation may ambiguity, particu stances evidence weapons include “sawed-off shot- these larly when a can reasonably statute rifle[s], silencer[s], or sawed-off gun[s] interpreted in ways two different and “the bomb[s], gun[s].” or machine U.S.S.G. legislative history not does amount (i.e., only § 4B1.2 cmt. 1. Not are shanks much.” v. Hayes, 555 U.S. knives) homemade crude included 415, 436, 1079, 172 L.Ed.2d 816 list, entirely they this but are dissimilar to (2009) (Roberts, J., dissenting). weapons that are included. a penal ambiguous, When statute is we statutory The purpose career of- just are not permitted, but rather we are title, provision, expressed fender as its “obliged to rule of apply lenity provide enhanced ca- resolve the conflict in the defendant’s fa- nothing reer criminals. Yet indicates that Munn, vor.” United 595 F.3d possess who are prisoners shanks career 183, Cir.2010). 194 lenity rule of crimes, engaged in violent offenders as an important safeguard serves of defen- to, jail opposed e.g, ordinary inmates rights by dants’ constitutional ensuring drug charges non-violent with a crude “ they ‘in language receive notice purposes made for self-defense understand, the common world will of what reasons, I only. join For these cannot if the law intends to a certain do line is majority opinion concluding that mere passed....’” Yi v. Fed. Bureau Pris- of shank crime of ons, (4th Cir.2005) 526, (quot- provi- under the offender violence career ing Chapter Babbitt v. Sweet Home sion. Or., 687, Cmties. Great 18, 2407, n. 132 L.Ed.2d 597 III. (1995)). Thus, seriously we take must “the responsibility to from the text derive rules language While do not believe provide that will notice of the career provision’s residual what is and prevent arbitrary covered supports majority opinion’s clause in- discriminatory sentencing.” See James v. terpretation, very at the least I find the States, 192, 216, United 550 U.S. S.Ct. provision ambiguous. ambigui- to be Such 1586, (2007) (Scalia, J., 167 L.Ed.2d 532 penal requires in a ty statute that we dissenting). lenity goes The rule of lenity, the rule of which appli- consider “ separation powers preserves ‘grievous ambiguity cable event of “ ” accountability by ensuring that ‘legisla- uncertainty’ as to a statute’s meaning. Mitchell, tures and not courts define criminal States v. (4th Cir.1994) Yi, activity.’” 412 F.3d at 535 (quoting (quoting Chapman v. United States, Babbitt, 515 U.S. at n. S.Ct. S.Ct. (1991)). 114 L.Ed.2d 524

636 (Scalia, J., 216, dissenting) 127 1586 history on S.Ct. legislative very little

There is (“It decades, grants and dozens Congress apparently will take A.C.C.A. certiorari, reduce attempt an to allocate all the Nation’s act in to adopted segment “particular a this ... by targeting or the other side of crime crimes to one habitually line.”). population” criminal entirely indeterminate Rep. 98- crime. H.R. commits violent ambiguity the residual clause’s Given (1985), 1984 U.S.C.C.A.N. 1073, at 2-3 creat- experienced, and and the confusion However, guid- little 3661, there is 3662. ed, courts, inmates lack sufficient to be cov- crimes intended to the ance as simple possession of shank notice that clause. by the residual ered Indeed, a crime of violence. clause, Congress provid- In the residual convictions un- first circuit to address little com- have examples [that] “four ed 1791(a)(2), the statute at der 18 U.S.C. mon, respect especially most case, in to the career in this relation issue James, they pose.” of risk of level held that provision (Scalia, J., 229, 127 1586 at S.Ct. a crime does not constitute shank accord, 142, 553 at U.S. dissenting); Polk, at of violence. See had (noting Congress that if 1581 128 S.Ct. circuit has con- only one other Since crimes, it risk-only analysis of intended precise provisions sidered these —and examples that “likely have chosen would conclusion. See opposite reached the it had of risk illustrated better Perez-Jiminez, 654 F.3d States v. omitted). mind”) As a marks (quotation Cir.2011).5 (10th IWhile acknowl- justices result, Supreme Court several varying judicial interpretation is edge that vehemently criticized the residual have appel- dispositive, not the fact that federal See, e.g., called for its revision. clause and judges agree late cannot on the ambit (Scalia, J., at 2287 dissent- Sykes, 131 S.Ct. believe, is, ques- statute relevant to the failure” “drafting ing) (calling the clause provides it sufficient notice tion whether yield intelligible vague that is “is too Because the residual clause public. (internal marks omit- quotation principle”) to “a statute that does amounts 155, ted); Begay, 553 U.S. accord ‘give person ordinary intelligence (Alito, J., (noting dissenting) S.Ct. 1581 reach,” Sykes, fair notice’ of its legislative “calls out for the clause J., (Scalia, dissenting) (quoting at 2287 clarification”).4 Moreover, attempted ap- Batchelder, v. U.S. United States has resulted in plication by circuit courts (1979)), 60 L.Ed.2d S.Ct. Sykes, 131 S.Ct. increased confusion. See obligated apply the rule of this Court is (Scalia, J., (noting dissenting) at 2285 ap- lenity provision, and construe the struggled apply all of the circuits have of a shank plied holdings regarding Supreme Court’s James, favor. clause); at Defendant’s residual U.S. difficulty interpret- circuits have considered similar state also had Other 4. This Court has See, See, e.g., disagreed with Polk. e.g., statutes and ing provision. United States (8th Cir.2011) (en Vann, (4th Boyce, 633 F.3d 708 United States Cir.2011) banc) J., (holding judgment) of a home (Agee, concurring ("[N]o prison prohibited a state painstaking- weapon in diligently made matter how A.C.C.A.), felony mystery under the ly colleagues statute is a my and I labor over - -, denied, clause, cert. a black hole of of the ... residual (2012); v. Zu uncertainty stymies our best 181 L.Ed.2d confusion and Cir.2009) (same). efforts.”) niga, 553 F.3d 1330 (quotation marks IV. dispute impor- grave

While I do not possession weap- penalizing

tance of safety, interest I do

ons comports

not believe that it with the rules construction, statutory lenity,

precedent, the rule of or notions of an punish inmate with en-

fairness

hanced “crime of violence” sentence

mere of a shank in prison.

would therefore vote vacate Defendant’s for re-sentencing.

sentence and remand

Accordingly, respectfully I must dissent. America,

UNITED STATES

Plaintiff-Appellee, RASHAD,

Jibreel A. known Cooks, Jr.,

Vernon Defendant-

Appellant.

No. 10-10645. Appeals,

United States Court of

Fifth Circuit. 10, 2012.

July

Case Details

Case Name: United States v. Jermaine Mobley

Court Name: Court of Appeals for the Fourth Circuit

Date Published: Jul 13, 2012

Citation: 687 F.3d 625

Docket Number: 11-4391

Court Abbreviation: 4th Cir.