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"Mere Possession" of a Prison Shank Constitutes a "Crime of Violence"
by Derek Gilna
In 2010, federal prisoner Jermaine Mobley was sentenced to 37 months by the U.S. District Court for the Eastern District of North Carolina for possessing a shank – a prohibited object in prison as defined by 18 U.S.C. § 1791(a)(2). Due to his possession of the shank, which the district court determined was a "crime of violence," Mobley was found to be a career offender under Section 4B1.1 of the Sentencing Guidelines.
Mobley, incarcerated for heroin-related offenses and being a felon in possession of a firearm, was caught with a homemade shank while in the infirmary at FCI Butner. Mobley's Presentence Investigation Report found that based upon his criminal history and offense level, he should be considered a "career offender" because he was at least 18 years old, his current offense was a felony "that is either a crime of violence or a controlled substance offense," and he had at least two prior felony convictions involving a crime of violence or a drug-related offense.
As a career offender, his sentence for possession of the shank was substantially increased. He appealed and the Fourth Circuit affirmed on July 13, 2012.
Mobley challenged the classification of possession of the shank as a "crime of violence," relying on United States v. Polk, 577 F.3d 515 (3d Cir. 2009). However, the Court of Appeals noted that the Third Circuit was the only circuit to accept the reasoning of Polk, which held that mere possession of a shank was not a "crime of violence." At least three other circuits had reached contrary conclusions.
According to the Fourth Circuit, the case of United States v. Perez-Jiminez, 654 F.3d 1136 (10th Cir. 2011), which had facts closer to Mobley's case than those at issue in Polk, found that "possessing a dangerous or deadly weapon in prison 'enables violence.'" The Court of Appeals further added that Mobley's offense "presents a serious potential risk of physical injury to another."
"Put simply, we agree with the Fifth, Eighth, and Tenth Circuits that possession of a shank in prison, in contravention of § 1791(a)(2), constitutes a crime of violence under § 4B1.2(a)(2) of the Guidelines," the appellate court wrote.
The dissent argued that in Sykes v. United States, 131 S.Ct. 2267 (2011) and Chambers v. United States, 555 U.S. 122 (2009), the Supreme Court reached conclusions based upon whether a particular offense was "violent," and that the facts in Mobley's case did not justify classifying his offense as one of violence because he had only possessed, and not actually used, the shank.
Mobley's 37-month prison sentence was affirmed; he petitioned the Supreme Court for certiorari review, which was denied on January 7, 2013. See: United States v. Mobley, 687 F.3d 625 (4th Cir. 2012), cert. denied.
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Related legal case
United States v. Mobley
|Cite||687 F.3d 625 (4th Cir. 2012), cert. denied|
|Level||Court of Appeals|