Jermaine Mobley was sentence to 37 months in the Eastern District of North Carolina in 2010 for possession of a prohibited object in prison as de­fined by 18 U.S.C. Section 1791(a)(2), after being found to be a career offender under Section 4B1.1. of the Sentencing Guidelines. Mobley appealed and the Fourth Circuit affirmed.

Mobley, incarcerated for heroin trafficking offenses, was caught with a homemade shank while in the infirmary at Butner Prison, in North Carolina. The Presentence Investigation Report prepared by Probation found that based upon his criminal history and offense level, he should be considered a ^"career offender," being at least 18 years of age, the current crime was a felony, and he had at least two prior felony convictions, including a crime of violence.

Mobley attacked the classification of possession of the shank as a "crime of violence," relying on U.S. v. Polk, 577 F.3d 515 (3d Cir. 2009), but the Appellate Court noted that the Third is the only circuit to accept the reasoning of Polk, which found that mere possession was not a "crime of violence. According to the Appeals Court, the Tenth Circuit in the case of U.S. v. Perez-Jiminez, 654 F.3d 1136 (10th Cir. 2011), the fact system was more similar to Mobley's case than Polk, and found that "possessing a dangerous or deadly weapon in prison 'enables violence.'" The court further added that Mobley's offense "presents a serious potential risk of physical injury to another," and that Section 4B1.2(a)(2) of the Sentencing Guidelines would apply.

The dissent argued that Sykes v. U.S., 131 S. Ct. 2267 (2011) and Chambers v. U.S., 555 U.S. 122 (2009), the court reached conclusions based upon whether the particular offense at issue was "violent," and that the facts here did not justify classifying the crime as one of violence without actual use.

See: U.S. v. Mobley, 11-4391, U.S. Crt. of Appeals for the Fourth Circuit, (2012).

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