2009 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

8-12-2009

USA v. Terrell Polk

Precedential or Non-Precedential: Precedential

Docket No. 08-4399

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Recommended Citation

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PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

 

No. 08-4399

 

UNITED STATES OF AMERICA

v.

TERRELL POLK,

Appellant

 

Appeal from the United States District Court

for the Middle District of Pennsylvania

(D.C. Criminal Action No. 4-08-cr-00136-001)

District Judge: Honorable James F. McClure

 

Argued July 8, 2009

Before: SLOVITER, AMBRO, and JORDAN, Circuit Judges

(Opinion filed: August 12, 2009)

Stephen F. Becker, Esquire (Argued)

Shapiro & Becker
2

114 Market Street

Lewisburg, PA 17837-0000

Counsel for Appellant

Martin C. Carlson

 United States Attorney

George J. Rocktashel (Argued)

 Assistant United States Attorney

Office of the United States Attorney

240 West Third Street, Suite 316

Williamsport, PA 17701-0000

Counsel for Appellee

 

OPINION OF THE COURT

 

AMBRO, Circuit Judge 

Terrell Polk appeals from an order sentencing him to 37

months’ imprisonment for possession of a “shank” in prison.

The District Court characterized Polk’s offense as a “crime of

violence,” and accordingly calculated his sentencing range

pursuant to the Career Offender Guidelines. This was correct

under United States v. Kenney, 310 F.3d 135 (3d Cir. 2002).

However, because we determine that Kenney is no longer good

law in light of the Supreme Court’s recent decision in Begay v.
3

United States, __ U.S. __, 128 S. Ct. 1581 (2008), we vacate the

District Court’s sentencing order and remand for further

proceedings.

I. Background

In June 2007, Polk, an inmate serving a sentence at the

United States Penitentiary at Lewisburg, PA, had his cell

searched by a correctional officer, who found a six-inch plastic

homemade shank in an envelope containing his personal papers.

A grand jury in the Middle District of Pennsylvania returned a

one-count indictment against Polk for possession of a prohibited

object designed to be used as a weapon in violation of 18 U.S.C.

§ 1791(a)(2), and Polk pleaded guilty to the indictment in

accordance with a plea agreement. At Polk’ssentencing hearing

in December 2008, the District Court determined that the

offense qualified as Polk’s third predicate “crime of violence,”

thus warranting a three-level sentence enhancement under the

federal Sentencing Guidelines for career offenders. U.S.S.G. §

4B1.1. Consequently, Polk’s total offense level was 14, which,

when combined with his criminal history category of VI,

resulted in a Sentencing Guidelines range of 37–46 months.

Without the enhancement, the Guidelines range would have

been 27–33 months. Polk did not object to his designation as a

career offender (though Begay had been issued six months

before sentencing), and, as noted, was sentenced to 37 months’

imprisonment. He timely appealed.
4

II. Jurisdiction and Standard of Review

The District Court had jurisdiction under 18 U.S.C. §

3231. We have jurisdiction under 18 U.S.C. § 3742(a)(1) and

28 U.S.C. § 1291.

Because Polk did not object to his designation as a career

offender for sentencing purposes in the District Court, we

review for plain error. Fed. R. Crim. P. 52(b). To grant the

relief requested under this standard, we would need to conclude

not only that the District Court erred in classifying Polk as a

career offender, but that the error was plain, and it affected

adversely “substantial rights” of Polk as well as the “fairness,

integrity, or public reputation of judicial proceedings.” United

States v. Davis, 407 F.3d 162, 164 (3d Cir. 2005) (quoting

United States v. Evans, 155 F.3d 245, 251 (3d Cir. 1998)).

If we determine the error was not plain, Polk’s counsel

offers an alternative argument of ineffective assistance of

counsel based on his failure to raise Begay and its arguable

effect at sentencing. Under Strickland v. Washington, 466 U.S.

668 (1984), to prevail on this claim counsel’s performance must

be deficient, id. at 687 (“In light of all the circumstances, the

identified acts or omissions were outside the wide range of

professionally competent assistance.”), and prejudicial, id. at

690 (in this context, that “there is a reasonable probability that,

but for counsel’s unprofessional errors, the result of the

proceeding would have been different”).
5

III. Discussion

A.

Polk argues that his § 1791(a)(2) conviction cannot serve

as a predicate “crime of violence” for the purpose of designating

him as a career offender. Under the Career Offender

Guidelines, a “crime of violence” is defined as

any offense under federal or state

law . . . that--(1) has as an element

the use, attempted use, or

threatened use of physical force

against the person of another, or (2)

is burglary of a dwelling, arson, or

extortion, involves the use of

explosives, or otherwise involves

conduct that presents a serious

potential risk of physical injury to

another.

U.S.S.G. § 4B1.2(a).

In Kenney, we held that “whatever an inmate’s

intentions[,] his possession of a weapon in a prison inherently,

and accordingly ‘by its nature,’ presents ‘a serious potential risk

of physical injury’ to other persons in the prison.” 310 F.3d at

137. Reviewing the nature of the offense, we determined that
6

potential risk of violence or injury is enough to qualify a

§ 1791(a)(2) offense as a “crime of violence” under the

“otherwise involves” clause of that definition in the Career

Offender Guidelines. Id. Thus, the success of Polk’s appeal

turns on whether the analysis endorsed in Kenney still applies

post-Begay.

In Begay, the Supreme Court addressed the “violent

felony” provision of the Armed Career Criminal Act (ACCA).

128 S. Ct. at 1583. That provision states, in pertinent part, that

a “violent felony” is

any crime . . . that--(i) has as an

element the use, attempted use, or

threatened use of physical force

against the person of another; or (ii)

is burglary, arson, or extortion,

involves the use of explosives, or

otherwise involves conduct that

presents a serious potential risk of

physical injury to another . . . .

18 U.S.C. § 924(e)(2)(B). The Court held that, to qualify as a

“violent felony” under the “otherwise involves” clause of this

provision, an offense must (1) present a serious potential risk of

physical injury and (2) be “roughly similar, in kind as well as

degree of risk posed, to the examples [burglary, arson, extortion,

or use of explosives] themselves.” Begay, 128 S. Ct. at
 We need not decide whether and to what extent our 1

decision in Parson remains effective after Begay. It is sufficient

here to recognize that, though Parson says the definitions of

7

1585–86. The Court noted that the important common attributes

of the listed crimes are that they involve “purposeful, violent,

and aggressive conduct.” Id. at 1586.

The question we face is whether Begay’s analysis—that

offenses must involve “purposeful, violent, and aggressive

conduct” to qualify as a “violent felony” for ACCA

purposes—also applies to the Career Offender Guidelines. PreBegay, our Court stated that though the language of the ACCA’s

“violent felony” provision is nearly identical to the Career

Offender Guidelines’ definition of a “crime of violence,” these

two sections are not necessarily coextensive. United States v.

Parson, 955 F.2d 858, 870 (3d Cir. 1992). However, the

Supreme Court has since vacated and remanded for

reconsideration, in light of Begay, Courts of Appeals’ decisions

applying the Career Offender Guidelines’ “otherwise involves”

clause. See, e.g., Archer v. United States, __U.S.__, 128 S. Ct.

2051 (2008) (vacating United States v. Archer, 243 F. App’x

564 (11th Cir. 2007) (carrying a concealed weapon)); Tiger v.

United States, __U.S.__, 128 S. Ct. 2048 (2008) (vacating

United States v. Tiger, 240 F. App’x 283 (10th Cir. 2007)

(driving under the influence)). This leaves little doubt that

Begay bears on our determination of whether to classify an

offense as a “crime of violence.”1
“violent felony” and “crime of violence” in the ACCA and the

Career Offender Guidelines, respectively, are not coextensive,

Begay and the remands from the Supreme Court that have

followed it indicate that the definitions are close enough that

precedent under the former must be considered in dealing with

the latter. See, e.g., United States v. Stinson, __ F.3d __, No. 08-

1717, 2009 WL 2231644, at *1 (3d Cir. July 28, 2009)

(“Although this case involves the Guidelines, the definition of

a violent felony under the ACCA is sufficiently similar to the

definition of a crime of violence under the Guidelines that

authority interpreting one is generally applied to the other.”).

8

Given Begay’s applicability to the offense at issue here,

we hold that possession of a weapon, even in a prison, is not

“roughly similar, in kind as well as in degree of risk posed,” to

the enumerated crimes of burglary, arson, extortion, or use of

explosives. 128 S. Ct. at 1585. While no doubt possession of

a weapon in prison involves a high degree of risk, Begay points

out that even a serious potential for injury is not enough to

qualify a crime for career offender enhancement; the risk created

must also be “similar in kind” to the crimes set out. Id. They

involve overt, active conduct that results in harm to a person or

property. See United States v. Templeton, 543 F.3d 378, 383

(7th Cir. 2008). The possibility that one will confront another

person with violent results is not sufficient. See id.

Post-Begay, the distinction between active and passive

crimes is vital when evaluating offenses under the Career
9

Offender Guidelines to determine if they entail “purposeful,

violent, and aggressive conduct.” While possessing a weapon

in prison is purposeful, in that we may assume one who

possesses a shank intends that possession, it cannot properly be

characterized as conduct that is itself aggressive or violent, as

only the potential exists for aggressive or violent conduct.

Much like carrying a concealed weapon, the offense is a

“passive crime centering around possession, rather than around

any overt action . . . . The act of possession does not, without

more . . ., involve any aggressive or violent behavior.” United

States v. Archer, 531 F.3d 1347, 1351 (11th Cir. 2008)

(emphasis in original). Each of the crimes noted in the ACCA

and the Career Offender Guidelines affects, directly and

aggressively, the victims involved or their property. According

to the Supreme Court, by providing the examples Congress

meant for the “statute to cover only similar crimes, rather than

every crime that ‘presents a serious potential risk of physical

injury to another.’” Begay, 128 S. Ct. at 1585 (emphasis in

original).

The Government urges us, in analyzing the nature of

Polk’s offense, to emphasize that his possessory crime occurred

in a prison context, an environment in which heightened security

is required and no permissible use exists for a prisoner to

possess a weapon. That was the basis of our analysis in Kenney,

310 F.3d at 137, as well as pre-Begay decisions of other Circuit

Courts reaching the same conclusion. See, e.g., United States v.

Vahovick, 160 F.3d 395, 397 (7th Cir. 1998) (determining that
10

there is no acceptable use for a weapon by an inmate and that

“prisons are inherently dangerous places and they present unique

problems”); United States v. Young, 990 F.2d 469, 472 (9th Cir.

1993) (“The confines of prison preclude any recreational uses

for a deadly weapon and render its possession a serious threat to

the safety of others.”).

Begay excludes that mode of analysis, however. We do

not dispute the inherent dangers of possessing a shank in prison,

but this alone cannot transform a mere possession offense into

one that is similar to the crimes listed. Thus, a § 1791(a)(2)

conviction for possession of a prohibited object designed to be

used as a weapon in prison is not a “crime of violence” for

purposes of the Career Offender Guidelines. We recognize that

our decision is at odds with the Tenth Circuit Court’s recent

decision in United States v. Zuniga, 553 F.3d 1330 (10th Cir.

2009). While we understand that Court’s desire to continue

treating possession of a weapon in prison as a “crime of

violence,” we cannot agree with its reasoning that the likelihood

or potential for violent and aggressive behavior to come about

as a result of the offense is sufficient for qualification in light of

Begay. Id. at 1335.

B.

The District Court erred in sentencing Polk as a career

offender, but because he did not object at sentencing, the fact

that it was an error is not enough for us to grant the relief
11

requested. The existence of the Tenth Circuit Court’s Zuniga

decision, from which a district court could reasonably conclude

that our Kenney analysis was still sound after Begay, makes us

disinclined to conclude that the District Court’s error here was

plain. However, it is not necessary to determine if the error was

plain in this instance, because we agree with the argument of

Polk’s attorney that he (the attorney) was ineffective at

sentencing based on his failure to raise Begay and its arguable

effect.

Defendants are not generally permitted to attack the

efficacy of their counsel on direct appeal, though an exception

will be made “[w]here the record is sufficient to allow

determination of ineffective assistance of counsel, [and thus] an

evidentiary hearing to develop the facts is not needed.” United

States v. Headley, 923 F.2d 1079, 1083 (3d Cir. 1991). While

Polk’s attorney did an outstanding job on appeal, he freely

concedes that at sentencing he missed the arguable effect of

Begay. This admission satisfies Strickland’s requirements to

prove ineffective assistance of counsel, as the oversight was

objectively deficient at the time of the omission (as noted, Begay

had been decided six months before Polk’s sentencing hearing)

and prejudiced Polk (our holding here indicates that the result of

the sentencing proceeding would have been different than what

occurred). See 466 U.S. at 687, 689, 694. Because the record

is sufficient to make this determination, we conclude that a

further collateral proceeding for factual development on this
 We emphasize that we are not opening the door to 2

ineffective assistance of counsel claims on direct appeal as a

matter of course. We are, rather, dealing with a very unusual

case here, in which there is a Supreme Court decision that

represents a marked change in the law and, in addition, there is

an adequate record involving highly competent and respected

defense counsel freely acknowledging that his failure to cite that

important new case had nothing to do with a strategic decision

but was simply an oversight.

12

issue is unnecessary.2

* * * * *

As Kenney no longer remains good law and possession

of a weapon in prison should not be considered a “crime of

violence” under the Career Offender Guidelines post-Begay, we

vacate the District Court’s order and remand for resentencing

consistent with this opinion.