PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA, 

Plaintiff-Appellee,

v.  No. 11-4391

JERMAINE MOBLEY,

Defendant-Appellant. 

Appeal from the United States District Court

for the Eastern District of North Carolina, at Raleigh.

W. Earl Britt, Senior District Judge.

(5:10-cr-00278-BR-1)

Argued: March 21, 2012

Decided: July 13, 2012

Before TRAXLER, Chief Judge, and KING and WYNN,

Circuit Judges.

Affirmed by published opinion. Judge King wrote the majority opinion, in which Chief Judge Traxler joined. Judge Wynn

wrote a dissenting opinion.

COUNSEL

ARGUED: Eric Joseph Brignac, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Raleigh, North Carolina, for

Appellant. Yvonne Victoria Watford-McKinney, OFFICE OF
THE UNITED STATES ATTORNEY, Raleigh, North Carolina, for Appellee. ON BRIEF: Thomas P. McNamara, Federal Public Defender, G. Alan DuBois, Assistant Federal

Public Defender, OFFICE OF THE FEDERAL PUBLIC

DEFENDER, Raleigh, North Carolina, for Appellant. Thomas

G. Walker, United States Attorney, Jennifer P. May-Parker,

Assistant United States Attorney, OFFICE OF THE UNITED

STATES ATTORNEY, Raleigh, North Carolina, for Appellee. 

OPINION

KING, Circuit Judge:

On December 6, 2010, Jermaine Mobley pleaded guilty in

the Eastern District of North Carolina to the offense of possession of a prohibited object in prison, in violation of 18

U.S.C. § 1791(a)(2). The sentencing court thereafter found

Mobley to be a career offender under § 4B1.1 of the Sentencing Guidelines and imposed a sentence of thirty-seven

months. On appeal, Mobley challenges his sentence, maintaining that the court erred in ruling that his offense of conviction constituted a crime of violence for purposes of the career

offender sentencing enhancement of the Guidelines. As

explained below, we reject Mobley’s contention and affirm.

I.

At the time of his offense, Mobley was serving a 151-

month sentence at FCI Butner, near Raleigh, North Carolina,

for his prior federal convictions of possession with intent to

distribute heroin and being a felon in possession of a firearm.

On September 14, 2009, Mobley visited Butner’s infirmary,

complaining of pain and numbness in his feet. During the

infirmary visit, an attending physical therapist picked up

Mobley’s right shoe to examine its insole. Mobley promptly

2 UNITED STATES v. MOBLEY
seized the shoe from the therapist and removed an eight-inch

"shank" that had been concealed in the shoe’s insole.1 The

therapist saw the shank and, despite Mobley’s efforts to hide

it under an examination table, the shank was recovered by the

prison staff.

On August 18, 2010, Mobley was charged in a single-count

indictment of, while an inmate at FCI Butner, "possess[ing]

a prohibited object, to wit, a shank, in violation of Title 18,

United States Code, Section 1791(a)(2)." J.A. 6.2 Section

1791(a)(2) provides, in part, that "whoever[,] being an inmate

of a prison, . . . possesses . . . a prohibited object [shall be

guilty of an offense against the United States]." The term

"prohibited object" is defined in § 1791 with a litany of specifics, including weapons, controlled substances, currency,

and telephones. Relevant to Mobley’s offense of conviction,

the statutory definition includes "an object that is designed or

intended to be used as a weapon or to facilitate escape from

a prison." 18 U.S.C. § 1791(d)(1)(B). Punishment for the

offense of conviction is a fine or "imprisonment for not more

than 5 years, or both." Id. § 1791(b)(3). 

After Mobley pleaded guilty, a probation officer prepared

a presentence investigation report ("PSR"). The PSR calculated Mobley’s base offense level under the Guidelines as 13,

then applied the career offender sentencing enhancement to

1Mobley acknowledges that a shank, which is an improvised sharpened

instrument, is a dangerous weapon. At sentencing, Mobley’s counsel

referred to the shank as a "weapon" with "the potential for serious injury."

J.A. 19; see also United States v. Perez-Jiminez, 654 F.3d 1136, 1142

(10th Cir. 2011) ("It is patent that such shanks are a deadly weapon."). The

prosecutor explained that shanks "are made by inmates from bits and

pieces of metal" and sharpened against concrete. J.A. 21. We have previously described a shank as a homemade knife or "a handmade sharp

instrument." United States v. Caro, 597 F.3d 608, 610 (4th Cir. 2010);

United States v. Perry, 335 F.3d 316, 318 (4th Cir. 2003). 

2Citations herein to "J.A.___" refer to the contents of the Joint Appendix filed by the parties in this appeal. 

UNITED STATES v. MOBLEY 3
increase his base offense level to 17. The PSR reduced the

offense level by three for acceptance of responsibility, resulting in a total offense level of 14. Mobley’s criminal history

category was VI, and the advisory sentencing range for an

offense level of 14 and a criminal history category of VI is

thirty-seven to forty-six months. If the career offender sentencing enhancement had not been applied, Mobley’s total

offense level would have been 10, and his sentencing range

would have been twenty-four to thirty months. Pursuant to

§ 4B1.1 of the Guidelines, a convicted defendant is considered to be a career offender if:

(1) the defendant was at least eighteen years old at

the time the defendant committed the instant offense

of conviction; 

(2) the instant offense of conviction is a felony that

is either a crime of violence or a controlled substance offense; and 

(3) the defendant has at least two prior felony convictions of either a crime of violence or a controlled

substance offense.

USSG § 4B1.1(a). 

Mobley was thirty-six years old at the time of his offense

of conviction, and he then had at least two prior felony convictions for controlled substance offenses. At his sentencing

hearing, Mobley objected to the district court’s application of

the career offender enhancement, contending that possession

of a shank in prison failed to qualify as a crime of violence.

The court overruled this objection, however, ruling that the

instant offense of conviction constitutes a crime of violence,

and explaining that "there is no passive possession of a

weapon in a prison setting." J.A. 24. Mobley filed a timely

notice of appeal, and we possess jurisdiction pursuant to 28

U.S.C. § 1291 and 18 U.S.C. § 3742(a).

4 UNITED STATES v. MOBLEY
II.

A determination of whether a defendant’s offense of conviction constitutes a crime of violence under § 4B1.2(a) of the

Guidelines is a legal issue that we review de novo. See United

States v. Jenkins, 631 F.3d 680, 682 (4th Cir. 2011). 

III.

A.

The term "crime of violence" is defined in the Guidelines

as any offense "punishable by imprisonment for a term

exceeding one year," and 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 use of explosives, or otherwise involves

conduct that presents a serious potential risk of physical injury to another.

USSG § 4B1.2(a). The primary issue in Mobley’s appeal is

whether his offense of conviction falls within the "residual

clause" of § 4B1.2(a)(2) — that is, whether possession of a

shank while in prison at Butner "otherwise involves conduct

that presents a serious potential risk of physical injury to

another." 

On appeal, Mobley maintains that "mere possession" of a

shank in prison does not, under the relevant authorities,

involve the active or assaultive conduct required of a crime of

violence under the Guidelines. He asserts that mere possession of a shank in prison is a passive crime and does not constitute confrontational conduct, and that the offense of

conviction does not present the serious risk of physical injury

UNITED STATES v. MOBLEY 5
contemplated by the Guidelines in defining a crime of violence. 

In order to properly assess this issue, it is necessary to

briefly review the relevant legal principles and Guidelines

commentary. The Supreme Court has identified and explained

the principles underlying what constitutes a violent felony

under the Armed Career Criminal Act (the "ACCA"), or, for

the purposes of this appeal, a crime of violence under § 4B1.2

of the Guidelines. See, e.g., Sykes v. United States, 131 S. Ct.

2267 (2011); Chambers v. United States, 555 U.S. 122

(2009); Begay v. United States, 553 U.S. 137 (2008).3

In Begay, the Supreme Court explained the ACCA’s enumerated offenses of burglary, arson, or extortion, "as limiting

the crimes that [the residual clause] covers to crimes that are

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

the examples themselves," but it declined to include driving

under the influence as one of those "roughly similar" offenses.

Begay, 553 U.S. at 143. Last year, in Sykes, the Supreme

Court focused on the question of whether the offense of intentional vehicular flight was comparable in degree of risk to the

enumerated offenses. Sykes, 131 S. Ct. at 2273. The Court

concluded in the affirmative, determining that a "[r]isk of violence is inherent to vehicle flight," is at least equal to the enumerated offenses of burglary and arson. Id. at 2274.4

3We have frequently observed that the ACCA’s definition of a "violent

felony," set forth in 18 U.S.C. § 924(e)(2)(B), is nearly identical to the

Guidelines’ definition of "crime of violence" in § 4B1.2(a). See, e.g.,

United States v. Jenkins, 631 F.3d 680, 683 (4th Cir. 2011). As a result

of the similarities between the two definitions, we are entitled to "rely

upon precedents evaluating whether an offense constitutes a violent felony

under [the ACCA] interchangeably with precedents evaluating whether an

offense constitutes a crime of violence under [the Guidelines]." United

States v. Clay, 627 F.3d 959, 965 (4th Cir. 2010). 

4Mobley and the government disagree about whether and to what extent

Sykes limited the application of Begay’s similar-in-kind test. There is no

need to resolve that issue in this case, however, because, as we will

explain, Mobley’s sentence may be affirmed under Begay. 

6 UNITED STATES v. MOBLEY
The commentary to § 4B1.2, more specifically Application

Note 1 thereof, expands upon the roster of enumerated

offenses by specifying additional ones, such as manslaughter

and kidnapping, that also constitute crimes of violence, see

USSG § 4B1.2, cmt. n.1 ("‘Crime of violence’ includes murder, manslaughter, kidnapping, aggravated assault, forcible

sex offenses, robbery, arson, extortion, extortionate extension

of credit, and burglary of a dwelling."), and by identifying

various offenses that do not constitute crimes of violence,

such as unlawful possession of several types of firearms. See

id. ("‘Crime of violence’ does not include the offense of

unlawful possession of a firearm by a felon, unless the possession was of a firearm described in 26 U.S.C. § 5845(a).").5

The crimes specified in Application Note 1 of the commentary to § 4B1.2 serve as additional enumerated offenses, or

"example crimes," to be considered when determining

whether a prior conviction or an instant offense of conviction

otherwise involves conduct that presents a serious potential

risk of physical injury to another. See Peterson, 629 F.3d at

438 ("Although the language of ACCA that was considered in

Begay is identical to the language in USSG § 4B1.2(a)(2), the

commentary to § 4B1.2(a)(2) adds to the list of example

crimes listed in § 4B1.2(a)(2)[.]"); accord United States v.

Marrero, 677 F.3d 155, 164 (3d Cir. 2012) ("[O]ffenses listed

in Application Note 1 [to USSG § 4B1.2] are ‘enumerated’

for purposes of the crime-of-violence analysis."). With these

principles in mind, we turn to the specifics of Mobley’s contention. 

1.

Mobley’s position on appeal relies heavily on the Third

Circuit’s decision in United States v. Polk, 577 F.3d 515 (3d

5Application Note 1 of the commentary to § 4B1.2 is neither inconsistent with nor an erroneous reading of § 4B1.2(a), and is therefore authoritative and binding. See United States v. Peterson, 629 F.3d 432, 435 (4th

Cir. 2011); United States v. Hood, 628 F.3d 669, 672-73 (4th Cir. 2010).

UNITED STATES v. MOBLEY 7
Cir. 2009). Like Mobley, Polk had been convicted of possessing a shank in prison, in violation of 18 U.S.C. § 1791(a)(2).

The district court sentenced Polk as a career offender, characterizing his instant offense of conviction as a crime of violence. The Third Circuit reversed, applying the Supreme

Court’s analysis in Begay and determining that possession of

a weapon — "even in a prison" — is not similar in kind or

degree of risk posed to the enumerated offenses and, thus,

does not constitute a crime of violence under the career

offender sentencing enhancement found in § 4B1.2 of the

Guidelines. The court of appeals explained:

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 [in Guidelines § 4B1.2(a)(2)]. They

involve overt, active conduct that results in harm to

a person or property. The possibility that one will

confront another person with violent results is not

sufficient. 

* * *

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.

Polk, 577 F.3d at 519 (citations omitted). 

The Third Circuit, however, has been the only court of

appeals to adopt the position advanced by Mobley in this

case. Three other of our sister circuits, the Fifth, Eighth, and

Tenth, have addressed the same issue and reached a different

8 UNITED STATES v. MOBLEY
conclusion. See United States v. Marquez, 626 F.3d 214 (5th

Cir. 2010); United States v. Boyce, 633 F.3d 708 (8th Cir.

2011); United States v. Perez-Jiminez, 654 F.3d 1136 (10th

Cir. 2011). The Fifth Circuit in Marquez reasoned that possession of a deadly weapon by a prison inmate is similar in kind

and degree of risk posed to the crime of burglary because,

"(l)ike burglary, the ‘main risk’ of an inmate in possession of

a deadly weapon is ‘the possibility of a face-to-face confrontation’ with another person." Id. at 222 (quoting Begay, 553

U.S. at 144-45).

Similarly, in Boyce, the Eighth Circuit determined that possession of a weapon in prison presents a serious potential risk

of physical injury to another, inasmuch as there is no lawful

reason for a prison inmate to ever have a weapon. See 633

F.3d at 711. The court concluded that possession of a weapon

in prison is roughly similar in kind and degree of risk posed

to the enumerated crimes of burglary, arson, and extortion. Id.

at 712. The Eighth Circuit thereby rejected the view taken by

the Third Circuit in Polk, reasoning that an inmate’s possession of a weapon in prison involves purposeful, violent, and

aggressive conduct, and that it creates a likelihood of future

violent confrontations, much like the enumerated offenses. Id.

at 711-12. 

Finally, the Tenth Circuit, in Perez-Jiminez, rendered a

decision last year that is essentially on all fours with this

appeal, concluding, in a post-Sykes setting, that "possessing a

dangerous or deadly weapon in prison ‘enables violence.’"

654 F.3d at 1143 (quoting Boyce, 633 F.3d at 712). PerezJiminez was, like Mobley, prosecuted for violating 18 U.S.C.

§ 1791(a)(2), and the court of appeals was called upon to

assess the very question we face, that is, whether possession

of a shank in prison constitutes a crime of violence under the

career offender sentencing enhancement.6 The Tenth Circuit

6The Marquez and Boyce cases — unlike Perez-Jiminez and Mobley’s

case — involved the issue of whether a prior state conviction for possession of a shank in prison was a crime of violence. The analysis conducted

in Marquez and Boyce, however, is also governed by the Supreme Court’s

precedents and is the very analysis that we conduct here. 

UNITED STATES v. MOBLEY 9
ruled that it did, observing that there is no innocent purpose

for the possession of a dangerous weapon by a prison inmate,

and concluding that such possession amounts to a crime of

violence for purposes of the career offender sentencing

enhancement. Id. at 1143-44. The court explained:

Outside of prison, [t]he felon who unlawfully possesses a firearm, although disobeying the law, may

have a legitimate use intended for the firearm, such

as target shooting or collecting. But there is no similarly innocent purpose behind the possession of a

deadly weapon by a prison inmate, as [t]he confines

of prison preclude any recreational uses for a deadly

weapon.

[T]here is no legitimate purpose for a prisoner to

carry a weapon designed to kill, injure or disable

another. On the contrary, the only reason to carry

such a weapon is to use it to attack another or to

deter an attack.

Id. at 1143 (citations and internal quotation marks omitted).

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. That offense is similar in

kind and degree of risk posed to the enumerated offenses, in

that a prison inmate’s possession of a weapon constitutes a

"purposeful, violent, and aggressive" offense and "[s]erious

and substantial risks are . . . inherent" to the crime. Begay,

553 U.S. at 144-45; Sykes, 131 S. Ct. at 2276. As the government emphasizes, we have recognized that "it is virtually

impossible to eliminate violence among the incarcerated."

Taylor v. Freeman, 34 F.3d 266, 273 n.6 (4th Cir. 1994). Like

the offense of burglary of a dwelling, the availability of contraband weapons in the prison context obviously facilitates

violence and injury. See Shrader v. White, 761 F.2d 975, 991

10 UNITED STATES v. MOBLEY
(4th Cir. 1985) (Sprouse, J., dissenting); see also Marquez,

626 F.3d at 221-22 (recognizing that possession of weapon in

prison is similar to burglary because violent aspects lie in

potential for confrontation). We therefore readily agree with

the Tenth Circuit’s summation in Perez-Jiminez that "[T]here

is no legitimate purpose for a prisoner to carry a weapon

designed to kill, injure or disable another. On the contrary, the

only reason to carry such a weapon is to use it to attack

another or to deter an attack." 654 F.3d at 1143.

2.

The identification of additional enumerated offenses in

Application Note 1 to the commentary to § 4B1.2 reinforces

our conclusion today. Although the unlawful possession of

most firearms is not a crime of violence for purposes of

§ 4B1.2, Application Note 1 specifies that "[u]nlawfully possessing a firearm described in 26 U.S.C. § 5845(a) (e.g., a

sawed-off shotgun or sawed-off rifle, silencer, bomb, or

machine gun) is a ‘crime of violence.’" USSG § 4B1.2, cmt.

n.1. When these offenses and the others listed in Application

Note 1 are included with those specified in the text of

§ 4B1.2(a)(2), see Peterson, 629 F.3d at 439, there are at least

eleven "enumerated offenses" identified for career-offender

purposes: (1) burglary of a dwelling; (2) arson; (3) extortion;

(4) crimes involving the use of explosives; (5) murder; (6)

manslaughter; (7) kidnapping; (8) aggravated assault, (9) forcible sex offenses; (10) robbery; and (11) possession of a

sawed-off shotgun or sawed-off rifle, silencer, bomb, or

machine gun. Applying the Begay analysis to this expanded

list of enumerated offenses, the question is "whether the predicate offense under consideration is ‘roughly similar, in kind,

as well as in degree of risk posed, to the examples.’" Peterson, 629 F.3d at 439 (quoting Begay, 553 U.S. at 143)).

Under the Begay analysis, the offense of possessing a shank

in prison is similar in kind to the offense of possessing a

§ 5845(a) weapon outside of prison. Both of these crimes proUNITED STATES v. MOBLEY 11
hibit the possession of dangerous weapons in contexts where

they have no lawful purpose. Moreover, because a conviction

under § 1791(a)(2) requires proof that the inmate knowingly

possessed the prohibited object, see, e.g., United States v.

Holmes, 607 F.3d 332, 336-37 (3d Cir. 2010), § 1791(a)(2)

requires "purposeful" conduct. And while possession of a

shank in prison may not involve the same kind of "active"

violence and aggression reflected in certain of the other enumerated offenses — such as a murder or a forcible sexual

assault — it does involve a similar level of potential violence

and aggression reflected in the possession of the weapons,

such as a sawed-off shotgun, specified in 26 U.S.C. § 5845(a).

As a result, we are convinced that possession of a shank by

an inmate in prison is similar in kind and degree of risk posed

to the offenses enumerated in the text of § 4B1.2 and in its

binding commentary. We are therefore firmly of the view that

Mobley’s offense of conviction "presents a serious potential

risk of physical injury to another," and that his offense of conviction constitutes a crime of violence for purposes of the

career offender enhancement. USSG § 4B1.2(a)(2).7

7Finally, Mobley also contends on appeal that the residual clause of

USSG § 4B1.2(a)(2) should be stricken as unconstitutionally vague. In the

alternative, he argues that the residual clause is ambiguous and does not

apply to him because of the rule of lenity. We reject these contentions,

however, as the Supreme Court has already determined that the residual

clause falls "within congressional power to enact" and constitutes "an

intelligible principle [that] provides guidance that allows a person to ‘conform his or her conduct to the law.’" Sykes v. United States, 131 S. Ct.

2267, 2277 (2011) (citations omitted). Moreover, contrary to the view of

our good dissenting colleague, the rule of lenity does not apply in this

case. See United States v. Helem, 186 F.3d 449, 455 (4th Cir. 1999). Put

simply, there is no ambiguity in USSG § 4B1.2(a)(2), and the rule of lenity thus has no application here. The residual clause encompasses conduct

that creates a serious potential risk of injury to another, and, as we have

already explained, the possession of a shank in prison plainly creates such

a risk. 

12 UNITED STATES v. MOBLEY
IV.

Pursuant to the foregoing, we affirm the judgment of the

district court.

AFFIRMED

WYNN, Circuit Judge, dissenting:

This case turns on whether mere possession of a shank in

prison is a crime of violence subject to enhanced sentencing

under the career offender provision of the United States Sentencing Guidelines. Possession of a shank is not a violent

crime enumerated in the relevant provision, nor is it similar

to the enumerated offenses—a requirement for application of

the enhancement under controlling Supreme Court precedent.

At the very least, whether the enhancement applies is ambiguous and must therefore be construed in Defendant’s favor.

Accordingly, I must respectfully dissent from the contrary

view presented by my colleagues in the majority opinion.

I.

Defendant Jermaine Mobley pled guilty to possession of a

shank in prison in violation of 18 U.S.C. § 1791(a)(2). He was

sentenced as a career offender pursuant to § 4B1.1(a) of the

United States Sentencing Guidelines ("U.S.S.G."), which provides, in relevant part:

A defendant is a career offender if (1) the defendant

was at least eighteen years old at the time (2) the

instant offense of conviction is . . . a crime of violence . . . and (3) the defendant has at least two prior

felony convictions of either a crime of violence or a

controlled substance offense.

U.S.S.G. § 4B1.1(a). The sentencing guidelines define a

"crime of violence" as any offense "punishable by imprisonUNITED STATES v. MOBLEY 13
ment for a term exceeding one year that—has an element of

. . . force" or, "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) (emphasis added). Mobley’s

possession of a shank in prison was classified as a violent

crime under the latter, emphasized clause ("residual clause").

It is this classification that Mobley challenges on appeal.

II.

Our interpretation of the career offender provision is

informed by precedent construing the Armed Career Criminal

Act ("A.C.C.A."). See United States v. Jarmon, 596 F.3d 228,

231 n.* (4th Cir. 2010) ("[P]recedents evaluating the

A.C.C.A. apply with equal force to U.S.S.G. § 4B1.2."). This

is because the A.C.C.A. definition of "violent felony" is

"nearly identical to the Career Offender Guidelines’ definition

of a ‘crime of violence.’" United States v. Polk, 577 F.3d 515,

518 (3d Cir. 2009)(citation omitted). See also United States v.

King, 673 F.3d 274, 279 n.3 (4th Cir. 2012) ("We rely on precedents evaluating whether an offense constitutes a ‘crime of

violence’ under the Guidelines interchangeably with precedents evaluating whether an offense constitutes a ‘violent felony’ under the ACCA, because the two terms have been

defined in a manner that is ‘substantively identical.’" (citation

omitted)).

In the past four years, the Supreme Court has addressed

whether particular convictions were properly classified as "violent felonies" under the A.C.C.A.’s residual clause on three

separate occasions. See Sykes v. United States, 131 S. Ct.

2267 (2011); Chambers v. United States, 555 U.S. 122

(2009); Begay v. United States, 553 U.S. 137 (2008). In considering whether particular offenses were "violent," the

Supreme Court "tailored [its opinion] to the crime at hand"

and declined to use a monolithic, bright-line test. United

States v. Herrick, 545 F.3d 53, 58 (1st Cir. 2008). Neverthe14 UNITED STATES v. MOBLEY
less, not only did no case overrule a predecessor, but in fact

all three cases spoke to the same core concern first identified

in Begay—namely that violent felonies must both "present[ ]

a serious potential risk of physical injury to another" and be

"similar, in kind as well as in degree of risk posed, to the

examples" set out in the statute. Begay, 553 U.S. at 141, 143.

The Supreme Court clarified what it meant by similar in kind,

explaining that each of the offenses enumerated in the statute

is characterized by "purposeful, violent, and aggressive conduct."1

Id. at 144-45.

In Chambers, the Supreme Court held that "‘failure to

report’ for penal confinement" was not a violent felony. 555

U.S. at 123. The Supreme Court reasoned that "the crime

amounts to a form of inaction, a far cry from the ‘purposeful,

violent, and aggressive’ conduct potentially at issue when an

offender uses explosives against property, commits arson, [or]

burgles a dwelling . . . ." Id. at 128 (citing Begay, 553 U.S.

at 144-45). The Supreme Court also explained that, while failure to report for confinement necessarily requires intentional

conduct, there is "no reason to believe" that the specific conduct constituting the crime is either violent or aggressive. Id.

Indeed, the Supreme Court specifically rejected the prosecution’s argument that the failure to report demonstrated a

"strong aversion to penal custody" that suggested a possibility

or likelihood of future violence. Id.2

1While the Supreme Court did not define "violent" and "aggressive," the

First Circuit has noted that the plain meaning of violent is "marked by

extreme force or sudden intense activity," and that the plain meaning of

aggressive is "tending toward or exhibiting aggression," with aggression

defined as "forceful action or procedure (as an unprovoked attack) esp.

when intended to dominate or master." Herrick, 545 F.3d at 58 (quotation

marks and citation omitted). 

2The Supreme Court further explained that "the question is whether

such an offender is significantly more likely than others to attack, or physically to resist an apprehender, thereby producing a serious potential risk

of physical injury." Chambers, 555 U.S. at 128-29. Here, there was no

showing that Defendant, or others in possession of shanks, are "significantly more likely than others to attack." Id. On the contrary, the Government even argued that possession outside the presence of any other person,

such as in an empty cell, would still constitute a crime of violence. 

UNITED STATES v. MOBLEY 15
In Sykes, the Supreme Court held that "felony vehicle

flight" is properly categorized as a violent felony. While the

Supreme Court focused primarily on the risk inherent in the

act of fleeing arrest, it nevertheless recognized the relevance

of the Begay characterization of the enumerated offenses. See

Sykes, 131 S. Ct. at 2275 ("In many cases the purposeful, violent, and aggressive inquiry will be redundant . . . ."). Indeed,

the opinion underscored the nature of the conduct at issue in

felony vehicle flight, describing it as "entail[ing] intentional

release of a destructive force dangerous to others" and necessarily consisting of "a provocative and dangerous act." Id. at

2273.

The conduct at issue in this case, possession of a shank in

prison, is simply not similar in kind to "burglary of a dwelling, arson, or extortion" and crimes "involv[ing] the use of

explosives." U.S.S.G. § 4B1.2(a). I agree with the Third Circuit’s conclusion in Polk that there is a fundamental difference between the "purposeful, violent, and aggressive"

enumerated offenses and the "passive crime[ ]" of mere possession. 577 F.3d at 519.

Possession of a shank in prison "amounts to a form of inaction, a far cry from the ‘purposeful, violent, and aggressive’

conduct potentially at issue when an offender uses explosives

against property, commits arson, [or] burgles a dwelling

. . . ." Chambers, 555 U.S. at 128 (quoting Begay, 553 U.S.

at 144-45). It does not involve "initiating hostilities or

attacks," engaging in threatening behavior which "directly

impact[s] a victim," United States v. Marquez, 626 F.3d 214,

229 (5th Cir. 2010) (Dennis, J., dissenting), or "releas[ing] . . .

destructive force" against persons or property. Sykes, 131 S.

Ct. at 2273. Prisoners charged with possession alone need not

have attempted, or even threatened, to harm anyone.3 They

3

Indeed, it would seem likely that, where an inmate is charged with only

possession, he has not threatened or attempted to injure anyone. Presumably, more aggressive and violent actions would result in more serious

charges, such as attempted assault. 

16 UNITED STATES v. MOBLEY
may have obtained or fashioned a shank purely to protect

themselves in the event of an attack. Indeed, the Government

conceded at oral argument that its reasoning would allow

prosecutors to seek enhanced sentencing of an inmate if a

shank is discovered in his cell during a search for which he

is not even present. This scenario is particularly troubling

because it would allow for enhanced sentencing of a defendant who leaves a shank in his cell, declining to carry it with

him where it could arguably endanger others, on the grounds

that he has committed a "crime of violence." I cannot agree

with the majority opinion that the career offender provision

allows for this. 

The Government also argues, and the majority opinion

apparently agrees, that the prison context somehow transforms a shank into an extremely dangerous weapon. This

argument seems to be premised on the fact that inmates cannot lawfully possess or use weapons for any purpose. See

Polk 577 F.3d at 519. However, as the Third Circuit noted in

Polk, "Begay excludes that mode of analysis" by requiring

courts to consider the nature of the conduct constituting the

crime. Id. at 520. The mere fact that an act is categorically

unlawful does not necessarily render it a "dangerous and provocative act" that itself endangers others. Sykes, 131 S. Ct. at

2273. Indeed, failure to report for one’s penal confinement

cannot be accomplished in any lawful manner; but the

Supreme Court nevertheless declared it to be non-violent. See

Chambers, 555 U.S. at 128.

Congress has determined that mere possession of certain

narrowly defined weapons is a crime of violence. U.S.S.G. §

4B1.2 cmt. 1. Congress has found that these weapons are "inherently dangerous" because "possessed unlawfully, [they]

serve only violent purposes." Marquez, 626 F.3d at 232 (Dennis, J., dissenting) (quotation marks omitted). Examples of

these weapons include "sawed-off shotgun[s] or sawed-off

rifle[s], silencer[s], bomb[s], or machine gun[s]." U.S.S.G. §

4B1.2 cmt. 1. Not only are shanks (i.e., crude homemade

UNITED STATES v. MOBLEY 17
knives) not included in this list, but they are entirely dissimilar to the weapons that are included. 

The statutory purpose of the career offender provision, as

expressed in its title, is to provide enhanced sentencing for

career criminals. Yet nothing indicates that prisoners who

possess shanks are career offenders engaged in violent crimes,

as opposed to, e.g., ordinary inmates in jail on non-violent

drug charges with a crude weapon made for self-defense purposes only. For these reasons, I cannot join the majority opinion in concluding that mere possession of shank in prison is

a crime of violence under the career offender provision. 

III.

While I do not believe that the language of the career

offender provision’s residual clause supports the majority

opinion’s interpretation, at the very least I find the provision

to be ambiguous. Such ambiguity in a penal statute requires

that we consider the rule of lenity, which is applicable in the

event of "‘grievous ambiguity or uncertainty’" as to a statute’s

meaning. United States v. Mitchell, 39 F.3d 465, 470 (4th Cir.

1994) (quoting Chapman v. United States, 500 U.S. 453, 463

(1991)). 

A statute is not necessarily ambiguous if it is "possible to

articulate a construction more narrow than that urged by the

government," or because there is "a division of judicial

authority" on its interpretation. Moskal v. United States, 498

U.S. 103, 108 (1990) (emphasis omitted). However, these circumstances may evidence ambiguity, particularly when a statute can be reasonably interpreted in two different ways and

"the legislative history does not amount to much." United

States v. Hayes, 555 U.S. 415, 436 (2009) (Roberts, J., dissenting).

When a penal statute is ambiguous, we are not just permitted, but rather we are "obliged to apply the rule of lenity and

18 UNITED STATES v. MOBLEY
resolve the conflict in the defendant’s favor." United States v.

Munn, 595 F.3d 183, 194 (4th Cir. 2010).The rule of lenity

serves as an important safeguard of defendants’ constitutional

rights by ensuring that they receive notice "‘in language that

the common world will understand, of what the law intends

to do if a certain line is passed . . . ." Yi v. Fed. Bureau of

Prisons, 412 F.3d 526, 535 (4th Cir. 2005) (quoting Babbitt

v. Sweet Home Chapter of Cmty. for a Great Or., 515 U.S.

687, 704 n.18 (1995)). Thus, we must take seriously "the

responsibility to derive from the text rules of application that

will provide notice of what is covered and prevent arbitrary

or discriminatory sentencing." See James v. United States,

550 U.S. 192, 216 (2007) (Scalia, J., dissenting). The rule of

lenity also goes to the separation of powers and preserves

accountability by ensuring that "‘legislatures and not courts

. . . define criminal activity.’" Yi, 412 F.3d at 535 (quoting

Babbitt, 515 U.S. at 704 n.18).

There is very little legislative history on the A.C.C.A. Congress apparently adopted the act in an attempt to reduce crime

by targeting a "particular segment of the criminal population"

that habitually commits violent crime. H.R. Rep. 98-1073, at

2-3 (1985). However, there is little guidance as to the crimes

intended to be covered by the residual clause. 

In the residual clause, Congress provided "four examples

[that] have little in common, most especially with respect to

the level of risk of injury they pose." James, 550 U.S. at 229

(Scalia, J., dissenting); accord Begay, 553 U.S. at 142 (noting

that if Congress had intended risk-only analysis of crimes, it

would "likely have chosen examples that better illustrated the

degree of risk it had in mind") (quotation marks omitted). As

a result, several Supreme Court justices have vehemently criticized the residual clause and called for its revision. See, e.g.,

Sykes, 131 S. Ct. at 2287 (Scalia, J., dissenting) (calling the

clause a "drafting failure" that is "is too vague to yield an

intelligible principle") (internal quotation marks omitted);

accord Begay, 553 U.S. at 155 (Alito, J., dissenting) (noting

UNITED STATES v. MOBLEY 19
that the clause "calls out for legislative clarification").4

 Moreover, attempted application by circuit courts has resulted in

increased confusion. See Sykes, 131 S. Ct. at 2285 (Scalia, J.,

dissenting) (noting that all of the circuits have struggled to

apply the Supreme Court’s holdings regarding the residual

clause); James, 550 U.S. at 216 (Scalia, J., dissenting) ("It

will take decades, and dozens of grants of certiorari, to allocate all the Nation’s crimes to one or the other side of this . . .

entirely indeterminate line.").

Given the residual clause’s ambiguity and the confusion

experienced, and created, by the courts, inmates lack sufficient notice that simple possession of a shank constitutes a

crime of violence. Indeed, the first circuit to address convictions under 18 U.S.C. § 17919(a)(2), the statute at issue in this

case, in relation to the career offender provision held that possession of a shank in prison does not constitute a crime of violence. See Polk, 577 F.3d at 520. Since Polk, only one other

circuit has considered these precise provisions—and reached

the opposite conclusion. See United States v. Perez-Jiminez,

654 F.3d 1136 (10th Cir. 2011).5 While I acknowledge that

varying judicial interpretation is not dispositive, the fact that

federal appellate judges cannot agree on the ambit of a statute

is, I believe, relevant to the question of whether it provides

sufficient notice to the public. Because the residual clause

amounts to "a sentencing statute that does not ‘give a person

4This Court has also had difficulty interpreting the provision. See, e.g.,

United States v. Vann, 660 F.3d 771, 787 (2011) (en banc) (Agee, J., concurring in judgment) ("[N]o matter how diligently and painstakingly my

colleagues and I labor over the mystery of the . . . residual clause, a black

hole of confusion and uncertainty stymies our best efforts.") (quotation

marks omitted). 

5Other circuits have considered similar state statutes and disagreed with

Polk. See, e.g., United States v. Boyce, 633 F.3d 708 (8th Cir. 2011) (holding that possession of a homemade weapon in prison prohibited by a state

statute is a violent felony under the A.C.C.A.), cert. denied, 132 S. Ct.

1002 (2012); United States v. Zuniga, 553 F.3d 1330 (10th Cir. 2009)

(same). 

20 UNITED STATES v. MOBLEY
of ordinary intelligence fair notice’ of its reach," Sykes, 131

S. Ct at 2287 (Scalia, J., dissenting) (quoting United States v.

Batchelder, 442 U.S. 114, 123 (1979)), this Court is obligated

to apply the rule of lenity and construe the provision, as

applied to possession of a shank in prison, in Defendant’s

favor.

IV.

While I do not dispute the grave importance of penalizing

the possession of weapons in prison in the interest of safety,

I do not believe that it comports with the rules of statutory

construction, Supreme Court precedent, the rule of lenity, or

notions of fairness to punish an inmate with an enhanced

"crime of violence" sentence for mere possession of a shank

in prison. I would therefore vote to vacate Defendant’s sentence and remand for re-sentencing. Accordingly, I must

respectfully dissent. 

UNITED STATES v. MOBLEY 21