1 UNICOR is a program through which inmates manufacture products pursuant to government contracts. UNITED STATES of America, Plaintiff-Appellee,

v. Charles ALLEN, Defendant-Appellant.
No. 97-8424. United States Court of Appeals, Eleventh Circuit.

Sept. 29, 1999. Appeal from the United States District Court for the No rthern District of Georgia. (No. 1:96-CR-367-MHS), Marvin H. Shoob, Judge. Before COX, BIRCH and HULL, Circuit Judges.
PER CURIAM: Title 18, section 1791(a)(2) makes it unlawful for a federal inmate to possess a "prohibited object." Section 1791(d)(1) defines "prohibited object" to include , among other things, an object that is "intended to be used as a weapon." The issue in this case is whethe r the intent described in § 1791(d)(1)(B) is an element of the offense or merely a sentencing factor. The districtjudge determined pretrial that he would decide intent at sentencing. Because we find intent to be an element of the specific offense charged in the indictment here, we vacate the conviction and sentence, and remand.
I. Facts Charles Allen, an inmate at the United States Pen itentiary in Atlanta, Georgia, worked as a quality assurance inspector at the on-site UNICOR 1 mattress factory. On the morning of August 12, 1996, Allen conversed for approximately twenty or thirty minutes with the foreman of the section where the mattress covers are sewn together. Another foreman observed this conversation, concl uded that Allen was acting suspiciously, and asked the two men to go to th e supervisor's office, where Allen was searched. When asked to empty his pockets, Allen produced three nine-and-a-half-inch tufter needles and a

### 2 wooden dowel with a hole bored into one end and a rope wrapped around the other end. The tufter needles, used to sew mattress covers together, appeared to have been broken off from one of the sewing machines. The needles fit into the wooden dowel, and when assembl ed, the items could be used as a shank or ice-pick tool or weapon with a lanyard. While Allen did not contest his possession of the items, he told the supervisor that he intended to give them to his supervisors privately rather than in view of other inmates. II. Procedural History Allen was indicted in the Northern District of Ge orgia in a single-sentence indictment that alleges: "On or about August 12, 1996, th e defendant, CHARLES ALLEN, an inmate in the Atlanta Federal Penitentiary, possessed prohibited objects, to wit: three needles approximately nine and one-half (91/2) inches in length, which were intended to be used as weapons, in violation of Title 18, United States Code, Section 1791(a)(2)." (R.1 at 1.) At a pretrial conference, the district judge ruled that the Government need not prove Allen's intent regarding the items in his possession as an element of the offense at trial; instead, the judge would determine the intent issue at sentencing. Allen's defense was th e lack of intent, and because intent determined whether Allen committed a misdemeanor or felony, substantiallyaffecting his sentence, he protested the district judge's ruling. Allen did not, however, contest his possessi on of the needles or his status as a federal prisoner; therefore, he entered a conditiona l plea of guilty without a plea agr eement, reserving the tria l judge's determination of the intent issue for appeal. At sentencing, Allen's c ounsel st ated the evidence that the defen se would have presented at trial concerning Allen's possession of the prohibited objects. The district judge, however, found that the forbidden objects were intended to be used as weapons. Allen was sentenced to thirty months' imprisonment to be served consecutively to the sentence that he was serving for bank robbery, a $100 special assessment, and three years' supervised release. This appeal followed. III. Issue on Appeal2 In this case, the Government did not charge A llen with possessing prohibited objects "designed ... as a weapon," as defined by 18 U.S.C. § 1791(d)(1)(B). Ther efore, nothing herein shoul d be construed as holding or implying that intent is an element of an o ffense charged in that manner in an indictment.

3 Relevant sections of 18 U.S.C. § 1791 (Providi ng or possessing contraband in prison) include: (a) Offense.—Whoever—
* * * (2) being an inmate of a prison, makes, possesses, or obtains, or attempts to make or obtain, a prohibited object; shall be punished as provided in subsection (b) of this section. (b) Punishment.—The punishment for an offense under this section is a fine under this title or— * * * (3) imprisonment for not more than 5 years, or both, if the object is specified in subsection (d)(1)(B) of this section;
* * * (5) imprisonment for not more than 6 months, or both, if the object is specified in subsection (d)(1)(F) of this section.
* * * (d) Definitions.—As used in this section— (1) the term "prohibited object" means— 

### 3 Whether the fact that an object was "intended to be used as a weapon," as defined by 18 U.S.C. § 1791(d)(1)(B), is an element of the offense of possessi on of a prohibited object intended to be used as a weapon pursuant to 18 U.S.C. § 1791(a)(2) or is a sentencing factor. 2 IV. Standard of Review and Discussion The interpretation of a statute is a question of law to be reviewed de novo by the appellate court. See United States v. Grossman, 131 F.3d 1449, 1451 (11th Cir.1997). According to the Government, § 1791(a) 3 sets forth the offense of providing or possessing contraband in prison. Under this theory, a violation* * * (B) ... a weapon (other than a firearm or destructive device), or an object that is designed or intended to be used as a w eapon or to facilitate escape from a prison;
* * * (F) any other object that threatens the order, discipline, or security of a prison, or the life, health, or safety of an individual. 

### 4 of § 1791(a)(2) is proven if the defendant (1) is a pr ison inmate who (2) possessed a "prohibited object." The jury must simply find that the defendant possessed anobject enumerated in § 1791(d)(1)(A)-(F) in order to find the defendant guilty. The type of prohibited object possessed by the defendant is to be determined by the court at sentencing by a preponderance of the evid ence. The Government argues that its interpretation of the statute is supported by the natural language and structure of § 1791. In contrast, under Allen's interpretation of § 1791, the type of "prohibited obj ect," defined by § 1791(d) and incorporated into § 1791(a)(2), is an element of the offense which the G overnment must prove beyond a reasonable doubt at trial. We conclude that § 1791's language and struct ure support Alle n's position. The Government contends that the fact that subsection (b) "Punishment " sets out different levels of punishment based on the type of "prohibited object" possessed by the defendant, as defined by subsection (d)(1), reflects congressional intent to make the type of prohibited object a sentenci ng consideration. Subsection (b), however, is not the only subsection which incorporates the definition of "prohibited object." The possession of a "prohibited object" is an element of the offen se described in § 1791(a)(2). Subsection (d)(1) clarifies § 1791(a)(2) by defining the categories of prohibited objects. Sub section (d)(1)'s definition of "prohibited object" is, therefore, critical to an understanding of the offense setout by § 1791(a)(2). In other words, incorporation of the definition of the offense element of "prohib ited object" is necessary to determine the crime committed. In addition to using the language and structure of § 1791, Allen supports his position with an analysis of several considerations used by the Supreme Court to distinguish elements of an offense from sentencing factors and an opinion from the Ninth Circuit, the only other circuit to address the intent component of §4 We note that Allen's presentence investigation report ("PSR") shows that the probation officer calculated Allen's base offense level at 13 because, "[a]ccord ing to the indictment, the contraband possessed was 'intended to be used as weapons.' " PSR at 2 (quoting R. 1 at 1). Thus, the fact that determined whether Allen committed the crime charged in the indictment, his intent regarding the tufter needl es, was the sole fact used by the probation officer to attribute to Allen a base o ffense level of 13, which clearly affected his sentence. 

### 5 1791. See United States v. Rodriguez, 45 F.3d 302 (9th Cir.1995). Revers ing a conviction under § 1791(a)(2) for possession of an object intended to be used as a weapon, the Ninth Circuit concluded that if: the object is not found to be a weapon as a matter of law or fact, conviction under the "designed or intended to be used as a weapon" language requir es proof of specific intent on the part of the defendant in order to bring the object within the definition of (d)(1)(B). Id. at 306. While the holding that the offense requires pr oof of "specific intent on the part of the defendant" goes beyond the question before us today, we consider the Ninth Circuit's opinion persuasive authority for the proposition that intent is an element of the offense charged in this indictment. This conclusion is consistent with several factor s considered by the Supreme Court to distinguish constitutionally permissible sentence enhancement cons iderations from elements of an underlying criminal offense. These factors include: (1) the amount of increase in the punishment resulting from the fact to be determined; see McMillan v. Pennsylvania, 477 U.S. 79, 87-88, 106 S.Ct. 2411, 2417, 91 L.Ed.2d 67 (1986); (2) the difficulty of objectively verifying the additional fact; id. at 83-84, 106 S.Ct. at 2414-15; (3) the amount of prejudice to the defendant from the presentation of the additional fact to the jury; AlmendarezTorres v. United States, 523 U.S. 224, 118 S.Ct. 1219, 140 L.Ed. 2d 350 (1998); and (4) the alleged sentencing provision's lowering of the burde n of proof required for a conviction. McMillan, 477 U.S. at 85, 88, 106 S.Ct. at 2415-16, 2417. We briefly consider each of these factors below. First, we find the relative increase in punishment, as to both the characterization of the offense and the potential sentence, to weigh in favor of Allen's interpretation of the statute. With the decision at sentencing that the tufter needles possessed by A llen were intended to be used as weapons under § 1791(d)(1)(B), Allen's crime was elevated to a felony , and he was potentially subjected to imprisonment of up to five years. 4 See18 U.S.C. § 1791(b)(3). To construe the type of prohibited object as a sentencing factorSeeU.S.S.G. § 2P1.2(a)(2). 

### 6 removes the possibility that a jury could convict a de fendant of possessing a prohibited "object that threatens the order, discipline, or security of a prison, or the life, health, or safety of an individual" under § 1791(d)(1)(F), a misdemeanor offense subjecting the defe ndant to no more than six months of imprisonment.
See18 U.S.C. § 1791(b)(5). Moreover, a defendant accused of a felony is entitled to certain procedural protections. "Any federal offense punishable by imprisonment for more than one year is an offense for which the Fifth Amendment requires a grand jury indictment." United States v. Stone, 139 F.3d 822, 836 (11th Cir.1998) (per curiam) (citation omitted). Upon indictment, a defendant's right to have a jury of his peers determine whether he has committed a felony is a "principle of justice so root ed in the traditions and conscience of our people ... as to be ranked as fundamental." Id. at 831(citing McMillan, 477 U.S. at 85, 106 S.Ct. at 2415). Because conviction of a felony results in the loss of constitu tional rights important to each United States citizen, such as the rights to vote, to bear arms, and to engage in a profession, "[f]or a sentenci ng judge to effect such a deprivation by factual findings that convert what w ould otherwise be a misdemeanor into a felony seems ... an impermissible usurpation of the historic role of the jury." Id. Such an impermissible deprivation is possible under the Government's interpretation of § 1791. The second factor argued by Alle n also weighs against the Government. This second factor asks whether the fact at issue is objectively verifiable; if so, it may be permissible to evaluate the fact at sentencing because the risk of error is slight. In McMillan, the Supreme Court found the fact that a defendant "visibly possessed a firearm" in connection with certain crimes a valid ground for sentence enhancement.
See477 U.S. at 81 & 91, 106 S.Ct. at 2413 & 2419. The Supreme Court affirmed the state supreme court's determination that the sentence enhancement was c onstitutional, and noted the state supreme court's conclusion that "visible possession is a simple, stra ightforward issue susceptible of objective proof." Id. at 84, 106 S.Ct. 2415. In contrast, in the present case, whether the prohibited objects were intended to be used

### 7 as weapons is not such a "simple, straightforward i ssue." The intent required by § 1791(d)(1)(B) is not an objectively verifiable additional fact, weighing agains t permitting a determination of intent at sentencing. The third factor, requiring an evaluation of whether the presentation of the fact to the jury would prejudice the defendant, does not point toward permitti ng a determination of intent at sentencing. See Almendarez-Torres, 523 U.S. at ----, 118 S.Ct. at 1226 (finding that Congress would not have wanted to create unfairness by the presentation of highly prejudicial, uncontested facts to the jury). Under this factor, if the presentation of the fact to the jury would be highly prejudicial, the fact would be more appropriately considered by the court at sentencing. In Almendarez-Torres, the Supreme Court analyzed a statute that provided an enhanced sentence of up to twenty years' imprisonment for illegal reentry to the United States following deportation for conviction of an aggravated felony. See id. at ----, 118 S.Ct. at 1224. In finding prior convictions a valid sentencing factor, the Court not ed that "the introduction of evidence of a defendant's prior crimes risks significant prejudice." Id. at 1226. Such potential prejudice does not exist, however, where a jury is asked to determine the fact at issue. Whether the needles possessed by Allen were intended to be used as weapons was the factual issue to be determined in order to prove the offense, not a prejudicial fact simply admitted. The fourth factor, a change in the standard of pr oof necessary for conviction, also weighs in Allen's favor. The district judge determined Allen's intent re garding the tufter needles at sentencing, where the proof standard is a preponderance of the evidence. See United States v. Stone, 139 F.3d 822, 834 n. 12 (11th Cir.1998) (citing McMillan for the proposition that "the presence or absence of a penalty sentencing factor is to be determined by the sentencing district judge , who need only find its existence by a preponderance of the evidence."). Therefore, the Government's inte rpretation of § 1791—where "intended to be used as a weapon" was the charged offense—transforms the stan dard of proof as to the type of object possessed by Allen from beyond a reasonable doubt to be determined bythe jury to a preponderance of the evidence to be determined by the judge at sentencing.

### 8 The Government attempts to counter Allen's argumen ts through analysis of the legislative history of § 1791. While we recognize the possibility that the le gislative history of § 1791 supports the Government's construction, the Supreme Court has cautioned against adopting an otherwise reasonable interpretation of a statute which raises serious constitutional questions. See Jones v. United States, --- U.S. ----, ----, 119 S.Ct. 1215, 1222, 143 L.Ed.2d 311 (1999) (quoting United States ex rel. Attorney General v. Delaware & Hudson Co., 213 U.S. 366, 408, 29 S.Ct. 527, 536, 53 L.Ed. 836 (1909), for the rule that "where a statute is susceptible of two constructions, by one of which grave and doubtful constitutional questions arise and by the other of which such questions are avoided, our duty is to adopt the latter."). As we have explained, the Government's interpretation of the statute raises ser ious constitutional questions on which precedent is not dispositive. Indeed, Supreme Court decisions arguably s uggest that "any fact (other than prior conviction) that increases the maximum penalty for a crime must be charged in an indictment, submitted to a jury, and proven beyond a reasonable doubt." Id., --- U.S. at ---- n. 6, 119 S.Ct. at 1224 n. 6. We therefore reject the Government's reading of § 1791 and interpret the intent requirement as an element of the offense of possession of a prohibited object intended to be used as a weapon. V. Conclusion In accordance with the discussion above and give n the specific charge in the indictment the Government brought against Allen, a jury must decide beyond a reasonable doubt whether the tufter needles were intended to be used as weapons. We ther efore VACATE Allen's conviction and sentence, and REMAND for proceedings consistent with this opinion with instructions to permit Allen to replead and to go to trial if he so elects.
VACATED AND REMANDED.