Post-Begay, Possession of a Weapon In Prison Is Not Considered a “Crime of Violence” Under the Career Offender Guidelines

In United States v. Polk, No. 08-4399 (August 12, 2009), Terrell Polk appealed his sentence of 37 months’ imprisonment for possession of a "shank" in prison. While an inmate at USP Lewisburg, a correctional officer performed a search of Polk's cell and discovered a "six-inch plastic homemade shank in an envelope containing his personal papers." Polk was charged with one count of possession of a prohibited object designed to be used as a weapon, in violation of 18 U.S.C. § 1791(a)(2), and pleaded guilty. At sentencing, the District Court determined that Polk’s offense constituted his third predicate "crime of violence" under the Career Offender Guidelines, resulting in a Sentencing Guidelines range of 37-46 months. Without the career offender enhancement, the Guidelines range would have been 27-33 months. Polk did not object to his career offender designation despite the fact that Begay v. United States, ___ U.S. ___, 128 S.Ct. 1581 (2008), had been decided six months prior to his sentencing. The Third Circuit reviewed the District Court’s decision under the plain error standard.

First, the Court held that the District Court erred in sentencing Polk as a career offender because possession of a weapon in prison is not considered a "crime of violence." In United States v. Kenney, 310 F.3d 135 (3d Cir. 2002), the Third Circuit held that possession of a weapon in a prison is considered a "crime of violence" under the "otherwise involves" clause of that definition in the Career Offender Guidelines. After the Supreme Court’s decision in Begay, however, Kenney is no longer good law. In Begay, the Supreme Court considered the "violent felony" provision of the Armed Career Criminal Act (ACCA) and 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.'"

In Polk, the Third Circuit determined that Begay’s analysis of the "violent felony" provision of ACCA also applies to the "crime of violence" provision of the Career Offender Guidelines. In light of Begay’s applicability, the Court held that "possession of a weapon, even in 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." The Court rejected the government’s argument that Polk’s conduct constituted a crime of violence because the possessory crime occurred in the prison context where no permissible use exists for the possession of a weapon. The Court did not deny the inherent dangers of possessing a shank in prison, but concluded that possession "alone cannot transform a mere possession offense into one that is similar to the crimes listed" in the "otherwise involves" clause of the Career Offender Guidelines. Possession of a weapon is neither aggressive nor violent per se because only the potential exists for aggressive or violent conduct. But not even the serious potential for injury is enough to constitute a crime requiring a career offender enhancement.

Second, although the District Court erred in sentencing Polk as a career offender, that error alone was not sufficient to be characterized as "plain" because Polk did not object to the career offender designation at sentencing. The Court did not need to reach the issue of whether the error was plain, however, because it agreed with Polk’s secondary argument that his attorney was ineffective for failing to raise the Begay issue at sentencing. While defendants generally are not permitted to raise the claim of ineffective assistance of counsel on direct appeal, an exception is allowed where "the record is sufficient to allow determination of ineffective assistance of counsel, [and thus] an evidentiary hearing to develop the facts is not needed." In Polk, Polk's sentencing attorney "freely concede[d] that at sentencing he missed the arguable effect of Begay." Such an admission satisfies the Strickland test. Begay had been decided six months prior to Polk’s sentencing and prejudiced him because the result of the proceeding would have been different if Begay had been considered.