Possession of weapon in prison - crime of violence?

US v. Mobley:  Mobley, imprisoned at FCI Butner, visited the infirmary for pain and numbness in his feet. Upon examination, a shank was discovered in the insole of Mobley’s right shoe. Despite Mobley’s attempt to hide it, the physical therapist turned the shank over to prison staff.

Mobley received a charge for possessing a prohibited object to which he pleaded guilty. The presentence report calculated Mobley’s base offense level and then applied the career offender enhancement, considering the possession of the shank to be a "crime of violence" for sentencing purposes. Application of this enhancement increased Mobley’s punishment from a range of 24-30 months, based upon his criminal history, to 37 to 46 months. Mobley objected to the application of this enhancement at sentencing; the district court decided that "there is no passive possession of a weapon in a prison setting,"and imposed a sentence of 37 months.

The Third Circuit has adopted the position that possession of a weapon, "even in a prison," is not the same in kind or in degree of risk as crimes of violence under the career offender sentencing enhancement. The Fifth, Eighth, and Tenth Circuits, however, have reached a different conclusion when faced with this issue, holding that possession of a weapon in prison "is similar in kind and degree of risk" to burglary, arson, or extortion, or any other enumerated crime of violence under this sentencing enhancement. The Fourth Circuit concurred with the latter group and affirmed Mobley's sentence, though Justice Wynn dissented, agreeing with the Third Circuit that possession of a weapon is "a far cry" from the conduct of enumerated crimes listed in U.S.S.G. sect. 4B1.2(a).