United States v. Robles-Rodriguez , 204 F. App'x 504 ( 2006 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
December 14, 2006
FOR THE FIFTH CIRCUIT
______________________
Charles R. Fulbruge III
No. 05-41768 Clerk
______________________
UNITED STATES OF AMERICA
Plaintiff-Appellee
versus
JOSE ROBLES-RODRIGUEZ
Defendant-Appellant
___________________________________________________
Appeal from the United States District Court for
the Southern District of Texas
(05-CR-30)
__________________________________________________
Before GARWOOD, DENNIS, and OWEN, Circuit Judges.
PER CURIAM:1
Jose Robles-Rodriguez appeals the district court’s
determination that his offense of knowing possession in
a federal correctional facility of a prohibited object,
in violation of 18 U.S.C. §§ 1791, constitutes a crime
of violence for the purposes of U.S.S.G. § 4B1.2. For
the reasons below, we affirm.
1
Pursuant to 5th Cir. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5th Cir. R. 47.5.4.
1
Mr. Robles is presently an inmate at a federal
prison in Texas. At the time of the offense at issue,
Robles had prior convictions for delivery of cocaine and
assault with a deadly weapon. On October 24, 2004, he
failed to clear a metal detector and was searched. A
prison employee found a six-inch metal “shank” - a piece
of metal with tape on one end and sharpened to a point
on the other, designed and intended to be used as a
weapon - concealed in Robles’s left sleeve. Robles
claimed he had the shank for self-protection.
Robles pleaded guilty to one count of knowing
possession in a federal correctional facility of a
prohibited object. See 18 U.S.C. §§ 1791(a)(2), (b)(3),
(d)(1)(B). Robles’s presentence investigation report
(PSR) enhanced his base offense level from 13 to 17,
based on the determination that the instant offense
placed Robles into the category of “career offender”
under U.S.S.G. §§ 4B1.1 and 4B1.2, since he had two
prior felony convictions for either a crime of violence
or a controlled substance offense. Robles objected, on
the grounds that his instant offense was not a crime of
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violence under U.S.S.G. § 4B1.2.
The district court overruled the objection and
determined that the offense qualifies as a crime of
violence because it presented a serious potential risk
for physical injury to another. It also, however,
granted a reduction in Robles’s criminal history
category because it found the advisory range overstated
the seriousness of his criminal history. The district
court then sentenced Robles to 33 months of
imprisonment. Robles timely appealed.
The question of whether a defendant’s prior
conviction can be classified as a violent felony for the
purposes of applying the Sentencing Guidelines is a
question of law subject to de novo review. United States
v. Charles, 301 F.3d 309, 312-13 (5th Cir. 2002) (en
banc). Because Robles objected at sentencing, his case
is subject to harmless error review. United States v.
Walters, 418 F.3d 461, 463 (5th Cir. 2005).
U.S.S.G § 4B1.1(a)(2) classifies a defendant as a
career offender where, after commission of two prior
qualifying offenses, the present offense is either a
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crime of violence or a controlled substance offense. A
crime may be classified as a crime of violence where,
inter alia, “by its nature, [it] present[s] a serious
potential risk of physical injury to another.2 U.S.S.G. §
4B1.2(a)(2); U.S.S.G. § 4 B1.2 comment, n.1 . To make
such a determination, this court applies the categorical
approach, which requires it to look the face of the
indictment to determine if “the crime charged or the
conduct charged presents a serious potential risk of
injury to a person.” Charles, 301 F.3d at 314. When a
statute provides alternative methods of committing an
offense (as 18. U.S.C. § 1791 does), the court may look
to the charging papers to determine the method used in a
particular case. United States v. Calderon-Pena, 383
F.3d 254, 258 (5th Cir. 2004) (en banc) (“. . . [w]e may
look to charging papers to see which of the various
statutory alternatives are involved in the particular
case . . .”). The court must apply a least culpable
2
A crime may also be labeled a crime of violence
where it has as an element the use of physical force
against another or falls within a list of enumerated
offenses. U.S.S.G. §§ 4B1.2(a)(1),(2). The district court
did not rely on either of these in applying the
guidelines, however.
4
means analysis, which requires the court to determine
whether the charged offense could be committed in any
fashion without a serious potential risk of physical
injury to another. See United States v. Montgomery, 402
F.3d 482, 487-88 (5th Cir. 2005) (holding that a crime
could not be a crime of violence where there were
“numerous ways that this statute can be violated without
posing a significant risk of physical harm”).
The indictment in this case specifies that Robles
was convicted under 18 U.S.C. §§ 1791(a)(2) and
(d)(1)(B). That statute criminalizes possession by an
inmate of
marijuana or a controlled substance in schedule
III, other than a controlled substance referred
to in subparagraph (C) of this subsection,
ammunition, a weapon (other than a firearm or
destructive device), or 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). The indictment reveals that
the count to which Robles pleaded was knowing possession
of a prohibited object “designed and intended to be used
as a weapon[.]” Thus the question in Robles’s case is
whether, by its nature, the knowing possession of such
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an object by an inmate, presents a serious risk of
physical injury to another.
We have not yet squarely addressed this question;
although we have already held that an escape or an
attempt to escape from U.S. custody in a prison camp
constitutes a crime of violence under U.S.S.G. § 4B1.2.
United States v. Ruiz, 180 F.3d 675, 676-77 (5th Cir.
1999) (holding as above despite the fact that defendant
“simply walked away[,]” no guards were armed, and no
physical barriers prevented escape). In so holding, we
approved of the Tenth Circuit’s reasoning behind such a
classification:
“[E]very escape scenario is a powder keg, which
may or may not explode into violence and result
in physical injury to someone at any given time,
but which always has the serious potential to do
so. . . . Indeed, even in a case where a
defendant escapes from a jail by stealth and
injures no one in the process, there is still a
serious potential risk that injury will result
when officers find the defendant and attempt to
place him in custody.”
Ruiz, 180 F.3d at 677 (quoting United States v.
Mitchell, 113 F.3d 1528, 1533 (10th Cir. 1997)(quoting
United States v. Gosling, 39 F.3d 1140, 1142 (10th Cir.
1994))).
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The other circuits that have considered the question
at hand all agree that a possession of a prohibited
weapon while in prison is a crime of violence under the
sentencing guidelines. See United States v. Kenney, 310
F.3d 135, 137 (3d Cir. 2002) (possession of a razor
meant to be used only against the inmate himself, not
others); United States v. Vahovick, 160 F.3d 395, 397
(7th Cir. 1998) (possession of five sharpened pencils,
bound together with tape and used to stab another); U.S.
v. Thomas, 2006 WL 1545508 at *2 (10th Cir. June 7,
2006) (possession of a shank); see also United States v.
Young, 990 F.2d 469, 472 (9th Cir. 1993) (possession of
a shank in violation of California statute prohibiting
possession of deadly weapons in prison is a crime of
violence under the Guidelines); United States v. Romero,
122 F.3d 1334, 1340-41 (10th Cir. 1997) (conveyance of a
revolver in prison in violation of 18 U.S.C. § 1791(1984) constitutes a crime of violence under 18 U.S.C. §
924(e)(2)(B), which uses identical language to that in
the Guidelines); United States v. Patton, 114 F.3d 174,
177 (11th Cir. 1997) (conveyance of an 11.5 inch
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homemade knife under 18 U.S.C. § 1792 (1982) constitutes
a crime of violence under the Guidelines). The Third
Circuit has drawn a clear parallel between the instant
crime and a prior opinion that held that a felony
conviction for escape was for a crime of violence.
Kenney, 310 F.3d at 137 (citing United States v. Luster,
305 F.3d 199, 200 (3d Cir. 2002)).3 We agree with the
above reasoning, and hold that knowing possession of a
prohibited object designed and intended to be used as a
weapon constitutes a crime of violence under the
Sentencing Guidelines.
Robles urges that the potential risk of injury
inherent in his crime is “attenuated”. He argues that
his crime should be considered more akin to unlawful
possession of a firearm by a felon (outside of prison),
which we have held is not a crime of violence. We
decline to adopt this line of reasoning. In doing so, we
agree with the law of our sister circuits, which
emphasizes the fact that the possession offense occurs
3
Note that in Luster, the Third Circuit relied on the same
language out of the Tenth Circuit that we relied on in Ruiz.
Luster, 305 F.3d at 202 (citing Gosling, 39 F.3d at 1142 and Ruiz,
180 F.3d at 677).
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in prison, rather than in the outside world. That fact
creates a perpetual risk of injury and precludes any
legitimate reasons that a non-incarcerated individual
could have for possessing a weapon (e.g., recreation).
See Vahovick, 160 F.3d at 397 (holding “there is simply
no acceptable use for a weapon by an inmate in a prison
for there always exists in such possession the serious
potential risk of physical injury to another” and
distinguishing the crime from unlawful possession
outside of prison because “prisons are inherently
dangerous places and they present unique problems”);
Young, 990 F.2d at 472 (“The confines of prison preclude
any recreational uses for a deadly weapon and render its
possession a serious threat to the safety of others.”);
Romero, 122 F.3d at 1341 (quoting and agreeing with the
above language in Young); Patton, 114 F.3d at 177 (“. .
. such an action, when it occurs inside a federal prison
where conditions require heightened security, carries
with it a serious risk of physical injury”). We agree:
an inmate’s possession, while in prison, of an
instrument designed and intended to be used as a weapon,
9
carries with it the same inherent potential to “explode
into violence” that drove our holding in Ruiz.
Accordingly, we conclude that the offense at issue
committed by the defendant in this case was correctly
judged to be a violent felony and that his sentence was
justifiably enhanced under the sentencing guidelines.
For these reasons, the judgment of the district court is
AFFIRMED.
10