United States of America v. Terrell Polk

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 08-4399
UNITED STATES OF AMERICA
v.
TERRELL POLK,
Appellant
Appeal from the United States District Court
for the Middle District of Pennsylvania
(D.C. Criminal Action No. 4-08-cr-00136-001)
District Judge: Honorable James F. McClure
Argued July 8, 2009
Before: SLOVITER, AMBRO, and JORDAN, Circuit Judges
(Opinion filed: August 12, 2009)
Stephen F. Becker, Esquire (Argued)
Shapiro & Becker

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114 Market Street
Lewisburg, PA 17837-0000
Counsel for Appellant
Martin C. Carlson
United States Attorney
George J. Rocktashel (Argued)
Assistant United States Attorney
Office of the United States Attorney
240 West Third Street, Suite 316
Williamsport, PA 17701-0000
Counsel for Appellee
OPINION OF THE COURT
AMBRO, Circuit Judge
Terrell Polk appeals from an order sentencing him to 37
months’ imprisonment for possession of a “shank” in prison.
The District Court characterized Polk’s offense as a “crime of
violence,” and accordingly calculated his sentencing range
pursuant to the Career Offender Guidelines. This was correct
under United States v. Kenney, 310 F.3d 135 (3d Cir. 2002).
However, because we determine that Kenney is no longer good
law in light of the Supreme Court’s recent decision in Begay v.

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United States, __ U.S. __, 128 S. Ct. 1581 (2008), we vacate the
District Court’s sentencing order and remand for further
proceedings.
I. Background
In June 2007, Polk, an inmate serving a sentence at the
United States Penitentiary at Lewisburg, PA, had his cell
searched by a correctional officer, who found a six-inch plastic
homemade shank in an envelope containing his personal papers.
A grand jury in the Middle District of Pennsylvania returned a
one-count indictment against Polk for possession of a prohibited
object designed to be used as a weapon in violation of 18 U.S.C.
§ 1791(a)(2), and Polk pleaded guilty to the indictment in
accordance with a plea agreement. At Polk’s sentencing hearing
in December 2008, the District Court determined that the
offense qualified as Polk’s third predicate “crime of violence,”
thus warranting a three-level sentence enhancement under the
federal Sentencing Guidelines for career offenders. U.S.S.G. §
4B1.1. Consequently, Polk’s total offense level was 14, which,
when combined with his criminal history category of VI,
resulted in a Sentencing Guidelines range of 37–46 months.
Without the enhancement, the Guidelines range would have
been 27–33 months. Polk did not object to his designation as a
career offender (though Begay had been issued six months
before sentencing), and, as noted, was sentenced to 37 months’
imprisonment. He timely appealed.

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II. Jurisdiction and Standard of Review
The District Court had jurisdiction under 18 U.S.C. §
3231. We have jurisdiction under 18 U.S.C. § 3742(a)(1) and
28 U.S.C. § 1291.
Because Polk did not object to his designation as a career
offender for sentencing purposes in the District Court, we
review for plain error. Fed. R. Crim. P. 52(b). To grant the
relief requested under this standard, we would need to conclude
not only that the District Court erred in classifying Polk as a
career offender, but that the error was plain, and it affected
adversely “substantial rights” of Polk as well as the “fairness,
integrity, or public reputation of judicial proceedings.” United
States v. Davis, 407 F.3d 162, 164 (3d Cir. 2005) (quoting
United States v. Evans, 155 F.3d 245, 251 (3d Cir. 1998)).
If we determine the error was not plain, Polk’s counsel
offers an alternative argument of ineffective assistance of
counsel based on his failure to raise Begay and its arguable
effect at sentencing. Under Strickland v. Washington, 466 U.S.
668 (1984), to prevail on this claim counsel’s performance must
be deficient, id. at 687 (“In light of all the circumstances, the
identified acts or omissions were outside the wide range of
professionally competent assistance.”), and prejudicial, id. at
690 (in this context, that “there is a reasonable probability that,
but for counsel’s unprofessional errors, the result of the
proceeding would have been different”).

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III. Discussion
A.
Polk argues that his § 1791(a)(2) conviction cannot serve
as a predicate “crime of violence” for the purpose of designating
him as a career offender. Under the Career Offender
Guidelines, a “crime of violence” is defined as
any offense under federal or state
law . . . 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 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).
In Kenney, we held that “whatever an inmate’s
intentions[,] his possession of a weapon in a prison inherently,
and accordingly ‘by its nature,’ presents ‘a serious potential risk
of physical injury’ to other persons in the prison.” 310 F.3d at
137. Reviewing the nature of the offense, we determined that

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potential risk of violence or injury is enough to qualify a
§ 1791(a)(2) offense as a “crime of violence” under the
“otherwise involves” clause of that definition in the Career
Offender Guidelines. Id. Thus, the success of Polk’s appeal
turns on whether the analysis endorsed in Kenney still applies
post-Begay.
In Begay, the Supreme Court addressed the “violent
felony” provision of the Armed Career Criminal Act (ACCA).
128 S. Ct. at 1583. That provision states, in pertinent part, that
a “violent felony” is
any crime . . . that--(i) has as an
element the use, attempted use, or
threatened use of physical force
against the person of another; or (ii)
is burglary, arson, or extortion,
involves the use of explosives, or
otherwise involves conduct that
presents a serious potential risk of
physical injury to another . . . .
18 U.S.C. § 924(e)(2)(B). The Court 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.” Begay, 128 S. Ct. at

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We need not decide whether and to what extent our1
decision in Parson remains effective after Begay. It is sufficient
here to recognize that, though Parson says the definitions of
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1585–86. The Court noted that the important common attributes
of the listed crimes are that they involve “purposeful, violent,
and aggressive conduct.” Id. at 1586.
The question we face is whether Begay’s analysis—that
offenses must involve “purposeful, violent, and aggressive
conduct” to qualify as a “violent felony” for ACCA
purposes—also applies to the Career Offender Guidelines. Pre-
Begay, our Court stated that though the language of the ACCA’s
“violent felony” provision is nearly identical to the Career
Offender Guidelines’ definition of a “crime of violence,” these
two sections are not necessarily coextensive. United States v.
Parson, 955 F.2d 858, 870 (3d Cir. 1992). However, the
Supreme Court has since vacated and remanded for
reconsideration, in light of Begay, Courts of Appeals’ decisions
applying the Career Offender Guidelines’ “otherwise involves”
clause. See, e.g., Archer v. United States, __U.S.__, 128 S. Ct.
2051 (2008) (vacating United States v. Archer, 243 F. App’x
564 (11th Cir. 2007) (carrying a concealed weapon)); Tiger v.
United States, __U.S.__, 128 S. Ct. 2048 (2008) (vacating
United States v. Tiger, 240 F. App’x 283 (10th Cir. 2007)
(driving under the influence)). This leaves little doubt that
Begay bears on our determination of whether to classify an
offense as a “crime of violence.”1

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“violent felony” and “crime of violence” in the ACCA and the
Career Offender Guidelines, respectively, are not coextensive,
Begay and the remands from the Supreme Court that have
followed it indicate that the definitions are close enough that
precedent under the former must be considered in dealing with
the latter. See, e.g., United States v. Stinson, __ F.3d __, No. 08-
1717, 2009 WL 2231644, at *1 (3d Cir. July 28, 2009)
(“Although this case involves the Guidelines, the definition of
a violent felony under the ACCA is sufficiently similar to the
definition of a crime of violence under the Guidelines that
authority interpreting one is generally applied to the other.”).
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Given Begay’s applicability to the offense at issue here,
we hold that possession of a weapon, even in a 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. 128 S. Ct. at 1585. 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. Id. They
involve overt, active conduct that results in harm to a person or
property. See United States v. Templeton, 543 F.3d 378, 383
(7th Cir. 2008). The possibility that one will confront another
person with violent results is not sufficient. See id.
Post-Begay, the distinction between active and passive
crimes is vital when evaluating offenses under the Career

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Offender Guidelines to determine if they entail “purposeful,
violent, and aggressive conduct.” 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.
Much like carrying a concealed weapon, the offense is a
“passive crime centering around possession, rather than around
any overt action . . . . The act of possession does not, without
more . . ., involve any aggressive or violent behavior.” United
States v. Archer, 531 F.3d 1347, 1351 (11th Cir. 2008)
(emphasis in original). Each of the crimes noted in the ACCA
and the Career Offender Guidelines affects, directly and
aggressively, the victims involved or their property. According
to the Supreme Court, by providing the examples Congress
meant for the “statute to cover only similar crimes, rather than
every crime that ‘presents a serious potential risk of physical
injury to another.’” Begay, 128 S. Ct. at 1585 (emphasis in
original).
The Government urges us, in analyzing the nature of
Polk’s offense, to emphasize that his possessory crime occurred
in a prison context, an environment in which heightened security
is required and no permissible use exists for a prisoner to
possess a weapon. That was the basis of our analysis in Kenney,
310 F.3d at 137, as well as pre-Begay decisions of other Circuit
Courts reaching the same conclusion. See, e.g., United States v.
Vahovick, 160 F.3d 395, 397 (7th Cir. 1998) (determining that

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there is no acceptable use for a weapon by an inmate and that
“prisons are inherently dangerous places and they present unique
problems”); United States v. Young, 990 F.2d 469, 472 (9th Cir.
1993) (“The confines of prison preclude any recreational uses
for a deadly weapon and render its possession a serious threat to
the safety of others.”).
Begay excludes that mode of analysis, however. We do
not dispute the inherent dangers of possessing a shank in prison,
but this alone cannot transform a mere possession offense into
one that is similar to the crimes listed. Thus, a § 1791(a)(2)
conviction for possession of a prohibited object designed to be
used as a weapon in prison is not a “crime of violence” for
purposes of the Career Offender Guidelines. We recognize that
our decision is at odds with the Tenth Circuit Court’s recent
decision in United States v. Zuniga, 553 F.3d 1330 (10th Cir.
2009). While we understand that Court’s desire to continue
treating possession of a weapon in prison as a “crime of
violence,” we cannot agree with its reasoning that the likelihood
or potential for violent and aggressive behavior to come about
as a result of the offense is sufficient for qualification in light of
Begay. Id. at 1335.
B.
The District Court erred in sentencing Polk as a career
offender, but because he did not object at sentencing, the fact
that it was an error is not enough for us to grant the relief

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requested. The existence of the Tenth Circuit Court’s Zuniga
decision, from which a district court could reasonably conclude
that our Kenney analysis was still sound after Begay, makes us
disinclined to conclude that the District Court’s error here was
plain. However, it is not necessary to determine if the error was
plain in this instance, because we agree with the argument of
Polk’s attorney that he (the attorney) was ineffective at
sentencing based on his failure to raise Begay and its arguable
effect.
Defendants are not generally permitted to attack the
efficacy of their counsel on direct appeal, though an exception
will be made “[w]here the record is sufficient to allow
determination of ineffective assistance of counsel, [and thus] an
evidentiary hearing to develop the facts is not needed.” United
States v. Headley, 923 F.2d 1079, 1083 (3d Cir. 1991). While
Polk’s attorney did an outstanding job on appeal, he freely
concedes that at sentencing he missed the arguable effect of
Begay. This admission satisfies Strickland’s requirements to
prove ineffective assistance of counsel, as the oversight was
objectively deficient at the time of the omission (as noted, Begay
had been decided six months before Polk’s sentencing hearing)
and prejudiced Polk (our holding here indicates that the result of
the sentencing proceeding would have been different than what
occurred). See 466 U.S. at 687, 689, 694. Because the record
is sufficient to make this determination, we conclude that a
further collateral proceeding for factual development on this

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We emphasize that we are not opening the door to2
ineffective assistance of counsel claims on direct appeal as a
matter of course. We are, rather, dealing with a very unusual
case here, in which there is a Supreme Court decision that
represents a marked change in the law and, in addition, there is
an adequate record involving highly competent and respected
defense counsel freely acknowledging that his failure to cite that
important new case had nothing to do with a strategic decision
but was simply an oversight.
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issue is unnecessary.2
* * * * *
As Kenney no longer remains good law and possession
of a weapon in prison should not be considered a “crime of
violence” under the Career Offender Guidelines post-Begay, we
vacate the District Court’s order and remand for resentencing
consistent with this opinion.

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