United States v. Marquez

Case: 09-50372 Document: 00511290993 Page: 1 Date Filed: 11/10/2010

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit

FILED
November 10, 2010

No. 09-50372 Lyle W. Cayce
Clerk

UNITED STATES OF AMERICA,

Plaintiff–Appellee,
v.

FRANCISCO JAVIER MARQUEZ,

Defendant–Appellant.

Appeal from the United States District Court
for the Western District of Texas

Before BARKSDALE, DENNIS, and OWEN, Circuit Judges.
PRISCILLA R. OWEN, Circuit Judge:
Francisco Javier Marquez contends that his prior conviction for possession
of a deadly weapon by a prisoner is not a crime of violence within the meaning
of section 4B1.2(a)(2) of the Sentencing Guidelines1 and therefore that the
district court erred in sentencing him as a career offender under section 4B1.1.2
We affirm.

1
U.S. SENTENCING GUIDELINES MANUAL (U.S.S.G.) § 4B1.2(a)(2) (2009).
2
Id. § 4B1.1.
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I
Marquez pled guilty to possessing more than 100 kilograms of marijuana
with the intent to distribute it. The presentence report recommended that the
district court sentence Marquez under the career-offender guidelines based on
Marquez’s prior New Mexico convictions for possession of cocaine with the intent
to distribute and possession of a deadly weapon by a prisoner. Only the latter
conviction is at issue in this appeal. The New Mexico statute under which
Marquez was convicted provides that “[p]ossession of [a] deadly weapon or
explosive by [a] prisoner in lawful custody” is a second degree felony.3 His
indictment charged him under this statute, alleging that he“possess[ed] a deadly
weapon, a club[,] contrary to Section 30-22-16, NMSA 1978,” while an “inmate
of the Bernalillo County Detention Center.” A deadly weapon is defined under
applicable New Mexico law as “any weapon which is capable of producing death
or great bodily harm,” and great bodily harm “means an injury to the person
which creates a high probability of death; or which causes serious disfigurement;
or which results in permanent or protracted loss or impairment of the function
of any member or organ of the body.” 4
Marquez objected to the presentence report, arguing that his offense of
possession of a deadly weapon by a prisoner was not a crime of violence in light
of the Supreme Court’s decision in Begay v. United States.5 Marquez contends
that his prior conviction is not for an offense that “is burglary of a dwelling,
arson, or extortion, involves use of explosives, or otherwise involves conduct that
presents a serious potential risk of physical injury to another.”6 He argues that

3
N.M. STAT . ANN . § 30-22-16.
4
N.M. STAT . ANN . § 30-1-12(A), (B).
5
553 U.S. 137 (2008).
6
U.S.S.G. § 4B1.2(a)(2).

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his properly calculated Guidelines’ sentencing range is 92 to 155 months of
imprisonment. The district court determined that the career-offender
enhancement applied and overruled the objection. The court concluded that the
advisory Guidelines’ range was 188 to 235 months of imprisonment and
sentenced Marquez to 188 months’ imprisonment. This appeal followed.
II
We review the district court’s interpretation of the Sentencing Guidelines
de novo.7 A defendant may be sentenced as a career offender under the
Guidelines if “the instant offense of conviction is a felony that is either a crime
of violence or a controlled substance offense” and the defendant “has at least two
prior felony convictions of either a crime of violence or a controlled substance
offense.”8 The term “crime of violence” is defined in section 4B1.2 as
any offense under federal or state law, punishable by imprisonment
for a term exceeding one year, 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 use of explosives, or otherwise involves
conduct that presents a serious potential risk of
physical injury to another.9
The parties agree that we are concerned only with what is sometimes
called “the residual clause” of section 4B1.2(a)(2),10 and therefore, we must

7
United States v. Mohr, 554 F.3d 604, 606 (5th Cir.), cert. denied, 130 S. Ct. 56 (2009).
8
U.S.S.G. § 4B1.1(a).
9
Id. § 4B1.2(a).
10
See, e.g., United States v. Anderson, 559 F.3d 348, 355 (5th Cir.) (referring to U.S.S.G.
§ 4B1.2(a)(2) as a “residual clause”), cert. denied, 129 S. Ct. 2814 (2009); Mohr, 554 F.3d at 607
(same); see also Johnson v. United States, 130 S.Ct. 1265, 1274 (2010) (discussing “the so-
called ‘residual clause’” in 18 U.S.C. § 924(e)(2)(B)(ii)); Chambers v. United States, 129 S.Ct.
687, 689 (2009) (referring to clause (ii) of § 924(e)(2)(B) as the “ACCA’s so-called residual

3
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determine whether Marquez’s conviction under New Mexico law “otherwise
involves conduct that presents a serious potential risk of physical injury to
another.” We do not write on a clean slate, and we begin with the context in
which we must consider the answer to this question.
The comments to section 4B1.1 of the Guidelines reflect that sections
4B1.1 and 4B1.2, embodying the career offender guidelines, were promulgated
to implement the directive in 28 U.S.C. § 994(h), which “mandates that the
Commission assure that certain ‘career’ offenders receive a sentence of
imprisonment ‘at or near the maximum term authorized.’” 11 The term “crime of
violence” is not defined in § 994(h); however, 18 U.S.C. § 16 does define that
term.12 The comments to section 4B1.1 explain that the Commission
implemented the directive in § 994(h) by “tracking in large part the criteria set
forth in 28 U.S.C. § 994(h),” but that “the Commission has modified this
definition in several respects to focus more precisely on the class of recidivist
offenders for whom a lengthy term of imprisonment is appropriate and to avoid
‘unwarranted sentencing disparities among defendants with similar records who
have been found guilty of similar criminal conduct.’” 13

clause”).
11
U.S.S.G. § 4b1.1 cmt. background.
12
18 U.S.C. § 16 provides:

The term “crime of violence” means--

(a) an offense that has as an element the use, attempted use, or
threatened use of physical force against the person or property of
another, or

(b) any other offense that is a felony and that, by its nature, involves a
substantial risk that physical force against the person or property of
another may be used in the course of committing the offense.
13
U.S.S.G. § 4B1.1 cmt. background (quoting 28 U.S.C. § 991(b)(1)(B)).

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The black letter text of the definition of “crime of violence” in section 4B1.2
of the Guidelines is very similar to the definition of “violent felony” in the Armed
Career Criminal Act (ACCA), 18 U.S.C. § 924 (e)(2)(B).14 Within subsections
(1) and (2), the only difference is that the Guidelines have inserted “of a
dwelling” after “burglary.”15 However, the application notes to section 4B1.2 of
the Guidelines gives further guidance to how the term “crime of violence” is to
be applied, including additional enumerated offenses not included in the ACCA
and an elaboration regarding the residual clause:
“Crime of violence” includes murder, manslaughter, kidnapping,
aggravated assault, forcible sex offenses, robbery, arson, extortion,
extortionate extension of credit, and burglary of a dwelling. Other
offenses are included as “crimes of violence” if (A) that offense has
as an element the use, attempted use, or threatened use of physical
force against the person of another, or (B) the conduct set forth (i.e.,
expressly charged) in the count of which the defendant was
convicted involved use of explosives (including any explosive
material or destructive device) or, by its nature, presented a serious
potential risk of physical injury to another.16

The commentary to section 4B1.2 expressly provides that possession of a
firearm by a felon is not a crime of violence unless the weapon is “a sawed-off

14
Compare id. § 4B1.2(a) with 18 U.S.C. § 924(e)(2)(B), which provides in pertinent
part:

(B) the term “violent felony” means any crime punishable by imprisonment for
a term exceeding one year . . . 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 use of explosives, or
otherwise involves conduct that presents a serious potential risk of
physical injury to another.
15
See U.S.S.G. § 4B1.2(a)(2).
16
U.S.S.G. § 4B1.2 cmt. n.1.

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shotgun or sawed-off rifle, silencer, bomb, or machine gun.”17 Marquez’s prior
conviction was not, however, for being a felon in possession of a firearm. He was
convicted under state law for possession of a deadly weapon by an inmate, which
is similar to the federal offense defined in 18 U.S.C. § 1791, prohibiting an
inmate’s possession of “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
Our construction of the career-offender Guideline sections are further
informed by two decisions of the Supreme Court construing the ACCA.19
Although the text of the ACCA defining “violent felony” and the Guidelines
definition and commentary regarding a “crime of violence” are not identical, as
discussed above, our court as well as other circuit courts have concluded that the
Supreme Court’s decisions interpreting the meaning of “violent felony” under the
ACCA are at least instructive.20 In Begay, the Court held that driving under the
influence of alcohol was not a “violent felony” within the meaning of the ACCA.21

17
Id. (“‘Crime of violence’ does not include the offense of unlawful possession of a
firearm by a felon, unless the possession was of a firearm described in 26 U.S.C. § 5845(a).”
The note also provides, “[u]nlawfully possessing a firearm described in 26 U.S.C. § 5845(a)
(e.g., a sawed-off shotgun or sawed-off rifle, silencer, bomb, or machine gun) is a ‘crime of
violence.’”).
18
18 U.S.C. § 1791(d)(1)(B).
19
See Chambers v. United States, 129 S. Ct. 687 (2009); Begay v. United States, 553
U.S. 137 (2008).
20
See United States v. Mohr, 554 F.3d 604, 609 (5th Cir.), cert. denied, 130 S. Ct. 56
(2009); see also United States v. Polk, 577 F.3d 515, 518-19 (3d Cir. 2009) (observing that the
Supreme Court vacated and remanded for reconsideration in light of Begay courts of appeals’
decisions applying the career offender Guidelines, leading the Third Circuit to conclude that
“this leaves little doubt that Begay bears on our determination of whether to classify an
offense as a ‘crime of violence.’”); United States v. Bartee, 529 F.3d 357 (6th Cir. 2008); United
States v. Williams, 537 F.3d 969 (8th Cir. 2008).
21
553 U.S. at 139.

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In Chambers, the Court held that a “failure to report” for penal confinement was
not a violent felony under the ACCA.22 Prior to the issuance of these decisions,
our court had held that the knowing possession of a deadly weapon in a penal
institution is a crime of violence under U.S.S.G. § 4B1.2(a)(2).23 Marquez
contends that our construction of section 4B1.2 was erroneous in light of Begay.
We therefore begin our analysis with a consideration of the Supreme
Court’s reasoning in Begay and its subsequent decision in Chambers. The Court
concluded in Begay that the presence of the enumerated offenses of burglary,
arson, extortion, or offenses that involve the use of explosives “indicates that the
statute covers only similar crimes, rather than every crime that ‘presents a
serious potential of risk of physical injury to another.’”24 The Court noted that
the enumerated offenses “all typically involve purposeful, ‘violent,’ and
‘aggressive’ conduct.”25 This was important because such conduct makes it “more
likely that an offender, later possessing a gun, will use that gun deliberately to
harm a victim.”26 The crime of driving under the influence was not such a crime.
“By way of contrast, statutes that forbid driving under the influence . . . typically
do not insist on purposeful, violent, and aggressive conduct.” 27 The Court
explained that DUI offenses “are, or are most nearly comparable to, crimes that

22
129 S.Ct. at 689.
23
United States v. Rodriguez-Jaimes, 481 F.3d 283, 287 (5th Cir. 2007).
24
553 U.S. at 142 (quoting 18 U.S.C. § 924(e)(2)(B)(ii)); see also id. at 143 (“we should
read the examples as limiting crimes that clause (ii) covers to crimes that are roughly similar,
in kind as well as in degree of risk posed, to the examples themselves”); id. (“The statute’s
history offers further support for our conclusion that the examples in clause (ii) limit the scope
of the clause to crimes that are similar to the examples themselves.”).
25
Id. at 144 (quoting United States v. Begay, 470 F.3d 964, 980 (10th Cir. 2006)
(MC CONNELL , J., dissenting in part)).
26
Id. at 145.
27
Id.

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impose strict liability, criminalizing conduct in respect to which the offender
need not have had any criminal intent at all.”28 Drunk driving “need not be
purposeful or deliberate.”29 It involves negligence or recklessness, the Court
reasoned. The ACCA “focuses upon the special danger created when a particular
type of offender–a violent criminal or drug trafficker–possesses a gun.” 30 To
determine which offenders fall into this category, “the Act looks to past crimes.
This is because an offender’s criminal history is relevant to . . . the kind or
degree of danger the offender would pose were he to possess a gun.”31 The Court
concluded that although driving under the influence “reveal[s] a degree of
callousness toward risk,” crimes involving intentional or purposeful conduct
“also show an increased likelihood that the offender is the kind of person who
might deliberately point the gun and pull the trigger,” while strict liability
crimes do not.32
The Supreme Court then listed examples of crimes that, “though
dangerous, are not typically committed by those whom one normally labels
‘armed career criminals.’”33 The examples given by the Court were reckless
pollution, negligent pollution of a sewer system, recklessly tampering with
consumer products, and seamen’s inattention to duty causing serious accidents,
all of which presented a risk of serious injury.34 The Court had already
emphasized at the outset of its opinion that “[d]runk driving is an extremely

28
Id.
29
Id
30
Id. at 146.
31
Id.
32
Id.
33
Id.
34
Id. at 146-47.

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dangerous crime,” responsible for thousands of deaths each year,35 and in
discussing strict liability offenses such as DUI, the Court reiterated that “[t]he
distinction we make does not minimize the seriousness of the risks attached to
driving under the influence.”36 But the risk of physical injury was not
determinative of whether a crime was a violent felony.37 “[A] prior record of
violent and aggressive crimes committed intentionally” is “associated with a
likelihood of future violent, aggressive, and purposeful ‘armed career criminal’
behavior in a way that” strict liability crimes are not.38
Less than a year after it decided Begay, the Supreme Court provided
further guidance in Chambers v. United States 39 as to the meaning of “violent
felony” as used in the ACCA. The prior conviction at issue was for failure to
report for penal confinement, a violation of Illinois law.40 After applying its
categorical approach to the Illinois statute under which Chambers had been
convicted, the Court concluded that failure to report “is a separate crime,
different from escape,” and that “[t]he behavior that likely underlies a failure to
report would seem less likely to involve a risk of physical harm than the less
passive, more aggressive behavior underlying an escape from custody.” 41 The
Court concluded that failure to report to a penal institution for confinement
“does not ‘involve conduct that presents a serious potential risk of physical injury

35
Id. at 141.
36
Id. at 147.
37
See id.
38
Id. at 148.
39
129 S.Ct. 687 (2009).
40
Id. at 690.
41
Id. at 691.

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to another.’”42 The Court reasoned, “[c]onceptually speaking, the crime amounts
to a form of inaction, a far cry from the ‘purposeful, violent, and aggressive
conduct’ potentially at issue when an offender uses explosives against property,
commits arson, burgles a dwelling or residence, or engages in certain forms of
extortion.”43 The Court rejected the Government’s argument that “a failure to
report reveals the offender’s special, strong aversion to penal custody,” observing
that “[t]he question is whether such an offender is significantly more likely than
others to attack, or physically to resist, an apprehender, thereby producing a
‘serious potential risk of physical injury.’”44
In the present case, Marquez contends that his prior conviction is similar
to the DUI at issue in Begay. There is authority from the New Mexico Supreme
Court indicating that possession of a deadly weapon in prison 45 is “a crime
closely approaching a strict liability crime.”46 The New Mexico court agreed with
a California appellate court that “‘[e]vil intent or intended use for an improper
purpose is not an element of the crime.’”47 The New Mexico court then
considered whether duress was a defense to this offense, recognizing that some
states have held that duress is not a defense because of the need to protect

42
Id. (quoting the ACCA, 18 U.S.C. § 924(e)(2)(B)(ii)).
43
Id. at 692 (quoting Begay, 553 U.S. at 145-46).
44
Id. (quoting § 924(e)(2)(B)(ii)).
45
N.M. STAT . ANN . § 30-22-16.
46
State v. Baca, 845 P.2d 762, 768 (N.M. 1992); see also id. (referring to the offense as
“a near strict liability crime”); id. (discussing “the high level of protection afforded by a statute
approaching strict liability”); id. at 769 (identifying “the purpose of the near strict liability
statute”).
47
Id. at 768 (quoting People v. Velasquez, 204 Cal. Rptr. 640, 641 (Cal. Ct. App. 1984)).

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inmates and officers from assaults with dangerous weapons.48 However, the
New Mexico court did not follow suit and instead recognized a narrow duress
exception, drawing on federal case law regarding duress as a defense to the
crime of felon in possession of a firearm.49
Subsequently, the New Mexico court of appeals concluded in dicta that the
offense of possessing a deadly weapon by a prisoner is not, strictly speaking, a
strict liability offense because the mens rea required is knowing possession.50
The New Mexico court of appeals observed that “[a]lthough the statute is silent
with respect to the mens rea element, the uniform jury instruction for the crime
requires the jury to find that the accused possessed a deadly weapon,” and “that
if possession is contested the instruction on possession at UJI 14-130 NMRA
should also be given.”51 The uniform jury instruction to which the court referred
provides that “[a] person is in possession of (name of object) when, on the
occasion in question, he knows what it is, he knows it is on his person or in his
presence and he exercises control over it.”52 The New Mexico court also cited as
authoritative an Oregon decision that the New Mexico court described in a
parenthetical as “stating statute prohibiting possessing, carrying, or having

48
Id. (citing People v. Rau, 436 N.W.2d 409 (Mich. Ct. App. 1989); Velasquez, 204
Cal.Rptr. at 643).
49
Id. at 768-69 (holding that to establish a defense of duress “the defendant must
produce sufficient evidence that: (1) he was under an unlawful and imminent threat of death
or serious bodily injury; (2) he did not recklessly place himself in a situation that would likely
compel him to engage in the criminal conduct; (3) he did not have a reasonable legal
alternative (in other words, he could not have reasonably avoided the threatened harm or the
criminal conduct in which he engaged); and (4) a direct causal relationship existed between
the criminal action and the avoidance of the threatened harm,” and that “[w]e agree with the
federal courts that ‘the keystone of the analysis is that the defendant must have no
alternative–either before or during the event–to avoid violating the law.’” (citations omitted)).
50
State v. Gonzalez, 107 P.3d 547, 552 (N.M. Ct. App. 2005).
51
Id.
52
N.M. RULES ANN ., Crim. UJI 14-130.

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weapons in one’s custody and control in a penal institution not meant to include
unknowing acts.”53 We accordingly have no reason to doubt that although the
crime of which Marquez was previously convicted approaches strict liability, his
offense was a knowing possession of a deadly weapon in prison, and the elements
of duress as defined by the New Mexico court were not present. This means, at
a minimum, that he was not under an unlawful or imminent threat of death or
serious bodily injury and did not recklessly place himself in a situation that
would likely compel him to possess the deadly weapon. Marquez’s offense
involved intentional or purposeful conduct.
We are persuaded, based on the Supreme Court’s reasoning in Begay 54 and
Chambers,55 that Marquez’s conviction for possession of a deadly weapon by a
prisoner in a penal institution is a crime of violence. This offense is unlike the
strict liability crimes that the Court specifically identified in Begay, such as
driving under the influence, reckless pollution, negligent pollution of a sewer
system, recklessly tampering with consumer products, or seamen whose
inattention to duty causes serious accidents.56 Undoubtedly, those crimes, like
a prisoner’s possession of a deadly weapon, present a serious potential risk of
physical injury to another.57 But a prisoner’s possession of a deadly weapon is
more similar “in kind”58 to arson, burglary, extortion, or crimes involving the use
of explosives. A prisoner’s possession of a deadly weapon is an intentional act

53
Gonzalez, 107 P.3d at 552 (citing State v. Wolfe, 605 P.2d 1185, 1188 (Or. 1980)).
54
Begay v. United States, 553 U.S. 137, 145-48 (2008).
55
Chambers v. United States, 129 S.Ct. 687, 691-92 (2009).
56
See Begay, 553 U.S. at 146-47.
57
Id. (describing the strict liability offenses identified as “dangerous”).
58
Id. at 143.

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“associated with a likelihood of future violent . . . behavior in a way that” 59 the
strict liability crimes identified in Begay are not. The Supreme Court explained
in Begay that the enumerated crimes, including burglary, “all typically involve
purposeful, violent, and aggressive conduct,”60 and that this “conduct is such that
it makes more likely that an offender, later possessing a gun, will use that gun
deliberately to harm a victim.”61 The Court distinguished burglary and arson
from driving under the influence, observing “[i]n both instances, the offender’s
prior crimes reveal a degree of callousness toward risk, but in the former
instance they also show an increased likelihood that the offender is the kind of
person who might deliberately point the gun and pull the trigger.”62 A prisoner
in possession of a deadly weapon within a penal institution is significantly more
likely to attack or physically resist an apprehender, such as a guard, or another
inmate.63
The kind of risk posed by an inmate in possession of a deadly weapon is
decidedly different from the strict liability offenses identified in Begay and very
similar in kind and degree to the risk posed by the crime of burglary of a
dwelling. A burglar may not intend to injure anyone when he unlawfully
invades a residence for the purpose of theft. A burglar may even choose to
commit the crime when no one is home. But burglary is nonetheless considered

59
Id. at 148.
60
Id. at 144-45 (citation omitted).
61
Id. at 145
62
Id. 146.
63
See United States v. Robles-Rodriguez, 204 F. App’x 504, 506-07 (5th Cir. 2006)
(unpublished) (per curiam) (noting that “an inmate’s possession, while in prison, of an
instrument designed and intended to be used as a weapon, carries with it the same inherent
potential to ‘explode into violence’ that drove our holding in Ruiz” that “an escape or an
attempt to escape from U.S. custody in a prison camp constitutes a crime of violence.”)
(quoting United States v. Ruiz, 180 F.3d 675, 676-77 (5th Cir. 1999)).

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purposeful, violent, and aggressive conduct.64 As the Supreme Court has
recognized, “[t]he main risk of burglary arises not from the simple physical act
of wrongfully entering onto another’s property, but rather from the possibility
of a face-to-face confrontation between the burglar and a third party.” 65 The
Supreme Court concluded in Begay that commission of burglary “show[s] an
increased likelihood that the offender is the kind of person who might
deliberately point the gun and pull the trigger.”66 By analogy, an inmate may
not intend to attack another person when he obtains a deadly weapon, but at a
minimum his intentional possession of a deadly weapon signals his willingness
to use it if, in his mind, the occasion warrants it. Like burglary, the “main risk”
of an inmate in possession of a deadly weapon is “the possibility of a face-to-face
confrontation” with another person. A past crime of possessing a deadly weapon
while incarcerated “is relevant to the question [of] whether [a defendant] is a
career criminal,”67 because it is an indicator that he “is the kind of person who
might deliberately” use a deadly weapon to inflict serious bodily injury on
another person, including “point[ing] the gun and pull[ing] the trigger.” 68
Possession of a deadly weapon in prison is similar in kind, and in degree
of risk posed, to another of the enumerated crimes of violence under the
commentary to the Guidelines, which is unlawful possession of a firearm
described in 26 U.S.C. § 5845(a), such as a sawed-off shotgun.69 The weapons

64
See Begay, 553 U.S. at 144-45.
65
James v. United States, 550 U.S. 192, 203 (2007).
66
Begay, 553 U.S. at 146.
67
Id.
68
Id.
69
U.S.S.G. § 4B1.2 cmt. n.1 (“‘Crime of violence’ does not include the offense of unlawful
possession of a firearm by a felon, unless the possession was of a firearm described in 26
U.S.C. § 5845(a).”); see also Begay, 553 U.S. at 146.

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included in § 5845(a) are primarily used for violent purposes when unlawfully
possessed.70 The possession of a deadly weapon in prison is primarily for violent
purposes, as there is no legitimate reason for the possession.71 Importantly, the
inclusion of the enumerated offense of possession of certain prohibited weapons
refutes Marquez’s argument that a possession offense cannot be a crime of
violence.
The offense of possession of a deadly weapon by an inmate differs from a
generic felon in possession of a firearm offense, which is specifically excluded
under the Guidelines as a crime of violence as defined in section 4B1.2 unless
the firearm was one of the enumerated varieties.72 A felon may be in possession
of certain firearms, such as a pistol or hunting rifle, for recreational purposes,
even though that possession is unlawful. By contrast, as noted above, there is
no purpose for possession of a deadly weapon in prison other than to have the
means to initiate violence or respond to violence with violence. In that regard,
possession of a deadly weapon by one who is incarcerated is similar to possession
of a sawed-off shotgun or one of the other weapons enumerated in section
4B1.2,73 possession of which will result in a sentencing enhancement.

70
See United States v. Jennings, 195 F.3d 795, 799 (5th Cir. 1999) (recognizing that the
unlawful possession of the weapons listed in 26 U.S.C. § 5845(a) creates a “virtual inevitability
that such possession will result in violence”).
71
See United States v. Rodriguez-Jaimes, 481 F.3d 283, 287 (5th Cir. 2007) (“That fact
[that the possession offense occurs in prison rather than in the outside world] 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).”) (quoting United States v.
Robles-Rodriguez, 204 F. App’x 504, 507 (5th Cir. 2006) (unpublished) (per curiam) (internal
quotation marks omitted)).
72
U.S.S.G. § 4B1.2 cmt. n.1.
73
Id.

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No. 09-50372

III
We are not the first circuit court to consider whether possession of a
deadly weapon by an inmate is a crime of violence or a violent felony, and there
is a split of authority. The Tenth Circuit concluded that such an offense is a
“violent felony” within the meaning of the ACCA.74 Subsequently, the Third
Circuit disagreed, concluding that such an offense is not a “crime of violence”
within the meaning of section 4B1.2 of the Guidelines.75 Neither court had
difficulty in concluding that an inmate’s possession of a deadly weapon presented
a serious potential risk of physical injury.76 The courts parted company over
whether such an offense is similar in kind, as well as in degree of risk, to
burglary, arson, extortion, or crimes involving explosives.77
In Zuniga, the Tenth Circuit reasoned that a prior Texas conviction for
possession of a deadly weapon in prison was not a strict liability crime because
under Texas law, it required either intentional or reckless conduct.78 The Tenth
Circuit also reasoned that the crime was violent because it created a likelihood
of violence, not unlike that inherent in burglary.79 The court was persuaded that

74
United States v. Zuniga, 553 F.3d 1330, 1332 (10th Cir.), cert. denied, 130 S. Ct. 62
(2009).
75
United States v. Polk, 577 F.3d 515, 517 (3d Cir. 2009).
76
Id. at 519 (observing that “no doubt possession of a weapon in prison involves a high
degree of risk” and recognizing it presented the “possibility that one will confront another
person with violent results”); Zuniga, 553 F.3d at 1334-35 (concluding that the offense “clearly
involves conduct that presents a serious potential risk of physical injury to another”).
77
Polk, 577 F.3d at 519 (“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”) (quoting Begay, 553 U.S. at 143); Zuniga, 553
F.3d at 1334 (concluding that offense is “‘roughly similar, in kind as well as in degree of risk
posed,’ to burglary, arson, extortion, or crimes involving explosives”) (quoting Begay, 553 U.S.
at 143).
78
Zuniga, 553 F.3d at 1335.
79
Id.

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No. 09-50372

possession of a deadly weapon in prison indicated that the defendant was
prepared to use violence if necessary.80
The Third Circuit considered Zuniga in its decision in Polk, but rejected
the Tenth Circuit’s reasoning.81 The decision in Polk instead concluded that
“[p]ost-Begay, the distinction between active and passive crimes is vital when
evaluating offenses under the Career Offender Guidelines.”82 The court
determined that “[w]hile 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,” and possession is a passive
crime.83 We disagree with this analysis for the reasons considered above, not the
least of which is that one of the enumerated crimes of violence in section 4B1.2
of the Guidelines is a felon in possession of certain firearms. We conclude that
the better-reasoned approach is that taken by the Tenth Circuit.
Our court has previously considered the import of Begay in determining
whether various crimes are crimes of violence. Recently, in United States v.
Hughes,84 we held that a conviction based on a prisoner’s escape from federal
custody or confinement85 was a violent felony within the meaning of the ACCA.
We reasoned that “even in a case where a defendant escapes from a jail by

80
Id.
81
Polk, 577 F.3d at 520 (“While we understand [the Tenth Circuit’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 of potential for violent and aggressive behavior to come about as
a result of the offense is sufficient for qualification in light of Begay”).
82
Id. at 519.
83
Id.
84
602 F.3d 669 (5th Cir. 2010).
85
18 U.S.C. § 751(a).

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No. 09-50372

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.”86 We further observed that “escape is typically committed in a
purposeful manner, and when these escapes cause injuries, those injuries
typically result from intentional action, not negligence or even recklessness.”87
A prisoner’s possession of a deadly weapon in prison presents an analogous risk
and similar intentional conduct. When deadly weapons are used by prisoners,
the injuries typically result from intentional, purposeful actions, not negligence
or recklessness.
In other cases decided since Begay issued, we have held that evading
arrest or detention by use of a vehicle,88 robbery by sudden snatching,89
stalking,90 and being a felon in possession of a short-barreled shotgun 91 are
crimes of violence, and that terroristic threatening 92 is not.
The Ninth Circuit has recently held that a prior conviction for possession
of a weapon in jail is a crime of violence within the meaning of U.S.S.G.

86
Hughes, 602 F.3d at 675.
87
Id. at 677.
88
United States v. Harrimon, 568 F.3d 531, 534-35 (5th Cir.), cert. denied, 130 S. Ct.
1015 (2009).
89
United States v. Bryant, 312 F. App’x 698, 703 (5th Cir. 2009) (unpublished) (per
curiam).
90
United States v. Mohr, 554 F.3d 604, 609-10 (5th Cir.), cert. denied, 130 S. Ct. 56
(2009).
91
United States v. Moore, 326 F. App’x 794, 794-95 (5th Cir.) (unpublished) (per
curiam), cert. denied, 130 S. Ct. 337 (2009). The commentary to U.S.S.G. § 4B1.2 specifically
states that unlawfully possessing the type of firearm that Moore possessed is a crime of
violence. Id. at 795.
92
United States v. Johnson, 286 F. App’x 155, 157-58 (5th Cir. 2008) (unpublished) (per
curiam).

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No. 09-50372

§ 4B1.2(1)(ii).93 In that case, the defendant had previously been convicted of
violating California law 94 by possessing a shank while in jail.95 The Ninth
Circuit relied on its pre-Begay decision in United States v. Young,96 reasoning
that this offense “created a viable risk that a person might be injured, which
made it a crime of violence.” 97
The dissent rejects the holdings of the Ninth and Tenth Circuits, finding
the Third Circuit’s reasoning in United States v. Polk98 more persuasive. For the
reasons considered above, we respectfully disagree with the Third Circuit and
the dissent. The dissent emphasizes that “‘[t]he possibility that one will confront
another person with violent results is not sufficient.’”99 While we do not
categorically disagree with that statement, the possibility that one will confront
another with violent results must be examined. It is the nature and degree of
the risk that guides us. The Supreme Court recognized in James that “[t]he
main risk of burglary arises not from the simple physical act of wrongfully
entering onto another’s property, but rather from the possibility of a face-to-face
confrontation between the burglar and a third party.”100 The risk that a prisoner
armed with a deadly weapon will attack or resist a third person is at least as
great as the risk presented by burglary of a dwelling and is of the same nature

93
United States v. Mitchell, No. 08-50429, __ F.3d __, 2010 WL 4105220 (9th Cir. Oct.
20, 2010).
94
CAL . PENAL CODE § 4574(a).
95
Mitchell, __ F.3d at __, 2010 WL 4105220 *2.
96
990 F.2d 469 (9th Cir. 1993).
97
Mitchell, __ F.3d at __, 2010 WL 4105220 *2.
98
577 F.3d 515 (3d Cir. 2009).
99
Post at 23 (quoting Polk, 577 F.3d at 519) (emphasis omitted).
100
James v. United States, 550 U.S. 192, 203 (2007).

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No. 09-50372

as the risk presented by burglary. The dissent attempts to distinguish an
inmate’s possession of a deadly weapon from burglary by arguing that “the
difference ‘in kind’ between the offense at issue here and the comparative crimes
is that ‘[b]urglary requires both the intent to enter a building and the intent to
commit a crime once inside’” and that “‘[t]his second intent is what makes
burglary purposeful, violent, and aggressive in all cases.’”101 Such a distinction
cannot be squared with the reasoning in James.
The dissent attempts to minimize the nature of Marquez’s prior conviction
by describing the club he possessed in prison, which was made of a rolled, dried,
and hardened magazine or other type of paper.102 However, Marquez has never
contended that the club did not truly constitute a deadly weapon. Nor could he
successfully do so in this court. He was convicted under New Mexico law of
possessing a deadly weapon, and we cannot dismiss this judicial determination
by attempting to diminish the dangerousness of the particular weapon he
possessed. A factual determination was made in the prior state court
proceedings that the club was capable of producing death or great bodily injury.
We must accept that finding.
The district court did not err in concluding that Marquez’s prior conviction
for possession by an inmate of a deadly weapon in a penal institution was for an
offense that constitutes a crime of violence.
* * *
For the foregoing reasons, we AFFIRM the district court’s judgment.

101
Post at 24 (quoting United States v. Templeton, 543 F.3d 378, 383-84 (7th Cir. 2008)
(holding that some escapes from prison are crimes of violence while others are not)).
102
See, e.g., post at 30 (“And a simple, makeshift club does not necessarily serve only
aggressive and violent purposes. Marquez could have possessed the weapon for the purpose
of deterring others from attacking him.”).

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No. 09-50372

DENNIS, Circuit Judge, dissenting.
The majority erroneously concludes that the New Mexico offense of
possession by a prisoner of a deadly weapon—here, a cudgel made of a dried
paper magazine—N.M. Stat. Ann. § 30-22-16, is a “crime of violence” under the
residual clause of § 4B1.2 of the Sentencing Guidelines, although the state
statute criminalizes such possession even if the inmate never uses nor intends
to use the weapon to harm or threaten another. In Begay v. United States, 553
U.S. 137 (2008), the Supreme Court held that a “violent felony” under the nearly
identical provision of the Armed Career Criminal Act (ACCA), 18 U.S.C.
§ 924(e)(2)(B),1 must involve “purposeful, violent, and aggressive conduct.” The
majority in the instant case mistakenly classifies the New Mexico crime at issue
as a “crime of violence” on the theory that the “purposeful possession” of a deadly
weapon in prison creates a “potential for violence.” This conclusion ignores the
teaching of Begay, however, which requires a crime to be “violent and
aggressive” as well as “purposeful” in order to fit the category of a violent felony
or crime of violence. Because the crime at issue here is not “violent” or
“aggressive,” the majority’s holding conflicts with the Guidelines’ intent, as
clearly indicated by Begay. Accordingly, I respectfully dissent.

1
Compare 18 U.S.C. § 924(e)(2)(B) (“violent felony”), with U.S.S.G. § 4B1.2 (“crime of
violence”). Begay controls our analysis of the definition of “crime of violence” under the
residual clause of § 4B1.2 of the Sentencing Guidelines. United States v. Hughes, 602 F.3d
669, 673 n.1 (5th Cir. 2010) (We “‘appl[y] our holdings under the residual clause of the ACCA
to analyze the definition of crimes of violence under § 4B1.2, and vice versa.’” (quoting United
States v. Mohr, 554 F.3d 604, 609 n. 4 (5th Cir. 2009)); see also United States v. Thomas, 484
F.3d 542 (8th Cir. 2007) (construing “crime of violence” under § 4B1.2), vacated, 553 U.S. 1001
(2008) (remanding “for further consideration in light of Begay”).

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No. 09-50372

I
A
Begay held that to satisfy the definition of “violent felony” under the
residual clause of the ACCA, which has practically the same definition as “crime
of violence” under the residual clause of § 4B1.2, an offense must meet two
criteria: First, the offense must involve conduct that “presents a serious
potential risk of physical injury to another,” i.e., that it is “an extremely
dangerous crime.” Id. at 141-42 (internal quotation marks omitted).
Additionally and separately, the offense must be “roughly similar, in kind as
well as in degree of risk posed,” to the comparative offenses of “burglary [of a
dwelling], arson, extortion, or crimes involving the use of explosives.” Id. at 142-
43 (emphasis added). Defining this second prong, the Court distilled the
following similar attributes from the comparative offenses: They all “typically
involve purposeful, violent, and aggressive conduct.” Id. at 144-45 (internal
quotation marks omitted). In applying its interpretation to the offense of driving
under the influence, the Begay Court assumed that DUI involved conduct that
presents a serious potential risk of physical injury, but, nonetheless, held that
it was not an included offense because “statutes that forbid driving under the
influence[] . . . typically do not insist on purposeful, violent, and aggressive
conduct; rather, they are, or are most nearly comparable to, crimes that impose
strict liability, criminalizing conduct in respect to which the offender need not
have had any criminal intent at all.” Id. at 145.
It is clear, then, that an offense is not a crime of violence if it involves only
a potential risk of physical injury, even if it is the result of purposeful conduct,
as long as it is not violent and aggressive. See United States v. Herrick, 545 F.3d
53, 58-59 (1st Cir. 2008) (“all three types of conduct—i.e., purposeful, violent and
aggressive—are necessary for a predicate crime to qualify as . . . a ‘crime of

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No. 09-50372

violence’ under the Guidelines”).2 In other words, the potential risk of injury
created by conduct that reflects the future potential for violent and aggressive
conduct does not satisfy Begay’s test and fails to meet the definition of a crime
of violence. See United States v. Polk, 577 F.3d 515, 519 (3d Cir. 2009) (“Begay
points out that even a serious potential for injury is not enough to qualify a
crime [as a crime of violence]; the risk created must also be ‘similar in kind’ to
the crimes set out. . . . The possibility that one will confront another person with
violent results is not sufficient.” (citations omitted) (emphasis added)). According
to Begay, a crime of violence depends on conduct that is at once purposeful,
violent, and aggressive, not just purposeful and potentially violent.
Here, assuming arguendo that the offense of possession of a deadly weapon
by an inmate presents a serious potential risk of physical injury, the offense does
not reflect the aggressive and violent conduct encompassed in any of the
comparative crimes of “burglary of a dwelling, arson, or extortion,” or crimes
“involving] [the] use of explosives.” Those crimes are marked by “aggressive,
violent acts aimed at other persons or property where persons might be located
and thereby injured.” United States v. Archer, 531 F.3d 1347, 1351 (11th Cir.
2008). “They involve overt, active conduct that results in harm to a person or
property.” Polk, 577 F.3d at 519; see also Herrick, 545 F.3d at 58 (“[A]ggressive
may be defined as ‘tending toward or exhibiting aggression,’ which in turn is
defined as ‘a forceful action or procedure (as an unprovoked attack) esp[ecially]
when intended to dominate or master.’ Violence may be defined as ‘marked by
extreme force or sudden intense activity.’” (citation omitted)). By contrast, the

2
See also Chambers v. United States, 129 S. Ct. 687, 691-92 (2009) (discussing the
conduct elements as conjunctive: “purposeful, violent, and aggressive conduct” (emphasis
added) (internal quotation marks omitted)); United States v. Williams, 537 F.3d 969, 975 (8th
Cir. 2008) (“The Supreme Court’s description of conduct that is similar in kind consistently
uses ‘and’ to join the words ‘purposeful, violent, and aggressive conduct.’ Therefore, all
characteristics should typically be present before a[] . . . crime reaches the level of an example
crime.” (citation omitted)).

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No. 09-50372

New Mexico offense of possession of a deadly weapon by an inmate “is a passive
crime centering around possession, rather than around any overt action.” See
Archer, 531 F.3d at 1351; see also Chambers, 129 S. Ct. at 689, 692 (failure to
report for incarceration does not meet the definition of a crime of violence
because it reflects “a form of inaction, a far cry from the ‘purposeful, violent, and
aggressive conduct’ potentially at issue when an offender uses explosives against
property, commits arson, burgles a dwelling or residence, or engages in certain
forms of extortion”). “Post-Begay, the distinction between active and passive
crimes is vital when evaluating offenses . . . to determine if they entail
‘purposeful, violent, and aggressive conduct.’” Polk, 577 F.3d at 519.
An illustration of the difference “in kind” between the offense at issue here
and the comparative crimes is that “[b]urglary requires both the intent to enter
a building and the intent to commit a crime once inside. This second intent is
what makes burglary purposeful, violent, and aggressive in all cases.” United
States v. Templeton, 543 F.3d 378, 383 (7th Cir. 2008).3 Like burglary, the
comparative offenses involve “intentionally encroaching on another’s property
or person, or intentionally injuring another’s property or person.” Id. By
contrast, the New Mexico crime of possession of a deadly weapon by an inmate
does not require an intent to use the weapon for any particular purpose. It
proscribes “any inmate of a penal institution, reformatory, jail or prison farm or
ranch possessing any deadly weapon or explosive substance.” N.M. Stat. Ann.
§ 30-22-16. While the New Mexico court of appeals has said in dicta that the

3
As the Seventh Circuit reasoned in explaining why some escape offenses (e.g., failing
to return from a furlough) are not crimes of violence:
The crime does not require any violent or aggressive act. Although the statute
does require intent, the required mental state is only intent to be free of
custody, not intent to injure or threaten anyone. It is easy to [commit the
offense] without intending or accomplishing the destruction of property or
acting in an aggressive, violence-provoking manner that could jeopardize guards
or bystanders.
Templeton, 543 F.3d at 383.

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No. 09-50372

possession of a weapon by an inmate requires knowing possession, State v.
Gonzalez, 107 P.3d 547, 552 (N.M. Ct. App. 2005), the New Mexico Supreme
Court has said that “‘[e]vil intent or intended use for an improper purpose is not
an element of the crime.’” State v. Baca, 845 P.2d 762, 768 (N.M. 1992) (quoting
People v. Velasquez, 204 Cal. Rptr. 640, 641 (1984)). Therefore, even assuming
that the possession must be knowing, because the crime does not require an
intent to use the weapon in a further criminal act, it fails to reflect similar
aggressive or violent conduct as the comparative offenses.

B
While this court has never decided whether the simple possession of a
weapon by an inmate satisfies Begay’s interpretation, our published decisions
applying Begay’s prescribed analysis have consistently held that only offenses
that involve conduct that is sufficiently violent and aggressive, as well as
purposeful, meet the definition of a crime of violence. Recently, in United States
v. Schmidt, No. 09-31138, ___ F.3d ___, 2010 WL 3910646 (5th Cir. Oct. 7, 2010),
we held that the federal offense of stealing firearms from a licensed firearms
dealer4 was a violent felony under the residual clause of the ACCA. We noted
that the offense in fact satisfied the elements of burglary, an enumerated offense
in § 4B1.2. Id. at *5. Therefore, the similarity of purposeful, violent, and
aggressive conduct to that enumerated crime was patent.
Earlier, in United States v. Hughes, 602 F.3d 669 (5th Cir. 2010), we found
that the federal offense of escape from an institution5 also met Begay’s test.
Specifically, we found that the aggressive and violent component was reflected
by the initiating of hostilities that would ensue in the impending confrontation

4
See 18 U.S.C. § 922(u).
5
See id. § 751(a).

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No. 09-50372

with law enforcement officials seeking to capture the escapee.6 Id. at 677 (citing
United States v. Harrimon, 568 F.3d 531 (5th Cir. 2009)). Likewise, in
Harrimon, we held that the Texas offense of evading arrest or detention by use
of a vehicle satisfied Begay. There, not only did we find that the offense was
purposeful in that it required intentional conduct, but we also found that it was
aggressive because it was “offensive and forceful and characterized by initiating
hostilities or attacks,” and violent because “the use of a vehicle, usually a car, to
evade arrest or detention typically involves violent force which the arresting
officer must in some way overcome.” 568 F.3d at 534-35 (internal quotation
marks omitted).
Finally, in United States v. Mohr, 554 F.3d 604 (5th Cir. 2009), we held
that the South Carolina offense of stalking is a crime of violence because it
proscribes “words or conduct that are ‘intended to cause and does cause a
targeted person’ to reasonably fear death, assault, bodily injury, criminal sexual
contact, kidnaping or property damage to him or his family.” Id. at 609 (quoting
S.C. Code Ann. § 16-3-1700). We reasoned that “[t]hese outcomes are roughly
analogous to the enumerated offenses set out in § 4B1.2.” Id. at 609-10. The fact
that the defendant’s conduct directly impacted the victim resonates with the
offensive and forceful conduct in Harrimon and therefore, reflects conduct that
is easily described as aggressive and violent.
In light of these prior decisions of our court, the mere possession crime
here does not meet the definition of a crime of violence. Unlike in Schmidt,
where the offense was, practically speaking, identical to the enumerated offense
of burglary, the crime here is closest to unlawful possession of a firearm by a
felon, a crime that is expressly excluded from the definition of crime of violence.

6
We also noted that escape is typically purposeful and when “escapes cause injuries,
those injuries typically result from intentional action,” and that escape reflected more violent
conduct in comparison to the failure-to-report crime in Chambers. 602 F.3d at 677.

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See U.S.S.G. § 4B1.2 cmt. n.1. Furthermore, the crime here is unlike the crimes
in Hughes and Harrimon because it was not offensive and did not involve
violent, forceful hostilities initiated by Marquez. Finally, very much unlike the
stalking crime in Mohr, the passive possession crime here did not directly impact
a victim, nor did it directly cause anyone to reasonably fear death, assault,
bodily injury, criminal sexual contact, kidnaping or property damage.

II
The thrust of the majority’s position is that the possession of a deadly
weapon by an inmate is a crime of violence because it poses a serious potential
risk of physical injury and it reflects a potential for violence as with other
comparative crimes, such as burglary. This reasoning is in effect the same
analysis articulated by Justice Scalia concurring in the judgment in Begay. To
define a crime of violence, Justice Scalia rejected the majority’s “similar, in kind
as well as in degree of risk posed” test and proposed a “comparative degree of
risk” approach, which would include any offense that objectively presents a
similar degree or likelihood of risk of physical injury as the enumerated crimes.
See 553 U.S. at 143-44. However, the Begay majority expressly rejected that
approach, and held that for an offense to constitute a crime of violence, it is not
enough that it presents a similar degree of risk as the enumerated crimes—it
must also be similar in kind, as reflected by “purposeful, violent, and aggressive”
conduct. See id.; Templeton, 543 F.3d at 383 (“It will not do to argue . . . that
escape is enough like burglary to make it a crime of violence. Doubtless for both
crimes there is a chance the criminal will confront another person with violent
results . . . . But Begay requires the crime to be [purposeful, violent, and
aggressive].” At most, escape and burglary have “a common result: in both cases

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No. 09-50372

injuries may follow confrontations. Begay requires similarities other than risk
of injury.”); Polk, 577 F.3d at 519.7
The majority’s reliance on United States v. Zuniga, 553 F.3d 1330 (10th
Cir. 2009), which held that the Texas offense of possession of a deadly weapon
in prison is a violent felony under the ACCA, is likewise unavailing because the
Tenth Circuit’s reasoning relies on the same fallacy that was rejected by the
Begay Court. In analyzing the second prong of Begay, the Zuniga court
determined that “an offense is violent if it creates a likelihood of violence . . . .
Similarly, possession of a deadly weapon in a penal institution creates the
possibility—even the likelihood—of a future violent confrontation.” Id. at 1335.8
The court also found the crime was aggressive because, “[w]e consider it unlikely
that any conduct properly characterized as ‘violent’ could not also be
characterized as ‘aggressive.’ . . . When a prisoner carries a deadly weapon, that
behavior indicates a readiness to enter into conflict . . . .” Id. at 1335-36.
This reasoning is flawed because it views the likelihood of violence and
potential for aggression as dispositive; that by intentionally possessing a weapon
in prison, an inmate is engaged in conduct that presents a high likelihood of
violence and is therefore violent and, consequently, aggressive. This conclusion,
draws any intentional offense with a “serious potential risk of physical injury”
into the definition of a crime of violence and, in essence, adopts Justice Scalia’s

7
See also United States v. Vincent, 575 F.3d 820, 830-31 (8th Cir. 2009) (Gruender, J.,
dissenting) (rejecting the majority’s contention that the “possession of a sawed-off shotgun is
illegal precisely because it enables violence or the threat of violence,” which is what makes it
“like the listed crimes” in the residual clause of the ACCA, because it fails to address “whether
the crime typically involves violent and aggressive conduct. This subtle difference in
terminology has significant consequences; after all, many crimes that do not themselves
involve violent and aggressive conduct may nevertheless enable violence or the threat of
violence.” (internal quotation marks and brackets omitted)).
8
The Tenth Circuit easily concluded that the offense met Begay’s first prong of
presenting a serious potential risk of physical injury. 553 F.3d at 1334.

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minority view. But Begay’s second requirement entails more than the mere
likelihood that another will be physically injured as a result of the offense—it
requires conduct that is similar to the comparative offenses, that is, purposeful,
violent, and aggressive conduct. Therefore, Zuniga misapplies Begay and fails
to persuade me that possession of a weapon by an inmate is a crime of violence.9
The majority further attempts to shoehorn “the possibility that one will
confront another with violent results” into the analysis of the second prong of
Begay. See Majority Op. at 19-20. The majority’s only support is a statement
from James v. United States that “[t]he main risk of burglary arises not from the
simple physical act of wrongfully entering into another's property, but rather
from the possibility of a face-to-face confrontation between the burglar and a
third party.” 550 U.S 192, 203 (2007), quoted in Majority Op. at 19. However,
James was decided before Begay and therefore does not alter Begay’s prescribed
analysis. As discussed above, Begay expressly extricates the analysis of the
potential risk of physical injury—Begay’s first prong—from the analysis of
similarity, in kind as well as in degree of risk posed—Begay’s second prong.
Furthermore, the Court’s analysis in Chambers demonstrates that the Court
continues to separate these inquiries. In Chambers, the Court first analyzed the
offense under Begay’s second prong and held that the crime was not purposeful,
violent, and aggressive. See 129 S. Ct. at 692. Then, the Court turned back to
Begay’s first prong, which it recapitulated as: “whether . . . an offender is
significantly more likely than others to attack, or physically to resist, an

9
The Ninth Circuit recently reaffirmed its pre-Begay decision in United States v.
Young, 990 F.2d 469 (9th Cir. 1993), that possession of a weapon in prison in violation of
California Penal Code § 4574(a) is a crime of violence under § 4B1.2. See United States v.
Mitchell, ___ F.3d ___, 2010 WL 4105220, at *2 (9th Cir. Oct. 20, 2010). However, the Mitchell
court did not cite Begay or Chambers and, in reaching this conclusion, instead reasoned only
that “possession of a shank in jail . . . created a viable risk that a person might be injured,
which made it a crime of violence.” Id. That rationale directly conflicts with Begay and is
therefore, not persuasive.

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No. 09-50372

apprehender, thereby producing a ‘serious potential risk of physical injury.’” Id.
There, the Court considered and rejected the government’s argument that the
potential for future violent conduct made the offense a crime of violence, and
relying on a statistical analysis, held that the crime did not meet the first Begay
prong. Id. at 692-93. Thus, the majority mistakenly imports the possibility of
injury into its analysis of Begay’s second prong.
Additionally, the majority analogizes the possession of a weapon by an
inmate to the unlawful possession of one of the extremely dangerous weapons
identified in the Sentencing Guidelines as a crime of violence. See U.S.S.G.
§ 4B1.2 cmt. n.1 (“‘Crime of violence’ does not include the offense of unlawful
possession of a firearm by a felon, unless the possession was of a firearm
described in 26 U.S.C. § 5845(a),” which includes sawed-off shotguns, machine
guns, silencers, and some types of bombs, grenades, rockets, and missiles).
When the Sentencing Commission added this commentary it said that “Congress
has determined that those firearms described in 26 U.S.C. § 5845(a) are
inherently dangerous and when possessed unlawfully, serve only violent
purposes.” U.S.S.G. supp. app. C at 134, amend. 674 (Reason for Amendment
to Application Note 1 to § 4B1.2) (effective Nov. 1, 2004). However, unlike a
bomb or machine gun, the “club” found in Marquez’s cell—a tightly-rolled,
wetted down magazine that had been allowed to dry—does not reflect an
unusual measure of dangerousness. It certainly does not surpass that of, say,
a handgun, which, if possessed unlawfully by a felon, would not constitute a
crime of violence. And a simple, makeshift club does not necessarily serve only
aggressive and violent purposes. Marquez could have possessed the weapon for
the purpose of deterring others from attacking him. Nor is the fact that the
possession occurred in a prison enough, on its own, to make this offense a crime
of violence. See Polk, 577 F.3d at 519-20 (“Begay excludes th[e] mode of analysis”
that would define possession of a weapon by an inmate as a crime of violence

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No. 09-50372

simply because “no permissible use exists for a prisoner to possess a weapon. .
. . We do not dispute the inherent dangers of possessing a [weapon] in prison,
but this alone cannot transform the mere possession offense into one that is
similar to the crimes listed.”).
The majority is correct that we cannot “minimize[] the nature of Marquez’s
prior conviction by describing the club he possessed in prison, which was made
of a rolled, dried, and hardened magazine or other type of paper” in order “to
diminish the dangerousness of the particular weapon he possessed.” Majority
Op. at 20. But we cannot close our eyes to the nature of the weapon Marquez
possessed either. Our inquiry here requires us to decide if Marquez’s offense
was “similar, in kind as well as in degree of risk posed” to the § 4B1.2
comparative crimes. Marquez did not object to the presentence report’s
description of the hardened paper club he possessed and he acknowledged that
it was a “deadly weapon” under New Mexico law.10 However, the definition of
the New Mexico offense of possession of a deadly weapon by an inmate also
clearly makes it a purely passive, possessory crime, requiring no element of
intent to use the weapon, nor any violence or aggression; and obviously
demonstrates that it is dissimilar from possession of one of the inherently and
extremely dangerous weapons, such as a bomb or sawed-off shotgun, identified

10
Additionally, because New Mexico defines “deadly weapon” to include weapons that
are and are not identified in § 5845(a), see N.M. Stat. Ann. § 30-1-12(B) (“deadly weapon”
includes, among other things, “any weapon which is capable of producing death or great bodily
harm, including but not restricted to any types of . . . bludgeons”), the New Mexico offense of
possession of a “deadly weapon” by an inmate includes offenses that are crimes of violence as
well as offenses that are not. See U.S.S.G. § 4B1.2 cmt. n.1. Where, as here, the statute of
conviction encompasses multiple offenses and not all of those offenses constitute crimes of
violence, the Supreme Court has held that we must first determine the relevant “classification
of the crime.” See Chambers, 129 S. Ct. at 690-91. In doing so, it is appropriate to consider,
for instance, charging documents, plea agreements, and “comparable judicial record[s],” and
“any explicit factual finding by the trial judge to which the defendant assented.” Shepard v.
United States, 544 U.S. 13, 25 (2005)). Therefore, it is perfectly in line with the Supreme
Court’s decisions that we consider the nature of the weapon that Marquez possessed.

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in § 5845(a), where the majority erroneously tries to shoehorn it. The mere
possession of a weapon other than those identified in § 5845(a), which would not
otherwise be a crime of violence, is not transformed into a crime of violence
under § 4B1.2 by virtue of where the weapon is possessed. Begay and Chambers
require more than similarity in degree of risk posed, based on the circumstances;
they require as well similarity in kind to the comparative offenses, such as
burglary of a dwelling. The Sentencing Commission created a very narrow
category of crimes of violence for weapons possession offenses that includes only
weapons that“Congress has determined . . . are inherently dangerous and when
possessed unlawfully, serve only violent purposes.” See U.S.S.G. supp. app. C
at 134, amend. 674. Therefore, key to the Commission’s classification of the
unlawful possession of a bomb or sawed-off shotgun by a felon as a crime of
violence is the inherent dangerousness of the weapon—as found by
Congress—not where the weapon is possessed. Id. The majority erroneously
compares Marquez’s offense to the possession of a bomb or sawed-off shotgun;
however, the inherent danger present in those weapons is not present in a club
fashioned from hard, dried, paper.

III
The New Mexico offense of possession of a deadly weapon by an inmate
does not require violent and aggressive conduct and therefore fails under Begay’s
analysis to satisfy the definition of a crime of violence. The offense does not
require intent to use the weapon for any particular purpose; rather, it punishes
mere possession. This passive crime does not involve any overt act aimed at a
person or property. I agree with the reasoning of the Third Circuit in Polk and
the Eleventh Circuit in Archer, that under Begay, mere possession of a
dangerous instrument, without more, does not necessarily involve violent or
aggressive conduct. Therefore, while I agree that the offense involves a serious

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potential risk of physical injury, in light of Begay, I cannot agree with the
majority that the offense is a “crime of violence” under the residual clause of
§ 4B1.2.

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