                             UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                             No. 11-4676


UNITED STATES OF AMERICA,

                 Plaintiff - Appellee,

           v.

JOHNNY BEASON,

                 Defendant - Appellant.



Appeal from the United States District Court for the Northern
District of West Virginia, at Clarksburg.    Irene M. Keeley,
District Judge. (1:10-cr-00105-IMK-JSK-1)


Argued:   February 1, 2013                 Decided:   April 19, 2013


Before WILKINSON and FLOYD, Circuit Judges, and Joseph R.
GOODWIN, United States District Judge for the Southern District
of West Virginia, sitting by designation.


Reversed by unpublished opinion. Judge Floyd wrote the majority
opinion, in which Judge Goodwin joined. Judge Wilkinson wrote a
dissenting opinion.


ARGUED: Kristen Marie Leddy, OFFICE OF THE FEDERAL PUBLIC
DEFENDER, Martinsburg, West Virginia, for Appellant.     Brandon
Scott Flower, OFFICE OF THE UNITED STATES ATTORNEY, Clarksburg,
West Virginia, for Appellee.     ON BRIEF: Brian J. Kornbrath,
Federal   Public  Defender,   Clarksburg, West   Virginia,   for
Appellant.   William J. Ihlenfeld, II, United States Attorney,
Wheeling, West Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.




                                2
FLOYD, Circuit Judge:

     Appellant     Johnny     Beason        pled     guilty       to   possessing

contraband in prison in violation of 18 U.S.C. § 1791(a)(2),

(d)(1)(F) (2006) (amended 2010).            Beason appeals his conviction,

contending that the statute’s catchall contraband provision that

prohibits possession of “any other object that threatens the

order, discipline, or security of a prison, or the life, health,

or safety of an individual,” id. § 1791(d)(1)(F), is void for

vagueness as applied to his conduct. *                   We agree and for the

reasons that follow reverse his conviction.



                                       I.

     While   in   federal   prison     for   violating      the    terms   of    his

supervised release on unrelated charges, Beason acquired a cell

phone.   On May 20, 2010, the prison unit corrections officer

observed Beason using a cell phone in his cell.                   Upon realizing

he was being watched, Beason initially tried to hide the cell

phone.   Beason     then    complied    with       the   officer’s     request   to

surrender the phone.         The Bureau of Prisons (BOP) avers that

     *
       The statute criminalizes “[w]hoever . . . being an inmate
of a prison, makes, possesses, or obtains, or attempts to make
or obtain, a prohibited object. . . .” 18 U.S.C. § 1791(a)(2).
In addition to the catchall provision at issue here, the statute
specifically prohibits “firearm[s] or destructive device[s],”
“marijuana,” and “any United States or foreign currency.”    Id.
§ 1791(d)(1)(A),(B),(E).



                                       3
cell phones pose significant security risks to prisons because

inmates    can     use   cell      phones      to    arrange     fraud     schemes,      plan

assaults, and coordinate escapes.                     The presence of cell phones

has recently escalated in Federal Correctional Institution (FCI)

Morgantown, where Beason was housed.                      Because of this, several

cases of possession were referred for prosecution in hopes of

deterring the problem.

      Upon    entry      to   FCI    Morgantown,          each    inmate     is    given   a

Handbook,     prepared        by    the    BOP,      of   the     prison’s       rules    and

regulations.        As    relevant        in   the    instant     case,     the    Handbook

requires inmates to use the prison’s phone system.                               The prison

system records the calls because inmates have used the system

for various improper purposes, including attempts to introduce

contraband into the prison.                The prison also requires all names

of   individuals      and     telephone        numbers     to    be   on   the     inmate’s

approved telephone list before a call can be placed.                             The prison

reviews the lists and calls “to ensure the safety and security

of the institution.”            The Handbook also prohibits the possession

of “contraband” in the prison.                      The BOP defines contraband as

anything     not   received        through         official     means.      If    found    in

violation of these rules, the Handbook alerts the inmate that he

can be subject to various administrative penalties.                          However, at

the time, the words “cellular phone” or “mobile phone” did not

appear in the Handbook.             Additionally, the Handbook provides for

                                               4
punishment for a Code 108 which punishes inmates for prohibited

acts,    including       possession          of       a    hazardous       tool.        When    the

problem of cell phone possession escalated, the prison staff

attempted to inform inmates that cell phone possession would now

be   prosecuted.             Apparently        some         inmates        were     informed    at

briefings     that       cases         of    cell          phone    possession          could    be

prosecuted.       Although Beason admits that he was aware that cell

phones    were     prohibited          contraband            and    a   possible        Code    108

violation        and     that          possession            could         subject       him     to

administrative sanctions, he states that he did not know that

possession of a cell phone could lead to prosecution.

     At    the    time       of    Beason’s       offense,          cell    phones      were    not

included     explicitly           in    18     U.S.C.         §     1791’s        definition     of

“prohibited object[s].”                Beason was convicted under the catchall

provision     of       the        statute,        which        allows       prosecution         for

possession       of    “any       other      object         that    threatens        the    order,

discipline, or security of a prison.”                             Id. § 1791(d)(1)(F).           In

August 2010, Congress passed the Cell Phone Contraband Act of

2010, which amended the statute at hand and specifically makes

possession of a cell phone by federal inmates illegal.                                     Pub. L.

No. 111-225, § 2, 124 Stat. 2387 (codified at 18 U.S.C § 1791).

     On    November      23,       2010,     the          government    filed       a   one-count

Information, charging Beason with possession of contraband in

prison.     Beason then filed a motion to dismiss the Information,

                                                  5
arguing    that    the      statute,       as       applied     to    his      conduct,       was

unconstitutionally          void    for    vagueness.           The        magistrate     judge

issued a Report and Recommendation (R & R) that recommended that

Beason’s   motion      to    dismiss       be       denied.          The      district   court

adopted the magistrate’s R & R and denied Beason’s motion to

dismiss.      Beason then entered a conditional guilty plea to the

offense, with the proviso that he reserved the right to appeal

whether the statute is void for vagueness.                               After his guilty

plea,   the     district     court        sentenced       Beason         to    two   years     of

probation.        Beason timely appealed, and we have jurisdiction

pursuant to 28 U.S.C. § 1291.



                                            II.

      This court reviews a district court’s interpretation of a

statute de novo.            United States v. Nelson, 484 F.3d 257, 260

(4th Cir. 2007).

      Beason     first      argues       that       18   U.S.C.      §     1791’s     catchall

provision is void for vagueness as applied to him because the

statute failed to put him on notice that possession of a cell

phone was prohibited, and because of this his conviction must be

set aside.        A conviction does not comport with due process if

the   statute     under     which    a    defendant        is   charged:             “fails    to

provide a person of ordinary intelligence fair notice of what is

prohibited,       or   is     so    standardless           that       it      authorizes       or

                                                6
encourages seriously discriminatory enforcement.”                United States

v. Williams, 553 U.S. 285, 304 (2008).               This analysis should be

conducted bearing in mind the context in which the statute is

applied.     See United States v. Chatman, 538 F.2d 567, 569 (4th

Cir. 1976).

     The    government     cites    this   Court’s    decision    in   Chatman,

which found that a prior version of the statute at issue in this

case was not vague.        538 F.2d at 569.       In Chatman, the defendant

introduced    24.3    grams    of     marijuana    into    the    correctional

facility.     Id. at 568.     At that time, 18 U.S.C. § 1791 provided

that “[w]hoever contrary to any rule or regulation promulgated

by the Attorney General, introduces or attempts to introduce

into or upon the grounds of any Federal penal or correctional

institution . . . anything whatsoever,” 18 U.S.C. § 1791 (1976)

(amended     1984),   is    subject     to   criminal     penalties.       Its

implementing regulation gave further guidance, adding “without

the knowledge or consent of the warden or superintendent of such

Federal penal or correctional institution is prohibited.”                   28

C.F.R. § 6.1. (1975).         Viewing the statute in its context of

operation—federal prisons, this Court reasoned that:

     A federal penal institution has peculiar needs, and
     statutes   designed   to    regulate    articles  being
     introduced into such institutions must be scrutinized
     in light of those needs.     Pragmatically speaking, it
     would be virtually impossible for a single statute to
     catalogue the numerous items which must be prohibited
     in the interest of prison safety and security.

                                       7
538 F.2d at 569 (citations omitted).

     The      government    argues      that    the   previous    version    of    18

U.S.C.    §   1791     withstood    a   vagueness     challenge    despite       being

“even broader” than the statute at hand.                  The government notes

that thereafter Congress refined the definition of “prohibited

object[s],” therefore giving even more guidance as to what is

prohibited in prisons.             Despite the government’s arguments, we

find Chatman to be inapposite for three reasons.                        First, the

statute at hand does not provide more notice than the former

version    of    the   statute     at   issue   in    Chatman.     In    fact,     the

contrary is the case.            Under the former statute’s wording that

prohibited “anything whatsoever,” it was quite clear that no

item may brought into a prison.               Further, there was a simple way

to get clarification regarding whether an item would be allowed

in   the        prison—obtain       the    consent      of   the        warden     or

superintendent.         Pursuant to the current version, a person has

no way to seek consent for possession of an item, and under this

version inmates must guess at what items are prohibited.                            A

statute that requires an inmate to guess at what exact items are

prohibited “fails to provide a person of ordinary intelligence

fair notice of what is prohibited,” Williams, 553 U.S. at 304,

and is void for vagueness.

     Second, the challenged version of the statute specifically

bans only three types of items:                  (1) items that can inflict

                                          8
injury on others, such as weapons; (2) items that can cause

intoxication; and (3) currency.                18 U.S.C. § 1791(d)(1)(A)-(E).

Unlike firearms or drugs that are listed in the statute, a cell

phone in and of itself poses no threat to safety.                            “The fact

that    cell   phones    might    be    put    to    bad    use    is   a   reason    for

Congress to specifically include them—like cash, see 18 U.S.C.

§ 1791(d)(1)(E)—in        the    statute,      not    to    read    the     statute   to

include them.”       United States v. Blake, 288 F. App’x 791, 796

(3rd Cir. 2008) (Rendell, J., dissenting).                       In sum, there is no

discernible     relationship       between      the     specifically        enumerated

items and a cell phone that would allow a reasonable person to

infer that a cell phone would be prohibited as well.

       Third, unlike the marijuana in Chatman, the illegality of

which is widely known to the general public, cell phones are not

inherently illegal.           It follows that a reasonable person would

not be aware that possession of an innocuous legal item would

subject them to prosecution.                  For all of these reasons, the

statute does not provide an ordinary person fair notice that

possession of a cell phone would subject him to federal criminal

sanctions.

       The government next argues that Beason knew a cell phone

could    “threaten      the   order,    security,          and    discipline    of    the

prison” because he knew he could be disciplined for possession

of     the   cell   phone     through    the        Handbook’s      prohibitions      on

                                          9
possessing contraband or by a Code 108 violation.                             The fact that

Beason    knew     that    he    could          be    subjected          to   administrative

sanctions        for    violation          of        the     aforementioned         Handbook

provisions is of no moment in determining whether Beason had

notice that his possession of a cell phone was in violation of

federal law.           The test is not whether Beason knew that cell

phones    were    prohibited         but   rather,          is    “whether     a   person    of

ordinary intelligence would know the conduct was prohibited by

federal criminal law, not by some other rule or regulation.”

Id. at 797 (Rendell, J., dissenting).                        Here, Beason’s knowledge

that he was not allowed to have the cell phone does not incline

us   to   conclude      that    he    therefore            had    fair    notice   that     his

actions would result in federal criminal penalties.



                                            III.

      Accordingly,        we    reverse         Beason’s         conviction     because     the

statute, as applied to him, is void for vagueness.

                                                                                    REVERSED




                                                10
WILKINSON, Circuit Judge, dissenting:

       I would affirm the judgment based on the reasoning given by

the district court, United States v. Beason, No. 1:10CR105, 2011

WL 399839 (N.D.W. Va. Feb. 1, 2011), and the Third Circuit in

United States v. Blake, 288 F. App’x 791 (3d Cir. 2008).                    The

practical effect of this whole matter, however, is limited.                 As

the majority notes, Congress has since “amended the statute at

hand   [to]   specifically   make[]    possession   of   a   cell   phone   by

federal inmates illegal.”       Ante at 5 (citing Pub. L. No. 111-

225, § 2, 124 Stat. 2387 (codified at 18 U.S.C. § 1791)).




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