                                                                                                                           Opinions of the United
2002 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


11-7-2002

USA v. Kenney
Precedential or Non-Precedential: Precedential

Docket No. 01-4318




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Recommended Citation
"USA v. Kenney" (2002). 2002 Decisions. Paper 708.
http://digitalcommons.law.villanova.edu/thirdcircuit_2002/708


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PRECEDENTIAL

       Filed November 7, 2002

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

No. 01-4318

UNITED STATES OF AMERICA

v.

JOHN C. KENNEY,
       Appellant

On Appeal from the United States District Court
for the Middle District of Pennsylvania
(D.C. No. 99-cr-00280)
Honorable James F. McClure, District Judge

Submitted under Third Circuit LAR 34.1(a)
October 18, 2002

BEFORE: ROTH and GREENBERG, Circuit Judges,
and WARD,* District Judge.

(Filed: November 7, 2002)

Martin C. Carlson
United States Attorney
Frederick E. Martin
Assistant United States Attorney

_________________________________________________________________

* Honorable Robert J. Ward, United States District Judge for the
Southern District of New York, sitting by designation.



       Herman T. Schneebeli Federal
        Building
       240 West Third Street, Suite 316
       Williamsport, PA 17701-6465

        Attorneys for Appellee

       Jeffrey C. Dohrmann
       Rieders, Travis, Mussina,
       Humphrey & Harris
       161 West Third Street
       P.O. Box 215
       Williamsport, PA 17703

        Attorneys for Appellant

OPINION OF THE COURT

GREENBERG, Circuit Judge:
This matter comes on before this court on John Charles
Kenney’s appeal from a judgment of conviction and
sentence entered in this criminal case on November 21,
2001. A grand jury indicted Kenney, a federal inmate, on
charges of assaulting a corrections officer, 18 U.S.C.
S 111(a)(1), resisting a corrections officer, 18 U.S.C. S 111,
and possession of contraband by an inmate, 18 U.S.C.
S 1791(a)(2). At trial the jury found him not guilty on the
two section 111 counts but convicted him on the
contraband count. The district court at sentencing
determined that Kenney’s conviction for possession of the
contraband, a razor blade inside a matchbook, was for a
crime of violence as defined in U.S.S.G. S 4B1.2(a)(2) and
thus in view of Kenney’s criminal history he was a career
offender within the meaning of U.S.S.G. S 4B1.1.
Accordingly, taking into account a 2-level reduction for
acceptance of responsibility, his guideline sentencing level
was 15 which, with a criminal history category of VI,
yielded a guideline range of 41 to 51 months. The court
sentenced Kenney to a 41-month custodial term to be
served consecutively to the sentence he already was serving
but did not impose a period of supervised release because
a district court earlier had required Kenney to serve a term

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of supervised release following his completion of the
custodial term he then was serving. Kenney appeals,
challenging only his sentence, asserting that his section
1791(a)(2) conviction was not for a crime of violence and
thus he is not a career offender. We exercise plenary review
on this appeal. See United States v. Luster, 305 F.3d 199,
200 (3d Cir. 2002).

In view of the limitation on the scope of the appeal the
sole question that we must answer is whether Kenney’s
conviction for possession of contraband was for a"crime of
violence" within U.S.S.G. S 4B1.1, as defined in U.S.S.G.
S 4B1.2(a)(2). The material facts are that Kenney, an inmate
at the United States Penitentiary at Allenwood,
Pennsylvania, was involved in an altercation which led to a
search of his possessions in which the prison guards
discovered the razor blade inside the matchbook. There is
no suggestion, however, that Kenney used the razor blade
in the conduct leading to the section 111 charges.

Under U.S.S.G. S 4B1.2(a)(2) a crime of violence includes,
inter alia, an offense that "involves conduct that presents a
serious potential risk of physical injury to another." The
Commentary in Application Note 1 to the section indicates
that a "crime of violence" includes an offense that "by its
nature, presented a serious potential risk of physical injury
to another." Even though Kenney points out that he did not
use the weapon against anyone else and argues that his
reason for having the weapon was potentially to injure only
himself, clearly we should review this matter categorically
as the Sentencing Commission was concerned with the
"nature" of the offense.
We reject Kenney’s argument as we are satisfied 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. See, e.g. , United States v.
Vahovick, 160 F.3d 395, 396-98 (7th Cir. 1998); United
States v. Patton, 114 F.3d 174, 176-77 (11th Cir. 1997);
United States v. Young, 990 F.2d 469, 472 (9th Cir. 1993);
cf. United States v. Romero, 122 F.3d 1334, 1340-41 (10th
Cir. 1997) (holding that conveying a weapon in a federal
prison is a "violent felony" within the Armed Career

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Criminal Act). Therefore we hold that Kenney’s subjective
reasons for having the weapon are immaterial in the
context of this case. Finally, we note that our result is
consistent with our recent opinion in Luster in which we
held that a felony conviction for escape was for a crime of
violence even though the defendant simply absented
himself from his place of confinement without using actual
violence to make good his escape. Luster, 305 F.3d at 202.

The judgment of conviction and sentence entered
November 21, 2002, will be affirmed.

A True Copy:
Teste:

       Clerk of the United States Court of Appeals
       for the Third Circuit

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