                                                     United States Court of Appeals
                                                              Fifth Circuit
                                                           F I L E D
           IN THE UNITED STATES COURT OF APPEALS
                                                   December 14, 2006
                    FOR THE FIFTH CIRCUIT
                   ______________________
                                                 Charles R. Fulbruge III
                        No. 05-41768                     Clerk
                   ______________________

                   UNITED STATES OF AMERICA
                      Plaintiff-Appellee

                             versus

                  JOSE ROBLES-RODRIGUEZ
                   Defendant-Appellant
  ___________________________________________________

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

                       (05-CR-30)
   __________________________________________________

Before GARWOOD, DENNIS, and OWEN, Circuit Judges.

PER CURIAM:1

    Jose Robles-Rodriguez appeals the district court’s

determination that his offense of knowing possession in

a federal correctional facility of a prohibited object,

in violation of 18 U.S.C. §§ 1791, constitutes a crime

of violence for the purposes of U.S.S.G. § 4B1.2. For

the reasons below, we affirm.

      1
        Pursuant to 5th Cir. R. 47.5, the court has determined that
 this opinion should not be published and is not precedent except
 under the limited circumstances set forth in 5th Cir. R. 47.5.4.
                                                                  1
    Mr. Robles is presently an inmate at a federal

prison in Texas. At the time of the offense at issue,

Robles had prior convictions for delivery of cocaine and

assault with a deadly weapon. On October 24, 2004, he

failed to clear a metal detector and was searched. A

prison employee found a six-inch metal “shank” - a piece

of metal with tape on one end and sharpened to a point

on the other, designed and intended to be used as a

weapon - concealed in Robles’s left sleeve. Robles

claimed he had the shank for self-protection.

    Robles pleaded guilty to one count of knowing

possession in a federal correctional facility of a

prohibited object. See 18 U.S.C. §§ 1791(a)(2), (b)(3),

(d)(1)(B). Robles’s presentence investigation report

(PSR) enhanced his base offense level from 13 to 17,

based on the determination that the instant offense

placed Robles into the category of “career offender”

under U.S.S.G. §§ 4B1.1 and 4B1.2, since he had two

prior felony convictions for either a crime of violence

or a controlled substance offense. Robles objected, on

the grounds that his instant offense was not a crime of


                                                           2
violence under U.S.S.G. § 4B1.2.

    The district court overruled the objection and

determined that the offense qualifies as a crime of

violence because it presented a serious potential risk

for physical injury to another. It also, however,

granted a reduction in Robles’s criminal history

category because it found the advisory range overstated

the seriousness of his criminal history. The district

court then sentenced Robles to 33 months of

imprisonment. Robles timely appealed.

    The question of whether a defendant’s prior

conviction can be classified as a violent felony for the

purposes of applying the Sentencing Guidelines is a

question of law subject to de novo review. United States

v. Charles, 301 F.3d 309, 312-13 (5th Cir. 2002) (en

banc). Because Robles objected at sentencing, his case

is subject to harmless error review. United States v.

Walters, 418 F.3d 461, 463 (5th Cir. 2005).

    U.S.S.G § 4B1.1(a)(2) classifies a defendant as a

career offender where, after commission of two prior

qualifying offenses, the present offense is either a


                                                           3
crime of violence or a controlled substance offense. A

crime may be classified as a crime of violence where,

inter alia, “by its nature, [it] present[s] a serious

potential risk of physical injury to another.2 U.S.S.G. §

4B1.2(a)(2);   U.S.S.G. § 4 B1.2 comment, n.1 . To make

such a determination, this court applies the categorical

approach, which requires it to look the face of the

indictment to determine if “the crime charged or the

conduct charged presents a serious potential risk of

injury to a person.” Charles, 301 F.3d at 314. When a

statute provides alternative methods of committing an

offense (as 18. U.S.C. § 1791 does), the court may look

to the charging papers to determine the method used in a

particular case.   United States v. Calderon-Pena, 383

F.3d 254, 258 (5th Cir. 2004) (en banc) (“. . . [w]e may

look to charging papers to see which of the various

statutory alternatives are involved in the particular

case . . .”). The court must apply a least culpable

     2
       A crime may also be labeled a crime of violence
 where it has as an element the use of physical force
 against another or falls within a list of enumerated
 offenses. U.S.S.G. §§ 4B1.2(a)(1),(2). The district court
 did not rely on either of these in applying the
 guidelines, however.
                                                           4
means analysis, which requires the court to determine

whether the charged offense could be committed in any

fashion without a serious potential risk of physical

injury to another. See United States v. Montgomery, 402

F.3d 482, 487-88 (5th Cir. 2005) (holding that a crime

could not be a crime of violence where there were

“numerous ways that this statute can be violated without

posing a significant risk of physical harm”).

    The indictment in this case specifies that Robles

was convicted under 18 U.S.C. §§ 1791(a)(2) and

(d)(1)(B). That statute criminalizes possession by an

inmate of

    marijuana or a controlled substance in schedule
    III, other than a controlled substance referred
    to in subparagraph (C) of this subsection,
    ammunition, a weapon (other than a firearm or
    destructive device), or an object that is
    designed or intended to be used as a weapon or
    to facilitate escape from a prison[.]

18 U.S.C. §1791(d)(1)(B). The indictment reveals that

the count to which Robles pleaded was knowing possession

of a prohibited object “designed and intended to be used

as a weapon[.]” Thus the question in Robles’s case is

whether, by its nature, the knowing possession of such


                                                           5
an object by an inmate, presents a serious risk of

physical injury to another.

    We have not yet squarely addressed this question;

although we have already held that an escape or an

attempt to escape from U.S. custody in a prison camp

constitutes a crime of violence under U.S.S.G. § 4B1.2.

United States v. Ruiz, 180 F.3d 675, 676-77 (5th Cir.

1999) (holding as above despite the fact that defendant

“simply walked away[,]” no guards were armed, and no

physical barriers prevented escape). In so holding, we

approved of the Tenth Circuit’s reasoning behind such a

classification:

    “[E]very escape scenario is a powder keg, which
    may or may not explode into violence and result
    in physical injury to someone at any given time,
    but which always has the serious potential to do
    so. . . . Indeed, even in a case where a
    defendant escapes from a jail by stealth and
    injures no one in the process, there is still a
    serious potential risk that injury will result
    when officers find the defendant and attempt to
    place him in custody.”

Ruiz, 180 F.3d at 677 (quoting United States v.

Mitchell, 113 F.3d 1528, 1533 (10th Cir. 1997)(quoting

United States v. Gosling, 39 F.3d 1140, 1142 (10th Cir.

1994))).

                                                          6
    The other circuits that have considered the question

at hand all agree that a possession of a prohibited

weapon while in prison is a crime of violence under the

sentencing guidelines. See United States v. Kenney, 310

F.3d 135, 137 (3d Cir. 2002) (possession of a razor

meant to be used only against the inmate himself, not

others); United States v. Vahovick, 160 F.3d 395, 397

(7th Cir. 1998) (possession of five sharpened pencils,

bound together with tape and used to stab another); U.S.

v. Thomas, 2006 WL 1545508 at *2 (10th Cir. June 7,

2006) (possession of a shank); see also United States v.

Young, 990 F.2d 469, 472 (9th Cir. 1993) (possession of

a shank in violation of California statute prohibiting

possession of deadly weapons in prison is a crime of

violence under the Guidelines); United States v. Romero,

122 F.3d 1334, 1340-41 (10th Cir. 1997) (conveyance of a

revolver in prison in violation of 18 U.S.C. § 1791

(1984) constitutes a crime of violence under 18 U.S.C. §

924(e)(2)(B), which uses identical language to that in

the Guidelines); United States v. Patton, 114 F.3d 174,

177 (11th Cir. 1997) (conveyance of an 11.5 inch


                                                           7
homemade knife under 18 U.S.C. § 1792 (1982) constitutes

a crime of violence under the Guidelines). The Third

Circuit has drawn a clear parallel between the instant

crime and a prior opinion that held that a felony

conviction for escape was for a crime of violence.

Kenney, 310 F.3d at 137 (citing United States v. Luster,

305 F.3d 199, 200 (3d Cir. 2002)).3 We agree with the

above reasoning, and hold that knowing possession of a

prohibited object designed and intended to be used as a

weapon constitutes a crime of violence under the

Sentencing Guidelines.

    Robles urges that the potential risk of injury

inherent in his crime is “attenuated”. He argues that

his crime should be considered more akin to unlawful

possession of a firearm by a felon (outside of prison),

which we have held is not a crime of violence. We

decline to adopt this line of reasoning. In doing so, we

agree with the law of our sister circuits, which

emphasizes the fact that the possession offense occurs


      3
        Note that in Luster, the Third Circuit relied on the same
 language out of the Tenth Circuit that we relied on in Ruiz.
 Luster, 305 F.3d at 202 (citing Gosling, 39 F.3d at 1142 and Ruiz,
 180 F.3d at 677).
                                                                  8
in prison, rather than in the outside world. That fact

creates a perpetual risk of injury and precludes any

legitimate reasons that a non-incarcerated individual

could have for possessing a weapon (e.g., recreation).

See Vahovick, 160 F.3d at 397 (holding “there is simply

no acceptable use for a weapon by an inmate in a prison

for there always exists in such possession the serious

potential risk of physical injury to another” and

distinguishing the crime from unlawful possession

outside of prison because “prisons are inherently

dangerous places and they present unique problems”);

Young, 990 F.2d at 472 (“The confines of prison preclude

any recreational uses for a deadly weapon and render its

possession a serious threat to the safety of others.”);

Romero, 122 F.3d at 1341 (quoting and agreeing with the

above language in Young); Patton, 114 F.3d at 177 (“. .

. such an action, when it occurs inside a federal prison

where conditions require heightened security, carries

with it a serious risk of physical injury”). We agree:

an inmate’s possession, while in prison, of an

instrument designed and intended to be used as a weapon,


                                                           9
carries with it the same inherent potential to “explode

into violence” that drove our holding in Ruiz.

     Accordingly, we conclude that the offense at issue

committed by the defendant in this case was correctly

judged to be a violent felony and that his sentence was

justifiably enhanced under the sentencing guidelines.

For these reasons, the judgment of the district court is

AFFIRMED.




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