Not Cutting It: The Fourth Circuit’s Misapplication of Section 4B1.2(a)(2) of the Sentencing Guidelines in Mobley v. United States

BY Joseph T. Polonsky

In Mobley v. United States, the Fourth Circuit held by a split vote that Mobley’s possession of a prohibited object in prison, namely a shank stored in the insole of his shoe, constituted a “crime of violence” under the residual clause of Section 4B1.2(a)(2) of the Sentencing Guidelines sufficient to enhance his sentence to the thirty-seven months Mobley received.  This Recent Development argues first that the Fourth Circuit incorrectly decided Mobley by using a utilitarian theory of punishment similar to that employed by the Fifth, Eighth, and Tenth Circuits. The application of a utilitarian theory in this circumstance is incorrect because it treats the crime of “possession of a weapon” as an inchoate offense. Conversely, the more traditional, retributivist philosophy applied by the Third Circuit treats “possession of a weapon” as too remote in time to be considered an inchoate offense.  Additionally, Mobley v. United States exemplifies the problematic nature of the residual clause of Section 4B1.2(a)(2) of the United States Sentencing Guidelines, which provides too much leeway for judges to impose their individual values on the sentencing process in direct contradiction to the purpose of the Sentencing Reform Act of 1984.

DOWNLOAD PDF | 91 N.C. L. Rev.1437 (2013)