Appeal from the United States District Court for the Middle District of Pennsylvania (D.C. Criminal Action No. 4-08-cr-00136-001) District Judge: Honorable James F. McClure.
The opinion of the court was delivered by: Ambro, Circuit Judge
Before: SLOVITER, AMBRO, and JORDAN, Circuit Judges.
Terrell Polk appeals from an order sentencing him to 37 months' imprisonment for possession of a "shank" in prison. The District Court characterized Polk's offense as a "crime of violence," and accordingly calculated his sentencing range pursuant to the Career Offender Guidelines. This was correct under United States v. Kenney, 310 F.3d 135 (3d Cir. 2002). However, because we determine that Kenney is no longer good law in light of the Supreme Court's recent decision in Begay v. United States, __ U.S. __, 128 S.Ct. 1581 (2008), we vacate the District Court's sentencing order and remand for further proceedings.
In June 2007, Polk, an inmate serving a sentence at the United States Penitentiary at Lewisburg, PA, had his cell searched by a correctional officer, who found a six-inch plastic homemade shank in an envelope containing his personal papers. A grand jury in the Middle District of Pennsylvania returned a one-count indictment against Polk for possession of a prohibited object designed to be used as a weapon in violation of 18 U.S.C. § 1791(a)(2), and Polk pleaded guilty to the indictment in accordance with a plea agreement. At Polk's sentencing hearing in December 2008, the District Court determined that the offense qualified as Polk's third predicate "crime of violence," thus warranting a three-level sentence enhancement under the federal Sentencing Guidelines for career offenders. U.S.S.G. § 4B1.1. Consequently, Polk's total offense level was 14, which, when combined with his criminal history category of VI, resulted in a Sentencing Guidelines range of 37--46 months. Without the enhancement, the Guidelines range would have been 27--33 months. Polk did not object to his designation as a career offender (though Begay had been issued six months before sentencing), and, as noted, was sentenced to 37 months' imprisonment. He timely appealed.
II. Jurisdiction and Standard of Review
The District Court had jurisdiction under 18 U.S.C. § 3231. We have jurisdiction under 18 U.S.C. § 3742(a)(1) and 28 U.S.C. § 1291.
Because Polk did not object to his designation as a career offender for sentencing purposes in the District Court, we review for plain error. Fed. R. Crim. P. 52(b). To grant the relief requested under this standard, we would need to conclude not only that the District Court erred in classifying Polk as a career offender, but that the error was plain, and it affected adversely "substantial rights" of Polk as well as the "fairness, integrity, or public reputation of judicial proceedings." United States v. Davis, 407 F.3d 162, 164 (3d Cir. 2005) (quoting United States v. Evans, 155 F.3d 245, 251 (3d Cir. 1998)).
If we determine the error was not plain, Polk's counsel offers an alternative argument of ineffective assistance of counsel based on his failure to raise Begay and its arguable effect at sentencing. Under Strickland v. Washington, 466 U.S. 668 (1984), to prevail on this claim counsel's performance must be deficient, id. at 687 ("In light of all the circumstances, the identified acts or omissions were outside the wide range of professionally competent assistance."), and prejudicial, id. at 690 (in this context, that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different").