Monday, March 12, 2007

TX Conviction for Posession of Deadly Weapon In Penal Institution Is COV Under U.S.S.G. §4B1.2(a)(2)

United States v. Rodriguez-Jaimes, No. 06-40281 (5th Cir. Mar. 9, 2007) (Davis, Dennis, Prado)

Rodriguez was convicted of one count of conspiracy to PWID cocaine and cocaine base, and one during-and-in-relation-to 924(c) gun count. The district court sentenced him as a career offender based, in part, on his prior Texas conviction for possession of a deadly weapon in a penal institution (Tex. Penal Code § 46.10). Rodriguez challenged that determination on appeal, and also argued that the findings necessary for the career offender enhancement violated his Sixth Amendment right to trial by jury as elucidated in Booker.

The Government conceded that a conviction under § 46.10 does not qualify as a crime of violence under U.S.S.G. §4B1.2(a)(1) because it lacks an element of physical force. However, it argued that the offense "otherwise involve[d] conduct that presents a serious potential risk of physical injury to another[,]" making it a crime of violence under §4B1.2(a)(2).

The court agreed. Relying on United States v. Robles-Rodriguez, 204 F. App'x. 504 (5th Cir. 2006), the court held that "knowing possession of a handgun in violation of a Texas statute prohibiting the possession of a deadly weapon in a penal institution is a crime of violence under U.S.S.G. § 4B1.2(a)(2)." Slip op. at 9. The court rejected Rodriguez's argument that his prior offense was similar to the offense of being a felon in possession of a firearm outside of prison, which is not a crime of violence under §4B1.2(a). It concluded that the fact that "'the posession offense occurs in prison, rather than in the outside world[, . . .] 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).'" Slip op. at 8 (quoting Robles-Rodriguez).

The court also rejected Rodriguez's Sixth Amendment challenge to the career offender enhancement findings, due to the Fifth Circuit's prior panel decision in United States v. Guevara, 408 F.3d 252 (5th Cir. 2005) (the career offender determination does not offend the Sixth Amendment because it involves a question of law rather than fact).

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