PUBLISH

             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT                  FILED
                                                      U.S. COURT OF APPEALS
                       ________________________         ELEVENTH CIRCUIT
                                                              09/29/99
                                                          THOMAS K. KAHN
                              No. 97-8424                      CLERK
                       ________________________

                    D. C. Docket No. 1:96-CR-367-MHS


UNITED STATES OF AMERICA,

                                                     Plaintiff-Appellee,

                                  versus

CHARLES ALLEN,

                                                     Defendant-Appellant.


                       ________________________

                Appeal from the United States District Court
                   for the Northern District of Georgia
                     _________________________

                          (September 29, 1999)



Before COX, BIRCH and HULL, Circuit Judges.

PER CURIAM:
      Title 18, section 1791(a)(2) makes it unlawful for a federal inmate to possess

a “prohibited object.” Section 1791(d)(1) defines “prohibited object” to include,

among other things, an object that is “intended to be used as a weapon.” The issue in

this case is whether the intent described in § 1791(d)(1)(B) is an element of the

offense or merely a sentencing factor. The district judge determined pretrial that he

would decide intent at sentencing. Because we find intent to be an element of the

specific offense charged in the indictment here, we vacate the conviction and sentence,

and remand.

                                       I. Facts

      Charles Allen, an inmate at the United States Penitentiary in Atlanta, Georgia,

worked as a quality assurance inspector at the on-site UNICOR1 mattress factory. On

the morning of August 12, 1996, Allen conversed for approximately twenty or thirty

minutes with the foreman of the section where the mattress covers are sewn together.

Another foreman observed this conversation, concluded that Allen was acting

suspiciously, and asked the two men to go to the supervisor’s office, where Allen was

searched.

      When asked to empty his pockets, Allen produced three nine-and-a-half-inch



      1
        UNICOR is a program through which inmates manufacture products pursuant to
government contracts.

                                          2
tufter needles and a wooden dowel with a hole bored into one end and a rope wrapped

around the other end. The tufter needles, used to sew mattress covers together,

appeared to have been broken off from one of the sewing machines. The needles fit

into the wooden dowel, and when assembled, the items could be used as a shank or

ice-pick tool or weapon with a lanyard. While Allen did not contest his possession

of the items, he told the supervisor that he intended to give them to his supervisors

privately rather than in view of other inmates.

                              II. Procedural History

      Allen was indicted in the Northern District of Georgia in a single-sentence

indictment that alleges: “On or about August 12, 1996, the defendant, CHARLES

ALLEN, an inmate in the Atlanta Federal Penitentiary, possessed prohibited objects,

to wit: three needles approximately nine and one-half (9 ½) inches in length, which

were intended to be used as weapons, in violation of Title 18, United States Code,

Section 1791(a)(2).” (R.1 at 1.)

      At a pretrial conference, the district judge ruled that the Government need not

prove Allen’s intent regarding the items in his possession as an element of the offense

at trial; instead, the judge would determine the intent issue at sentencing. Allen’s

defense was the lack of intent, and because intent determined whether Allen

committed a misdemeanor or felony, substantially affecting his sentence, he protested


                                          3
the district judge’s ruling. Allen did not, however, contest his possession of the

needles or his status as a federal prisoner; therefore, he entered a conditional plea of

guilty without a plea agreement, reserving the trial judge’s determination of the intent

issue for appeal.

       At sentencing, Allen’s counsel stated the evidence that the defense would have

presented at trial concerning Allen’s possession of the prohibited objects. The district

judge, however, found that the forbidden objects were intended to be used as weapons.

Allen was sentenced to thirty months’ imprisonment to be served consecutively to the

sentence that he was serving for bank robbery, a $100 special assessment, and three

years’ supervised release. This appeal followed.

                                    III. Issue on Appeal

       Whether the fact that an object was “intended to be used as a weapon,” as

defined by 18 U.S.C. § 1791(d)(1)(B), is an element of the offense of possession of

a prohibited object intended to be used as a weapon pursuant to 18 U.S.C. §

1791(a)(2) or is a sentencing factor.2




       2
         In this case, the Government did not charge Allen with possessing prohibited objects
“designed . . . as a weapon,” as defined by 18 U.S.C. § 1791(d)(1)(B). Therefore, nothing herein
should be construed as holding or implying that intent is an element of an offense charged in that
manner in an indictment.

                                                4
                           IV. Standard of Review and Discussion

       The interpretation of a statute is a question of law to be reviewed de novo by

the appellate court. See United States v. Grossman, 

, 1451 (11th Cir.

1997). According to the Government, § 1791(a)3 sets forth the offense of providing

or possessing contraband in prison. Under this theory, a violation of § 1791(a)(2) is

proven if the defendant (1) is a prison inmate who (2) possessed a “prohibited object.”


       3
           Relevant sections of 18 U.S.C. § 1791 (Providing or possessing contraband in prison)
include:

       (a) Offense.--Whoever--
          ***
          (2) being an inmate of a prison, makes, possesses, or obtains, or attempts to
              make or obtain, a prohibited object;

           shall be punished as provided in subsection (b) of this section.

       (b) Punishment.--The punishment for an offense under this section is a fine under
            this title or--
               ***
           (3) imprisonment for not more than 5 years, or both, if the object is
               specified in subsection (d)(1)(B) of this section;
           ***
           (5) imprisonment for not more than 6 months, or both, if the object is
               specified in subsection (d)(1)(F) of this section.
           ***
       (d) Definitions.--As used in this section--
         (1) the term "prohibited object" means--
               ***
               (B) . . . 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;
               ***
               (F) any other object that threatens the order, discipline, or security of a
                    prison, or the life, health, or safety of an individual.


                                                    5
The jury must simply find that the defendant possessed an object enumerated in §

1791(d)(1)(A)-(F) in order to find the defendant guilty. The type of prohibited object

possessed by the defendant is to be determined by the court at sentencing by a

preponderance of the evidence. The Government argues that its interpretation of the

statute is supported by the natural language and structure of § 1791. In contrast, under

Allen’s interpretation of § 1791, the type of “prohibited object,” defined by § 1791(d)

and incorporated into § 1791(a)(2), is an element of the offense which the

Government must prove beyond a reasonable doubt at trial.

      We conclude that § 1791's language and structure support Allen’s position. The

Government contends that the fact that subsection (b) “Punishment” sets out different

levels of punishment based on the type of “prohibited object” possessed by the

defendant, as defined by subsection (d)(1), reflects congressional intent to make the

type of prohibited object a sentencing consideration. Subsection (b), however, is not

the only subsection which incorporates the definition of “prohibited object.” The

possession of a “prohibited object” is an element of the offense described in §

1791(a)(2). Subsection (d)(1) clarifies § 1791(a)(2) by defining the categories of

prohibited objects. Subsection (d)(1)’s definition of “prohibited object” is, therefore,

critical to an understanding of the offense set out by § 1791(a)(2). In other words,

incorporation of the definition of the offense element of “prohibited object” is


                                           6
necessary to determine the crime committed.

      In addition to using the language and structure of § 1791, Allen supports his

position with an analysis of several considerations used by the Supreme Court to

distinguish elements of an offense from sentencing factors and an opinion from the

Ninth Circuit, the only other circuit to address the intent component of § 1791. See

United States v. Rodriguez, 

(9th Cir. 1995). Reversing a conviction under

§ 1791(a)(2) for possession of an object intended to be used as a weapon, the Ninth

Circuit concluded that if:

      the object is not found to be a weapon as a matter of law or fact,
      conviction under the "designed or intended to be used as a weapon"
      language requires proof of specific intent on the part of the defendant in
      order to bring the object within the definition of (d)(1)(B).

While the holding that the offense requires proof of “specific intent on the

part of the defendant” goes beyond the question before us today, we consider the

Ninth Circuit’s opinion persuasive authority for the proposition that intent is an

element of the offense charged in this indictment.

      This conclusion is consistent with several factors considered by the Supreme

Court to distinguish constitutionally permissible sentence enhancement considerations

from elements of an underlying criminal offense. These factors include: (1) the

amount of increase in the punishment resulting from the fact to be determined; see

McMillan v. Pennsylvania, 

, 87-88, 

, 2417 (1986); (2) the

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difficulty of objectively verifying the additional fact; 

106 S. Ct. at 2414-

15; (3) the amount of prejudice to the defendant from the presentation of the

additional fact to the jury; Almendarez-Torrez v. United States, ___ U.S. ___, 118 S.

Ct. 1219 (1998); and (4) the alleged sentencing provision’s lowering of the burden of

proof required for a conviction. 

, 

,

2417. We briefly consider each of these factors below.

       First, we find the relative increase in punishment, as to both the characterization

of the offense and the potential sentence, to weigh in favor of Allen’s interpretation

of the statute. With the decision at sentencing that the tufter needles possessed by

Allen were intended to be used as weapons under § 1791(d)(1)(B), Allen’s crime was

elevated to a felony, and he was potentially subjected to imprisonment of up to five

years.4 See 18 U.S.C. § 1791(b)(3). To construe the type of prohibited object as a

sentencing factor removes the possibility that a jury could convict a defendant of

possessing a prohibited “object that threatens the order, discipline, or security of a

prison, or the life, health, or safety of an individual” under § 1791(d)(1)(F), a

misdemeanor offense subjecting the defendant to no more than six months of

       4
          We note that Allen’s presentence investigation report (“PSR”) shows that the probation
officer calculated Allen’s base offense level at 13 because, “[a]ccording to the indictment, the
contraband possessed was ‘intended to be used as weapons.’” PSR at 2 (quoting R.1 at 1). Thus,
the fact that determined whether Allen committed the crime charged in the indictment, his intent
regarding the tufter needles, was the sole fact used by the probation officer to attribute to Allen a
base offense level of 13, which clearly affected his sentence. See U.S.S.G. § 2P1.2(a)(2).

                                                 8
imprisonment. See 18 U.S.C. § 1791(b)(5).

      Moreover, a defendant accused of a felony is entitled to certain procedural

protections. “Any federal offense punishable by imprisonment for more than one year

is an offense for which the Fifth Amendment requires a grand jury indictment.”

United States v. Stone, 

, 836 (11th Cir. 1998) (per curiam) (citation

omitted). Upon indictment, a defendant’s right to have a jury of his peers determine

whether he has committed a felony is a “principle of justice so rooted in the traditions

and conscience of our people . . . as to be ranked as fundamental.” 

, 106 S. Ct. at 2415). Because conviction of a felony results

in the loss of constitutional rights important to each United States citizen, such as the

rights to vote, to bear arms, and to engage in a profession, “[f]or a sentencing judge

to effect such a deprivation by factual findings that convert what would otherwise be

a misdemeanor into a felony seems . . . an impermissible usurpation of the historic role

of the jury.” 

impermissible deprivation is possible under the

Government’s interpretation of § 1791.

      The second factor argued by Allen also weighs against the Government. This

second factor asks whether the fact at issue is objectively verifiable; if so, it may be

permissible to evaluate the fact at sentencing because the risk of error is slight. In

McMillan, the Supreme Court found the fact that a defendant “visibly possessed a


                                           9
firearm” in connection with certain crimes a valid ground for sentence enhancement.

& 

& 2419. The Supreme Court affirmed the

state supreme court’s determination that the sentence enhancement was constitutional,

and noted the state supreme court’s conclusion that “visible possession is a simple,

straightforward issue susceptible of objective proof.” 

. In

contrast, in the present case, whether the prohibited objects were intended to be used

as weapons is not such a “simple, straightforward issue.” The intent required by §

1791(d)(1)(B) is not an objectively verifiable additional fact, weighing against

permitting a determination of intent at sentencing.

      The third factor, requiring an evaluation of whether the presentation of the fact

to the jury would prejudice the defendant, does not point toward permitting a

determination of intent at sentencing. See Almendarez-Torrez, ___ U.S. at ___, 118

S. Ct. at 1226 (finding that Congress would not have wanted to create unfairness by

the presentation of highly prejudicial, uncontested facts to the jury). Under this factor,

if the presentation of the fact to the jury would be highly prejudicial, the fact would

be more appropriately considered by the court at sentencing. In Almendarez-Torrez,

the Supreme Court analyzed a statute that provided an enhanced sentence of up to

twenty years’ imprisonment for illegal reentry to the United States following

deportation for conviction of an aggravated felony. See id. at ___, 118 S. Ct. at 1224.


                                           10
In finding prior convictions a valid sentencing factor, the Court noted that “the

introduction of evidence of a defendant's prior crimes risks significant prejudice.” 

Such potential prejudice does not exist, however, where a jury is asked to

determine the fact at issue. Whether the needles possessed by Allen were intended to

be used as weapons was the factual issue to be determined in order to prove the

offense, not a prejudicial fact simply admitted.

      The fourth factor, a change in the standard of proof necessary for conviction,

also weighs in Allen’s favor. The district judge determined Allen’s intent regarding

the tufter needles at sentencing, where the proof standard is a preponderance of the

evidence. See United States v. Stone, 

, 834 n.12 (11th Cir. 1998) (citing

McMillan for the proposition that “the presence or absence of a penalty sentencing

factor is to be determined by the sentencing district judge, who need only find its

existence by a preponderance of the evidence.”). Therefore, the Government’s

interpretation of § 1791 — where “intended to be used as a weapon” was the charged

offense — transforms the standard of proof as to the type of object possessed by

Allen from beyond a reasonable doubt to be determined by the jury to a

preponderance of the evidence to be determined by the judge at sentencing.

      The Government attempts to counter Allen’s arguments through analysis of the

legislative history of § 1791. While we recognize the possibility that the legislative


                                          11
history of § 1791 supports the Government’s construction, the Supreme Court has

cautioned against adopting an otherwise reasonable interpretation of a statute which

raises serious constitutional questions. See Jones v. United States, ___ U.S. ___, ___,

, 1222 (1999) (quoting United States ex rel. Attorney General v.

Delaware & Hudson Co., 

, 408, 

, 536 (1909), for the rule

that “where a statute is susceptible of two constructions, by one of which grave and

doubtful constitutional questions arise and by the other of which such questions are

avoided, our duty is to adopt the latter.”). As we have explained, the Government’s

interpretation of the statute raises serious constitutional questions on which precedent

is not dispositive. Indeed, Supreme Court decisions arguably suggest that “any fact

(other than prior conviction) that increases the maximum penalty for a crime must be

charged in an indictment, submitted to a jury, and proven beyond a reasonable doubt.”

Id., ___ U.S. at ___, 119 S. Ct. at 1224 n.6. We therefore reject the Government’s

reading of § 1791 and interpret the intent requirement as an element of the offense of

possession of a prohibited object intended to be used as a weapon.

                                 V. CONCLUSION

      In accordance with the discussion above and given the specific charge in the

indictment the Government brought against Allen, a jury must decide beyond a

reasonable doubt whether the tufter needles were intended to be used as weapons. We


                                          12
therefore VACATE Allen’s conviction and sentence, and REMAND for proceedings

consistent with this opinion with instructions to permit Allen to replead and to go to

trial if he so elects.

       VACATED AND REMANDED.




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