Volume 1 of 2
Filed April 8, 1998
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 95-1662
UNITED STATES OF AMERICA
v.
MUHAMMAD ASKARI,
Appellant
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. Criminal No. 92-cr-00288)
Submitted Pursuant to Third Circuit LAR 34.1(a)
November 6, 1996
Before: BECKER, McKEE and GARTH, Circuit Judges
Argued En Banc October 29, 1997
Before: BECKER, Chief Judge; SLOVITER,* STAPLETON,
MANSMANN, GREENBERG, SCIRICA, COWEN, NYGAARD,
ALITO, ROTH, LEWIS, McKEE, and GARTH,
Circuit Judges
(Filed April 8, 1998)
DAVID L. McCOLGIN, ESQUIRE
ROBERT EPSTEIN, ESQUIRE
(ARGUED)
Defender Association of Philadelphia
Federal Court Division
Lafayette Building, Suite 800
437 Chestnut Street
Philadelphia, Pennsylvania 19106-
2414
Attorneys for Appellant
STEPHEN J. BRITT, ESQUIRE
(ARGUED)
Office of United States Attorney
615 Chestnut Street, Suite 1250
Philadelphia, Pennsylvania 19106
Attorney for Appellee
OPINION OF THE COURT
SCIRICA, Circuit Judge.
This case involves an interpretation of the sentencing
guidelines. The issue on appeal before the en banc court is
the continuing vitality of our opinion in United States v.
Rosen, 896 F.2d 789 (3d Cir. 1990), addressing § 5K2.13 of
the United States Sentencing Commission, Guidelines
Manual (Nov. 1997) which permits a downward departure
based on diminished capacity where the crime is non-
violent. The specific issue requires us to examine the
meaning of "non-violent" offense under the sentencing
guidelines.
Although resolution of this case would not necessarily
compel reexamination of Rosen, much has been written by
other courts of appeals since our decision eight years ago.
The en banc court affords us the opportunity to revisit the
issue and modify our views.
I.
A.
Muhammad Askari appeals his sentence for bank
robbery under 18 U.S.C.A. § 2113(a) (West Supp. 1997),
contending the district court should have granted him a
downward departure for diminished capacity under USSG
§ 5K2.13 because (1) the unarmed bank robbery was non-
violent and (2) he has a well-documented history of serious
psychiatric illness.
Askari's mental illness at the time he committed the bank
robbery is not at issue. Indeed, before sentencing, the
district court found that Askari was not mentally competent
and committed him, under 18 U.S.C. § 4244(d), to a federal
institution for psychiatric care and treatment.1 After the
warden at the U.S. Medical Center for Federal Prisoners at
Springfield, Missouri certified that Askari had recovered
and was again mentally competent, the court sentenced
him to 210 months in prison. (See App. at 58a, 68a).2
The facts regarding the bank robbery are not in dispute.
On the afternoon of April 23, 1992, Askari entered the First
Bank of Philadelphia at 1424 Walnut Street in Philadelphia.
He approached a closed teller's window and said two or
three times, "Put the money on the counter." Then, he went
to an open window and told the bank teller, Ellen Ishizaki,
"You have three seconds to give me the money." After
Ishizaki gave him bait money, he ran out the door. Askari
was not seen carrying a weapon, nor did he use force or
make specific verbal threats of harm. When he demanded
money from bank teller Ishizaki, however, he had his hand
underneath his shirt. Two bank employees along with a
Center City Special District employee chased Askari and
caught him two blocks away. Police later found the bait
money in Askari's pants. They did not recover a weapon.
(See Presentence Report 5-8).
Askari was indicted for bank robbery, and, on July 10,
1992, was found guilty by a jury. At sentencing, defense
counsel argued for a downward departure based on Askari's
diminished mental capacity, citing his history of serious
psychiatric illness and his diagnosis as a paranoid
schizophrenic. The district court declined to grant the
departure, explaining that the sentencing guidelines
"contain a policy statement that a downward departure for
diminished capacity is limited to non[-]violent offenses . . . .
[the] commission says [there is] no downward departure for
diminished capacity at the time of the offense, if the offense
is a violent crime." (App. at 45a). The court also rejected
defendant's motion for downward departure based on
unusual, mitigating circumstances not adequately
considered by the guidelines.3
B.
Askari appealed his sentence, contending the unarmed
bank robbery was a non-violent offense because he did not
use force or violence, or verbally threaten or harm anyone
during the robbery. A panel of our court rejected Askari's
arguments and affirmed the district court:
In United States v. Rosen, 896 F.2d 789, 791 (3d Cir.
1990), we held that the district court did not have the
authority in a bank robbery sentence to depart
downward because that offense is not a `non-violent'
offense. We so concluded by looking to a separate
guidelines provision, [USSG] § 4B1.2, which defines
robbery as a `crime of violence.' Although the circuits
are split on this point, we are bound by our prior
holding.
United States v. Askari, No. 95-1662, 1997 WL 92051, at *2
(3d Cir. Mar. 5, 1997), Order Vacating Opinion and Granting
Rehearing En Banc, Mar. 27, 1997.
Nonetheless, we recognized disagreement among the
courts of appeals whether the "crime of violence" definition
contained in USSG § 4B1.24 governs the "non-violent"
offense requirement of USSG § 5K2.13:
Four other circuits have reached the same
conclusion that this court reached in Rosen. United
States v. Mayotte, 76 F.3d 887, 889 (8th Cir. 1996);
United States v. Poff, 926 F.2d 588, 591-93 (7th Cir.
1991) (en banc) (6-5 decision); United States v.
Maddalena, 893 F.2d 815, 819 (6th Cir. 1989); United
States v. Borrayo, 898 F.2d 91, 94 (9th Cir. 1989).
However, two circuits, following Judge Easterbrook's
dissent in Poff, have concluded that the "non-violent
offense" requirement of § 5K2.13 is not governed by the
"crime of violence" definition contained in§ 4B1.2.
United States v. Weddle, 30 F.3d 532, 540 (4th Cir.
1994); United States v. Chatman, 986 F.2d 1446, 1450
(D.C. Cir. 1993).
Askari, 1997 WL 92051, at *2 n.2.
In a concurring opinion, Judge Becker, recognizing our
controlling precedent in Rosen, suggested "that our decision
in Rosen, that a downward departure is not available under
§ 5K2.13 of the sentencing guidelines in relation to a crime,
the commission of which involves no violence in fact, is
incorrect and should be reconsidered by the Court en
banc." Askari, 1997 WL 92051, at *2 (Becker, J.,
concurring). According to Judge Becker:
While `crimes of violence' and `non-violent offense'
employ the same root word, the phrases `readily may
take meanings other than as opposites.' More
importantly, the distinct objectives of the two
provisions at issue -- § 4B1.2 and § 5K2.13 -- counsel
that the meaning of the former not govern that of the
latter.
* * *
In short, some factors at work in the departure
sections of the Guidelines are in tension with those at
work under the career offender sections, and it does
not make sense to import a career offender-based
definition of `crime of violence' into a departure section
in the absence of specific cross-reference. Rather, it is
better to permit the district courts to consider all the
facts and circumstances surrounding the commission
of a crime when deciding whether it qualifies as a non-
violent offense under § 5K2.13.
Id. at *4-6 (citations omitted). We vacated our panel
decision in Askari for reconsideration en banc.
II.
The able district judge, following our decision in United
States v. Rosen, 896 F.2d 789 (3d Cir. 1990), determined
that he lacked authority to depart downward.5 We review
for "abuse of discretion." See United States v. Sally, 116
F.3d 76, 78 (3d Cir. 1997). By definition, a district court
"abuses its discretion when it makes an error of law. That
a departure decision, in an occasional case, may call for a
legal determination does not mean, as a consequence, that
parts of the review must be labeled de novo while other
parts are labeled an abuse of discretion." Koon v. United
States, 116 S. Ct. 2035, 2047-48 (1996) (citations omitted).
"The abuse of discretion standard includes review to
determine that the discretion was not guided by erroneous
legal conclusions." Id. at 2048.
III.
A.
1.
USSG § 5K2.13, a policy statement permitting downward
departures,6 provides:
If the defendant committed a non-violent offense
while suffering from significantly reduced mental
capacity not resulting from voluntary use of drugs or
other intoxicants, a lower sentence may be warranted
to reflect the extent to which reduced mental capacity
contributed to the commission of the offense, provided
that the defendant's criminal history does not indicate a
need for incarceration to protect the public.
USSG § 5K2.13, p.s. (emphasis supplied).
"Non-violent offense" is not defined in either USSG
§ 5K2.13 or the commentary.7 But the term "crime of
violence" is defined in the "career offender" provisions of
Chapter 4.8 USSG § 4B1.1 enhances the offense level for
career offenders, and USSG § 4B1.2 provides definitions for
terms used in USSG § 4B1.1, including "crime of violence":
The term `crime of violence' means any offense under
federal or state law, punishable by imprisonment for a
term exceeding one year, that --
(1) has as an element the use, attempted use, or
threatened use of physical force against the person
of another, or
(2) is burglary of a dwelling, arson, or extortion,
involves use of explosives, or otherwise involves
conduct that presents a serious potential risk of
physical injury to another.
USSG § 4B1.2(a).
An accompanying application note expands on this
definition with concrete examples:
`Crime of violence' includes murder, manslaughter,
kidnaping, aggravated assault, forcible sex offenses,
robbery, arson, extortion, extortionate extension of
credit, and burglary of a dwelling. Other offenses are
included as `crimes of violence' if (A) that offense has
an element the use, attempted use, or threatened use of
physical force against the person of another, or (B) the
conduct set forth (i.e., expressly charged) in the count
of which the defendant was convicted involved use of
explosives (including any explosive material or
destructive device) or, by its nature, presented a
serious potential risk of physical injury to another.
`Crime of violence' does not include the offense of
unlawful possession of a firearm by a felon.
USSG § 4B1.1, comment. (n.1) (emphasis supplied).9 If
"non-violent" offense in USSG § 5K2.13 is defined by
reference to the term "crime of violence" in USSG § 4B1.2
and its commentary, then bank robbery would never qualify
as a "non-violent" offense. If "non-violent" offense in USSG
§ 5K2.13 is defined by reference to the term"crime of
violence" in USSG § 4B1.2 and its commentary, then bank
robbery would never qualify as a "non-violent" offense.
The general application principles articulated in the
Introduction to the sentencing guidelines supply a list of
definitions "that are used frequently in the guidelines and
are of general applicability (except to the extent expressly
modified in respect to a particular guideline or policy
statement)." USSG § 1B1.1, comment. (n.2). But, "non-
violent offense" and "crime of violence" do not appear in
this list of definitions. The Introduction also dictates that
"[d]efinitions of terms also may appear in other sections.
Such definitions are not designed for general applicability;
therefore, their applicability to sections other than those
expressly referenced must be determined on a case by case
basis." USSG § 1B1.1, comment. (n.2).
2.
Askari was convicted of bank robbery in violation of 18
U.S.C.A. § 2113(a):
[w]hoever, by force and violence, or by intimidation,
takes, or attempts to take, from the person or presence
of another, or obtains or attempts to obtain by
extortion any property or money or any other thing of
value belonging to, or in the case, custody, control,
management, or possession of, any bank, credit union,
or any savings and loan association.
"The requirement that property be taken either`by force
and violence' or `by intimidation' requires proof of force or
threat of force as an element of the offense." United States
v. Maddalena, 893 F.2d 815, 819 (6th Cir. 1989).
In determining whether intimidation is present, an
objective standard is employed from the perspective of the
victim, i.e., "whether `an ordinary person in the teller's
position reasonably could infer a threat of bodily harm from
the defendant's acts.' " United States v. Woodrup, 86 F.3d
359, 363 (4th Cir.) (citations omitted), cert. denied, 117 S.
Ct. 332 (1996).
As used in § 2113(a), the term `intimidation' means `to
make fearful or put into fear.'
The Government is not required to show either an
`express verbal threat or threatening display of a
weapon.' Actual fear need not be proven, if the acts of
the defendant would threaten an ordinary reasonable
person. Thus, the government need show only that an
ordinary person in the teller's position would feel a
threat of bodily harm from the perpetrator's acts.
United McCarty, 36 F.3d 1349, 1357 (5th Cir. 1994)
(citations omitted). See also Maddalena, 893 F.2d at 819
(same).
The district court sentenced Askari under USSG § 2B3.1
("Robbery, Extortion, Blackmail") which punishes, inter alia,
robbery of the property of a financial institution. USSG
§ 2B3.1 does not define the term "non-violent" offense,
perhaps because the crime of robbery contemplates at least
some force, threat of force, or intimidation. While USSG
§ 2B3.1 provides for a guideline increase if a death threat
was made, it is silent on the threat of bodily harm.10
B.
Against this backdrop we examine the conflict among
several courts of appeals interpreting "non-violent offense"
in USSG § 5K2.13. The discussion has centered on whether
a sentencing judge must categorically adopt the"crime of
violence" definition in USSG § 4B1.2 or whether the judge
has discretion to look to the facts and circumstances in
each case.
1.
In Rosen, the defendant pled guilty to sending a
threatening communication through the mail to extort
money through threat of injury, in violation of 18 U.S.C.
§ 876. Defendant, an admitted compulsive gambler, wrote
checks from a home equity credit line to satisfy growing
gambling losses. Unable to make payment, he sent letters
to three acquaintances representing that, unless money
was received, their relatives would be harmed.
At sentencing, defendant presented expert testimony
about his compulsive gambling and argued that he neither
intended nor had the capability to carry out the threats
made in the letters. Sentencing the defendant under USSG
§ 2B3.2 ("Extortion by Force or Threat of Injury or Serious
Damage"), the district court determined that defendant's
compulsive gambling did not constitute a mitigating factor
justifying departure below the guideline minimum.
On appeal, defendant contended, inter alia, the district
court incorrectly refused to apply USSG § 5K2.13 because
his crime was non-violent, i.e., it did not involve physical
force. We disagreed:
Crimes of violence, however, include situations where
force is threatened but not used. In other contexts,
crimes of violence have been defined as offenses that
have `as an element the use, attempted use, or
threatened use of physical force.' 18 U.S.C. § 61 (1988)
. . . see U.S.S.G. § 4B1.2, comment. (n.1). Defendant
would have us conclude that § 5K2.13's use of the term
`non-violent' means something other than the opposite
of a crime of violence.
We can find no support for such a contention and
therefore find no error in the district court's
determination that defendant's crime was not `non-
violent.' See United States v. Borrayo, 898 F.2d 91 (9th
Cir. 1989); cf. United States v. Poff, 723 F. Supp. 79
(N.D. Ind. 1989). Consequently, guideline § 5K2.13
does not authorize a downward departure for this
defendant's mental condition.
Rosen, 896 F.2d at 791. We looked to the "crime of
violence" definition contained in USSG § 4B1.2 to determine
whether the defendant was entitled to a downward
departure in USSG § 5K2.13 for "non-violent offenses."
Because defendant's crime constituted a "crime of violence,"
we found USSG § 5K2.13 inapplicable.
As recently as this year, we have cited Rosen. See United
States v. McBroom, 124 F.3d 533, 542 (3d Cir. 1997) ("The
basis for our holding in Rosen was that the definition of
`crime of violence' contained in section 4B1.2, which is the
career offender provision, governs the meaning of`non-
violent' offense in section 5K2.13 . . . . we are[bound] by
our decision in Rosen, 3d Cir. I.O.P. 9.1").
2.
As we have noted, the question of whether "non-violent
offense" in USSG § 5K2.13 may be defined by reference to
"crime of violence" in USSG § 4B1.2 has been answered
differently by the different courts of appeals. Five other
circuits are in accord with Rosen. See United States v.
Mayotte, 76 F.3d 887, 889 (8th Cir. 1996) ("The phrase
`non-violent offense' is not defined in the guidelines.
However, the term `crime of violence' is defined in Section
4B1.2 of the sentencing guidelines. We believe that a `non-
violent offense' necessarily excludes `crime of violence' ");
United States v. Dailey, 24 F.3d 1323, 1327 (11th Cir.
1994) ("downward departure was not permissible for
reduced mental capacity under U.S.S.G. § 5K2.13 after
Dailey was convicted of a `crime of violence' "); United States
v. Cantu, 12 F.3d 1506, 1513 (9th Cir. 1993) ("We have
defined `non-violent' as the converse of a `crime of violence'
under U.S.S.G. § 4B1.2(1)(I)"); United States v. Maddalena,
893 F.2d 815, 819 (6th Cir. 1989) ("the commentary to
section 4B1.2 of the guidelines includes robbery as an
offense covered by the provision . . . . Thus section 5K2.13
is not applicable to defendant, for he did not commit a non-
violent offense"); United States v. Poff, 926 F.2d 588, 591
(7th Cir. 1990) ("We decline to adopt [the defendant's]
argument that rests on the premise that the Guidelines
define the same act as both a `crime of violence' and a `non-
violent' offense") (citation omitted) (en banc) (6-5 decision),
cert. denied, 502 U.S. 827 (1991).
Two courts of appeals have embraced the view that the
district court's discretion to depart downward under USSG
§ 5K2.13 should not be restricted by USSG § 4B1.2. See
United States v. Weddle, 30 F.3d 532, 540 (4th Cir. 1994)
("the Sentencing Commission did not intend to import [the
`crime of violence' definition] from [USSG § 4B1.2 to USSG
§ 5K2.13]"). See also United States v. Morin, 124 F.3d 649,
653 (4th Cir. 1997) ("Although a definition of crimes of
violence is found elsewhere in the guidelines, we have held
that the definition of `crime of violence' in § 4B1.2 of the
sentencing guidelines (regarding career offenders) is not
applicable to § 5K2.13 and its reference to`non-violent'
offense"); United States v. Chatman, 986 F.2d 1446, 1450
(D.C. Cir. 1993) ("we are not persuaded that section 4B1.2
should govern the application of section 5K2.13. Rather, we
believe that the sentencing court has broad discretion
under section 5K2.13 to examine all the facts and
circumstances of a case to determine whether a particular
offense was in fact `non-violent' ").
In addition, five dissenting judges in the Poff decision
share the same view. Poff, 926 F.2d at 595 ("different terms
in a carefully drafted code such as the guidelines connote
different things . . . `non-violent' offense refers to crimes
that in the event did not entail violence. When prison is not
justified by the need to incapacitate the defendant,
§ 5K2.13 is available") (Easterbrook, J., dissenting). Review
of Poff and Chatman illustrates the distinctions. See
Weddle, 30 F.3d at 538 ("The Seventh Circuit's Poff
decision and the D.C. Circuit's Chatman decision provide
the only detailed analyses of the issue presented").
3.
The Poff majority provides an elaborate argument in favor
of the first view -- that USSG § 4B1.2's "crime of violence"
definition controls USSG § 5K2.13's "non-violent offense"
requirement. First, the Poff majority emphasized the
similarity between the two phrases:
Courts often say that the choice of different words
reflects an intent to say something different. But here
the Commission used the same word -- `violence.'
True, in one case it used a negative construction--
`non-violent' -- and in the other case used a
prepositional phrase containing the noun `violence' as
a modifier rather than using the simpler adjective
`violent' -- but the root, and meaning, are the same in
both cases . . . . The Guidelines should be read as a
whole, § 1B1.1(I), and when the same word appears in
different, though related sections, that word likely
bears the same meaning in both instances.
Poff, 926 F.2d at 591 (citations omitted).
The Poff majority then looked to the Armed Career
Offender provision of 18 U.S.C.A. § 924(e)(2)(B)(I) (West
Supp. 1997) where Congress defined "violent felony" to
include any crime that, inter alia, "has as an element of the
use, attempted use, or threatened use of physical force
against another," believing that definition mirrored USSG
§ 4B1.2's "crime of violence." The Poff majority reasoned:
"[i]f it is difficult to discern a difference between `violent
offense' and `crime of violence,' it is well nigh impossible to
divine any distinction between a `violent felony' and a
`violent offense.' " Id. at 592.
According to the Poff majority, if the Sentencing
Commission wanted to differentiate between different types
of violence, it would have expressly included an alternative
definition in USSG § 5K2.13:
We think it likely that had the Commission desired to
distinguish among types of violence, it would have
expanded its vocabulary. At a minimum, it would have
offered a technical definition for each term. Perhaps a
cross-reference between the two sections would have
eliminated any possibility of confusion, but hindsight is
a demanding critic. It is hardly surprising that the
Commission failed to foresee the argument that a crime
of violence can, under the same sentencing scheme,
also be a non-violent offense.
* * *
Even if we believed that the Commission intended to
define violence differently in § 5K2.13, we could do little
but guess as to its meaning.
Id. at 592 (citations omitted).
Looking to the underlying objectives of the two provisions
at issue, the Poff majority stated:
The Guidelines reflect the view that those who have a
history of crimes of violence merit increased
incarceration, and include those, like appellant, who
have threatened violence in that category of
defendants. In addition to limiting the authority of
courts to decrease the sentences of defendants with
reduced mental capacity to cases in which the
defendant committed a non-violent offense, § 5K2.13
further circumscribed the authority of courts to depart
on this basis by adding the proviso that `the
defendant's criminal history does not indicate a need
for incarceration to protect the public.' Career
offenders, by definition, fail to meet this condition . . . .
So even if the terms `non-violent offense' and`crime of
violence' were not mutually exclusive, § 5K2.13 would
not have authorized the district court to depart.
* * *
Because those suffering mental incapacities are
effectively less deterrable (making the need for
incapacitation greater), it would not be unreasonable to
assume that the Commission believed departures to be
warranted only when there is little prospect that such
a defendant will manifest any form of violent behavior.
That this reading would not subvert the purpose of
§ 4B1.1 is a point that further commends it.
Id. at 592-93 (citations omitted). The Poff majority view still
holds in the United States Court of Appeals for the Seventh
Circuit. See United States v. Sullivan, 75 F.3d 297, 300 (7th
Cir. 1996) ("this panel is bound by the en banc decision in
Poff and thus we affirm the district court's denial of a
downward departure under § 5K2.13").
4.
The arguments of the Poff majority were countered by
Judge Easterbrook, who authored the dissenting opinion.
Both Chatman from the Court of Appeals for the District of
Columbia Circuit and Weddle from the Court of Appeals for
the Fourth Circuit adopted and expanded upon the
rationale articulated in the Poff dissent. We outline the
principal arguments set forth by the Poff dissent and the
Chatman and Weddle decisions here.
Starting with the text of USSG § 5K2.13, these decisions
note that "[n]othing in the Guidelines themselves or in the
Application Notes suggests that section 4B1.2 is meant to
control the interpretation and application of section
5K2.13." Chatman, 986 F.2d at 1450. The omission from
USSG § 5K2.13 of either the phrase "crime of violence" or a
cross-reference was intentional:
It would have been easy to write § 5K2.13 to say that
the judge may depart unless the defendant committed
a `crime of violence' as § 4B1.2 defines it; instead, the
Commission selected different formulations. Although
it laid out a detailed meaning for `crime of violence' in
§ 4B1.2, it did not provide so much as a cross-
reference in § 5K2.13, a curious omission if the
Commission meant to link these phrases so tightly that
they are mutually exclusive.
Poff, 926 F.2d at 594 (Easterbrook, J., dissenting). See
Chatman, 986 F.2d at 1450 ("The lack of a cross-reference
is all the more significant because so many of the
Guidelines use explicit cross-referencing").
While the sentencing guidelines have been frequently
amended, these decisions observe that the Sentencing
Commission has never altered USSG § 5K2.13 to
specifically incorporate the "crime of violence" definition.
See Chatman, 986 F.2d at 1450 ("Moreover, the
Commission has amended section 4B1.2 and its
commentary twice in the last two years, and neither time
did the Commission suggest any relationship between
section 5K2.13 and section 4B1.2") (citing Poff, 926 F.2d at
594 (Easterbrook, J., dissenting)).
Despite the common root word shared by "crime of
violence" and "non-violent offense," the phrases may take
meanings other than as opposites:
As the Commission was at pains to establish in
§ 4B1.2, whether a crime is one `of violence' depends
on its elements and not on the defendant's conduct, so
that an unrealized prospect of violence makes the
crime one of violence. This is an abnormal sense, a
term of art. It took a detailed definition to make it so.
Then comes § 5K2.13, in which `non-violent offense'
appears without elaboration or cross reference. Best to
read these words in their ordinary sense rather than as
tied to the term of art in § 4B1.2. A `non-violent offense'
in ordinary legal (and lay) understanding is one in
which mayhem did not occur. The prospect of violence
. . . sets the presumptive range; when things turn out
better than they might, departure is permissible.
Poff, 926 F.2d at 594 (Easterbrook, J., dissenting).
Furthermore, these sections address different concerns.
USSG § 4B1.1 prescribes a formula to determine whether a
defendant is a "career offender" who warrants increased
incarceration because of an extensive criminal history.
In section 994(h), Congress directed the Commission to
ensure that the Guidelines specify prison sentences
that are `at or near the maximum term authorized' for
`career offenders,' which include those who have`been
convicted of a felony that is either a crime of violence
or a drug offense and who have been previously
convicted of two felonies where each has either a crime
of violence or a drug offense.' Longer sentences for
such offenders are justified by the purposes of
incarceration, as set out in 18 U.S.C. § 3553(a)(2) . . . .
[They] guarantee incapacitation of those repeat
offenders whose past records suggest a propensity to
commit violent crimes.
Reflecting these policy concerns, the definition of
`crime of violence' in section 4B1.2 is distinctively a
`term of art' designed to identify career offenders . . . .
section 4B1.2 appears to characterize as `crimes of
violence' many offenses that, taken individually on
their facts, might be interpreted as non-violent.
Chatman, 986 F.2d at 1451 (citations omitted). By contrast,
USSG § 5K2.13 encourages more lenient treatment:
the policy concerns that motivate the definition of
`crime of violence' in section 4B1.2 are not applicable to
section 5K2.13 . . . . [the purpose of which] is to treat
with lenity those individuals whose `reduced mental
capacity' contributed to the commission of a crime.
* * *
Considered in this context, the term `non-violent
offense' in section 5K2.13 refers to those offenses that,
in the act, reveal that a defendant is not dangerous,
and therefore need not be incapacitated for the period
of time the Guidelines would otherwise recommend.
Chatman, 986 F.2d at 1451-52 (citations omitted). See
Weddle, 30 F.3d at 540 ("U.S.S.G. § 5K2.13 is intended to
create lenity for those who cannot control their actions but
are actually dangerous; U.S.S.G. § 4B1.2 is intended to
treat harshly the career criminal, whether or not their
actual crime is in fact violent"); Poff, 926 F.2d at 595 ("A
hefty sentence may be appropriate simply because it
incapacitates and so reduces the likelihood of further
offenses. When the described person's conduct is non-
violent, however, incapacitation is less important .. . .
Because legal sanctions are less effective with persons
suffering from mental abnormalities, a system of
punishment based on deterrence also curtails sanction")
(Easterbrook, J., dissenting).
This approach allows the district judge to make a fact-
specific inquiry not governed by the "crime of violence"
definition of USSG § 4B1.2. See Chatman, 986 F.2d at 1450
("we are not persuaded that section 4B1.2 should govern
the application of section 5K2.13. Rather . . . the
sentencing court has broad discretion under section 5K2.13
to examine all the facts and circumstances of a case to
determine whether a particular offense was in fact`non-
violent' ").11
C.
As noted, the en banc court enables us to examine again
the language, structure, and purpose of the sentencing
guidelines and to appraise again the definition of"non-
violent offense" in USSG § 5K2.13. Although our initial view
set forth in Rosen was a reasoned interpretation that now
represents the view of most courts of appeals, we now
believe the analysis of the relationship between USSG
§ 5K2.13 and USSG § 4B1.2 articulated by the dissent in
Poff and later developed in Chatman and Weddle is more
convincing.
Without detailing those arguments already set forth, we
find especially compelling the following observations. First,
USSG § 5K2.13 contains no cross-reference to USSG
§ 4B1.2's definition of "crime of violence." Even though the
Sentencing Commission has amended the sentencing
guidelines over five-hundred times in the last nine years, it
has made no cross-reference in USSG § 5K2.13 linking
"non-violent offense" to the "crime of violence" definition in
§ 4B1.2.
Second, by limiting USSG § 5K2.13 to those defendants
whose "criminal history does not indicate a need for
incarceration to protect the public," the Sentencing
Commission removed the USSG § 5K2.13 departure from
the reach of "career offenders." Having done so, it makes
little sense to import a definition of "non-violent offense"
from the section on career offenders.
Third, USSG § 1B1.1 articulates a list of definitions of
general applicability which includes neither "crime of
violence" nor "non-violent" offense. That provision specifies:
"[d]efinitions . . . [which] appear in other sections . . . . are
not designated for general applicability; therefore their
applicability to sections other than those expressly
referenced must be determined on a case by case basis."
USSG § 1B1.1, comment. (n.2). USSG § 4B1.2's "crime of
violence" definition is therefore one of limited applicability.
Fourth, USSG § 4B1.1 and USSG § 5K2.13 address
different policy concerns. While USSG § 4B1.1 increases
sentences for persons whose criminal records suggest a
propensity to commit violent crimes, USSG § 5K2.13
encourages more lenient treatment for persons who are not
actually dangerous but whose reduced mental capacity
contributed to the commission of a crime.
In short, the choice of different phrasing, the absence of
a cross-reference, and the explicit definitions attached to
one section but not the other, all suggest that the
Sentencing Commission did not intend to import the "crime
of violence" definition from USSG § 4B1.2 to USSG
§ 5K2.13. Of course the Sentencing Commission could
adopt a definition of "non-violent offense" which, if in
conformity with the statute, could be binding on the district
judge. Or it could delete the reference to "non-violent
offense" in USSG § 5K2.13. But in the absence of some
direction from the Sentencing Commission, we are
unwilling to apply the "crime of violence" definition
articulated in USSG § 4B1.2 to USSG § 5K2.13.
Although we find convincing many of the arguments put
forth in the Poff dissent, Chatman, and Weddle, we take a
somewhat different view of the applicable standard. Those
cases direct the district judge applying USSG § 5K2.13 to
make a fact specific inquiry whether a defendant has
committed a "non-violent offense." The question remains
whether there is anything that constrains the district
court's review of the "facts and circumstances" of the crime.
D.
In modern criminology, there has always been a
distinction between culpability and sanction, between
finding guilt and imposing sentence. Until recently,
sentencing had been the courts' unique role. Before the
advent of mandatory sentences and sentencing guidelines,
courts routinely looked to all the facts and circumstances
before passing sentence. Indeed, the severe effects of a
"borderline" conviction were often mitigated by a lenient
sentence.
But the Sentencing Reform Act brought with it significant
changes. Since adoption of the sentencing guidelines, the
fact of conviction, whatever the nature or character of the
crime, has carried concrete and sometimes rigid sanctions
(even un-convicted conduct can now be punished as
relevant conduct). Through the means of downward
departures (which is what concerns us here), the
Sentencing Commission has attempted to ameliorate the
consequences of certain kinds of convictions. This is
difficult to do, especially when it involves pinpointing
behavior in an almost infinite spectrum and affixing
quantitative values. But whether the existing guideline
structure can permit the Sentencing Commission to fashion
a just downward departure in every case where it is
appropriate, it is clear that the Sentencing Commission did
not intend to allow departures in USSG § 5K2.13 for
offenders who may be dangerous to the public.
We agree that the district court should look at all the
facts and circumstances of the crime, but it should do so
within the context of the Sentencing Reform Act and the
underlying statute defining criminal culpability. Because
the sentencing guidelines offer no "guidance" on how to
define "non-violent offense," we are led back to the enabling
statute, the Sentencing Reform Act,12 and its articulation of
the factors to be considered in imposing sentence.13 Of
particular interest here, when trying to define "non-violent
offense," is the need for the sentence imposed to reflect the
seriousness of the offense, to protect the public, and to
provide just punishment.
To assess the seriousness of the offense,14 we look to the
elements of the crime and the surrounding conduct. Bank
robbery, the underlying offense here, consists of taking, or
attempting to take, anything of value, by force and violence,
by intimidation, or by extortion.15 The requirement that the
property be taken either "by force and violence" or "by
intimidation" requires proof of force or threat of force as an
element of the offense. Maddalena, 893 F.2d at 819. The
term "intimidation" means to make fearful or put into fear.
McCarty, 36 F.3d at 1357. In determining whether
intimidation is present, the question is whether an ordinary
person in the victim's position reasonably could infer a
threat of bodily harm from the defendant's acts. Id. "The
term `extortion' as used in 18 U.S.C. 2113(a) means
obtaining property from another person, without the other
person's consent, induced by the wrongful use of actual or
threatened force, violence, or fear."16 If there is no taking by
extortion, actual or threatened force, violence, or
intimidation, there can be no valid conviction for bank
robbery under 18 U.S.C. § 2113(a). In that case, there could
be a conviction under 18 U.S.C. § 2113(b) (theft without
threat of force). It would seem, therefore, that with bank
robbery convictions under the first paragraph of 18 U.S.C.
§ 2113(a), a defendant could not qualify for a departure
under USSG § 5K2.13 as presently written. Of course, this
refers to convictions only under the first paragraph of
§ 2113(a). The second paragraph of that section describes
entering, or attempting to enter, a bank with intent to
commit a felony therein. The second paragraph does not
necessarily describe a crime of violence; that would depend
on the felony.17
There also may be other cases of bank robbery where
USSG § 5K2.13 might apply. Conceivably, a defendant
could commit a bank robbery by extortion under the Hobbs
Act (18 U.S.C. § 1951(b)(2)) involving neither intimidation,
actual violence, nor the threat of violence. Extortion by an
official acting under color of right could be a "non-violent
offense." See, e.g., United States v. Adair, 951 F.2d 316,
318 (11th Cir. 1992) ("In a Hobbs Act prosecution of a
public official, the government need not prove actual or
threatened force, violence or duress because `the coercive
element is supplied by the existence of the public office
itself ' ") (citing United States v. Williams, 621 F.2d 123, 124
(5th Cir. 1980), cert. denied, 450 U.S. 919 (1981)); United
States v. Billups, 692 F.2d 320, 330 (4th Cir. 1982) (Fear of
economic harm will sustain a Hobbs Act violation. "The fear
need not be the consequence of a direct or implicit threat
by the defendant, and the government's burden of proof is
satisfied if it shows that the victim feared economic harm
and that the circumstances surrounding the alleged
extortionate conduct rendered that fear reasonable")
(citations omitted), cert. denied, 464 U.S. 820 (1983); United
States v. Cerilli, 603 F.2d 415, 425 (3d Cir. 1979) ("where
extortion under color of official right is charged, one need
not prove that the payment was obtained by force, fear or
duress"), cert. denied, 444 U.S. 1043 (1980).
We believe that departures under USSG § 5K2.13 exclude
conduct that involves actual force, threat of force, or
intimidation, the latter two measured under a reasonable
person standard. Therefore, "non-violent offenses" under
USSG § 5K2.13 are those which do not involve a reasonable
perception that force against persons may be used in
committing the offense.
Although conviction and sentencing are separate,
sentencing has always been tied to the crime of conviction
at least in the sense that they must be congruent. If the
elements of the crime require a finding of violent conduct,
then a valid conviction could hardly permit a sentence
based on a finding of non-violent conduct. So long as the
bank robbery victim has been threatened with harm, and is
seen to have been threatened under an objective standard
(reasonable person), the defendant cannot be found to have
acted in a non-violent manner.
Nonetheless, it may be argued that conduct may be
violent (as defined by statute) but still warrant a more
lenient sentence if committed by a defendant with
diminished mental capacity who is not dangerous to the
public (as defined by his criminal history). This may be so,
especially where violence is threatened, but the threat is
not realized. To put it differently, does the term "non-violent
offense" in USSG § 5K2.13 include acts resulting in valid
convictions under 18 U.S.C.A. § 2113(a) where the threat of
violence was never carried out? Under the current
guidelines, we think the answer is yes for the reasons
expressed by us and by Judge Stapleton in his thoughtful
concurrence.18
E.
In this case, Askari was found guilty of bank robbery.
The bank teller, Ellen Ishizaki, described the robbery as
follows:
The fellow came up to the middle window and he asked
us to put our money up on the counter . . . . [H]e said
the same thing again. At that point I pressed the alarm
button, the silent alarm. He then pushed his way over
to my window, asked me for the money and then he,
you know, and I still hesitated and then finally he told
me I had three seconds to give him my money. And
then I gave him my money . . . . [I was scared]
[b]ecause he had his hand in his shirt and I didn't
know if he was going to pull a gun out on me or a knife
or, you know, at that point I was, you know, scared.
(App. at 14a). The bank teller, when told that she had three
seconds to hand over the money by someone who had his
hand in his shirt, was fearful. An ordinary person in the
bank teller's position reasonably could infer a threat of
bodily harm from Askari's demand and actions. Looking at
the elements of the crime and the surrounding conduct,
Askari did not commit a "non-violent offense."
Askari was sentenced as a "career offender." (Presentence
Report 33). USSG § 5K2.13 applies only if Askari's
criminal history does not indicate a need for incarceration
to protect the public. Even if this bank robbery were
classified as a non-violent offense, Askari may still not have
qualified for a USSG § 5K2.13 departure. Askari's criminal
history contains other violent crimes, including two armed
bank robberies, suggesting his incapacitation may be
necessary. (See App. at 56a (district court noting "[t]he
Defendant . . . has a long history of crime, including violent
crime . . . . the criminal history score in this case takes him
pretty much to the top of the range"); Presentence Report
18-32).19
F.
Accordingly, we hold Askari could not qualify for
departure under USSG § 5K2.13 because he did not commit
a "non-violent offense."
We will affirm the judgment of conviction and sentence.
_________________________________________________________________
FOOTNOTES
*Judge Sloviter was Chief Judge of the Court of Appeals for the Third
Circuit at the time this appeal was argued. Judge Sloviter completed her
term as Chief Judge on January 31, 1998.
1. Dr. Edward Guy examined Askari to assess whether he was competent
to stand trial. Dr. Guy initially concluded that Askari was suffering from
paranoid schizophrenia in partial remission, drug addiction, and seizure
disorder, but he concluded that Askari was competent to stand trial.
Following a second psychiatric evaluation before Askari's sentencing, Dr.
Guy testified that Askari was not competent. Noting Askari's "history of
serious mental illness," Dr. Guy found that Askari was too delusional to
be able to cooperate with his attorney. The district court then ordered
Askari's commitment. After two years of treatment at the U.S. Medical
Center for Federal Prisoners in Springfield, Missouri, Askari was
diagnosed as suffering from "Schizophrenia, Paranoid Type currently in
remission with antipsychotic medication." The report noted that Askari
initially "exhibited delusional thinking and auditory hallucinations,"
which improved with medication. The report concluded that Askari was
now competent. (See App. at 62a-67a, 68a).
2. Askari qualified as "a career offender in that he was at least 18 years
old at the time of the instant offense, the instant offense [was] a felony
involving violence and the defendant [had] at least two prior felony
convictions for crimes of violence." Presentence Report 33. (See App. at
56a (district court noting, during sentencing, Askari "has a long history
of crime including violent crime . . . . the criminal history score in this
case takes him pretty much to the top of the range" but concluding
"[b]ecause I am satisfied that the low end of the sentencing range will
provide a sufficient deterrent and punishment I am going to sentence
him at the bottom of the range with the discretion I have")).
3. See USSG § 5K2.0, p.s. (permitting the imposition of a sentence
outside the range established by the guideline "if the court finds `that
there exists an aggravating or mitigating circumstance of a kind, or to a
degree, not adequately taken into consideration by the Sentencing
Commission in formulating the guidelines that should result in a
sentence different from that described' ").
4. USSG § 4B1.1 enhances the offense level for "career offenders." See
USSG § 4B1.1, comment. (backg'd.) (28 U.S.C.§ 994(h) "mandates that
the Commission assure that certain `career' offenders receive a sentence
of imprisonment `at or near the maximum term authorized.' " USSG
§ 4B1.1 implements this directive by employing a definition of career
offender that tracks in large part the criteria set forth in 28 U.S.C.
§ 994(h)). USSG § 4B1.2 provides definitions for terms used in USSG
§ 4B1.1, including "crime of violence."
5. See App. at 45a ("I cannot depart downward for diminished capacity
at the time of the offense based on the guidelines as I read them. They
at least contain a policy statement that a downward departure for
diminished capacity is limited to non[-]violent offenses").
6. "The Guideline Manual contains three [types] of text: guidelines
provisions, policy statements and commentary." United States v.
Corrado, 53 F.3d 620, 624 (3d Cir. 1995). "When a crime is covered by
the Sentencing Guidelines, the sentence is computed based not only on
the relevant guidelines, but also on the Sentencing Commission's policy
statements and commentary." United States v. Thompson, 70 F.3d 279,
281 (3d Cir. 1995) (per curiam) (citing United States v. Bertoli, 40 F.3d
1384, 1404-05 (3d Cir. 1994)).
The Supreme Court has stated "[t]he principle that the Guidelines
Manual is binding on federal courts applies as well to policy statements."
Stinson v. United States, 508 U.S. 36, 42 (1993). "Furthermore, where `a
policy statement prohibits a district court from taking a specified action,
the statement is an authoritative guide to the meaning of the applicable
guideline.' " Corrado, 53 F.3d at 624 (citing Williams v. United States,
503 U.S. 193, 201 (1992); United States v. Reilly, 33 F.3d 1396, 1424
n.1 (3d Cir. 1994)). See, e.g., United States v. Brannan, 74 F.3d 448, 454
n.9 (3d Cir. 1996) ("both the Policy Statements and the Commentary in
the Sentencing Guidelines are binding on the federal courts") (citation
omitted).
7. The sentencing guidelines describe departures:
The sentencing statute permits a court to depart from a guideline-
specified sentence only when it finds `an aggravating or mitigating
circumstance of a kind, or to a degree, not adequately taken into
consideration by the Sentencing Commission in formulating the
guidelines that should result in a sentence different than that
described.' 18 U.S.C. § 3553(b). The Commission intends the
sentencing courts to treat each guideline as carving out a
`heartland,' a set of typical cases embodying the conduct that each
guideline describes. When a court finds an atypical case, one to
which a particular guideline linguistically applies but where conduct
significantly differs from the norm, the court may consider whether
a departure is warranted.
USSG Ch. 3, Pt. A, intro. comment.
8. Chapter 4 of the sentencing guidelines addresses criminal history:
The Comprehensive Crime Control Act sets forth four purposes of
sentencing. (See 18 U.S.C. § 3553(a)(2).) A defendant's record of past
criminal conduct is directly relevant to those purposes. A defendant
with a record of prior criminal behavior is more culpable than a first
offender and thus deserving of greater punishment. General
deterence of criminal behavior will aggravate the need for
punishment with each recurrence. To protect the public from further
crimes of the particular defendant, the likelihood of recidivism and
future criminal behavior must be considered. Repeated criminal
behavior is an indicator of a limited likelihood of successful
rehabilitation.
USSG Ch.4, Pt. A, intro. comment.
9. While USSG § 5K2.13 is a policy statement, the specific definitions of
"crime of violence" that accompany USSG § 4B1.2 in the application
notes are "commentary." See United States v. McQuilkin, 97 F.3d 723,
731 (3d Cir. 1996) ("Commentary in the guidelines is binding unless it
runs afoul of the Constitution or a federal statute, or is plainly erroneous
or inconsistent with the section of the guidelines it purports to
interpret") (citation omitted), cert. denied, 117 S. Ct. 2413 (1997).
10. USSG § 2B3.1(b)(2)(F) calls for an increase of 2 levels "if a threat of
death was made."
`threat of death' . . . may be in the form of an oral or written
statement, act, gesture, or combination thereof. Accordingly, the
defendant does not have to state expressly his intent to kill the
victim in order for the enhancement to apply. For example, an oral
or written demand using words such as `Give me the money or I will
kill you,' `Give me the money or I will pull the pin on the grenade I
have in my pocket,' `Give me the money or I will shoot you,' `Give me
the money or else (where the defendant draws his hand across his
throat in a slashing motion),' or `Give me the money or you are dead'
would constitute a threat of death. The court should consider that
the intent of this provision is to provide an increased offense level
for cases in which the offender(s) engaged in conduct that would
instill in a reasonable person, who is a victim of the offense, a fear
of death.
USSG § 2B3.1, comment. (n.6).
11. Judge Stapleton's elaboration in his concurrence on the differences
between the Poff dissent and Chatman is instructive.
12. 18 U.S.C. § 3553(b) provides, in part:
(b) Application of guidelines in imposing a sentence . . . . In
the absence of an applicable sentencing guideline, the court shall
impose an appropriate sentence, having due regard for the purposes
set forth in subsection (a)(2). In the absence of an applicable
sentencing guideline in the case of an offense other than a petty
offense, the court shall also have due regard for the relationship of
the sentence imposed to the sentences prescribed by guidelines
applicable to similar offenses and offenders, and to the applicable
policy statements of the Sentencing Commission.
18 U.S.C.A. § 3553(b) (West 1985 & Supp. 1997).
13. The general factors articulated in 18 U.S.C.§ 3553(a) provide, in
part:
(a) Factors to be considered in imposing a sentence.-- The court
shall impose a sentence sufficient, but not greater than necessary,
to comply with the purposes set forth in paragraph (2) of this
subsection.
* * *
(2) the need for the sentence imposed --
(A) to reflect the seriousness of the offense, to promote respect
for the law, and to provide just punishment for the offense;
(B) to afford adequate deterrence to criminal conduct;
(C) to protect the public from further crimes of the defendant;
and
(D) to provide the defendant with needed educational or
vocational training, medical care, or other correctional
treatment in the most effective manner;
18 U.S.C.A. § 3553(a). It appears that, in a specific sense, these factors
have been largely supplanted by the sentencing guidelines.
14. " `Offense' means the offense of conviction and all relevant conduct
under § 1B1.3 (Relevant Conduct) unless a different meaning is specified
or is otherwise clear from the context." USSG§ 1B1.1, comment. (n.1).
15. 18 U.S.C.A. § 2113(a) provides:
[w]hoever, by force and violence, or by intimidation, takes, or
attempts to take, from the person or presence of another, or obtains
or attempts to obtain by extortion any property or money or any
other thing of value belonging to, or in the case, custody, control,
management, or possession of, any bank, credit union, or any
savings and loan association.
The second paragraph of this section, which is not applicable here,
provides:
Whoever enters or attempts to enter any bank, credit union, or
any savings and loan association, or any building used in whole or
in part as a bank, credit union, or as a savings and loan
association, with the intent to commit in such bank, credit union,
or in such savings and loan association, or building, or part thereof,
so used, any felony affecting such bank, credit union, or such
savings and loan association and in violation of any statute of the
United States, or any larceny --
Shall be fined under this title or imprisoned not more than twenty
years, or both.
Id.
16. H.Rep. No. 99-797, at 33, reprinted in 1986 U.S.C.C.A.N. 6138, 6156.
See also 18 U.S.C.A. § 1951(b)(2) (West 1984 & Supp. 1997) (the Hobbs
Act)(extortion means "obtaining of property from another, with [their]
consent, induced by wrongful use of actual or threatened force, violence,
or fear, or under color of official right"). Both the Hobbs Act and 18
U.S.C. § 2113(a) punish extortion. The provisions, however, focus on
different concerns. See United States v. Maldonado-Rivera, 922 F.2d 934,
983 (2d Cir. 1990) ("In enacting § 1951, Congress' principal concern was
protecting the flow of interstate commerce . . . . In contrast, in enacting
§ 2113, Congress's principal concern was tofind a means of protecting
the institutions in which the Federal Government is interested")
(citations omitted), cert. denied, 501 U.S. 1211 (1991).
In 1986 Congress amended § 2113(a) to expressly cover extortion
directed at federal insured banks and make it the"exclusive provision for
prosecuting bank extortion." H.Rep. No. 99-797, at 33, reprinted in 1986
U.S.C.C.A.N. 6138, 6156. The Committee Report stated that extortionate
conduct had been prosecutable under either the [18 U.S.C. § 2113(a)] or
the Hobbs Act, and concluded that clarification as to which should be
the applicable statute is desirable. Id.
The guidelines make a distinction between "Extortion by Force or
Threat of Injury or Serious Damage," USSG § 2B3.2, and "Blackmail and
Similar Forms of Extortion," USSG § 2B3.3. The latter applies "only to
blackmail and similar forms of extortion where there clearly is no threat
of violence to person or property." USSG § 2B3.3, comment. (n.1).
17. See United States v. Selfa, 918 F.2d 749, 752 n.2 (9th Cir. 1990)
("The second paragraph [of § 2113(a)] describes an entry or attempt to
enter a bank with intent to commit a felony in it. The second paragraph
does not describe a crime of violence"), cert. denied, 498 U.S. 986 (1990);
United States v. Pick, 724 F.2d 297, 301 (2d Cir. 1983) ("Section 2113(a)
prohibits entry of a bank with the intent to commit `any' felony
[including mail fraud] and in no way limits its application to robberies,
burglaries, or felonies not covered under other sections of the Act");
United States v. Brown, 547 F.2d 36, 39 (3d Cir. 1976) (Felonious intent
is not "made part of the crimes of taking by force and violence or by
intimidation ([subsection] a-first paragraph)") (emphasis supplied), cert.
denied, 431 U.S. 905 (1977); Williams v. United States, 301 F.2d 276,
277 (7th Cir. 1962) (With respect to the second paragraph of § 2113(a),
the "intent of Congress was to make any unlawful entry or attempted
entry of a bank, regardless of its current state of habitation, a federal
crime").
18. Nevertheless, there appears to be no impediment to the Sentencing
Commission's drawing this distinction. For purposes of sentencing, the
Sentencing Commission could delete the "non-violent offense"
requirement from USSG § 5K2.13. Or, it could condition application of
USSG § 5K2.13 on an unrealized threat of violence. But under the
current guidelines, we believe no distinction presently exists.
19. Askari's criminal convictions include (1) bank robbery at gunpoint
(1974); (2) robbery at gunpoint and violation of the Uniform Firearms Act
(1980); (3) theft (1982); and (4) possession of a firearm by a convicted
felon (1983). (See Presentence Report 29-32).
Volume 2 of 2
Filed April 8, 1998
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 95-1662
UNITED STATES OF AMERICA
v.
MUHAMMAD ASKARI,
Appellant
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. Criminal No. 92-cr-00288)
Submitted Pursuant to Third Circuit LAR 34.1(a)
November 6, 1996
Before: BECKER, McKEE and GARTH, Circuit Judges
Argued En Banc October 29, 1997
Before: BECKER, Chief Judge; SLOVITER,* STAPLETON,
MANSMANN, GREENBERG, SCIRICA, COWEN, NYGAARD,
ALITO, ROTH, LEWIS, McKEE, and GARTH,
Circuit Judges
(Filed April 8, 1998)
STAPLETON, Circuit Judge, concurring:
Although it is a close question, I, too, am persuaded that
the content of the phrase "non-violent offense," as used in
U.S.S.G. § 5K2.13, should not be determined by reference
to the definition of the phrase "crime of violence" in
U.S.S.G. § 4B1.2. I also conclude that a downward
departure is not authorized by § 5K2.13 in this case.
However, I reach that conclusion by a route somewhat
different from that followed by the court.
Having concluded that the scope of the phrase "non-
violent offense" in U.S.S.G. § 5K2.13 is not controlled by the
scope of the phrase "crime of violence" in U.S.S.G. § 4B1.2,
one must determine whether Askari's bank robbery offense
constitutes a "non-violent offense" for the purposes of
U.S.S.G. § 5K2.13. I conclude that it does not because a
federal bank robbery conviction necessarily involves a
finding that the offense involved actual force or a threat of
force and such a finding, in my view, precludes
characterization of the offense as a non-violent one for
purposes of § 5K2.13.1
The Poff dissent took note not only of § 5K2.13's
requirement that the offense of conviction be "non-violent,"
but also of its requirement that the defendant's criminal
history not indicate a need to protect the public. Read
together, this dual requirement suggested to the dissenting
judges that § 5K2.13 was intended to authorize leniency for
those individuals who suffer from diminished mental
capacity that contributed to their crimes so long as neither
the history of the defendant nor the character of the crime
indicated a need for incapacitation. Against this
background, the Poff dissent ultimately concluded that a
"non-violent offense" is "one in which mayhem did not
occur" -- one that "in the event did not entail violence." 926
F.2d at 594, 595. This conclusion suggests that leniency is
available where the offense of conviction involved any sort
of unrealized threat of violence so long as the defendant's
criminal history does not indicate the need for
incapacitation.
The Chatman court similarly read § 5K2.13 as intended
to authorize leniency for those whose diminished mental
capacity contributed to their crimes so long as neither the
crime nor the criminal history indicates a need for
incapacitation. It rejected, however, the position of the Poff
dissent that unrealized threats of violence cannot render an
offense a violent one. In the view of the Chatman court,
"[s]ome offenses that never result in physical violence may,
nonetheless, indicate that a defendant is exceedingly
dangerous, and should be incapacitated." 986 F.2d at
1454. Thus, if the sentencing court determines that "an
offense involved a real and serious threat of violence--such
as an assault with a deadly weapon," it should conclude
that it is not a "non-violent offense" for purposes of
§ 5K2.13. Id.. In the case before the Chatman court, the
defendant had robbed a bank by handing a note to a teller
demanding money and stating, "People will get hurt if I
don't walk out of this bank." Id. at 1447. The case was
remanded to the district court presumably for a
determination of the defendant's state of mind.
Chatman and the Poff dissent both take the view that the
sentencing court should look to the underlying facts to
determine whether the offense was non-violent. I agree,
although I believe it may be helpful for a sentencing court
to take note of the essential elements of the crime of
conviction, not because those elements control the U.S.S.G.
§ 5K2.13 issue in all cases, but rather because the findings
necessarily implicit in a conviction may preclude it from
being a "non-violent offense" within the meaning of
U.S.S.G. § 5K2.13.2 Moreover, I take a somewhat different
view of the scope of the phrase "non-violent offense."
Askari was charged with bank robbery under the first
paragraph of 18 U.S.C. § 2113(a). That offense consists of
taking, or attempting to take, anything of value, by force
and violence, by intimidation, or by extortion. As the court's
opinion demonstrates, the requirement that the property be
taken either "by force and violence" or "by intimidation"
requires proof of force or threat of force as an element of
the offense, and in determining whether intimidation is
present, the question is whether an ordinary person in the
victim's position reasonably could infer a threat of bodily
harm from the defendant's acts. As the court also notes,
the term "extortion" as used in 18 U.S.C.§ 2113(a) means
obtaining property from another person, without the other
person's consent, induced by the wrongful use of actual or
threatened force, violence, or fear. Thus, in every case in
which the defendant is convicted of bank robbery under the
first paragraph of § 2113(a), there will be a beyond a
reasonable doubt finding that the defendant was violent or
engaged in conduct reasonably perceived as involving a
threat of violence.
Under the view taken by the Poff dissent, afinding that
the defendant's conduct was reasonably perceived as
involving a threat of violence is not relevant to whether the
offense is a "non-violent" one for purposes of § 5K2.13. Like
the Chatman court, I reject that view. Section 5K2.13
clearly evidences an intent that there be no downward
departure on grounds of diminished mental capacity where
incapacitation appears necessary to protect the public, and,
in many instances, a threat of violence will be strong
evidence of such a need.
While it presents a closer issue, I also reject the Chatman
court's view that whenever a § 5K2.13 motion is filed in a
bank robbery case not involving actualized violence, the
Sentencing Commission intended the sentencing court to
determine whether the threat was a serious one that would
have been acted on had events unfolded differently. Given
that the issue turns on the Commission's intent, I look for
guidance to the text of § 2B3.1, the "Robbery" Guideline,
and the text of the criminal statute that guideline was
intended to implement. Like most robbery statutes, the first
paragraph of § 2113(a) does not distinguish between
situations in which violence actually occurs and situations
in which it is threatened but the threat is not realized.3
Both are regarded as offenses of the same degree of
seriousness. Similarly, § 2B3.1 does not distinguish
between these two situations. It does not, for example,
establish a base offense level for § 2113(a) offenses and
then provide for a specific offense characteristic increase for
those situations in which violence actually occurs.4
It is my understanding that robberies involving violence
and all robberies involving only threats of violence have
traditionally been regarded as of equal seriousness because
threats of violence necessarily hold an unacceptably high
risk of realized violence whether emanating from the robber
or from others attempting to respond to the threat. Because
an unacceptably high risk of actualized violence and
attendant injury exists without regard to whether the
defendant expected to commit violence, our society has
traditionally considered that factor to be irrelevant to the
defendant's culpability in a robbery context.
I agree with the view that the limitations on the
downward departure authority conferred by § 5K2.13 are
intended to preclude lenity only where no need for
incapacitation is indicated. I do not agree, however, that
where a person threatens violence in the course of robbing
a bank as a result of diminished mental capacity, no need
for incapacitation is indicated in the event the sentencing
judge believes the threat was not a "serious" one (i.e.,
probably would not have been carried out had events
unfolded differently). As I have noted, the bank robbery
statute deals with situations in which there is a high risk
of actualized violence and attendant injury without regard
to the state of the defendant's mind. Moreover,§ 5K2.13
deals with situations in which diminished mental capacity
has contributed to the commission of a crime. Thus,
applying § 5K2.13 in a bank robbery context necessarily
involves a crime with a high risk of actualized violence and
a defendant with a diminished capacity to refrain from such
high risk activity. That combination suggests to me a need
for incapacitation and makes me reluctant to attribute to
the Commission an intent to authorize § 5K2.13 downward
departures in bank robbery cases. Because I find nothing
in the Guidelines that compels such an attribution, I reject
this portion of the Chatman court's decision.
I would hold that the scope of the phrase "non-violent
offense" in U.S.S.G. § 5K2.13 is not controlled by the scope
of the phrase "crime of violence" in U.S.S.G. § 4B1.2. I
would nevertheless further hold that a § 5K2.13 downward
departure is not authorized where the offense of conviction
is bank robbery.
Judge Sloviter joins this concurring opinion.
_________________________________________________________________
FOOTNOTES
*Judge Sloviter was Chief Judge of the Court of Appeals for the Third
Circuit at the time this appeal was argued. Judge Sloviter completed her
term as Chief Judge on January 31, 1998.
1. I use the term "bank robbery" in the traditional sense. Traditional
bank robbery is proscribed by the first paragraph of 18 U.S.C. § 2113(a)
which provides:
[w]hoever, by force and violence, or by intimidation, takes, or
attempts to take, from the person or presence of another, or obtains
or attempts to obtain by extortion any property or money or any
other thing of value belonging to, or in the case, custody, control,
management, or possession of, any bank, credit union, or any
savings and loan association.
While it has been suggested that a public official may be able to commit
bank robbery by "extorting" bank funds without a threat of violence, I
would not regard this as traditional bank robbery and I would take no
position on the application of § 5K2.13 in such a case.
2. This is, of course, consistent with the obligation of a sentencing judge
to accept for sentencing purposes the facts necessarily implicit in the
jury's verdict. United States v. Boggi, 74 F.3d 470, 478-79 (3d Cir. 1996)
("the district court . . . properly reasoned that `a guilty verdict, not set
aside, binds the sentencing court to accept the facts necessarily implicit
in the verdict.' ") (quoting from United States v. Weston, 960 F.2d 212,
218 (1st Cir. 1992)). While this approach to U.S.S.C. § 5K2.13 produces
the same result in a bank robbery case as that reached in Rosen, it is
analytically distinct and will produce different results in other situations.
Under this approach, "nonviolent offense" as used in U.S.S.G. § 5K2.13
will (1) exclude from the scope of that section (i.e. exclude from
consideration for a departure based on diminished capacity) offenses
that would not be "crimes of violence" under U.S.S.G. § 4B1.2(1), as
where force against the person of another or the threat thereof is not an
essential element (e.g., transportation for purposes of prohibited sexual
conduct), but such force or threat thereof is in fact used, and will (2)
include in the scope of that section (i.e., include as candidates for such
a departure) offenses that would be "crimes of violence" under U.S.S.G.
§ 4B1.2(1), as where the offense is burglary and no force against the
person of another or threat thereof is employed.
3. Title 18 U.S.C. § 2113(a) provides for a maximum imprisonment of 20
years. Title 18 U.S.C. § 2113(d) provides:
Whoever, in committing, or in attempting to commit, any offense
defined in subsections (a) and (b) of this section, assaults any
person, or puts in jeopardy the life of any person by the use of a
dangerous weapon or device, shall be fined under this title or
imprisoned not more than twenty-five years, or both.
On its face, this can be read as punishing bank robbers who engage in
actual violence--specifically, assault--during the commission of their
crime more severely than those who only threaten violence. This is not
the correct reading of § 2113(d), however. In Simpson v. United States,
435 U.S. 6 (1978), the Supreme Court held that subsection (d) requires
more than an assault and that " `the phrase `by the use of a dangerous
weapon or device' must be read, regardless of punctuation, as modifying
both the assault provision and the putting in jeopardy provision.' " Id. at
13 n.6. Hence, the goal of § 2113(d) is not to punish more severely the
actual use of violence in bank robberies under § 2113(a), but rather to
punish more severely "the use of a dangerous weapon or device" in such
situations. 18 U.S.C. § 2113(d).
4. U.S.S.G. § 2B3.1 does provide a specific offense characteristic increase
when violence results in personal injury but not for violence per se.
____________________________________________________________________________________
McKEE, Circuit Judge, concurring with whom Lewis, Circuit
Judge, joins.
I agree with the majority's conclusion that the Sentencing
Commission did not intend to import the "crime of violence"
definition from the career offender provision of U.S.S.G.
§ 4B1.2 into U.S.S.G. § 5K2.13. I think the majority is
correct in rejecting our prior holding in United States v.
Rosen and the majority view in United States v. Poff in favor
of the view espoused by Judge Easterbrook in his dissent in
Poff. However, I write separately because the majority
concludes that Askari's crime was not a "non-violent
offense" based upon the elements of the crime. That is
inconsistent with the approach taken by the dissent in Poff,
and those jurisdictions that have followed Judge
Easterbrook's reasoning. Rather than deny Askari a
§ 5K2.13 departure because of the elements of his crime,
we should require an individualized inquiry into the
specifics of his conduct to determine if his actual conduct
amounts to a "non-violent offense" as that term is used in
§ 5K2.13, notwithstanding the elements of his crime.
However, I nevertheless join in the judgment of my
colleagues, because Askari's criminal history indicates that
a departure under U.S.S.G. § 5K2.13 is not appropriate
because of a need to protect the public.
I.
The majority properly rejects our prior holding in United
States v. Rosen, 896 F.2d 789 (3d Cir. 1990). The majority's
rejection of the reasoning of Rosen is grounded in Judge
Easterbrook's dissent in United States v. Poff , 926 F.2d 588
(7th Cir. 1991), as well as the holding in United States v.
Chatman, 986 F.2d 1446 (D.C. Cir. 1993), and United
States v. Weddle, 30 F.3d 532, 540 (4th Cir. 1994). Maj.
Op. at 17. However, the majority parts company with those
cases insofar as those cases direct the sentencing court to
engage in a fact-specific inquiry concerning the defendant's
actual conduct, and the circumstances surrounding the
offense, in order to determine if a particular offense is "non-
violent" under § 5K2.13. Instead, the majority "take[s] a
somewhat different view of the applicable standard." Maj.
Op. at 21. It limits its inquiry here to the elements of the
crime of conviction and allows those elements to govern its
determination of whether Askari committed a "non-violent
offense" under § 5K2.13.
The majority reasons, "[i]f the elements of the crime
require a finding of violent conduct, then a valid conviction
can hardly permit a sentence based on a finding of non-
violent conduct." Maj. Op. at 26. After considering the
elements of Askari's robbery charge, the majority concludes
that robbery under 18 U.S.C. § 2113(a)1 is a crime of
violence barring any consideration as a "non-violent crime"
under § 5K2.13. Under this approach, once a sentencing
court concludes that the elements of a crime include
violence or intimidation, a defendant is no longer eligible for
the fact-specific, case by case inquiry that would otherwise
govern a departure for a "significantly reduced mental
capacity" under § 5K2.13. Although the majority's approach
does have a certain logic and symmetry that is quite
appealing, I am not persuaded that the analysis under
§ 5K2.13 ought to be as limited as the majority concludes.
The Sentencing Reform Act and the resulting Sentencing
Guidelines have altered the relationship between the
offense of conviction, and the criminal sanction that follows
to the extent that the symmetry of the majority's analysis is
no longer required or appropriate.2 As the majority correctly
points out, the purposes of § 4B1.2 and § 5K2.13 are not
the same. The factors that are relevant under § 4B1.2 are
not necessarily relevant, or even appropriate, under
§ 5K2.13. My colleagues in the majority provide a very
reasoned and convincing statement of why the definition of
"crime of violence" cannot control whether a conviction is
for a "non-violent offense" for purposes of a downward
departure based upon "reduced mental capacity." However,
the majority then restricts the meaning of "non-violent"
offense under § 5K2.13 by the very definition that it holds
does not apply under that Guideline. Section 4B1.2 defines
"crime of violence" to include any offense that "has as an
element the use, attempted use, or threatened use of
physical force." However, today we adopt the reasoning of
Judge Easterbrook's dissent in Poff, and the cases that
have relied upon it. Under that rationale, a sentencing
court should consider "all the facts and circumstances of a
case in deciding whether a crime is a `non-violent offense' "
under § 5K2.13. Chatman, 986 F.2d at 1453. Once we
conclude that we erred in Rosen by restricting "non-violent
offense" to the definition of "crime of violence," we need no
longer tether our § 5K2.13 analysis to the definition in
§ 4B1.2 that we have just rejected. This point is best
illustrated by Judge Easterbrook in his dissent in Poff:
As the Commission was at pains to establish in
§ 4B1.2, whether a crime is one "of violence" depends
on its elements and not on the defendant's conduct, so
that an unrealized prospect of violence make the crime
one of violence. This is an abnormal sense, a term of
art. It took a detailed definition to make it so. Then
comes § 5K2.13, in which "non-violent offense" appears
without elaboration or cross-reference. Best to read
these words in their ordinary sense rather than as tied
to the term of art in § 4B1.2. A "non-violent offense" in
ordinary legal (and lay) understanding is one in which
mayhem did not occur. The prospect of violence (the
"heartland" of the offense, in the guidelines' argot) sets
the presumptive range; when things turn out better
than they might, departure is permissible.
Poff, 926 F.2d at 594 (citation omitted) (emphasis added).
One of the purposes of the Sentencing Reform Act was to
increase uniformity in sentencing by reducing disparities in
sentencing. See U.S. Sentencing Guidelines Manual, ch. 1,
pt. A, at A3 (U.S.S.G.). However, another important purpose
was to increase proportionality in sentencing by imposing
different sentences for crimes representing different levels
of culpability. Id. To reconcile these seemingly contrary
goals, the Commission, inter alia, provided for departures
outside of the guideline range. See U.S.S.G. § 5K2.0. A
policy that restricts departures based solely upon the
elements of an offense is inconsistent with the
Commission's attempt to apportion sanctions based upon
culpability. Although we may properly conclude that one
who commits a more serious crime is more culpable than
one who commits a less serious one, that equation does not
work where the more serious crime is committed by one
who is less culpable because of a reduced mental capacity.
"The criminal justice system long has meted out lower
sentences to persons who, although not technically insane,
are not in full command of their actions." Poff, 926 F.2d at
594 (Easterbrook, J., dissenting). Moreover, "[s]carce
resources and prison space achieve greater deterrence
when deployed against those who are most responsive to
the legal system's threats and who pose the greatest danger
if not deterred." Id. at 595.
Thus, in Chatman, which the majority here cites with
approval, see Maj. Op. at 19-20, the court held that a
defendant was eligible for a downward departure under
§ 5K2.13 even though he (like Askari) came before the
sentencing court convicted of bank robbery. There, the
district court had opined that the defendant was ineligible
for a § 5K2.13 departure because he had given a teller a
threatening note during the bank robbery. The sentencing
court concluded that the defendant's conduct therefore
amounted to a crime of violence. Id. at 1447. The Court of
Appeals for the D.C. Circuit relied upon Judge
Easterbrook's dissent in Poff, and reversed. The court
reasoned that § 5K2.13 vested a sentencing court with
broad discretion to consider all the relevant facts
concerning the offense because the Commission's purpose
was "to treat with lenity those individuals whose`reduced
mental capacity' contributed to [sic] commission of a
crime." Id. at 1452.
In contrast to the purposes of section 4B1.2, the point
of section 5K2.13 is to treat with leniency those
individuals whose reduced mental capacity contributed
to commission of a crime. Such lenity is appropriate in
part because, as Judge Easterbrook points out, two of
the primary rationales for punishing an individual by
incarceration -- desert and deterrence -- lose some of
their relevance when applied to those with reduced
mental capacity. . . .
. . . .
Considered in this context, the term "non-violent
offense" in section 5K2.13 refers to those offenses that,
in the act, reveal that a defendant is not dangerous,
and therefore need not be incapacitated for the period
of time the Guidelines would otherwise recommend. A
determination regarding the dangerousness of a
defendant, as manifested in the particular details of a
single crime that he or she has committed, is best
reached through a fact-specific investigation.
Id. (citations omitted).
Likewise, the Court of Appeals for the Ninth Circuit in
United States v. Cantu was persuaded that a sentencing
court's inquiry into a defendant's eligibility under§ 5K2.13
should be undertaken with a view toward lenity. 12 F.3d
1506, 1510 (9th Cir. 1993)(citation omitted). There, the
court agreed with the analysis in Chatman, and noted that
"[l]enity is appropriate because the purpose of § 5K2.13 is
to treat with some compassion those in whom a reduced
mental capacity has contributed to the commission of a
crime." Id. Although the court in Cantu was concerned with
whether post-traumatic stress disorder could cause
reduced m__tal capacity under the Guidelines not with
whether the defendant committed a "non-violent offense,"
the court recognized that fact-specific inquiries must be
undertaken to determine both the defendant's mental
condition and the circumstances of the offense. See also,
United States v. McBroom, 124 F.3d 533, 547 (3d Cir. 1997)
("Section 5K2.13 is intended to create lenity for those
whose significantly reduced mental capacity cause them to
commit the offense of conviction.").
Thus, I conclude that Askari is not ineligible for a
§ 5K2.13 departure solely because of his robbery conviction.
The record shows that, although Askari had his hand
underneath his shirt when he ordered the bank teller to
give him money, two bank employees chased him from the
bank. I submit, therefore, there is a genuine issue as to
just how frightening or intimidating he was during the
commission of the crime. However, I do not minimize the
intimidation of the bank teller whom Askari confronted. See
Maj. Op. at 27. Instead, the teller's reaction should be
assessed along with all of the other evidence in concluding
whether, based upon the totality of the circumstances,
Askari committed a "non-violent offense" under § 5K2.13. A
sentencing court should make that determination
independently of the definition contained in § 4B1.2 (which,
as noted above, includes the elements of the offense).
Barring other considerations, a defendant's eligibility for a
§ 5K2.13 departure can be determined only after the
completion of such an individualized inquiry.
II.
Despite my disagreement with the conclusion of the
majority of my colleagues, I agree with the majority's
ultimate decision to affirm the sentence because there are
additional considerations under the departure provision.
Section 5K2.13 is not only restricted to persons whose
offense is non-violent, it also requires that "a defendant's
criminal history does not indicate a need for incarceration
to protect the public." See U.S.S.G.§ 5K2.13. Here, the
district court noted that Askari had a long history of crime,
including violent crime. (App. at 56a.) Therefore, I agree
that regardless of whether or not the bank robbery in this
case is classified as a "non-violent offense," Askari is
ineligible for the departure because his criminal history
does suggest a need to protect the public. Thus, I concur in
the judgment of the majority.
GARTH, Circuit Judge, concurring:
I agree that the order of the district court should be
affirmed. However, I reach this result by relying on the logic
and common sense of Judge Seitz's opinion for our court in
United States v. Rosen, 896 F.2d 789 (3d Cir. 1990), and its
conclusion that the term "non-violent offense" cannot mean
something other than the opposite of a "crime of violence."
Rosen teaches that a defendant who has committed a
"crime of violence" according to USSG § 4B1.2(a) is not
eligible for a downward departure for commission of a "non-
violent offense" with reduced mental capacity under USSG
§ 5K2.13. See id. at 791. Because Askari was convicted of
a "crime of violence," namely bank robbery, he is obviously
ineligible to receive the grant of a downward departure
authorized by § 5K2.13 and the order of the district court
imposing a sentence of 210 months in prison should be
affirmed.
The court today correctly affirms the order of the district
court, but on its path to doing so, rejects Rosen. My
colleagues take the position that the "crime of violence"
definition of USSG § 4B1.2(a) should not be used to
determine whether a defendant has committed a "non-
violent offense" according USSG § 5K2.13. For essentially
those reasons stated by the Sixth, Seventh, Eighth, Ninth,
and Eleventh Circuits, I do not find this position
persuasive. See United States v. Mayotte, 76 F.3d 887, 889
(8th Cir. 1996); United States v. Poff, 926 F.2d 588, 591-93
(7th Cir. 1991) (en banc); United States v. Russell, 917 F.2d
512, 517 (11th Cir. 1990); United States v. Maddalena, 893
F.2d 815, 819 (6th Cir. 1989); United States v. Borrayo, 898
F.2d 91, 94 (9th Cir. 1989); see also United States v.
Chatman, 986 F.2d 1446, 1454-55 (D.C. Cir. 1993) (D.H.
Ginsburg, J., concurring).
In light of the many opinions on this issue already found
in the Federal Reporter, I feel no need to rehash the
familiar arguments in favor of Rosen.3 However, our court's
inability to agree on a standard to replace Rosen provides
a new perspective from which to appreciate its strength.
Having agreed to reject Rosen's teaching that a "non-
violent offense" is defined by § 4B1.2(a), my colleagues have
diverged in their efforts to come up with a new definition.
Reaching back to first principles of "modern criminology,"
the majority has promulgated a definition of "non-violent
offense" that it believes will respond to "the need for the
sentence imposed to reflect the seriousness of the offense,
to protect the public, and to provide just punishment." Maj.
Op. at 23. Under the majority rule,
departures under USSG § 5K2.13 exclude conduct that
involves actual force, threat of force, or intimidation,
the latter two measured under a reasonable person
standard. Therefore, "non-violent offenses" under USSG
§ 5K2.13 are those which do not involve a reasonable
perception that force against persons may be used in
committing the offense.
Maj. Op. at 26 (emphasis added). Accordingly, the district
court must examine "the elements of the crime and the
surrounding conduct" to determine whether there was
actual force or a reasonable perception of a threat of force.
In their concurrences, Judge Stapleton and Judge McKee
offer different approaches. Following conviction of a crime
involving threats of violence that were not executed, Judge
Stapleton would have the district court look to the
underlying criminal statute and the relevant section of
Chapter 2 of the Guidelines. If the district court could
discern from these texts an intent to award lighter
sentences to defendants who were unlikely to carry out
their threats of violence, Judge Stapleton would allow a
defendant who appears unlikely to have carried out a threat
of violence to be eligible for a downward departure under
§ 5K2.13. Judge McKee offers yet another approach to
defining "non-violent offense." In his concurrence, Judge
McKee advocates a totality of the circumstances test, in
which a district court would be required to conduct an
individualized inquiry into the specifics of the defendant's
conduct to determine whether it constituted a "non-violent
offense."
As I see it, our court's inability to agree on a definition of
"non-violent offense" in § 5K2.13 illustrates the wisdom of
Rosen. By utilizing § 4B1.2(a), Rosen harnessed the
Sentencing Commission's efforts to delineate the
boundaries between violent and non-violent conduct. The
Commission produced a clear rule. When linked to
§ 5K2.13 by Rosen, the result was simple and
straightforward guidance that produced sensible results:
defendants convicted of offenses involving the use,
attempted use, or threatened use of physical force against
a person, or whose behavior presented a serious potential
risk of physical injury to others, were ineligible for a
reduced sentence due to diminished capacity. By rejecting
Rosen, our court has created the need to fashion a
standard that at best can only replicate the efforts of the
Commission codified at § 4B1.2(a).
I do take some solace in the fact that the majority's new
standard for evaluating departures appears to do just that.
Indeed, it seems that the majority has gone out of its way
to reject Rosen in theory but has embraced it in fact.
Looking at the majority's new definition of "non-violent
offense," I am hard pressed to think of a case in which the
definition would produce a result different from Rosen: that
is, when a defendant's action would not involve "actual
force, threat of force, or intimidation, the latter two
measured under a reasonable person standard," but
nonetheless would qualify as a "crime of violence" according
to USSG § 4B1.2(a).
The court's attempt to conjure up such an example
appears in part IIID of the majority's opinion. There, the
court imagines extortion by a public official in violation of
the Hobbs Act. In order to come within the court's new
standard, a public official with a diminished mental
capacity not the result of voluntary intake of alcohol or
drugs, acting under color of right, would have to extort
funds in violation of the Hobbs Act in a way that did not
involve a threat of force, as judged by a reasonable person.
In such a case, the court hypothesizes, that official would
be eligible for a § 5K2.13 departure under the court's new
standard but not under Rosen.
I have never heard of such a prosecution. Nor have I been
able to locate any published reports of one. Indeed, as the
dissent notes, it is not even clear that the majority's rule
would produce a different result than Rosen given such a
set of facts. See Dissenting Op. at n.2. Thus, it appears
that the majority has rejected Rosen in theory but not in
substance: it has fashioned from first principles a new rule
that appears to mirror Rosen in every set of facts that has
been known to arise. This being so, I see no reason to
abandon our Rosen rule, with which five other circuits have
agreed.
_________________________________________________________________
FOOTNOTES
1. 18 U.S.C. § 2113(a) provides, in part, that:
(a) Whoever, by force and violence, or by intimidation, takes, or
attempts to take, from the person or presence of another, or obtains
or attempts to obtain by extortion any property or money or any
other thing of value belonging to, or in the care, custody, control,
management, or possession of, any bank, credit union, or any
savings and loan association.
2. See United States v. Watts, ___ U.S. ___, 117 S. Ct. 633 (1997)
(sentencing court may consider conduct of which the jury acquitted a
defendant in imposing a sentence following a conviction); United States
v. Baird, 109 F.3d 856 (3d Cir.), cert. denied, 118 S. Ct. 243 (1997)
(Guidelines allow a defendant to be sentenced based in part upon
conduct contained in counts of an indictment that were dismissed
pursuant to a plea bargain).
3. Briefly, however, the pro-Rosen arguments may be summarized as
follows. First, common sense dictates that a "non-violent offense" is the
converse of a "crime of violence." Second, the parallel structure of
§ 4B1.1 and § 5K2.13 suggests that the same definition should be used
to assess whether the violent nature of a defendant's crime should
support a modification of the defendant's sentence. Third, the Guidelines
should be read as a whole, and when the same word appears in related
sections, we should assume that the word carries the same meaning in
both. Fourth, the term "crime of violence" is a broad phrase that appears
in other sections of the Guidelines apart from § 4B1.1. See, e.g., USSG
§§ 2K2.1, 2K1.3, 4A1.1. Its meaning therefore can be exported to
§ 5K2.13 as well as to these other sections.
_________________________________________________________________
BECKER, Chief Circuit Judge, Dissenting.
I join in Parts I, II, and IIIA, B, & C of the majority
opinion, which overrule United States v. Rosen, 896 F.2d
789 (3d Cir. 1990), and hold that Rosen's determination
that "non-violent offense" as used in U.S.S.G. § 5K2.13
should be controlled by the definition of "crime of violence"
used elsewhere in the Sentencing Guidelines was incorrect.
Judge Scirica's analysis in these segments of his opinion is
not only sound but itself clearly demonstrates why the only
appropriate and logical course is to permit the district
courts to consider all the facts and circumstances
surrounding the commission of a crime when deciding
whether that crime qualifies as a non-violent offense under
§ 5K2.13.
In Part IIID, however, the court holds that (and attempts
to explain why) we should preclude sentencing judges from
granting § 5K2.13 departures in "traditional" bank robbery
cases.1 After invoking the Sentencing Reform Act, 18 U.S.C.
§ 3553, and exploring the terms of the bank robbery
statute, 18 U.S.C. § 2113(a), the court defines "non-violent
offense" as those offenses "which do not involve a
reasonable perception that force against persons may be
used in committing the offense." Op. at 26. The court also
states that:
It would seem, therefore, that with bank robbery
convictions under the first paragraph of 18 U.S.C.
§ 2113(a), a defendant could not qualify for a departure
under USSG § 5K2.13 as presently written. . . . [i]f the
elements of the crime require a finding of violent
conduct, then a valid conviction could hardly permit a
sentence based on a finding of non-violent conduct.
Id. at 29, 31.
I do not believe that there any persuasive reasons to
support the categorical exclusion from § 5K2.13 of offense
conduct that the analysis in the first segments of Part III
would have otherwise left to fact specific consideration by
the sentencing judge. That is because, as those circuits
that have already rejected the Rosen approach have
concluded, the policies behind the departure provisions are
distinct from (and often in tension with) the career offender
and substantive offense guidelines, and that it accordingly
does not make sense to assess whether an offense is "non-
violent" based on the statutory elements of the crime.
Unlike the majority, I would follow that logic to its
conclusion. That logic, I note, is buttressed by Judge
McKee's and Judge Garth's concurring opinions.
I
Section 5K2.13 of the Guidelines is a policy statement
authorizing sentencing judges to downwardly depart in
circumstances when the offender is found to have been
"suffering from significantly reduced mental capacity not
resulting from voluntary use of drugs or other intoxicants."
Section 5K2.13 is a guided departure, one that is thus
"encouraged." See Koon v. United States, 116 S.Ct. 2035,
2045 (1996). Although a § 5K2.13 departure depends upon
a judgment as to the extent to which reduced mental
capacity contributed to the commission of the offense, a
departure is optional, and elements of discretion are plainly
present.
The critical limitation on the ability of the sentencing
judge to grant a § 5K2.13 departure is that the defendant
must have committed a "non-violent offense." This term is
not, as the majority notes, defined anywhere in the
Guidelines. In Rosen, we adopted a definition based on
"crime of violence," a term of art used in § 4B1.1, the career
offender provision, and defined in § 4B1.2. Unlike § 5K2.13,
which permits sentencing judges to exercise leniency in
appropriate circumstances, § 4B1.1 mandates that a certain
class of recidivist offenders receive the harshest sentence
possible under the circumstances by ratcheting up both the
criminal history and base offense levels.
A
The effect of Rosen was that, by applying the "crime of
violence" standard to the "non-violent offense" analysis, the
sentencing judge would be bound by the statutory elements
of the offense in determining whether the crime was "non-
violent." This is because a "crime of violence" is defined as
an offense that "has an element the use, attempted use, or
threatened use of physical force against the person of
another." U.S.S.G. § 4B1.2; see also United States v. Poff,
926 F.2d 588, 594 (7th Cir. 1991) (en banc) (Easterbrook,
J., dissenting) ("[W]hether a crime is one `of violence'
depends on its elements and not on the defendant's
conduct."). What actually happened is not relevant; the
court need only look to the elements of the offense of
conviction. Accordingly, since the crime of bank robbery is
defined to include force or intimidation, see 18 U.S.C.
§ 2113(a), it could never be found to be a non-violent
offense under the Rosen construction.2
The majority rejects Rosen in favor of the contrary view
expressed in United States v. Weddle, 30 F.3d 532, 540 (4th
Cir. 1994), United States v. Chatman, 986 F.2d 1446 (D.C.
Cir. 1993), and in Judge Easterbrook's noted dissent in
Poff. These cases demonstrate why we must necessarily
examine the facts of the offense to determine whether
"significantly reduced mental capacity" could be a ground
for lenience at sentencing. As Judge Edwards summarized
in Chatman:
[T]he point of section 5K2.13 is to treat with lenity
those individuals whose "reduced mental capacity"
contributed to the commission of a crime. Such lenity
is appropriate because, as Judge Easterbrook points
out, two of the primary rationales for punishing an
individual by incarceration -- desert and deterrence --
lose some of their relevance when applied to those with
reduced mental capacity. As to desert, "[p]ersons who
find it difficult to control their conduct do not --
considerations of dangerousness to one side -- deserve
as much punishment as those who act maliciously or
for gain." Poff, 926 F.2d at 595 (Easterbrook, J.
dissenting). Further, "[b]ecause legal sanctions are less
effective with persons suffering from mental
abnormalities, a system of punishment based on
deterrence also curtails its sanction." Id. . . .
[W]hen an individual with "significantly reduced mental
capacity" does not pose a danger to the public, and
thus does not need to be incapacitated, that individual
is eligible for a downward departure.
Considered in this context, the term "non-violent
offense" in section 5K2.13 refers to those offenses that,
in the act, reveal that a defendant is not dangerous,
and therefore need not be incapacitated for the period
of time the Guidelines would otherwise recommend.
. . . A determination regarding the dangerousness of a
defendant, as manifested in the particular details of a
single crime that he or she has committed, is best
reached through a fact-specific investigation.
Chatman, 986 F.2d at 1452 (internal citations omitted). The
majority also recognizes this policy foundation,finding that
U.S.S.G. § 5K2.13 "encourages more lenient treatment for
persons who are not actually dangerous but whose reduced
mental capacity contributed to the commission of a crime."
See Op. at 21 (emphasis added).
The policy rationale discussed in Chatman, in
conjunction with the discretionary nature of § 5K2.13
discussed supra, counsels that sentencing judges must be
given the ability to examine the facts of the offense to
determine whether a diminished capacity departure is
appropriate. To that end, Weddle, Chatman, and the Poff
dissent all reject the Rosen approach in favor of a fact-
specific inquiry. See Chatman, 986 F.2d at 1452 ("We
therefore believe that a District Court, when deciding
whether a particular crime qualifies as a `non-violent
offense,' should consider all the facts and circumstances
surrounding the commission of the crime."); Weddle, 30
F.3d at 540 (agreeing with the Chatman fact-specific
approach); Poff, 926 F.2d at 595 (Easterbrook, J.,
dissenting) (concluding that "non-violent offense" refers to
"crimes that in the event did not entail violence."). Thus,
the essential distinction between Chatman and Rosen is
whether the statutory definition of the crime or the facts of
the offense will be outcome determinative.3
Yet, while the majority ostensibly rejects Rosen and
claims to find the arguments in Chatman, Weddle, and the
Poff dissent "convincing," see Op. at 20, it does not fully
adopt the fact-based inquiry necessary to its own position.
Instead, the majority posits that the district court should
"look at" the facts of the offense, but should do so "within
the context of the Sentencing Reform Act and the
underlying statute defining criminal culpability." See id. at
22. It then directs courts to "assess the seriousness of the
offense" to determine whether a departure is warranted by
looking "to the elements of the crime and the surrounding
conduct." Id. at 23. And while the majority holds that "non-
violent offense" should be defined based on the "reasonable
perception that force against persons may be used" --
which sounds more like a fact specific inquiry-- it
concludes that:
If the elements of the crime require a finding of violent
conduct, then a valid conviction could hardly permit a
sentence based on a finding of non-violent conduct. So
long as the bank robbery victim has been threatened
with harm, and is seen to have been threatened under
an objective standard (reasonable person), the
defendant cannot be found to have acted in a non-
violent manner.
Id. at 26.
Since the applicable provision of 18 U.S.C. § 2113(a) has
as a statutory element actual or threatened force (the latter
measured under an objective standard), by definition an
offender convicted of traditional bank robbery could never
be found to have committed a "non-violent" offense. Thus,
under the majority's construction of Chatman, Muhammad
Askari could not qualify for a departure under § 5K2.13
regardless of the factual circumstances underlying his
offense. To that end, the majority's proposed "reasonable
perception" standard does not save its opinion from being
analytically identical to Rosen. As Judge McKee explains in
his concurring opinion, under the majority's reasoning
"once a sentencing court concludes that the elements of a
crime include violence or intimidation, a defendant is no
longer eligible for the fact-specific, case by case inquiry that
would otherwise govern a departure . . . under § 5K2.13."
Concurr. Op. (McKee) at 37. In other words, in such a
circumstance the majority directs us not to consider
whether the facts of the case constitute a real expression or
threat of violence, but whether the crime itself is "of
violence." This restricts the meaning of "non-violent offense"
by "the very definition [the majority] holds does not apply."
See Concurr. Op. (McKee) at 38.
I fail to see how this approach, which appears to credit
Judge Easterbrook's reasoning, is substantially different
from a straightforward application of Rosen or the majority
view in Poff. As Judge Garth aptly opines in his concurring
opinion, the majority has "gone out of its way to reject
Rosen in theory but has embraced it in fact." See Concurr.
Op. (Garth) at 44. I observe that the majority has properly
rejected Rosen in theory, but has gone out of its way to
embrace it in fact.
B
It is important that we pause and recognize the
significance of what the majority holds today. As the
majority correctly notes, one element of the applicable bank
robbery statute is that the offender takes property either
"by force and violence" or "by intimidation." See Op. at 12.
As discussed, it is this element of the offense that seals
Muhammad Askari's fate. However, as the majority also
notes, to prove "intimidation," the government need only
show that an "ordinary person in the teller's position
reasonably could infer a threat of bodily harm from the
defendant's acts." Id. (citing United States v. Woodrup, 86
F.3d 359, 363 (4th Cir.), cert. denied, 117 S. Ct. 332 (1996).
This means that a defendant whose diminished mental
capacity at the time of the offense is beyond cavil could be
precluded from a § 5K2.13 departure despite a record that
clearly demonstrates that (a) there was no actual violence;
(b) there was no real chance of violence being carried out;
and (c) no one in the bank at the time of the robbery
actually felt threatened by the defendant. This result
cannot be consistent with the desert and deterrence
rationales discussed supra and impliedly embraced by the
majority.4
In contrast, to be consistent with its reasoning in Part
IIIC, the majority should have modeled its result in Part
IIID on Chatman. The facts of Chatman are just like those
presently before us. The unarmed defendant walked into a
bank, passed the teller a note demanding money, and
threatened violence otherwise. The defendant left the bank
without incident and was captured by the police soon
thereafter. Since it was unclear from the record whether the
district court had assessed the specific facts of the case and
exercised its discretion to depart, or whether it had
categorically rejected the § 5K2.13 departure based on the
statutory definition of bank robbery, the D.C. Circuit
remanded for a resentencing. See Chatman, 986 F.2d at
1454. The same result should obtain here. As in Chatman,
the district court rejected the § 5K2.13 departure not on the
facts, but because it believed (correctly, as things have
turned out) that it was precluded from departing based on
the elements of the crime. But as Judge McKee states, once
we have rejected Rosen, "we need no longer tether our
§ 5K2.13 analysis to the definition in § 4B1.2 that we have
just rejected." Concurr. op. (McKee) at 38.5
II
Judge Stapleton, writing separately, also agrees that the
definition of "non-violent offense" used in § 5K2.13 should
not be controlled by the definition of "crime of violence"
used in the career offender provision, § 4B1.1. However, like
the majority, he concludes that a downward departure is
not warranted in traditional bank robbery cases. Although
Judge Stapleton's rationale differs somewhat from the
majority's, I believe that it still comes up short.
Judge Stapleton's reasoning can be summarized as
follows. First, he rejects Judge Easterbrook's view that the
findings of the jury at the guilt phase with respect to the
defendant's use of violence or threats are essentially
irrelevant at the departure phase. See Concurr. Op.
(Stapleton) at 34. Judge Stapleton believes, like the
majority, that if a conviction for bank robbery necessarily
entails a jury finding that the defendant's conduct was, at
least, reasonably perceived as involving a threat of violence,
this finding should preclude characterization of the offense
as "non-violent" for § 5K2.13 purposes. See id. at 30, 34.
The difference between this view and Rosen, according to
Judge Stapleton, is that while Rosen mandates that the
elements of the offense control the outcome in all cases,
under the Stapleton view the elements do not always
control, but rather the "findings necessarily implicit in a
conviction may preclude" characterization of the offense as
"non-violent." See id. at 31.
Accordingly, Judge Stapleton also rejects the Chatman
view that whenever a § 5K2.13 motion is made in a bank
robbery case involving unrealized violence, the sentencing
court should have the opportunity to make an independent
determination whether or not the threat "was a serious one
that would have been acted on had events unfolded
differently." See id. at 33.6 His rejection of the need for such
factual findings is premised on a belief that the Sentencing
Commission intended the Guidelines to follow the
"traditional view" that crimes involving violence and crimes
involving only threats of violence are regarded as being of
equal seriousness. Based on an examination of the text of
both the robbery guideline and the robbery statute, he finds
no distinction between realized violence and unrealized
threats. Accordingly, Judge Stapleton concludes that the
Commission did not intend to authorize downward
departures in traditional bank robbery cases involving only
unrealized threats. See id. at 34. Hence, Judge Stapleton is
of the view that an offense involving an unrealized threat
could never be "non-violent."
I disagree with this analysis for two reasons. First, I am
not persuaded that Judge Stapleton's reliance on "the
findings necessarily implicit in a conviction" is analytically
distinguishable from the Rosen approach. The findings that
are necessary to a conviction for a given offense will always
be equivalent to the statutory elements of that offense --
that is, to say that implicit in a bank robbery conviction is
a jury finding that there was a reasonable inference of a
threat of bodily harm is no different from saying that the
bank robbery statute requires the government to prove that
the victims reasonably felt threatened. Thus, it makes no
sense to me to hold that the sentencing court should"look
to the underlying facts," see Concurr. Op. (Stapleton) at 31,
while simultaneously holding that a departure could be
precluded by "implicit" facts -- i.e. the elements of -- the
conviction. I reiterate the point made by both Judges
McKee and Garth that there is no difference between the
Rosen "crime of violence" approach and an approach by
which the decision to depart is per se precluded by the
statutory elements of the offense. See Concurr. Op. (McKee)
at 38; Concurr. op. (Garth) at 51-52. Judge Stapleton's first
conclusion cannot be consistent with a rejection of Rosen.
Second, Judge Stapleton's conclusion that the
Commission has adopted the "traditional view" that threats
and actual violence should be treated the same in the
departure context is equally problematic. As the majority's
analysis of Poff, Chatman, and Weddle amply indicates, a
major reason why we have rejected the Rosen analysis is
that the policy goals driving the departure provisions are
significantly different from the policy goals motivating the
other portions of the Guidelines. See Op. at 18-19, 21; see
also Chatman, 986 F.2d at 1452. Thus, while it may make
good policy sense to treat bank robbery offenders who use
violence the same as those who only threaten violence for
purposes of computing the applicable base offense level,
different policy goals are implicated when it comes to the
departure decision, and in that context it does not
necessarily make sense to treat empty threats and actual
violence as per se the same.
Furthermore, as Judge McKee explains in his concurring
opinion, the "Sentencing Reform Act and the resulting
Sentencing Guidelines have altered the relationship
between the offense of conviction, and the criminal sanction
that follows." Concurr. Op. (McKee) at 37. To use
Guidelines vocabulary, the "heartland" of the offense sets
the presumptive sanction range by way of the base offense
level. In the bank robbery context, that heartland is defined
by the mere prospect of violence. See Poff, 926 F.2d at 594
(Easterbrook, J., dissenting). Thus, the presumptive
sanction is the same whether the offense involved actual
violence or the threat of violence. Section 5K2.13, however,
is concerned with whether the offense conduct is indicative
of a need for the standard incapacitation entailed by a given
offense or whether the conduct is more indicative of a
mental illness, and thus society has a lesser need to
incapacitate. See Chatman, 986 F.2d at 1452 (discussing
incapacitation rationale). Thus, when "things turn out
better than they might" and violence does not actually
occur, a departure becomes permissible. Poff, 926 F.2d at
594 (Easterbrook, J., dissenting). In that light, whether the
offender was actually violent or posed a real threat of
violence, or whether he presented a threat that was unlikely
to have been realized, is a central and necessary factual
distinction in the departure context. Thus, it does not
necessarily follow that because the robbery offense
guideline does not distinguish between realized and
unrealized violence that the departure provisions should
similarly not make such a distinction.
Moreover, it is not even obvious that the robbery offense
guideline does not fully distinguish between "situations in
which violence actually occurs and situations in which it is
threatened but the threat is not realized." Concurr. Op.
(Stapleton) at 33. Judge Stapleton is correct that § 2B3.1,
the robbery offense guideline, does not provide for a specific
base level enhancement for violence per se. However,
§ 2B3.1(b)(3) mandates a graduated offense level increase if
the victim of the robbery sustained a bodily injury.7 I
recognize that there can be crimes where violent conduct
occurs but does not result in bodily injury, and thus this
enhancement does not squarely refute Judge Stapleton's
argument. See United States v. Harris, 44 F.3d 1206, 1218
(3d Cir. 1995) (finding that there will be crimes where the
offender will use mace but will not cause bodily injury to
victims). At the same time, it seems plausible to read into
this provision an intent of the Commission to treat serious
threats the same as violence only when that violence does
not result in injury. Since threats by themselves cannot
cause bodily injuries, see United States v. Sawyer, 115 F.3d
857, 859 (11th Cir. 1997) (holding that psychological injury
by itself cannot support an enhancement under
§ 2B3.1(b)(3)), the Commission clearly intended to treat
legitimate threats and substantial violence differently.
Perhaps, then, the Commission did not adopt Judge
Stapleton's "traditional view" wholesale after all.8
In sum, I would follow the principles advanced in
Chatman, Weddle and the Poff dissent. Even if there is a
reasonable perception of a threat by the bank teller that
justifies a conviction and a base offense level that is the
same as if the offender had used actual violence, the policy
goals underlying Chapter Five of the Guidelines are
different from the policies underlying the substantive
offense provisions, and thus the jury's factual
determinations should not necessarily preclude a
departure.
III
The improvidence of the majority view is demonstrated by
a recent highly publicized incident in the Philadelphia area.
In December of 1997, in a drama resembling the one
currently before us, the mayor of Darby Borough,
Pennsylvania, a beloved and respected long-time member of
the community, walked into a local bank in broad daylight
and told a teller "This is a robbery. I have a bomb on me."
See Lisa Sandberg, Darby Mayor Held in Bank Heist,
Philadelphia Inquirer, Dec. 28, 1997, at B5. Apparently the
mayor walked out with $1,500, but surrendered to
authorities about one half-hour later. See id. According to
the police investigating the crime, the mayor did not
actually possess a bomb. See id. Friends and colleagues
believe that his actions were the product of chronic
depression related to personal and financial troubles. See
Raphael Lewis & Lisa Sandberg, Depression Tied to Bank
Robbery, Philadelphia Inquirer, Dec. 30, 1997, at B1, B6.
If this were a federal case (it is not and will not be),9 a
district court would have no grounds under the majority's
opinion to depart downwards on grounds of diminished
capacity. More specifically, it would have no grounds to
depart even if it found beyond cavil that the defendant's
actions were prompted by a deep psychological disturbance
and that there was no real threat of violence. In my view
that makes no sense.
For all the foregoing reasons, I respectfully dissent. Judge
Nygaard and Judge Roth join in this dissent.
A True Copy:
Teste:
Clerk of the United States Court of Appeals
for the Third Circuit
_________________________________________________________________
FOOTNOTES
1. I adopt Judge Stapleton's reference to "traditional" bank robbery as
that conduct proscribed by the first paragraph of 18 U.S.C. § 2113(a).
See Concurr. Op. (Stapleton) at 30.
2. The majority concedes as much. See Op. at 9-10 ("If `non-violent'
offense in USSG § 5K2.13 is defined by reference to the term `crime of
violence' in USSG § 4B1.2 and its commentary, then bank robbery would
never qualify as a `non-violent' offense.").
3. I note that the circuit split on the question presently before us has
caught the attention of the U.S. Sentencing Commission, which has
recently proposed four alternative amendments to§ 5K2.13. See 62
Crim. L. Rep. 2051, 2078-79 (Jan. 21, 1998). Option one corresponds to
the Rosen - Poff majority view. Option two corresponds to the Chatman
fact-intensive view. Option three, a variation on the Chatman view,
"defines the scope of the departure to exclude cases that involve actual
violence or a serious threat of violence." Id. at 2078. Finally, option four
broadens the scope of the departure by eliminating the "non-violent
offense" limitation altogether. See id. It is interesting that the
Commission, obviously influenced by the force of Judge Easterbrook's
Poff dissent, which it explicitly references, appears to be in doubt over
the best course to take. Unlike many of the other proposals for
amendment it has made in the past, the Commission proposes four
distinct options rather than taking a definite stance on this issue.
4. The majority attempts in Part IIID of its opinion to suggest a set of
circumstances in which an offender convicted of bank robbery still could
qualify for a § 5K2.13 departure. In the majority's hypothetical, a public
official could commit bank robbery by extortion in violation of the Hobbs
Act, 18 U.S.C. § 1951(b)(2) without force or the threat of force. See Op.
at 25-26. As Judge Garth suggests in his concurring opinion, this is a
somewhat far-fetched set of facts, and is not particularly helpful in
deciding whether the rule the majority fashions today is distinguishable
from Rosen. I would also add that the majority's example, on its own
facts, although styled as a "bank robbery" would appear to involve
instead a prosecution under the Hobbs Act -- which does not have as a
necessary element the use of force or the threat of force. See United
States v. Addonizio, 451 F.2d 49, 72 (3d Cir. 1972) (indicating that
Hobbs Act violation can be based on fear of economic loss). In that case,
the majority's hypothetical defendant could be eligible for a § 5K2.13
departure even under Rosen. If, on the other hand, the majority's
example would entail a prosecution under 18 U.S.C.§ 2113(a), by the
terms of the majority's own opinion a diminished capacity departure
would be precluded. See Op. at 25 ("It would seem, therefore, that with
bank robbery convictions under the first paragraph of 18 U.S.C.
§ 2113(a) [including extortionate acts], a defendant could not qualify for
a departure under USSG § 5K2.13 as presently written.").
In order to distinguish itself from Rosen, the majority would need to
generate a hypothetical under the first paragraph of 18 U.S.C. § 2113(a)
that would not foreclose a diminished capacity departure. This the
majority has not done. See also Concurr. Op. (Stapleton) at n.1 ("While
it has been suggested that a public official may be able to commit bank
robbery by "extorting" bank funds without a threat of violence, I would
not regard this as traditional bank robbery and I would take no position
on the application of § 5K2.13 in such a case.").
5. Both the majority in Part IIIE and Judge McKee's concurrence
conclude that we should also affirm the district court's denial of a
departure pursuant to § 5K2.13 because Askari's criminal history
suggests a need to protect the public. While it is true that to be eligible
for a diminished capacity departure, § 5K2.13 requires that "a
defendant's criminal history does not indicate a need for incarceration to
protect the public," and while the district court found that Askari has a
long history of crime, the district court did not expressly make a finding
about the need for incarceration in this case. I believe that that
determination should be made by the district court in the first instance.
6. The Chatman court disagreed with the Poff dissent to the extent that
Judge Easterbrook's opinion could be read to suggest that any crime
that does not actually involve physical violence is a "non-violent offense."
See Chatman, 986 F.2d at 1454. The court found instead that some
offenses that did not actually result in violence may suggest that the
defendant is "exceedingly dangerous" and needs to be incapacitated. See
id. The court described such offenses as those which "involved a real and
serious threat of violence," and included as an example assault with a
deadly weapon. See id. This determination, however, was left to the
district court.
7.If any victim sustained bodily injury, increase the offense level
according to the seriousness of the injury:
Degree of Bodily Injury Increase in Level
(A) Bodily Injury add 2
(B) Serious Bodily Injury add 4
(C) Permanent or Life-Threatening Bodily
Injury add 6
8. Even accepting that the Commission did not intend to distinguish
between violent offenses and offenses involving a real threat to violence
in the departure context, that does not change the fact that the
sentencing court needs to examine the offense conduct to determine if
the threat was real enough to justify being treated like actual violence in
the departure context.
9. I am informed by the United States Attorney that the mayor is being
prosecuted in state court, and that he will not be prosecuted in federal
court.