United States v. Askari

Opinions of the United

1998 Decisions States Court of Appeals

for the Third Circuit

11-5-1998

United States v. Askari

Precedential or Non-Precedential:

Docket 95-1662

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Filed November 5, 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: SLOVITER, Chief Judge, BECKER, STAPLETON,

MANSMANN, GREENBERG, SCIRICA, COWEN, NYGAARD,

ALITO, ROTH, LEWIS, McKEE and GARTH, Circuit Judges

(Filed: April 8, 1998)

SUBMITTED SUR PETITION FOR

RECONSIDERATION OF EN BANC OPINION

Pursuant to Third Circuit LAR 34.1(a)

(October 5, 1998)

Present: BECKER, Chief Judge, SLOVITER, STAPLETON,

GREENBERG, SCIRICA, NYGAARD, ALITO, ROTH, LEWIS,

McKEE, GARTH and COWEN,* Circuit Judges.

(Filed November 5, 1998)

DAVID L. McCOLGIN, ESQUIRE

ROBERT EPSTEIN, ESQUIRE

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

Office of United States Attorney

615 Chestnut Street, Suite 1250

Philadelphia, Pennsylvania 19106

Attorney for Appellee

OPINION OF THE COURT SUR PETITION FOR

RECONSIDERATION OF EN BANC OPINION

BECKER, Chief Judge.

This opinion is prompted by an unusual concatenation of

circumstances: (1) the United States Sentencing

Commission adopted an amendment to the Sentencing

Guidelines rendering more flexible the circumstances under

which a sentencing court can make a downward departure

when a defendant convicted of certain kinds of offenses has

been shown to possess significantly reduced mental

capacity at the time of the offense; (2) this court, sitting en

banc, filed an opinion one day before adoption of the

Guideline amendment rejecting the interpretation that the

Guideline amendment suddenly recognized; and (3) because

_________________________________________________________________

*Judge Mansmann sat on the original en banc panel but has been

unable to participate in this decision due to illness.

2

the amendment is a "clarifying" amendment which, under

our jurisprudence, applies to pending cases, it becomes

possible that the defendant, who sought relief from our

decision before our mandate was issued and who clearly

had significantly reduced mental capacity at the time of the

offense, could receive a lesser sentence than that which the

district court imposed and which the en banc court of

appeals affirmed.

Shortly after we filed our opinion, and when the terms of

the newly-adopted Guideline amendment became known,

defendant Muhammad Askari sought reconsideration of our

en banc decision. We granted the motion. We now vacate

the en banc opinion and remand the case to the district

court so that it may reconsider the sentence in light of the

Guidelines amendment, and, in particular, make findings

or draw legal conclusions in the first instance about the

two facts that will likely determine whether Askari's

sentence will be reduced: (1) whether Askari's offense

involved "actual violence or a serious threat of violence";

and (2) whether Askari's criminal history indicates "a need

to incarcerate the defendant or protect the public." See

U.S.S.G. S 5K2.13.1 Before explaining our ratio decedendi,

we will recapitulate the facts of the majority in our first en

banc opinion.

I. Facts and Procedural History

A.

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." He

then went to an open window and told the bank teller,

_________________________________________________________________

1. "If the defendant committed a non-violent offense while suffering from

significantly reduced mental capacity . . . 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."

3

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, though

when he demanded money from the teller he had his hand

underneath his shirt. Two bank employees, along with a

Center City Special District employee, all of whom were

unarmed, 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 PP 5-8).

Askari was indicted for bank robbery under 18 U.S.C.A.

S 2113(a), and a jury found him guilty. Before sentencing,

the district court found that Askari was not mentally

competent and committed him, under 18 U.S.C. S 4244(d),

to a federal institution for psychiatric care and treatment.2

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).3 At sentencing, defense counsel argued for a

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2. 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 a

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 Askari 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).

3. 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 P 33. (See App. at

56a (district court noting, during sentencing, that 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")).

4

downward departure based on Askari's diminished mental

capacity, citing his history of serious psychiatric illness and

his diagnosis as a paranoid schizophrenic. That Askari

suffered from some mental illness at the time he committed

the bank robbery was not in dispute.

The district court, however, 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.4

B.

Askari appealed his sentence, contending that the district

court should have granted him a downward departure for

diminished capacity under U.S.S.G. S 5K2.13 because (1)

the unarmed bank robbery was non-violent; and (2) he has

a well-documented history of serious psychiatric illness. A

panel rejected Askari's arguments and affirmed the

judgment:

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] S 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.

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4. See U.S.S.G. S 5K2.0, p.s. (permitting the imposition of a sentence

outside the range established by the Guidelines "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' ").

5

United States v. Askari, No. 95-1662, 1997 WL 92051, at *2

(3d Cir. Mar. 5, 1997) ("Askari I"), Order Vacating Opinion

and Granting Rehearing En Banc, Mar. 27, 1997.

The panel highlighted the disagreement among the courts

of appeals as to whether the "crime of violence" definition

contained in U.S.S.G. S 4B1.25 governs the "non-violent"

offense requirement of U.S.S.G. S 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

S 5K2.13 is not governed by the "crime of violence"

definition contained in S 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 I, 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

S 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 I, 1997 WL 92051, at *2 (Becker, J.,

concurring). According to Judge Becker:

While `crimes of violence' and `non-violent offense'

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5. U.S.S.G. S 4B1.1 enhances the offense level for "career offenders." See

U.S.S.G. S 4B1.1, comment. (backg'd.) (28 U.S.C. S 994(h) "mandates

that the Commission assure that certain `career' offenders receive a

sentence of imprisonment `at or near the maximum term authorized.' "

U.S.S.G. S 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.

S 994(h)). U.S.S.G. S 4B1.2 provides definitions for terms used in USSG

S 4B1.1, including "crime of violence."

6

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 -- S 4B1.2 and S 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 S 5K2.13.

Id. at *4-6 (citations omitted).

Pursuant to the Internal Operating Procedures, the court

voted to rehear the case en banc. We, therefore, vacated our

panel decision (Askari I).

C.

After hearing argument, the en banc court was deeply

divided. The majority, after an exhaustive analysis of the

competing positions, determined that Rosen was incorrect

and that the Sentencing Commission "did not intend to

import the `crime of violence' definition from U.S.S.G.

S 4B1.2 to U.S.S.G. S 5K2.13." United States v. Askari, No.

19-1662, Slip Op. at 21 (3d Cir. April 8, 1988) ("Askari II").

Instead, the majority concluded that:

We believe that departures under U.S.S.G. S 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 U.S.S.G. S 5K2.13 are those which do

not involve a reasonable perception that force against

persons may be used in committing the offense.

7

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.

Askari II, Slip Op. at 26. Relying on the testimony of Ms.

Ishizaki, the bank teller, the majority found that

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."

Id. at 27.

Judge Stapleton, joined by Judge Sloviter, concurred.

Though agreeing that Rosen was incorrect and that Askari

did not qualify for a S 5K2.13 departure, Judge Stapleton

reached this result by a somewhat different route. See id. at

30 (Stapleton, J., concurring). Judge Stapleton would have

held that Askari's bank robbery offense does not qualify as

a "non-violent offense" because "a federal bank robbery

conviction necessarily involves a finding that the offense

involved actual force or a threat of force, and that such a

finding . . . precludes characterization of the offense as a

non-violent one for purposes of S 5K2.13." Id.

Judge McKee, joined by Judge Lewis, concurred as well.

Like Judge Stapleton, Judge McKee agreed that Rosen

should be rejected. However, Judge McKee believed that the

majority incorrectly held that Askari's crime was not a

"non-violent offense" based upon the elements of the crime,

and would have required 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

S 5K2.13 notwithstanding the elements of his crime." Id. at

36 (McKee, J., concurring). Still, Judge McKee joined in the

8

judgment, relying on the fact that S 5K2.13 is restricted to

those persons whose criminal history does not indicate a

need for incarceration to protect the public. See id. at 41.

Since the district court had noted that Askari had a long

history of crime, including violent crime, Judge McKee

concluded that Askari would be ineligible for the departure

regardless of whether his acts were classified as a "non-

violent offense" because his criminal history suggests a

need to protect the public. See id.

Judge Garth similarly agreed with the majority's

judgment, but reached that conclusion for different reasons

and wrote separately. Unlike the majority or the other

concurrences, Judge Garth would not have overruled

Rosen, and would instead construe "non-violent offense" as

the opposite of "crime of violence" as that term is used in

U.S.S.G. S 4B1.2. See id. at 42 (Garth, J., concurring).

Judge Becker, joined by Judges Nygaard and Roth,

dissented. Though agreeing with the majority that Rosen

was incorrect, the dissent contended that the majority erred

by precluding sentencing judges from granting S 5K2.13

departures in bank robbery cases. Id. at 46, 51 ("Thus,

under the majority's construction . . . Muhammad Askari

could not qualify for a departure under S 5K2.13 regardless

of the factual circumstances underlying his offense. To that

end, the majority's `reasonable perception' standard does

not save its opinion from being analytically identical to

Rosen.") (Becker, J., dissenting). According to the dissent,

the case should have been remanded to the district court so

that the sentencing judge could consider all the facts and

circumstances of the crime and decide in the first instance

whether Askari's acts qualify as a "non-violent offense." See

id. at 46.

The dissent also disagreed that Askari was ineligible for

a S 5K2.13 departure because his criminal history suggests

a need to protect the public. See id. at 53 n.5. The dissent

reasoned that, while the district court did find that Askari

had a long history of crime, it did not make an express

finding about the need for incarceration to protect the

public. See id. On that basis, the dissent contended that

this question also needed to be decided by the district court

in the first instance. See id.

9

D.

One day before our en banc opinion was filed, on April 7,

1998, the United States Sentencing Commission adopted

an amendment to S 5K2.13, which revised that guideline to

read as follows:

A sentence below the applicable guideline range may be

warranted if the defendant committed the offense while

suffering from a significantly reduced mental capacity.

However, the court may not depart below the

applicable guideline range if (1) the significantly

reduced mental capacity was caused by the voluntary

use of drugs or other intoxicants; (2) the facts and

circumstances of the defendant's offense indicate a

need to protect the public because the offense involved

actual violence or a serious threat of violence, or (3) the

defendant's criminal history indicates a need to

incarcerate the defendant or protect the public. If a

departure is warranted, the extent of the departure

should reflect the extent to which the reduced mental

capacity contributed to the commission of the offense.

U.S.S.G. S 5K2.13 (amendment proposed April 7, 1998)

(emphasis added). Most importantly for present purposes,

the amendment substituted the highlighted language in

place of the "non-violent offense" requirement in the version

of S 5K2.13 existing at the time Askari was originally

sentenced and Askari I and Askari II were decided. See

supra n. 1.

On April 20, 1998, Askari timely filed a petition for

reconsideration of our en banc opinion based on this

proposed amendment. He argued that the proposed

amendment should be treated under our jurisprudence as

a "clarifying amendment," which applies to the present

case. On the merits, Askari contended that, under the

proposed amendment, the question whether his offense

indicates "a need to protect the public because the offense

involved actual violence or a serious threat of violence" is

properly for the district court to consider in thefirst

instance on the basis of all the facts and circumstances of

the offense.

10

The government filed an answer to the petition. It agreed

with Askari that the proposed amendment is "clarifying."

However, the government countered Askari's argument that

a remand is necessary. Because a reasonable person could

infer a threat of harm from defendant's actions, the

government argued, Askari's threat of violence was

"serious" and therefore even under the proposed

amendment the S 5K2.13 departure should be precluded.

Alternatively, the government contended that the defendant

has a "long and violent criminal history," which precludes

a departure under both the present and the amended

versions of S 5K2.13.

The en banc court granted the motion for

reconsideration. We wrote:

A majority of the en banc court has voted to grant the

motion for reconsideration, and hence it is hereby

granted. However, the premise of the reconsideration is

the Sentencing Commission's clarifying amendment to

S 5K2.13 becoming operative. Since that event cannot

occur until November 1, 1998 (the date by which

Congress must act to prevent the amendment from

taking effect), the court has decided to stay the

mandate until that date, and it is hereby stayed. If

Congress rejects the amendment, the original en banc

opinion shall take effect and the clerk will issue the

mandate accordingly. If Congress does not by

November 1, 1998 act, the clerk shall enter an order

formally vacating the opinion on the docket. The court

will thereafter decide whether or not to remand the

matter to the district court for further proceedings.

United States v. Askari, No. 95-1662, Order Sur Petition for

Reconsideration of En Banc Opinion (3d Cir. Aug. __, 1998)

(en banc) ("Askari III"). The November 1 deadline has now

passed without congressional action, and the amendment

to S 5K2.13 has therefore become effective.

II. Discussion

The parties agree that the amendment to S 5K2.13 does

not work a substantive change in the law, but rather

"clarifies" the Guideline in place at the time of sentencing.

11

Under our precedents, we therefore must give effect to the

amended version in the present case. See United States v.

Marmolejos, 140 F.3d 488, 490 (3d Cir. 1998). While the en

banc court could conceivably revisit the case "from

scratch," we have agreed that the better course, particularly

in light of the sharp disagreements we have had over the

meaning of a number of still relevant terms, is to remand

to the district court so that it can resentence Askari in light

of the Amended Guideline. In addition to possible legal

interpretation, two factfinding issues remain in the wake of

the amendment: (1) whether Askari's offense involved

"actual violence or a serious threat of violence;" and (2)

whether Askari's criminal history indicates "a need to

incarcerate the defendant or protect the public." See

S 5K2.13.

The first issue most likely still divides the court.

Concomitantly, there may also be some disagreement

whether this is an issue of fact or law. We think it

preferable for the district court first to rule on the meaning

of "serious threat of injury" within the context of the

amended Guidelines. The second issue seems even more

clearly to be an issue for the district court rather than the

en banc court of appeals. The district court did not make

an explicit finding of dangerousness vel non, perhaps

because it found in light of Rosen that a downward

departure for diminished capacity was limited to non-

violent offenses (App. at 45a). The district court deserves

another opportunity to make this determination.

For the foregoing reasons, the en banc opinion of this

court, filed April 8, 1998, will be vacated, and the case

remanded to the district court for further proceedings

consistent with this opinion.

12

GARTH, Circuit Judge, dissenting:

In my opinion, despite the import of the new guidelines,

the order of the district court should be affirmed. According

to the newly enacted version of U.S.S.G. S 5K2.13, a

diminished capacity departure is not warranted if "the facts

and circumstances of the defendant's offense indicate a

need to protect the public because the offense involved

actual violence or a serious threat of violence." (emphasis

added). Askari entered a bank on Walnut Street in

Philadelphia on April 23, 1992 with his hand underneath

his shirt so as to convey the impression that he was

carrying a loaded gun that he was prepared to use. He

repeatedly told the bank tellers to put the money on the

counter, and told one teller that she had three seconds to

give him the money. See United States v. Askari, 140 F.3d

536, 538 (3d Cir. 1998).

Askari's sentence should be affirmed without remand

because his conduct involves a serious threat of violence.

By conveying the impression that he was carrying a loaded

gun and was prepared to use it, Askari created a serious

threat of violence. Although his cocked forefinger was not

likely to have led to much damage, an on-site law

enforcement officer, a bank security officer, a bank patron,

or even a bystander would have been justified in

responding to Askari's actions through violent means.

Askari's threat was a threat of violence, and raised a

substantial possibility of violent conduct in response.

Compare United States v. Hunn, 24 F.3d 994, 997, 997 n.5.

(7th Cir. 1994) (holding that a bank robber who stated that

he had a gun in his coat was eligible for two point

enhancement for making a death threat even though robber

was simply pointing his finger through his coat, and noting

that whether he actually had a gun was "immaterial").

Accordingly, I see no need to remand this case to the

district court, as Askari's actions and his undisputed felony

background (see Maj. Op. at 4 n.2) must lead to the same

sentence originally imposed. I respectfully dissent.

13

A True Copy:

Teste:

Clerk of the United States Court of Appeals

for the Third Circuit

14