United States v. Askari

Opinions of the United

1998 Decisions States Court of Appeals

for the Third Circuit

4-8-1998

United States v. Askari

Precedential or Non-Precedential:

Docket 95-1662

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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)

_________________________________________________________________

*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.

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 S 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.

2

I.

A.

Muhammad Askari appeals his sentence for bank

robbery under 18 U.S.C.A. S 2113(a) (West Supp. 1997),

contending the district court should have granted him a

downward departure for diminished capacity under USSG

S 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. S 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

_________________________________________________________________

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 P 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

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 PP 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

_________________________________________________________________

3. See USSG S 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

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] 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.

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 S 4B1.24 governs the "non-violent"

offense requirement of USSG 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

_________________________________________________________________

4. USSG S 4B1.1 enhances the offense level for "career offenders." See

USSG 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.' " USSG

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)). USSG S 4B1.2 provides definitions for terms used in USSG

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

5

offense" requirement of S 5K2.13 is not governed by the

"crime of violence" definition contained inS 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

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, 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 -- 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). 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

6

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 S 5K2.13, a policy statement permitting downward

departures,6 provides:

_________________________________________________________________

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

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 S 5K2.13, p.s. (emphasis supplied).

"Non-violent offense" is not defined in either USSG

S 5K2.13 or the commentary.7 But the term "crime of

violence" is defined in the "career offender" provisions of

Chapter 4.8 USSG S 4B1.1 enhances the offense level for

_________________________________________________________________

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. S 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. S 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.

8

career offenders, and USSG S 4B1.2 provides definitions for

terms used in USSG S 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 S 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 S 4B1.1, comment. (n.1) (emphasis supplied).9 If

"non-violent" offense in USSG S 5K2.13 is defined by

_________________________________________________________________

9. While USSG S 5K2.13 is a policy statement, the specific definitions of

"crime of violence" that accompany USSG S 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).

9

reference to the term "crime of violence" in USSG S 4B1.2

and its commentary, then bank robbery would never qualify

as a "non-violent" offense. If "non-violent" offense in USSG

S 5K2.13 is defined by reference to the term"crime of

violence" in USSG S 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 S 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 S 1B1.1, comment. (n.2).

2.

Askari was convicted of bank robbery in violation of 18

U.S.C.A. S 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

10

359, 363 (4th Cir.) (citations omitted), cert. denied, 117 S.

Ct. 332 (1996).

As used in S 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 S 2B3.1

("Robbery, Extortion, Blackmail") which punishes, inter alia,

robbery of the property of a financial institution. USSG

S 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

S 2B3.1 provides for a guideline increase if a death threat

was made, it is silent on the threat of bodily harm.10

_________________________________________________________________

10. USSG S 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 S 2B3.1, comment. (n.6).

11

B.

Against this backdrop we examine the conflict among

several courts of appeals interpreting "non-violent offense"

in USSG S 5K2.13. The discussion has centered on whether

a sentencing judge must categorically adopt the"crime of

violence" definition in USSG S 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.

S 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

S 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 S 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. S 61 (1988)

. . . see U.S.S.G. S 4B1.2, comment. (n.1). Defendant

would have us conclude that S 5K2.13's use of the term

`non-violent' means something other than the opposite

of a crime of violence.

12

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 S 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 S 4B1.2 to determine

whether the defendant was entitled to a downward

departure in USSG S 5K2.13 for "non-violent offenses."

Because defendant's crime constituted a "crime of violence,"

we found USSG S 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 S 5K2.13 may be defined by reference to

"crime of violence" in USSG S 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. S 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. S 4B1.2(1)(I)"); United States v. Maddalena,

13

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

S 5K2.13 should not be restricted by USSG S 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 S 4B1.2 to USSG

S 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 S 4B1.2 of the

sentencing guidelines (regarding career offenders) is not

applicable to S 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,

S 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").

14

3.

The Poff majority provides an elaborate argument in favor

of the first view -- that USSG S 4B1.2's "crime of violence"

definition controls USSG S 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, S 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. S 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

S 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 S 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

15

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 S 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, S 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, S 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

S 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

16

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 S 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 S 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 S 5K2.13 of either the phrase "crime of violence" or a

cross-reference was intentional:

It would have been easy to write S 5K2.13 to say that

the judge may depart unless the defendant committed

a `crime of violence' as S 4B1.2 defines it; instead, the

Commission selected different formulations. Although

it laid out a detailed meaning for `crime of violence' in

S 4B1.2, it did not provide so much as a cross-

reference in S 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 S 5K2.13 to

specifically incorporate the "crime of violence" definition.

See Chatman, 986 F.2d at 1450 ("Moreover, the

17

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

S 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 S 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 S 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 S 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. S 3553(a)(2) . . . .

[They] guarantee incapacitation of those repeat

offenders whose past records suggest a propensity to

commit violent crimes.

18

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 S 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. S 5K2.13 is intended to

create lenity for those who cannot control their actions but

are actually dangerous; U.S.S.G. S 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 S 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

19

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 S 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

S 5K2.13 and USSG S 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 S 5K2.13 contains no cross-reference to USSG

S 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 S 5K2.13 linking

"non-violent offense" to the "crime of violence" definition in

S 4B1.2.

Second, by limiting USSG S 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 S 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 S 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

_________________________________________________________________

11. Judge Stapleton's elaboration in his concurrence on the differences

between the Poff dissent and Chatman is instructive.

20

referenced must be determined on a case by case basis."

USSG S 1B1.1, comment. (n.2). USSG S 4B1.2's "crime of

violence" definition is therefore one of limited applicability.

Fourth, USSG S 4B1.1 and USSG S 5K2.13 address

different policy concerns. While USSG S 4B1.1 increases

sentences for persons whose criminal records suggest a

propensity to commit violent crimes, USSG S 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 S 4B1.2 to USSG

S 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 S 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 S 4B1.2 to USSG S 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 S 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

21

"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 S 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

_________________________________________________________________

12. 18 U.S.C. S 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. S 3553(b) (West 1985 & Supp. 1997).

13. The general factors articulated in 18 U.S.C.S 3553(a) provide, in

part:

22

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

_________________________________________________________________

(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. S 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 S 1B1.3 (Relevant Conduct) unless a different meaning is specified

or is otherwise clear from the context." USSGS 1B1.1, comment. (n.1).

15. 18 U.S.C.A. S 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:

23

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

_________________________________________________________________

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. S 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. S 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 S 1951, Congress' principal concern was

protecting the flow of interstate commerce . . . . In contrast, in

enacting

S 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 S 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. S 2113(a)] or

24

extortion, actual or threatened force, violence, or

intimidation, there can be no valid conviction for bank

robbery under 18 U.S.C. S 2113(a). In that case, there could

be a conviction under 18 U.S.C. S 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.

S 2113(a), a defendant could not qualify for a departure

under USSG S 5K2.13 as presently written. Of course, this

refers to convictions only under the first paragraph of

S 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 S 5K2.13 might apply. Conceivably, a defendant

could commit a bank robbery by extortion under the Hobbs

Act (18 U.S.C. S 1951(b)(2)) involving neither intimidation,

_________________________________________________________________

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 S 2B3.2, and "Blackmail and

Similar Forms of Extortion," USSG S 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 S 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 S 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 S 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").

25

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 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

USSG S 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

26

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 S 5K2.13 include acts resulting in valid

convictions under 18 U.S.C.A. S 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."

_________________________________________________________________

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 S 5K2.13. Or, it could condition application of

USSG S 5K2.13 on an unrealized threat of violence. But under the

current guidelines, we believe no distinction presently exists.

27

Askari was sentenced as a "career offender." (Presentence

Report P 33). USSG S 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 S 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

PP 18-32).19

F.

Accordingly, we hold Askari could not qualify for

departure under USSG S 5K2.13 because he did not commit

a "non-violent offense."

We will affirm the judgment of conviction and sentence.

_________________________________________________________________

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 PP 29-32).

28