remanding to district court to determine whether defendant committed a non-violent offense under the revised form of the Guideline in robbing a bank with his hand under his shirt and saying “you have three seconds to give me the money”
How later courts described this case
- remanding to district court to determine whether defendant committed a non-violent offense under the revised form of the Guideline in robbing a bank with his hand under his shirt and saying “you have three seconds to give me the money”
- noting that, in applying § 4244(d), District Court found a criminal defendant incompetent to be sentenced because he was “[un]able to cooperate with his attorney”
- relying on the parties’ agreement that the revision to section 5K2.13 was clarifying
- amendment 583 is a clarifying amendment
Written by the judges who cited it.
The opinion
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. § 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 776 n. 2) must lead to the same sentence originally imposed. I respectfully dissent.