                    United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 03-2792
                                   ___________

United States of America,               *
                                        *
            Appellee,                   *
                                        * Appeal from the United States
      v.                                * District Court for the Western
                                        * District of Missouri.
Daniel E. Woods,                        *
                                        *
            Appellant.                  *
                                   ___________

                            Submitted: December 16, 2003

                                Filed: February 27, 2004
                                   ___________

Before MELLOY, BEAM, and COLLOTON, Circuit Judges.
                           ___________

COLLOTON, Circuit Judge.

       Daniel Woods appeals the district court's* ruling that he was ineligible as a
matter of law for a downward departure under United States Sentencing Guidelines
Section 5K2.13 based on alleged diminished mental capacity, because he was
convicted of bank robbery. Because we feel bound by circuit precedent, we affirm
the district court.

      *
      The Honorable Dean Whipple, Chief Judge, United States District Court for
the Western District of Missouri.
                                          I.

        Daniel Woods pleaded guilty to the August 8, 2002, robbery of the North Star
Bank in Liberty, Missouri, in violation of 18 U.S.C. § 2113(a). Woods entered the
bank and handed one of the tellers a note stating that he was to be given all of the
one-hundred dollar bills. The note also stated that the teller should "do it now." The
teller stated she did not have any one-hundred dollar bills in her drawer, and Woods
instructed her to go get the money immediately. As the teller attempted to retrieve
the money from the vault, Woods told her that time was "running short." Woods was
unarmed at the time of robbery, but he eventually walked out of the bank with
$19,800. As part of his guilty plea, Woods admitted that his conduct satisfied the
element of "intimidation" in § 2113(a).

       Prior to his sentencing hearing, Woods filed a motion for downward departure
pursuant to USSG § 5K2.13. This policy statement provides authority to reduce the
sentence of certain defendants who suffered from diminished mental capacity at the
time of their offense. The discretion contemplated by § 5K2.13 is limited, however,
and downward departure is prohibited where, among other reasons, "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." USSG § 5K2.13
(2003).

       At Woods's sentencing hearing, the government maintained that a downward
departure was precluded by this court's precedents. The government also urged that
a bank robbery offender should be ineligible for a departure under § 5K2.13, as
amended in 1998, because the crime always presents "a serious threat of violence."
Woods argued that the text of amended § 5K2.13 requires a court to make a fact-
specific inquiry into each offense, regardless of the type of crime, to determine if a
downward departure is available.



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       The district court held that it did not have authority to depart downward in
Woods's case. The court concluded that our precedent held that bank robbery in the
presence of an individual is always a crime of violence, and that a defendant who
commits bank robbery is ineligible for a downward departure under § 5K2.13 as a
matter of law. The court imposed a sentence of 33 months imprisonment and a term
of three years supervised release, along with an order of restitution in the amount of
$19,800.

       This court reviews a district court's construction of the Sentencing Guidelines
de novo. United States v. Lewis, 249 F.3d 793, 795 (8th Cir. 2001). Because the
district court ruled that it lacked authority to depart under § 5K2.13, we have
jurisdiction to review that legal determination. United States v. Lopez-Salas, 266
F.3d 842, 849 (8th Cir. 2001).

                                         II.

      This case turns on an interpretation of USSG § 5K2.13, the text of which was
substantially changed from its original form by an amendment effective November
1, 1998. USSG App. C, amdt. 583 (Nov. 1998). Before this amendment, the section
provided as follows:

      If the defendant committed a non-violent offense while suffering from
      significantly reduced mental capacity not resulting from the 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 (1997) (emphasis added).

      Under the pre-amendment guideline, courts of appeals were divided on whether
a "non-violent offense" necessarily excluded a "crime of violence," as defined in the

                                         -3-
career offender guideline, USSG § 4B1.2(a). Prior to the 1998 amendment, our court,
along with a number of other circuits, held that crimes meeting the definition of
"crime of violence," including bank robbery under 18 U.S.C. § 2113(a), were
categorically ineligible for downward departure under § 5K2.13. See, e.g., United
States v. Mayotte, 76 F.3d 887, 889 (8th Cir. 1996) ("We believe that a 'non-violent'
offense necessarily excludes a 'crime of violence.'"); United States v. Poff, 926 F.2d
588, 591 (7th Cir. 1991) (en banc); United States v. Maddalena, 893 F.2d 815, 819
(6th Cir. 1989). Other circuits did not adopt this per se approach, holding instead that
each defendant's offense must be examined individually to determine whether it was
"non-violent" and whether downward departure was appropriate. See, e.g., United
States v. Chatman, 986 F.2d 1446, 1450 (D.C. Cir. 1993) ("[W]e 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.'"); United States v. Weddle, 30 F.3d 532, 540 (4th Cir. 1994).

       In an effort to address the conflict among the circuits and give courts more
specific guidance regarding diminished capacity departures, the Sentencing
Commission amended § 5K2.13 in 1998. The pertinent section of the amended
guideline, as applicable to Woods's case, reads 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 . . . (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 . . . . 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.

USSG § 5K2.13 (2001) (emphasis added).



                                          -4-
      The Commission said it changed the policy statement to address "a circuit
conflict regarding whether the diminished capacity departure is precluded if the
defendant committed a 'crime of violence' as that term is defined in the career
offender guideline." USSG App. C, amdt. 583 (Nov. 1998). The Commission
explained that the new provision "replaces" the former policy statement, and
"essentially represents a compromise approach to the circuit conflict." Id.

                                         III.

       Mindful that "one panel is not at liberty to overrule a decision of another
panel," United States v. Prior, 107 F.3d 654, 660 (8th Cir. 1997), our analysis
necessarily begins with our precedent concerning USSG § 5K2.13. We are not bound
to follow cases interpreting the old version of the policy statement; the intervening
amendment in November 1998 renders those precedents inapposite. The government
argues, however, that we should follow the decision in United States v. Petersen, 276
F.3d 432 (8th Cir. 2002), which considered § 5K2.13 in the context of an offense
committed after November 1998. The district court concluded that Petersen
precluded a departure under § 5K2.13 in a bank robbery case as a matter of law, and
we feel obliged to agree.

      The defendant in Petersen was convicted of first degree burglary, aggravated
sexual abuse, assault by striking, beating or wounding, and simple assault in
connection with an attack on his estranged wife in November 1999. Petersen, 276
F.3d at 434-35. Because the offense was committed after November 1998, the new
version of § 5K2.13 applied to Petersen's sentencing. See USSG § 1B1.11. At
sentencing, the district court departed downward from the applicable sentencing
guideline range based on what it termed "temporary insanity." On appeal, our court
explained that § 5K2.13 provides the only basis for a departure based on the
defendant's mental capacity, and thus considered whether the district court's departure
could be sustained under § 5K2.13. Petersen, 276 F.3d at 437.


                                         -5-
      In holding that a departure was not authorized pursuant to § 5K2.13, the
Petersen panel reasoned as follows:

      A defendant must have committed a nonviolent offense to be considered
      for a downward departure under USSG § 5K2.13. United States v.
      Valdez, 146 F.3d 547, 551 (8th Cir. 1998). The jury convicted Petersen
      of multiple violent offenses. Accordingly, a departure based upon a
      reduced mental capacity or "temporary insanity" in the instant case is not
      authorized by the guidelines and is contrary to law.

Petersen, 276 F.3d at 437. The Valdez decision cited by the panel was a bank robbery
case. There, the court held (under former § 5K2.13) that commission of bank robbery
precludes a departure, because only those who committed a "nonviolent offense" were
eligible. Valdez, in turn, followed United States v. Mayotte, 76 F.3d at 889, which
held that the terms "nonviolent offense" in former § 5K2.13 and "crime of violence"
in § 4B1.2 were mutually exclusive.

       Given the broad reasoning of Petersen, including its use of the phrase
"nonviolent offense" and its citation of Valdez, we feel bound to uphold the district
court's ruling in this case. To be sure, the Petersen panel could have decided its case
on narrower grounds. The facts and circumstances of Petersen's offense indicated a
need to protect the public because the offense involved "actual violence" (assault and
sexual abuse), so he was ineligible for departure under the plain language of amended
§ 5K2.13. But the categorical reasoning that led to the panel's holding was clearly
broader, and we think the orderly disposition of cases by our court requires that a
panel follow not only the result of a previous panel decision, but also the essential
reasoning that underlies its holding. See, e.g., United States v. Hoggard, 254 F.3d
744, 746 (8th Cir. 2001) ("This panel is bound by the reasoning of Bausch, and we
therefore must reject the defendant's Commerce Clause challenge."); United States
v. Farnsworth, 729 F.2d 1158, 1161 (8th Cir. 1984) ("We are bound to follow the
reasoning of our own Court in Sostarich and reject the holding of United States v.
Calhoun, supra.").

                                         -6-
       Although we affirm the district court based on Petersen, we register our
respectful disagreement with the reasoning (though not the result) of that case. The
Petersen decision restated this court's interpretation of the pre-November 1998
guideline. When the Sentencing Commission amended § 5K2.13, it identified our
court's interpretation of the old policy statement as one of two divergent views that
created a conflict in the circuits. We think the Commission's "compromise approach"
to resolving that conflict means it did not intend to endorse one of the two polar
positions, and that the broad categorical rule stated by Petersen and Valdez did not
survive the amendment. See also Notice of Proposed Amendments to Sentencing
Guidelines, Policy Statements, and Commentary, 63 Fed. Reg. 602, 632 (Jan. 6, 1998)
(describing amended § 5K2.13 as an "Option Three" that was distinct from "Option
One" represented by Mayotte and Poff, and a "variation of the minority view"
represented by Chatman and Weddle, which was labeled "Option Two"); U.S.
Sentencing Comm'n, The Year in Review: 1997-98, at 5 ("The amendment [of
§ 5K2.13] effectively overrides the interpretation that a departure categorically is not
available for any defendant convicted of a 'crime of violence,' as that term is defined
by the career offender guideline.").

        Under amended § 5K2.13, the sentencing court is to focus on the "facts and
circumstances of the defendant's offense," not on the elements of the offense, as under
our court's interpretation of the old version. The new policy statement requires the
court to analyze whether the facts and circumstances "involved . . . a serious threat
of violence," rather than whether the offense qualified as a "crime of violence" under
§ 4B1.2(a). If and when our full court decides to review our precedent en banc, then
it will be appropriate to consider whether a district court has authority to entertain a
departure under amended § 5K2.13 if it concludes that the "facts and circumstances"
of a particular bank robbery do not "involve[ ] actual violence or a serious threat of
violence."

      The judgment of the district court is affirmed.
                           ______________________________

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