                                                                                                                           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Precedential or Non-Precedential: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).

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