                                                                                                                           Opinions of the United
1998 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


8-7-1998

United States v. Askari
Precedential or Non-Precedential:

Docket 95-1662




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Recommended Citation
"United States v. Askari" (1998). 1998 Decisions. Paper 186.
http://digitalcommons.law.villanova.edu/thirdcircuit_1998/186


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Filed August 7, 1998

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

No. 95-1662

UNITED STATES OF AMERICA

v.

MUHAMMAD ASKARI,
       Appellant

On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. Criminal No. 92-cr-00288)

Submitted Pursuant to Third Circuit LAR 34.1(a)
November 6, 1996

Before: BECKER, McKEE and GARTH, Circuit Judges

Argued En Banc October 29, 1997

Before: SLOVITER* Chief Judge, BECKER, STAPLETON,
MANSMANN, GREENBERG, SCIRICA, COWEN, NYGAARD,
ALITO, ROTH, LEWIS, McKEE and GARTH, Circuit Judges

(EN BANC OPINION FILED APRIL 8, 1998)

PRESENT: BECKER, Chief Judge, SLOVITER, STAPLETON,
GREENBERG, SCIRICA, COWEN, NYGAARD, ALITO,
ROTH, McKEE, and GARTH, Circuit Judges.**
_________________________________________________________________

* Judge Sloviter was Chief Judge at the time this appeal was argued.
Judge Sloviter completed her term as Chief Judge on January 31, 1998.
** Although Judge Mansmann and Judge Lewis were present on the en
banc panel, they were unable to be present on this petition due to
illness.
ORDER SUR PETITION FOR
RECONSIDERATION OF EN BANC OPINION

BECKER, Chief Circuit Judge.

On April 8, 1998, we filed an en banc opinion holding
that defendant Muhammad Askari could not qualify for a
departure under S 5K2.13 of the United States Sentencing
Guidelines because he did not commit a "non-violent
offense." United States v. Askari, No. 95-1662, Slip Op. at
28 (3d Cir. 1998) (en banc). We construed "non-violent
offenses" for purposes of S 5K2.13 as "those [offenses]
which do not involve a reasonable perception that force
against persons may be used in committing the offense." Id.
at 26.

One day before our opinion was filed, on April 7, 1998,
the United States Sentencing Commission proposed an
amendment to S 5K2.13 of the Sentencing Guidelines which
provides inter alia that a departure for diminished capacity
is not available 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." U.S.S.G. S 5K2.13 (amendment proposed
April 7, 1998). The amendment substitutes this language in
place of the "non-violent offense" requirement in the
current version of S 5K2.13.

On April 20, 1998, the defendant (timely) filed a petition
for reconsideration of our en banc opinion based on this
proposed amendment. The defendant argues that the
proposed amendment should be treated as a "clarifying
amendment" under our jurisprudence, and should therefore
be given considerable weight in our attempt to determine
the meaning of S 5K2.13. Citing United States v. Joshua,
976 F.2d 844, 853 (3d Cir. 1992). On the merits, the
defendant contends that, under the proposed amendment,
the question of whether his offense indicates "a need to
protect the public because the offense involved actual
violence or a serious threat of violence" is properly for the
district court to consider in the first instance on the basis
of all the facts and circumstances of the offense. Since the

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defendant is currently serving a 210 month sentence, and
could benefit from a resentencing, the question whether a
remand is appropriate here holds more than purely
academic interest.

The government filed an answer to the petition on May
15, 1998. It agrees with the defendant that the proposed
amendment is "clarifying." However, the government rejects
defendant's argument that a remand is necessary here.
According to the government, because a reasonable person
could infer a threat of harm from defendant's actions, his
threat of violence was "serious" and therefore even under
the proposed amendment the S 5K2.13 departure should
still be precluded. Alternatively, the government contends
that the defendant has a "long and violent criminal history,"
which precludes a departure under both the present and
the amended versions of S 5K2.13.

A majority of the en banc court has voted to grant the
motion for reconsideration, and hence it is hereby granted.
However, the premise of the reconsideration is the
Sentencing Commission's clarifying amendment toS 5K2.13
becoming operative. Since that event cannot occur until
November 1, 1998 (the date by which Congress must act to
prevent the amendment from taking effect), the court has
decided to stay the mandate until that date, and it is
hereby stayed. If Congress rejects the amendment, the
original en banc opinion shall take effect and the clerk will
issue the mandate accordingly. If Congress does not by
November 1, 1998 act, the clerk shall enter an order
formally vacating the opinion on the docket. The court will
thereafter decide whether or not to remand the matter to
the district court for further proceedings.

       BY THE COURT:

       /s/ Edward R. Becker

       Chief Circuit Judge

DATED: August 7, 1998

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A True Copy:
Teste:

       Clerk of the United States Court of Appeals
       for the Third Circuit

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