                                                                                                                           Opinions of the United
1997 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


3-5-1997

United States v. Askari
Precedential or Non-Precedential:

Docket 95-1662




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                                       FOR PUBLICATION

                   UNITED STATES COURT OF APPEALS
                       FOR THE THIRD CIRCUIT
                            ___________

                             NO. 95-1662
                             ___________

                      UNITED STATES OF AMERICA

                                 v.

                        MUHAMMAD ASKARI,
                            Appellant
          ____________________________________________

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

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

                  Before: BECKER, McKEE and GARTH,
                          Circuit Judges.

                        (Filed March 5, 1997)

                           _______________

                        OPINION OF THE COURT
                           _______________


Per Curiam.

          Muhammad Askari appeals the sentence imposed by the

district court for his bank robbery conviction on the grounds

that the court erred in refusing to grant a downward departure

for diminished capacity under § 5K2.13 of the Sentencing

Guidelines.    Askari rests his argument on the facts that the

unarmed bank robbery was non-violent and that he has a well-

documented history of serious psychiatric illness.

          Askari's mental illness at the time he committed the


                                 1
bank robbery is not at issue.     Indeed, prior to his sentencing,

the district court found that Askari was not mentally competent,

and committed him pursuant to 18 U.S.C. § 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, to be followed by three years supervised

release.

           The facts regarding the bank robbery are also not at

issue.   On April 23, 1992, Askari walked into the First Bank of

Philadelphia at 1424 Walnut Street shortly after 2:00 p.m.        He

went to a closed teller's window and said two or three times,

"Put the money on the counter."       He then went to the window where

bank teller Ellie Ishizaki was working and said, "You have three

seconds to give me the money."    Ishizaki gave him bait money.

Askari then took the money and ran out the door.      The tellers did


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. However, he
still 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 that Askari be
committed. After two years of treatment at the U.S. Medical
Center for Federal Prisoners at 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 had been restored to competency.



                                  2
not see Askari carrying any weapon, and Askari did not use any

force or make any verbal threats to harm anyone.    He did,

however, have his hand underneath his shirt.    Two bank employees

together with a Center City Special District employee chased

Askari.   They caught him on the 1400 block of Locust Street.

Police later found the bait money in Askari's pants.    They did

not recover a weapon.

           At sentencing, defense counsel argued for a downward

departure based on Askari's mental illness.    The court refused to

grant the departure. First, the court ruled:
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.

                               * * *

-- you're doing it [requesting a downward departure]
          against the backdrop of a commission that
          says no downward departure for diminished
          capacity at the time of the offense, if the
          offense is a violent crime.


The court then went on to reject counsel's motion for a downward

departure based on unusual mitigating circumstances not

adequately considered by the guidelines.   Finding that the

guideline range was 210 to 240 months, the court imposed a

sentence of 210 months in prison.

           Askari's contention on appeal is that his unarmed bank

robbery was a non-violent offense because he did not use any

force or violence, verbally threaten anyone, or hurt anyone

during the robbery.   Askari, the argument continues, clearly



                                3
suffered from diminished mental capacity.   He had a long history

of serious psychiatric illness and was diagnosed as paranoid

schizophrenic.   In Askari's submission, the court should have

ruled that it had authority to depart downward under U.S.S.G. §

5K2.13, which permits downward departures for diminished capacity

if the defendant committed a "non-violent offense."

          The district court, nevertheless, was quite correct in

its holding.   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, § 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.

Third Circuit Internal Operating Procedure 9.1.2

          The judgment of the district court will be affirmed.




United States of America v. Muhammad Askari, No. 95-1662


2. Four other circuits have reached the same conclusion that
this court reached in Rosen. United States v. Mazotte, 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.
Maddaleny, 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 offense" requirement of § 5K2.13
is not governed by the "crime of violence" definition contained
in § 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).




                                4
Becker, Circuit Judge, concurring.


          Because of our decision in Rosen, and the constraints

imposed on me by our internal operating procedures, I join the

opinion and judgment of the court.   I write separately because I

believe that our decision in Rosen, that a downward departure is

not available under §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.

                               I.

                               A.

          Our discussion of the issue in Rosen was brief:
Defendant contends that his crime was, in fact, non-violent
          because it did not involve physical force. 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. § 16 (1988) (emphasis
          added); see U.S.S.G. § 4B1.2, comment. (N.1).
          Defendant would have us conclude that § 5K2.13's use of
          the term “non-violent” means something other than the
          opposite of a crime of violence.

          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 § 5K2.13
          does not authorize a downward departure for this
          defendant’s mental condition.

United States v. Rosen, 896 F.2d 789, 791 (3d Cir. 1990).


          The linchpin of Rosen, which I believe the panel

accepted uncritically, is the proposition that the definition of

"crime of violence" contained in § 4B1.2, which is the career



                               5
offender provision, governs the meaning of "non-violent offense"

in § 5K2.13.    But the Rosen panel did not have the benefit of the

arguments so incisively made by Judge Easterbrook, in his

dissenting opinion in United States v. Poff, 926 F.2d 588, 593-96

(7th Cir. 1991) (en banc), which have subsequently been adopted

by the D.C. and Fourth Circuits.       See United States v. Weddle, 30

F.3d 532, 540 (4th Cir. 1994); United States v. Chatman, 986 F.2d

1446, 1450-52 (D.C. Cir. 1993).       These three opinions have

explained why the definition of "crime of violence" contained in

the career offender provision does not govern the meaning of §

5K2.13, and have concluded that a sentencing court "must consider

all the facts and circumstances of a case in deciding whether a

crime is a 'non-violent offense.'"       Chatman, 986 F.2d at 1453;

see Poff, 926 F.2d at 594-96; Weddle, 30 F.3d at 540.      I find

these arguments, which I shall outline briefly, to be wholly

persuasive.    I also add some of my own.



                                  B.

          I perforce begin with a description of the applicable

Guidelines provisions.    Section 5K2.13 of the Guidelines

provides:
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.




                                  6
Section 5K2.13 does not define “violent” or “non-violent.”   The

only related definition contained in the guidelines is that found

in the Career Offender Section, § 4B1.2:
(1)The term "crime of violence" means any offense under federal
               or state law punishable by imprisonment for a term
               exceeding one year that --

               (i)has as an element the use, attempted use, or
                         threatened use of physical force against
                         the person of another, or

               (ii)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.

The commentary to this section recites:

2."Crime of violence" includes murder, manslaughter, kidnapping,
               aggravated assault, forcible sex offenses,
               robbery, arson, extortion, extortionate extension
               of credit, and burglary of a dwelling. Other
               offenses are included where (A) that offense has
               as 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. Under this section, the conduct of which
               the defendant was convicted is the focus of
               inquiry.

The term "crime of violence" does not include the offense of
               unlawful possession of a firearm by a felon.
               Where the instant offense is the unlawful
               possession of a firearm by a felon, §2K2.1
               (Unlawful Receipt, Possession, or Transportation
               of Firearms or Ammunition; Prohibited Transactions
               Involving Firearms or Ammunition) provides an
               increase in offense level if the defendant has one
               or more prior felony convictions for a crime of
               violence or controlled substance offense; and, if
               the defendant is sentenced under the provisions of
               18 U.S.C. § 924(e), §4B1.4 (Armed Career Criminal)
               will apply.




                               7
                               C.

          The position adopted in Rosen may be seen in its best

light through the lens of Judge Flaum, in his opinion for the

six-five en banc Poff majority of the Seventh Circuit.   Judge

Flaum argues that, because the “Guidelines should be read as a

whole"; because the root word employed in both provisions is the

same; and because § 4B1.2 does not limit its definition of

“crimes of violence” to situations involving a career offender,

the definition of “crimes of violence” in § 4B1.2 must govern the

meaning of “violent offense” in § 5K2.13. Poff, 926 F.2d at 591.

To hold otherwise, he reasons, would result in an absurdity, for

a crime could constitute both a “crime of violence” and a “non-

violent offense.”3   Id.



     3
      Judge Flaum rejects Poff’s contention that the Commission’s
failure to define “non-violent offense” in § 5K2.13 suggests that
“the Commission meant different things by `violent offense’ and
`crime of violence.’” He observes that:

[c]ourts often say that the choice of different words reflects an
          intent to say something different. See, e.g.,
          Zabielski v. Montgomery Ward & Co., 919 F.2d 1276, 1279
          (7th Cir. 1990). 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. . . . “[A] rather
          heavy load rests on him who would give different
          meanings to the same word or the same phrase when used
a plurality of times in the same Act . . . .” United States v.
          Montgomery Ward & Co., 150 F.2d 369, 377 (9th Cir.
          1945). Appellant cannot meet that burden by asking us
          to tease meaning from the Commissions’s use of a
          prepositional phrase rather than an adjective.
Poff, 926 F.2d at 591.



                               8
          Judge Flaum finds further support for his position in

the Armed Career Offender provision of 18 U.S.C. § 924, which

defines “the term `violent felony’ to include any crime that has

as an element the use, attempted use, or threatened use of

physical force against the person of another, 18 U.S.C. §

924(e)(2)(B)(i), a definition that mirrors that of ‘crime of

violence’ in 18 U.S.C. § 16 and in § 4B1.2 of the Guidelines.”

Poff, 926 F.2d at 592.   Because little discernible difference

separates a “violent felony” and a “violent offense,” Judge Flaum

concludes 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.”   Id.

          Judge Flaum draws additional strength for his

interpretation from his perception of the Commission’s policy

choices:
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, § 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.
Id.


Under this view, even if a “crime of violence” and a “non-violent

offense” were not mutually exclusive, § 5K2.13 would not

authorize a downward departure for a career offender.     If § 4B1.2


                                9
did not govern the meaning of a “non-violent offense,” then a

defendant could require additional incarceration because of his

criminal history under § 4B1.2 and less incarceration because of

the same history under § 5K2.13, an interpretation that Judge

Flaum found to be so “illogical and inconsistent” that it could

not be countenanced.   Id.



                               II.

                                A.

          Much of Judge Flaum's opinion is couched in terms of

linguistic analysis; however, I find such analysis ultimately

unhelpful in resolving this difficult issue.   While “crimes of

violence” and “non-violent offense” employ the same root word,

the phrases “readily may take meanings other than as opposites.”

 Poff, 929 F.2d at 594 (Easterbrook, J., dissenting).   More

importantly, the distinct objectives of the two provisions at

issue - § 4B1.2 and § 5K2.13 - counsel that the meaning of the

former not govern that of the latter.

          When it employed the phrase “crime of violence” in §

4B1.2, the Sentencing Commission crafted a term of art intended

to identify repeat offenders who deserve a longer sentence than

others who have committed the same offense.    See 28 U.S.C. §
994(h).   Longer sentences for these “career offenders” are

“justified by the purposes of incarceration, as set out in 18

U.S.C. § 3553(a)(2) (1988) and discussed in the Introductory

Commentary to Part A of Chapter 4 of the Guidelines.”   Chatman,
986 F.2d at 1451 (footnote omitted).    A repeat offender is more



                                10
culpable than a first time offender and, therefore, deserves

greater punishment.    Moreover, longer sentences “guarantee

incapacitation of those repeat offenders whose past records

suggest a propensity to commit violent crimes.”     Id. at 1451

(citing 128 Cong. Rec. 26,518 (1982) (statement of Sen.

Kennedy)).

          In an effort to address these policy concerns, the

Commission drafted a definition of “crime of violence” that

captures crimes involving “an unrealized prospect of violence.”

Poff, 929 F.2d at 594.     Thus, § 4B1.2 penalizes a career offender

for the elements of the crime for which he was charged and

convicted and not for his actual conduct.     Poff, 926 F.2d at 594

(Easterbrook, J., dissenting); see also Chatman, 986 F.2d at

1451.   For example, courts have held that any crime that has as a

statutory element “the threatened use of violence” constitutes a

“crime of violence” per se, regardless of the facts surrounding

the crime.    Chatman, 986 F.2d at 1451.   In the end, then, the

phrase “crime of violence” captures crimes that are violent in an

“abnormal sense.”     Poff, 926 F.2d at 594 (Easterbrook, J.,

dissenting).

             But when we consider § 5K2.13, we find that the phrase

“non-violent offense” appears without definition and cross-

reference.    Because the Commission has not provided otherwise, we

first look to the “ordinary legal (and lay) understanding” of a

"non-violent offense," a definition that excludes all crimes in

which mayhem occurs.    Id. (Easterbrook, J., dissenting).
Although Judge Flaum has asserted that the definition of “crime



                                  11
of violence” is not limited to situations involving career

offenders, id. at 591, the lack of a cross-reference to § 4B1.2

is telling.    The Guidelines often employ explicit cross-

referencing, and “[i]t would have been easy to write § 5K2.13 to

say that the judge may depart unless the defendant committed a

`crime of violence.’”    Id. at 594 (Easterbrook, J., dissenting).

          For example, § 4A1.1, which guides computation of the

criminal history category in the Sentencing Table, expressly

adopts the definition of "crime of violence" set forth in §

4B1.2.   See 1992 U.S.S.G. § 4A1.2(p).   Thus, the use of a

different phrase suggests that the Sentencing Commission intended

a different meaning.    See Poff, 926 F.2d at 594 (Easterbrook, J.,

dissenting).    Furthermore, although the Commission has recently

amended § 4B1.2 and its commentary twice, and the controversy

over this issue has simmered, the Commission has not suggested

any relationship between § 5K2.13 and § 4B1.2.    See 1992 U.S.S.G.

Appendix C 253-54, 284-85 (amendments 433, 461).    Against this

backdrop, the Commission’s silence indicates that the provisions

should be independently interpreted.4

                                 B.



     4
      The Poff majority interpreted the Commission's failure to
reference § 5K2.13 in these amendments as tacit approval of the
conclusion that the definition in § 4B1.2 extends to § 5K2.13.
See Poff, 926 F.2d at 593. That position, however, rests on the
erroneous belief that the courts of appeals have uniformly
adopted the view espoused by the Poff majority. See, e.g.,
United States v. Spedalieri, 910 F.2d 707, 711 (10th Cir. 1990)
(discussing application of § 5K2.13 without mentioning § 4B1.2).
 As noted above, they ultimately have not.



                                 12
            The significance of the absence of an explicit cross-

reference is heightened by the obvious difference between the

character of the downward departure provision and that of the

career offender provision, a distinction of which the Commission

was certainly aware.    Section 5K2.13 is a guided departure, one

that is thus “encouraged.”     See Koon v. United States, 116 S. Ct.

2035, 2045 (1996).     Although a § 5K2.13 departure is tied to a

judgment as to the extent to which reduced mental capacity

contributed to the commission of the offense, a departure is

optional, and elements of discretion permeate the provision.

            Plainly, a Guideline provision that encourages the

district court to exercise discretion to depart downward is the

obverse of the career offender provision that in essence commands

the harshest sentence possible under the circumstances by kicking

up both the criminal history and base offense levels.    This

conclusion is not only buttressed but enhanced by the Supreme

Court’s decision in Koon.     While the commentators are not in

agreement as to the sweep and import of Koon, see 9 Fed.

Sentencing Rep. 1 (1996) (symposium on Koon), they agree that

Koon does signal that the federal sentencing judges have greater
discretion in the fashioning of departures than was previously

thought.5

     5
      That the departure power also generally imports discretion
is evident from the fact that unguided departures under § 5K2.0
(where the case is outside the “heartland,” see 18 U.S.C. §
3553(b) and 1992 U.S.S.G. ch. 1 part A 5-6) require the
sentencing judge to consider the factors set forth in 18 U.S.C. §
3553(a) which reference the kinds of (discretionary) factors that
sentencing judges considered before the Guidelines.



                                  13
             Thus, the regime of departures contemplates the

exercise of discretion by district judges to conform sentences to

the actual crime committed, while the career offender provisions

require judges to assume the worst.     Indeed, in the course of

identifying particular trends within an individual’s criminal

history, § 4B1.2 appears to characterize as “crime[s] of

violence” many offenses that, taken individually on their facts,

might be interpreted as non-violent.     As Judge Easterbrook has

put it, while “[t]he prospect of violence (the `heartland’ of the

offense, in the guidelines' argot) sets the presumptive range;”

when the offender causes less turmoil than expected, “departure

is permissible.”     Poff, 926 F.2d at 594 (Easterbrook, J.,

dissenting).6

                                  C.

             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 a specific cross-

reference.    Rather, it is better to permit the district courts to

consider all the facts and circumstances surrounding the

     6
      As previously mentioned, Judge Flaum argues that the
definition of “crime of violence” must govern § 5K2.13, for to
hold otherwise would mean that a defendant could require
additional incarceration because of his or her criminal history
under § 4B1.2 and less incarceration because of the same history
under § 5K2.13. Poff, 926 F.2d at 592. But this argument fails
to understand the distinction between punishment based on the
conduct constituting the elements of a crime and the actual
conduct of the criminal.



                                  14
commission of a crime when deciding whether it qualifies as a

non-violent offense under § 5K2.13.    This rule furthers the sound

policy of according the district courts discretion under the

Guidelines regime wherever possible.

          I note too that the mere fact that the case is a bank

robbery does not make it ineligible for a § 5K2.13 departure.

See Chatman, supra.   I acknowledge that Askari had his hand

underneath his shirt when he handed the teller the note.   But he

could not have been too frightening, because two bank employees

chased him, which is an action they surely would have forgone had

they thought he had a gun or was otherwise armed or dangerous.

At all events, that determination should be a matter for the
district court.

          For the foregoing reasons, I believe that our decision

in Rosen should be reconsidered by the Court en banc.




                                15
