United States v. Askari (Part I - Amended) ( 1998 )


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  •                                                                                                                            Opinions of the United
    1998 Decisions                                                                                                             States Court of Appeals
    for the Third Circuit
    4-8-1998
    United States v. Askari (Part I - Amended)
    Precedential or Non-Precedential: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.
    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 359
    , 363 (4th Cir.) (citations omitted), cert. denied, 117 S.
    Ct. 332 (1996).
    10
    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).
    28
    

Document Info

Docket Number: 95-1662

Filed Date: 4/8/1998

Precedential Status: Precedential

Modified Date: 10/13/2015

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