Filed: Mar. 05, 1997
Latest Update: Mar. 02, 2020
Summary: 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United 1997 Decisions States Court of Appeals for the Third Circuit 3-5-1997 United States v. Askari Precedential or Non-Precedential: Docket 95-1662 Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_1997 Recommended Citation "United States v. Askari" (1997). 1997 Decisions. Paper 55. http://digitalcommons.law.villanova.edu/thirdcircuit_1997/55 This decision is brought to you for free and open access by the Opinions of the United States Cou
Summary: 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United 1997 Decisions States Court of Appeals for the Third Circuit 3-5-1997 United States v. Askari Precedential or Non-Precedential: Docket 95-1662 Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_1997 Recommended Citation "United States v. Askari" (1997). 1997 Decisions. Paper 55. http://digitalcommons.law.villanova.edu/thirdcircuit_1997/55 This decision is brought to you for free and open access by the Opinions of the United States Cour..
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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Precedential or Non-Precedential: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
Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_1997
Recommended Citation
"United States v. Askari" (1997). 1997 Decisions. Paper 55.
http://digitalcommons.law.villanova.edu/thirdcircuit_1997/55
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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
