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


11-5-1998

United States v. Askari
Precedential or Non-Precedential:

Docket 95-1662




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Filed November 5, 1998

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

No. 95-1662

UNITED STATES OF AMERICA

v.

MUHAMMAD ASKARI,
       Appellant

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

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

Before: BECKER, McKEE and GARTH, Circuit Judges

Argued En Banc October 29, 1997

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

(Filed: April 8, 1998)

SUBMITTED SUR PETITION FOR
RECONSIDERATION OF EN BANC OPINION
Pursuant to Third Circuit LAR 34.1(a)
(October 5, 1998)
Present: BECKER, Chief Judge, SLOVITER, STAPLETON,
GREENBERG, SCIRICA, NYGAARD, ALITO, ROTH, LEWIS,
McKEE, GARTH and COWEN,* Circuit Judges.

(Filed November 5, 1998)

       DAVID L. McCOLGIN, ESQUIRE
       ROBERT EPSTEIN, ESQUIRE
       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
       Office of United States Attorney
       615 Chestnut Street, Suite 1250
       Philadelphia, Pennsylvania 19106

        Attorney for Appellee

OPINION OF THE COURT SUR PETITION FOR
RECONSIDERATION OF EN BANC OPINION

BECKER, Chief Judge.

This opinion is prompted by an unusual concatenation of
circumstances: (1) the United States Sentencing
Commission adopted an amendment to the Sentencing
Guidelines rendering more flexible the circumstances under
which a sentencing court can make a downward departure
when a defendant convicted of certain kinds of offenses has
been shown to possess significantly reduced mental
capacity at the time of the offense; (2) this court, sitting en
banc, filed an opinion one day before adoption of the
Guideline amendment rejecting the interpretation that the
Guideline amendment suddenly recognized; and (3) because
_________________________________________________________________

*Judge Mansmann sat on the original en banc panel but has been
unable to participate in this decision due to illness.

                                  2
the amendment is a "clarifying" amendment which, under
our jurisprudence, applies to pending cases, it becomes
possible that the defendant, who sought relief from our
decision before our mandate was issued and who clearly
had significantly reduced mental capacity at the time of the
offense, could receive a lesser sentence than that which the
district court imposed and which the en banc court of
appeals affirmed.

Shortly after we filed our opinion, and when the terms of
the newly-adopted Guideline amendment became known,
defendant Muhammad Askari sought reconsideration of our
en banc decision. We granted the motion. We now vacate
the en banc opinion and remand the case to the district
court so that it may reconsider the sentence in light of the
Guidelines amendment, and, in particular, make findings
or draw legal conclusions in the first instance about the
two facts that will likely determine whether Askari's
sentence will be reduced: (1) whether Askari's offense
involved "actual violence or a serious threat of violence";
and (2) whether Askari's criminal history indicates "a need
to incarcerate the defendant or protect the public." See
U.S.S.G. S 5K2.13.1 Before explaining our ratio decedendi,
we will recapitulate the facts of the majority in our first en
banc opinion.

I. Facts and Procedural History

A.

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." He
then went to an open window and told the bank teller,
_________________________________________________________________

1. "If the defendant committed a non-violent offense while suffering from
significantly reduced mental capacity . . . 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."

                                  3
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, though
when he demanded money from the teller he had his hand
underneath his shirt. Two bank employees, along with a
Center City Special District employee, all of whom were
unarmed, 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 under 18 U.S.C.A.
S 2113(a), and a jury found him guilty. 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.2
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).3 At sentencing, defense counsel argued for a
_________________________________________________________________

2. 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 a
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 Askari 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).
3. 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, that 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")).

                                4
downward departure based on Askari's diminished mental
capacity, citing his history of serious psychiatric illness and
his diagnosis as a paranoid schizophrenic. That Askari
suffered from some mental illness at the time he committed
the bank robbery was not in dispute.

The district court, however, 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.4

B.

Askari appealed his sentence, contending that the district
court should have granted him a downward departure for
diminished capacity under U.S.S.G. S 5K2.13 because (1)
the unarmed bank robbery was non-violent; and (2) he has
a well-documented history of serious psychiatric illness. A
panel rejected Askari's arguments and affirmed the
judgment:

       In United States v. Rosen, 

, 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.
_________________________________________________________________

4. See U.S.S.G. S 5K2.0, p.s. (permitting the imposition of a sentence
outside the range established by the Guidelines "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' ").

                               5
United States v. Askari, No. 95-1662, 

, at *2
(3d Cir. Mar. 5, 1997) ("Askari I"), Order Vacating Opinion
and Granting Rehearing En Banc, Mar. 27, 1997.

The panel highlighted the disagreement among the courts
of appeals as to whether the "crime of violence" definition
contained in U.S.S.G. S 4B1.25 governs the "non-violent"
offense requirement of U.S.S.G. S 5K2.13:

       Four other circuits have reached the same conclusion
       that this court reached in Rosen. United States v.
       Mayotte, 

, 889 (8th Cir. 1996); United
       States v. Poff, 

, 591-93 (7th Cir. 1991) (en
       banc) (6-5 decision); United States v. Maddalena, 

, 819 (6th Cir. 1989); United States v. Borrayo,
       

, 94 (9th Cir. 1989). However, two circuits,
       following Judge Easterbrook's dissent in Poff, have
       concluded that the "non-violent offense" requirement of
       S 5K2.13 is not governed by the "crime of violence"
       definition contained in S 4B1.2. United States v.
       Weddle, 

, 540 (4th Cir. 1994); United
       States v. Chatman, 

, 1450 (D.C. Cir.
       1993).

Askari I, 

, 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 I, 

, at *2 (Becker, J.,
concurring). According to Judge Becker:

       While `crimes of violence' and `non-violent offense'
_________________________________________________________________

5. U.S.S.G. S 4B1.1 enhances the offense level for "career offenders." See
U.S.S.G. 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.' "
U.S.S.G. 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)). U.S.S.G. S 4B1.2 provides definitions for terms used in USSG
S 4B1.1, including "crime of violence."

                               6
       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.

(citations omitted).

Pursuant to the Internal Operating Procedures, the court
voted to rehear the case en banc. We, therefore, vacated our
panel decision (Askari I).

C.

After hearing argument, the en banc court was deeply
divided. The majority, after an exhaustive analysis of the
competing positions, determined that Rosen was incorrect
and that the Sentencing Commission "did not intend to
import the `crime of violence' definition from U.S.S.G.
S 4B1.2 to U.S.S.G. S 5K2.13." United States v. Askari, No.
19-1662, Slip Op. at 21 (3d Cir. April 8, 1988) ("Askari II").
Instead, the majority concluded that:

       We believe that departures under U.S.S.G. 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 U.S.S.G. S 5K2.13 are those which do
       not involve a reasonable perception that force against
       persons may be used in committing the offense.

                               7
       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.

Askari II, Slip Op. at 26. Relying on the testimony of Ms.
Ishizaki, the bank teller, the majority found that

       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."

Judge Stapleton, joined by Judge Sloviter, concurred.
Though agreeing that Rosen was incorrect and that Askari
did not qualify for a S 5K2.13 departure, Judge Stapleton
reached this result by a somewhat different route. See 

(Stapleton, J., concurring). Judge Stapleton would have
held that Askari's bank robbery offense does not qualify as
a "non-violent offense" because "a federal bank robbery
conviction necessarily involves a finding that the offense
involved actual force or a threat of force, and that such a
finding . . . precludes characterization of the offense as a
non-violent one for purposes of S 5K2.13." 

joined by Judge Lewis, concurred as well.
Like Judge Stapleton, Judge McKee agreed that Rosen
should be rejected. However, Judge McKee believed that the
majority incorrectly held that Askari's crime was not a
"non-violent offense" based upon the elements of the crime,
and would have required an "individualized inquiry into the
specifics of his conduct to determine if his `actual conduct'
amounts to a `non-violent offense' as that term is used in
S 5K2.13 notwithstanding the elements of his crime." 

(McKee, J., concurring). Still, Judge McKee joined in the

                                8
judgment, relying on the fact that S 5K2.13 is restricted to
those persons whose criminal history does not indicate a
need for incarceration to protect the public. See 

Since the district court had noted that Askari had a long
history of crime, including violent crime, Judge McKee
concluded that Askari would be ineligible for the departure
regardless of whether his acts were classified as a "non-
violent offense" because his criminal history suggests a
need to protect the public. See 

similarly agreed with the majority's
judgment, but reached that conclusion for different reasons
and wrote separately. Unlike the majority or the other
concurrences, Judge Garth would not have overruled
Rosen, and would instead construe "non-violent offense" as
the opposite of "crime of violence" as that term is used in
U.S.S.G. S 4B1.2. See 

(Garth, J., concurring).

Judge Becker, joined by Judges Nygaard and Roth,
dissented. Though agreeing with the majority that Rosen
was incorrect, the dissent contended that the majority erred
by precluding sentencing judges from granting S 5K2.13
departures in bank robbery cases. 

51 ("Thus,
under the majority's construction . . . Muhammad Askari
could not qualify for a departure under S 5K2.13 regardless
of the factual circumstances underlying his offense. To that
end, the majority's `reasonable perception' standard does
not save its opinion from being analytically identical to
Rosen.") (Becker, J., dissenting). According to the dissent,
the case should have been remanded to the district court so
that the sentencing judge could consider all the facts and
circumstances of the crime and decide in the first instance
whether Askari's acts qualify as a "non-violent offense." See

The dissent also disagreed that Askari was ineligible for
a S 5K2.13 departure because his criminal history suggests
a need to protect the public. See 

n.5. The dissent
reasoned that, while the district court did find that Askari
had a long history of crime, it did not make an express
finding about the need for incarceration to protect the
public. See 

basis, the dissent contended that
this question also needed to be decided by the district court
in the first instance. See 

One day before our en banc opinion was filed, on April 7,
1998, the United States Sentencing Commission adopted
an amendment to S 5K2.13, which revised that guideline to
read as follows:

       A sentence below the applicable guideline range may be
       warranted if the defendant committed the offense while
       suffering from a significantly reduced mental capacity.
       However, the court may not depart below the
       applicable guideline range if (1) the significantly
       reduced mental capacity was caused by the voluntary
       use of drugs or other intoxicants; (2) the facts and
       circumstances of the defendant's offense indicate a
       need to protect the public because the offense involved
       actual violence or a serious threat of violence, or (3) the
       defendant's criminal history indicates a need to
       incarcerate the defendant or protect the public. If a
       departure is warranted, the extent of the departure
       should reflect the extent to which the reduced mental
       capacity contributed to the commission of the offense.

U.S.S.G. S 5K2.13 (amendment proposed April 7, 1998)
(emphasis added). Most importantly for present purposes,
the amendment substituted the highlighted language in
place of the "non-violent offense" requirement in the version
of S 5K2.13 existing at the time Askari was originally
sentenced and Askari I and Askari II were decided. See
supra n. 1.

On April 20, 1998, Askari timely filed a petition for
reconsideration of our en banc opinion based on this
proposed amendment. He argued that the proposed
amendment should be treated under our jurisprudence as
a "clarifying amendment," which applies to the present
case. On the merits, Askari contended that, under the
proposed amendment, the question whether his offense
indicates "a need to protect the public because the offense
involved actual violence or a serious threat of violence" is
properly for the district court to consider in thefirst
instance on the basis of all the facts and circumstances of
the offense.

                               10
The government filed an answer to the petition. It agreed
with Askari that the proposed amendment is "clarifying."
However, the government countered Askari's argument that
a remand is necessary. Because a reasonable person could
infer a threat of harm from defendant's actions, the
government argued, Askari's threat of violence was
"serious" and therefore even under the proposed
amendment the S 5K2.13 departure should be precluded.
Alternatively, the government contended that the defendant
has a "long and violent criminal history," which precludes
a departure under both the present and the amended
versions of S 5K2.13.

The en banc court granted the motion for
reconsideration. We wrote:

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

United States v. Askari, No. 95-1662, Order Sur Petition for
Reconsideration of En Banc Opinion (3d Cir. Aug. __, 1998)
(en banc) ("Askari III"). The November 1 deadline has now
passed without congressional action, and the amendment
to S 5K2.13 has therefore become effective.

II. Discussion

The parties agree that the amendment to S 5K2.13 does
not work a substantive change in the law, but rather
"clarifies" the Guideline in place at the time of sentencing.

                                11
Under our precedents, we therefore must give effect to the
amended version in the present case. See United States v.
Marmolejos, 

, 490 (3d Cir. 1998). While the en
banc court could conceivably revisit the case "from
scratch," we have agreed that the better course, particularly
in light of the sharp disagreements we have had over the
meaning of a number of still relevant terms, is to remand
to the district court so that it can resentence Askari in light
of the Amended Guideline. In addition to possible legal
interpretation, two factfinding issues remain in the wake of
the amendment: (1) whether Askari's offense involved
"actual violence or a serious threat of violence;" and (2)
whether Askari's criminal history indicates "a need to
incarcerate the defendant or protect the public." See
S 5K2.13.

The first issue most likely still divides the court.
Concomitantly, there may also be some disagreement
whether this is an issue of fact or law. We think it
preferable for the district court first to rule on the meaning
of "serious threat of injury" within the context of the
amended Guidelines. The second issue seems even more
clearly to be an issue for the district court rather than the
en banc court of appeals. The district court did not make
an explicit finding of dangerousness vel non, perhaps
because it found in light of Rosen that a downward
departure for diminished capacity was limited to non-
violent offenses (App. at 45a). The district court deserves
another opportunity to make this determination.

For the foregoing reasons, the en banc opinion of this
court, filed April 8, 1998, will be vacated, and the case
remanded to the district court for further proceedings
consistent with this opinion.

                               12
GARTH, Circuit Judge, dissenting:

In my opinion, despite the import of the new guidelines,
the order of the district court should be affirmed. According
to the newly enacted version of U.S.S.G. S 5K2.13, a
diminished capacity departure is not warranted if "the facts
and circumstances of the defendant's offense indicate a
need to protect the public because the offense involved
actual violence or a serious threat of violence." (emphasis
added). Askari entered a bank on Walnut Street in
Philadelphia on April 23, 1992 with his hand underneath
his shirt so as to convey the impression that he was
carrying a loaded gun that he was prepared to use. He
repeatedly told the bank tellers to put the money on the
counter, and told one teller that she had three seconds to
give him the money. See United States v. Askari, 

, 538 (3d Cir. 1998).

Askari's sentence should be affirmed without remand
because his conduct involves a serious threat of violence.
By conveying the impression that he was carrying a loaded
gun and was prepared to use it, Askari created a serious
threat of violence. Although his cocked forefinger was not
likely to have led to much damage, an on-site law
enforcement officer, a bank security officer, a bank patron,
or even a bystander would have been justified in
responding to Askari's actions through violent means.
Askari's threat was a threat of violence, and raised a
substantial possibility of violent conduct in response.
Compare United States v. Hunn, 

, 997, 997 n.5.
(7th Cir. 1994) (holding that a bank robber who stated that
he had a gun in his coat was eligible for two point
enhancement for making a death threat even though robber
was simply pointing his finger through his coat, and noting
that whether he actually had a gun was "immaterial").

Accordingly, I see no need to remand this case to the
district court, as Askari's actions and his undisputed felony
background (see Maj. Op. at 4 n.2) must lead to the same
sentence originally imposed. I respectfully dissent.

                               13
A True Copy:
Teste:

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

                               14