United States v. Askari (Part II)

UNITED STATES of America ASKARI, Appellant.

Muhammad

No. 95-1662. Appeals,

United States Court of

Third Circuit.

Submitted Pursuant to Third Circuit 34.1(a)

LAR Nov. 1996.

Argued En Banc Oct. 1997. April

Decided BECKER, Judge;

Before: Chief STAPLETON, MANSMANN, SLOVITER,* COWEN, GREENBERG, SCIRICA, ALITO, LEWIS, NYGAARD, ROTH, McKEE, GARTH, Judges. Circuit OF THE OPINION COURT SCIRICA, Judge. Circuit interpretation case involves an This sentencing guidelines. appeal issue on The continuing en before the banc court is vitality opinion of our United States (3d Rosen, Cir.1990), address- ing 5K2.13 of (Nov.1997) Commission, Guidelines Manual departure permits a downward based which capacity where the crime is on diminished specific requires us to nonviolent. The issue meaning of examine the “non-violent” sentencing guidelines. under Although resolution of this case would not necessarily compel reexamination of much been written other courts of eight years appeals ago. since our decision opportunity banc court affords us the en modify the issue and our views. revisit I.

A. appeals Askari his sentence Muhammad for under 18 U.S.C.A. 2113(a) (West contending Supp.1997), granted him have district court should capacity departure downward for diminished (1) the un- 5K2.13 because (2) nonviolent and armed bank was history of serious he has a well-documented psychiatric illness. com- illness the time he Askari’s mental (Ar- Epstein McColgin, L. Robert David robbery is not at issue. the bank mitted Philadelphia, Ass’n of Fed- gued), Defender Indeed, court sentencing, the district before PA, Division, for Philadelphia, eral Court mentally compe- Askari was not found that

Appellant. him, U.S.C. committed under 18 tent and 4244(d), psychi- for to a federal institution Stephen (Argued), J. Britt Office U.S. PA, the warden and treatment.1 After atric care Atty., Philadelphia, Appellee. * Guy Judge examined Askari to assess Judge 1. Dr. Edward was Chief of the Court Sloviter competent Dr. to stand trial. whether he was Appeals at the time for the Third Circuit suffering initially was Guy that Askari concluded completed argued. appeal Sloviter. partial paranoid schizophrenia in remis- fro,m January Judge on as Chief her term addiction, disorder, sion, drug but he and seizure at the Medical U.S. Center Federal Pris- plaining that sentencing guidelines “con- Springfield,

oners at Missouri certified that tain a policy statement that a downward again mentally Askari had recovered and was for diminished is limited ____ competent, sentenced him to 210 to non[-]violent offenses [the] commis- (See 58a, 68a).2 App. in prison. months says sion [there no is] downward for diminished at the time of the regarding the robbery The facts offense, if the offense is a violent crime.” 23, dispute. April not in On the afternoon of 45a). (App. at rejected The court also defen- 1992,Askari entered the First Bank of Phila- dant’s motion departure for downward based delphia at 1424 Walnut Street in Philadel- unusual, mitigating on circumstances not ad- phia. approached He a closed teller’s win- equately by guidelines.3 considered times, said two or three dow and “Put the Then, money on the counter.” he went to an teller, open and told the bank window Ellen B. Ishizaki, give “You have three seconds to me appealed sentence, Askari his contending money.” gave After Ishizaki him bait robbery unarmed bank was a non-violent money, he ran out the door. Askari was not offense because he did not use force or vio- carrying weapon, seen nor did he use force lence, verbally anyone threaten or harm specific or make verbal threats of harm. during robbery. panel A of our court money

When he demanded from bank teller rejected arguments Askari’s and affirmed the Ishizaki, however, he had his hand under- district court: employees neath his shirt. Two bank along In City Special 789, United States v. employee with Center District (3d Cir.1990), caught chased Askari and him we held two that the blocks district away. court did not money authority Police later found the have the bait a bank pants. They depart Askari’s sentence to did not recover a downward be- (See ¶¶5-8). weapon. cause that Report Presentence offense is not a ‘non-violent’ offense. by We so looking concluded to a and, Askari robbery, was indicted for bank separate guidelines provision, [USSG] 1992, July guilty by jury. was found which defines as a ‘crime sentencing, argued At defense counsel for a Although violence.’ split the circuits are departure downward based on Askari’s di- point, on this we are prior bound our capacity, citing history minished his holding. psychiatric of serious diagno- illness and his schizophrenic. paranoid sis as a Askari, The district United 95-1662, States v. No. grant departure, (3d court declined to ex- 5, 1997), WL at *2 Cir. Mar. Order competent that Askari was ing concluded to stand violence and the defendant at [had] least two Following psychiatric prior felony trial. second evaluation convictions for crimes of violence.” sentencing, Guy ¶ (See before Askari’s Dr. Report testified that (dis- App. Presentence at 56a Noting competent. Askari was noting, Askari’s during "his- trict court sentencing, Askari "has illness," tory Guy long history serious mental Dr. found including of crime violent crime that Askari was too delusional to be history able to ----the criminal score in this case takes cooperate attorney. with his The district pretty him top range” much but then ordered Askari's commitment. concluding After two "[b]ecause am satisfied that the low years of treatment at the U.S. Medical Center for range provide end of the will a suffi- Missouri, Springfield, Federal Prisoners in punishment Aska- cient going deterrent I am diagnosed suffering "Schizophre- ri was nia, range sentence him at the bottom of the with the Type currently have”)). Paranoid in remission with discretion I antipsychotic report medication.” The noted initially "exhibited Askari delusional think- 5K2.0, p.s. (permitting 3. See USSG imposi- hallucinations,” ing auditory which im- range tion of a sentence outside the established proved report with medication. The concluded guideline "if the court finds 'that there (See competent. App. that Askari was now at aggravating mitigating exists an circumstance 62a-67a, 68a). kind, degree, adequately or to a taken into consideration Commis- qualified 2. Askari as "a career formulating guidelines offender in that he sion in that should years was at least 18 old at the time of instant result in a sentence different from that de- offense, ”). felony the instant [was] involv- scribed' meaning govern Rehearing the former not Granting that the Vacating Opinion and Banc, 27,1997. that of the latter. En Mar.

fense among “crime Maddalena, Nonetheless, Poff, 926 F.2d Four cuits, following Judge Easterbrook’s dis conclusion sen. United States 91, (en 1989); banc) requirement of USSG 5K2.13: 94 of violence” definition other circuits have reached 4B1.24 (9th Cir.1989). However, courts of (6-5 that this court reached 893 F.2d we governs Cir.1996); United decision); 588, recognized disagreement 591-93 appeals whether the 815, Borrayo, 898 F.2d Mayotte, 76 “non-violent” of- United States (7th Cir.1991) 819 contained the same (6th States two cir in Ro Cir. v. based definition of‘crime reer offender make sense to permit under the commission tension the facts and circumstances cross-reference. # short, § the district courts section in the absence of sections of the Guidelines are ^[*] qualifies some factors those work under the sections, import of a crime when ^[*] Rather, as a nonviolent offense a career offender- and it does not it is better violence’ work surrounding % consider deciding specific into a ‡ ca- all have concluded that the “non sent (citations omitted). at *4-6 We vacated Id. § requirement of 5K2.13 is offense”

violent panel in Askari for reconsidera- our decision “crime of violence” governed not en tion banc. § 4B1.2. United contained definition Weddle, 540 States v. 30 F.3d II. Cir.1994); United States v. (D.C.Cir.1993). 1446, 1450 judge, following district our able Rosen, s United State v. decision Askari, 92051, *2 n. 2. 1997WL at (3d Cir.1990), that he determined lacked Becker, opinion, Judge concurring In a depart authority to downward.5 We review controlling precedent in Ro- recognizing our “abuse of discretion.” See United States for sen, suggested “that our decision (3d Cir.1997). By Sally, 116 F.3d departure available that a downward definition, a its district court “abuses discre sentencing guidelines § 5K2.13 of it makes an error of law. That tion when crime, the commission of in relation to a case, decision, in an occasional fact, is incorrect which no violence involves may legal call for a determination does by the Court en be reconsidered and should mean, parts consequence, as a (Beck- Askari, 92051, at *2 banc.” WL novo while other review must be labeled de er, J., According concurring). an abuse of discretion.” parts are labeled Becker: States, 100, 116 518 U.S. Koon v. United (1996) 2035, 2047-48, 135 L.Ed.2d S.Ct. ‘crimes of violence’ and ‘non-violent While omitted). (citations word, “The abuse of discretion employ the root offense’ same to determine includes review may meanings standard phrases ‘readily take other guided by erroneous discretion was not importantly, opposites.’ More than 100, 116 legal Id. at S.Ct. objectives provisions at conclusions.” of the two distinct 2048. issue—§ 4B1.2 5K2.13—counsel 4B1.1, including vio- "crime of level for used in USSG

4. 4B1.1 enhances the offense USSG com- offenders.” See USSG "career lence." 994(h) (28 (backg’d.) "mandates U.S.C. ment. ‘career’ assure that certain that the Commission ("I depart App. cannot downward at 45a 5. imprisonment 'at receive a sentence of offenders capacity ” at the time of offense for diminished USSG the maximum term authorized.’ or near They guidelines as read them. on the based by employing implements § 4B1.1 this directive policy that a downward contain a statement least large that tracks a definition career offender capacity is limited for diminished 994(h)). part in 28 U.S.C. the criteria set forth offenses”). provides for terms 4B1.2 definitions USSG nonf-Jviolent provides used in III. definitions terms USSG 4B1.1, including “crime of violence”: A. The term ‘crime of means violence’ law, punish- under federal or offense state by imprisonment exceeding able for a term 5K2.13, per- policy USSG statement year, that— one mitting departures,6 provides: downward (1) If the defendant committed a non-vio- use, attempted has as an element the suffering signifi- lent use, while from physical or threatened use of force cantly capacity reduced mental not result- another, against person of or ing voluntary drugs other use or (2) arson, burglary dwelling, of a intoxicants, a lower sentence war- extortion, explosives, involves use of ranted to reflect extent re- which presents otherwise involves conduct that duced contributed potential injury physical serious risk of offense, provided commission of the to another. history criminal does not defendant’s 4B1.2(a). USSG protect a need indicate incarceration to public. accompanying application expands An note examples: definition with concrete 5K2.13, p.s. (emphasis supplied). murder, is in “Non-violent offense” not defined ei- of violence’ ‘Crime includes man- commentary.7 assault, slaughter, kidnaping, ther 5K2.13 or the aggravated USSG offenses, arson, But the term “crime of in robbery, violence” is defined forcible sex extor- tion, provisions chapter credit, the “career offender” of extortionate extension of and burglary 4.8 4B1.1 dwelling. USSG enhances the offense lev- of a Other offenses are offenders, (A) el for career and USSG 4B1.2 included as of if ‘crimes violence’ kind, [types] degree, 6. "The Guideline Manual contains three circumstance a a of or to not guidelines provisions, policy adequately of text: statements taken into consideration the Corrado, commentary.” Sentencing and formulating United States v. 53 Commission in the 620, (3d Cir.1995). guidelines F.3d 624 "When a crime is that should result in a sentence dif- Guidelines, Sentencing by the covered the sen- ferent than that described.’ 18 U.S.C. computed 3553(b). only tence is guidelines, based on the relevant The Commission intends the sen- Sentencing tencing but also on guideline the Commis- treat courts to each as carv- 'heartland,’ policy commentary.” ing typical sion's and statements out a a set of cases 279, (3d Thompson, embodying guideline United States v. 70 F.3d 281 the conduct that each Cir.1995) curiam) (per (citing v. atypical describes. case, a When court finds Bertoli, 1384, (3d Cir.1994)). particular guideline 40 F.3d 1404-05 one to which lin- guistically applies signifi- but where conduct Supreme principle The Court has stated "[t]he norm, cantly differs from court binding that the Guidelines is federal Manual consider whether is warranted. applies policy courts as well to statements." intro, 3, A, USSG Ch. Pt. comment. 42, States, 36, Stinson v. United 508 U.S. 113 1913, 1917-18, (1993). S.Ct. 123 L.Ed.2d 598 8.Chapter sentencing guidelines 4 of the address- "Furthermore, policy prohib where 'a statement histoiy: criminal es action, taking specified its a court district from guide statement an authoritative to the Comprehensive The Crime Control Act sets ” Corrado, guideline.’ meaning applicable of (See sentencing. purposes four forth of 18 States, (citing 53 F.3d at 624 v. Williams United 3553(a)(2).) U.S.C. A record defendant's of 193, 201, 1112, 1119-20, 503 U.S. 112 S.Ct. 117 directly past criminal conduct is relevant to (1992); Reilly, L.Ed.2d 341 33 United States v. purposes. A those with a record defendant of See, 1396, (3d Cir.1994)). e.g., F.3d 1424 n. 1 prior culpable criminal behavior is more than Brannan, 448, United States F.3d n. 9 deserving greater first and thus offender (3d Cir.1996) ("both Policy Statements punishment. General deterrence of criminal Commentary in Guidelines aggravate punish- behavior will the need for courts”) (citation binding are on the federal protect ment with each recurrence. To omitted). public particular from further crimes of the defendant, the likelihood of recidivism and fu- sentencing guidelines 7. The departures: describe ture criminal behavior must be considered. sentencing Repeated permits The statute to de- criminal behavior is an indicator of a part guideline-specified sentence limited likelihood successful rehabilitation. intro, Ch.4, A, mitigating aggravating when it finds 'an or USSG Pt. comment. control, of, use, management, possession dy, or attempted an element offense union, bank, any savings or use, physical credit use or threatened force (B) another, person or loan association. against lie., charged) expressly set forth conduct property be taken requirement “The which the defendant in the count of ‘by ‘by and violence’ or intimi- either force (in- explosives involved use convicted proof requires dation’ of force threat cluding any material destruc- explosive United force an element of offense.” device) nature, or, by presented a its tive (6th Maddalena, States injury to physical risk of potential serious Cir.1989). another. does not include of violence’ ‘Crime determining intimidation possession of firearm of unlawful objective employed present, an standard is by a felon. ie., victim, perspective from the comment, (n.l) (emphasis ordinary person the teller’s “whether ‘an offense in USSG supplied).9 If “non-violent” reasonably position could infer a threat of term reference 5K2.18 is defined bodily harm from the defendant’s acts.’” 4B1.2 its “crime of violence” USSG Woodrup, 86 United States v. robbery would commentary, never then bank — (citations denied, Cir.) omitted), cert. offense. qualify as a “non-violent” -, 117 S.Ct. 136 L.Ed.2d U.S. principles articu- general application (1996). Introduction lated 2113(a), As the term ‘intimi- used “that guidelines supply a list definitions put into means ‘to make fearful or dation’ guidelines and are frequently used fear.’ applicability (except to the extent general respect particular ato expressly modified required to show The Government is statement).” policy USSG guideline or ‘express verbal threat or threat- either an comment, (n.2). But, 1B1.1, § “nonviolent weapon.’ ening display of a Actual fear ap- not of violence” do and “crime offense” if of the proven, need be the acts not The Introduc- definitions. pear in this list of ordinary threaten an rea- defendant would “[djefinitions terms tion also dictates Thus, person. government sonable Such appear other sections. also ordinary person in an need show general ap- designed for are not definitions feel position a threat the teller’s would therefore, applicability to plicability; their perpetrator’s acts. bodily harm from expressly refer- other than those sections 1349, 1357 McCarty, 36 F.3d States v. United by on a case be determined case enced must omitted). Cir.1994) (citations (5th comment, See also (n.2). 1B1.1, § basis.” USSG (same). Maddalena, at 819

2. Askari under court sentenced district Extortion, (“Robbery, Black- § 2B3.1 USSG of bank was convicted Askari alia, mail”) 2113(a): robbery of punishes, inter which in violation of 18 U.S.C.A. a financial institution. USSG property violence, [wjhoever, or force and term “non-vio- § 2B3.1 not define the does take, intimidation, takes, attempts or offense, crime of perhaps because the lent” another, or person presence or from the force, contemplates at least some attempts to obtain extortion or obtains force, USSG or intimidation. While threat of thing money any property or other or if a guideline increase case, for a to, provides § 2B3.1 in the custo- belonging or of value statement, a federal Constitution or afoul of the policy it runs is While USSG 5K2.13 9. statute, or plainly is erroneous inconsistent or violence” specific of "crime of definitions guidelines purports to applica with the section accompany USSG 4B1.2 - denied, (citation omitted), interpret”) cert. "commentary." tion notes -, (3d Cir.1996) McQuilkin, L.Ed.2d 178 S.Ct. 138 U.S. (1997). guidelines binding ("Commentary unless made, non-violent, i.e., threat physical death was it is silent on the it did involve bodily disagreed: threat harm.10 force. We violence, however, Crimes of situa- include

B. but tions where force threatened contexts, In used. other crimes violence Against backdrop we examine the con- have been defined as offenses that have ‘as among appeals flict several courts of inter- use, use, attempted element preting “non-violent offense” physical threatened use of force.’ 18 § 5K2.13. The discussion has centered on (1988) ... U.S.C. see U.S.S.G. sentencing judge categorical- whether must comment, (n.l). Defendant would ly adopt the “crime violence” definition in have us conclude that use of the 5K2.13’s judge USSG 4B1.2 something term ‘non-violent’ other means discretion to look to the facts circum- opposite than the of a crime violence. stances each case. support can find no a con- We such tention therefore find no error 1. district court’s determination that defen- pled guilty the defendant dant’s crime was not ‘nonviolent.’ See sending threatening communication Borrayo, United States v. 898 F.2d 91 through money through the mail to extort Cir.1989); Poff, United States v. cf. injury, threat violation of 18 U.S.C. (N.D.Ind.1989). F.Supp. 79 Consequently, Defendant, compulsive an admitted guideline § does not authorize a gambler, equity wrote checks from home downward for this defendant’s satisfy line growing gambling credit loss- mental condition. payment, es. Unable to make he sent letters acquaintances that, representing to three un- Rosen, 896 F.2d at 791. We looked money received, less their relatives “crime of violence” definition contained in would harmed. USSG 4B1.2 to determine whether defendant was entitled to a downward de- sentencing, presented expert At defendant parture in USSG 5K2.13 for “non-violent testimony compulsive gambling about his offenses.” Because defendant’s crime con- argued that he neither intended nor had the violence,” stituted a “crime of we found capability carry out the threats made in inapplicable. USSG 5K2.13 the letters. the defendant under (“Extortion by § USSG 2B3.2 Force or recently year, As as this we have cited Injury Damage”), Threat of or Serious the McBroom, Rosen. United v. See States district court determined that defendant’s (3d Cir.1997) (“The F.3d basis for compulsive gambling did not constitute a mit- holding in our Rosen was that the definition igating justifying departure factor below the ‘crime violence’ contained in section guideline minimum. 4B1.2, provision, which is the career offender contended, appeal, governs meaning On defendant the inter of ‘non-violent’ offense 5K2.13____we alia, incorrectly by the district refused to section our are[bound] 9.1”). apply USSG 5K2.13 because his crime decision in 3d Cir. I.O.P. 2B3.1(b)(2)(F) (where you,’ money 10. USSG calls for an increase me 'Give the or else the 2 levels "if a threat of death was made.” defendant draws his hand across his throat in motion),' slashing money ‘threat of death' ... be in form of an ‘Give the or me the or statement, act, gesture, oral written or com- you are dead' threat would constitute a Accordingly, bination thereof. the defendant death. The that court should consider the expressly does not have to state his intent to provision provide intent of this is to an in- kill victim in order for the enhancement to creased offense level cases in which the example, apply. For an oral written de- offender(s) engaged conduct would ins- using money mand words such as ‘Giveme the person, till in who victim a reasonable is a you,' money or I will kill 'Give me the or I will offense, a fear of death. pull grenade pin my on the I have in comment, (n.6). USSG pocket,’ money ‘Give me or will shoot to ’non-violent’- 5K2.13 and its reference 2. offense”); v. States violent’ United noted, question we have As (D.C.Cir.1993) (“we 1446, 1450 986 F.2d may 5K2.13 offense” USSG “non-violent gov- persuaded 4B1.2 should that section by to “crime of vio reference defined Rather, application ern section has been answered 4B1.2 lence” USSG sentencing court has we believe appeals. different courts differently under 5K2.13 to ex- broad discretion section Rosen. in accord with other circuits are Five of a all facts and circumstances amine Mayotte, v. 76 F.3d States United particular of- to determine whether case Cir.1996) (“The (8th phrase ‘non-violent ”). inwas fact ‘non-violent’ fense guidelines. in the is not defined offense’ addition, dissenting judges in five However, of violence’ is de the term ‘crime Poff, 926 the same view. decision share Poff 4B1.2 of fined Section (“different carefully in a F.2d at 595 terms a ‘nonviolent believe that guidelines. We guidelines connote code such as the drafted necessarily ‘crime of vio excludes offense’ ... re- things ‘non-violent’ offense different ”); Dailey, 24 F.3d lence’ United States v. did not entail to crimes that event fers (11th Cir.1994) (“downward 1323, 1327 depar justified prison When is not violence. for reduced mental permissible was not ture defendant, incapacitate need after Dai under U.S.S.G. available”) (Easterbrook, J., dissenting). ”); ley of a ‘crime of violence’ was convicted illustrates the and Chatman Review Poff Cantu, 1506, 1513 12 F.3d States United Weddle, 30 F.3d at 538 distinctions. See Cir.1993) (9th (“We have defined ‘non-violent’ (“The decision and the Seventh Circuit’s Poff of violence’ converse of ‘crime as the provide the D.C. Circuit’s Chatman decision 4B1.2(l)(i)”); States v. United U.S.S.G. analyses present- of the issue detailed Cir.1989) (6th Maddalena, 815, 819 ed”). (“the commentary 4B1.2 of the to section as includes guidelines Thus provision____ section covered majority provides an elaborate defendant, for he applicable to Poff 5K2.13 is not argument favor of the first view—that offense”); Unit a nonviolent not commit did defini- 4B1.2’s “crime of violence” Poff, ed States “non-violent controls USSG 5K2.13’s tion Cir.1991) (“We adopt defen [the decline First, major- requirement. offense” premise on the argument that rests dant’s] similarity ity between the emphasized act the same the Guidelines define phrases: two and a ‘nonviolent’ a ‘crime of violence’ both say of dif- (en banc) (6-5 the choice (citation omitted) Courts often offense”) say an intent ferent words reflects denied, 827, 112 decision), S.Ct. cert. 502 U.S. Com- something here the (1991). different. But 96, 116 L.Ed.2d 67 the same word—Violence.’ mission used appeals have embraced Two courts of negative True, con- in one case used discretion to the district court’s view that in other the struction—‘non-violent’—and § 5K2.13 under USSG depart downward phrase containing prepositional ease used a § 4B1.2. by not be restricted USSG should a modifier rather the noun Violence’ Weddle, F.3d 540 v. United States See adjective using simpler Violent’— than Cir.1994) (“the (4th Sentencing Commission root, in meaning, are the same and but the of vio- import ‘crime [the not intend to did cases____ should be The both Guidelines § 4B1.2 to definition] [USSG lence’ lBl.l(i), whole, § and when read as 5K2.13]”). States See also United USSG different, though appears same word in Cir.1997) Morin, sections, likely bears related that word of crimes of violence (“Although a definition meaning in both instances. same guidelines, have we found elsewhere omitted). (citations 926 F.2d Poff of of ‘crime violence’ that the definition held (re- to the majority looked The then sentencing guidelines of 4B1.2 in Poff provision of 18 offenders) Career Offender applicable to Armed is not career garding (West 924(e)(2)(B)(i) Supp.1997) history U.S.C.A. defendant’s criminal does not indi- Congress felony” where defined “violent need protect cate a for incarceration to that, alia, any public.’ offenders, definition, include inter by crime “has as an Career condition____ use, use, of attempted element or threat- meet fail to this So even if physical another,” against ened use of force the terms ‘non-violent offense’ and ‘crime believing that mirrored exclusive, definition of mutually violence’ were not of 4B1.2’s “crime violence.” The ma- 5K2.13 would not have authorized the Poff jority “[i]f reasoned: it is difficult to discern depart. district court to ‘crime of a difference between ‘violent offense’ and violence,’ it is well nigh impossible Hi Hs H< ^[*] H? ^[*] any to divine distinction between a ‘violent suffering incapaci- Because those ” felony’ and Violent Id. at offense.’ 592. effectively (making ties are less deterrable for incapacitation greater), need it According majority, to the if the Sen- Poff not be would unreasonable to that assume tencing Commission wanted to differentiate departures Commission believed to be violence, types between different of it would pros- warranted little when there is expressly have included an alternative defini- pect that such a defendant will manifest tion in USSG 5K2.13: form violent That behavior. likely thinkWe that had the Commis- reading would purpose not subvert the distinguish among types sion desired to point is a 4B1.1 that further commends violence, expanded it would have its vocab- it. ulary. minimum, At a it would have of- (citations omitted). fered technical definition each term. Id. at 592-93 The Poff Perhaps a majority cross-reference between two view still holds the United States any possi- Appeals sections would have eliminated Court of for the Seventh Circuit. bility confusion, hindsight Sullivan, but ais de- (7th Cir.1996) (“this manding hardly critic. It surprising panel is bound the en Commission failed to foresee the banc decision and thus we affirm the Poff argument can, crime of violence district of a depar- court’s denial downward scheme, 5K2.13”). same also be ture under a non-violent offense.

[*] ^{[*] [*]} ^ ^[*] Hs Even if we believed that the Commission arguments majority of the were Poff differently intended to define violence Easterbrook, countered who au- 5K2.13, guess we could do little but as to opinion. dissenting thored the Both Chat- meaning. its Appeals man from the Court of for the Dis- trict of Columbia (citations Circuit Weddle from omitted). Id. at 592 Appeals the Court for the Fourth Circuit Looking underlying objectives adopted expanded upon the rationale issue, provisions two the Poff articulated dissent. We outline stated: principal arguments set forth the Poff The Guidelines reflect the view those dissent Chatman and deci- Weddle history who have a crimes violence sions here. incarceration, merit increased and include those, appellant, like who Starting 5K2.13, have threatened the text USSG category violence “[njothing defendants. these decisions note that limiting authority addition to of courts or in Application Guidelines themselves to decrease the sentences of suggests defendants Notes that section 4B1.2 is meant to interpretation with reduced mental to cases in application control the Chatman, which defendant committed a non-vio- section 5K2.13.” 986 F.2d offense, § lent 5K2.13 further circum- The omission from USSG 5K2.13 either authority scribed depart phrase of courts to on the “crime of violence” or a cross- adding proviso this basis that ‘the reference was intentional: J., (Easterbrook, Poff, 926 F.2d at 594 dis- easy to write It have been would judge may depart senting). unless say that the to vio- a committed ‘crime

the defendant Furthermore, these sections address dif- it; instead, the § 4B1.2 defines lence’ as prescribes § 4B1.1 ferent concerns. USSG formula- different selected Commission a defendant is formula to determine whether Although a detailed it laid out tions. warrants a “career offender” who increased 4B1.2, §in meaning ‘crime of violence’ crimi- incarceration because of extensive provide so much as cross- not did history. nal 5K2.13, if curious omission reference in phras- meant to link these the Commission 994(h), Congress directed the In section mutually they tightly exclu- es so ensure that the Guidelines to Commission sive. prison specify sentences that are ‘at (Easterbrook, J., dis- Poff, 926 at 594 maximum term authorized’ for near the Chatman, 986 F.2d at 1450 senting). See offenders,’ which include ‘career those who (“The is all the lack of cross-reference felony is of a have ‘been convicted many significant so because more drug a crime of violence or either explicit cross-referencing”). Guidelines use previously and who have been convicted guidelines a crime have been two felonies where each has either While amended, drug Longer observe offense.’ frequently these decisions of violence justified has never Sentencing Commission for such offenders are sentences incarceration, specifically incor- 5K2.13 to purposes altered USSG as set out 3553(a)(2).... of violence” definition. See porate the “crime [They] in 18 U.S.C. (“Moreover, Chatman, at 1450 incapacitation repeat guarantee those amended section 4B1.2 and Commission past suggest a records offenders whose years, two commentary twice the last its violent crimes. propensity commit suggest did the Commission and neither time concerns, Reflecting policy these 5K2.13 and any relationship between section violence’ in of ‘crime of section definition 4B1.2”) (citing Poff, F.2d at 594 section distinctively a ‘term of art’ de- 4B1.2 is (Easterbrook, J., dissenting)). ____ identify signed career offenders common root word shared Despite the as appears 4B1.2 characterize section offense,” “non-violent of violence” and “crime that, many offenses of violence’ ‘crimes meanings as phrases may take other than facts, might individually on their taken opposites: interpreted non-violent. pains to was at estab- As the Commission (citations omit- a crime is one ‘of 986 F.2d at lish in ted). contrast, By not 5K2.13 encour- depends on its elements and violence’ conduct, un- ages so that an on the defendant’s more lenient treatment: makes the prospect of violence realized policy that motivate the concerns defi- This an abnormal crime one of violence. is 4B1.2 in section nition of ‘crime of violence’ sense, It a detailed of art. took term ____ applicable to section are not it so. Then comes definition to make purpose which] treat with [the 5K2.13, ap- ‘non-violent offense’ which lenity whose ‘reduced those individuals refer- or cross pears without elaboration to the com- capacity’ contributed in their these words ence. Best read of a mission crime. ordinary tied to the rather than as sense term of art fense’ standing is one ordinary in which 4B1.2. legal A (and mayhem ‘non-violent lay) did under- of- Considered ^{[*] [*] [*]} context, ^{[*] [*]} the term ^[*] re- in section 5K2.13 ‘non-violent offense’ ... sets prospect of violence occur. The act, that, those offenses fers to range; things turn presumptive when dangerous, reveal that a defendant they might, departure is than out better incapacitated not be therefore need permissible. period time though Sentencing the Guidelines would lence.” Even Com- otherwise recommend. sentencing guide- mission has amended the lines over five-hundred times last nine (citations Chatman, 986 F.2d at 1451-52 years, it has made no cross-reference in omitted). Weddle, 30 at 540 § linking 5K2.13 “non-violent offense” (“U.S.S.G. USSG § 5K2.13 intended to create len- to “crime of violence” definition ity for those cannot control their actions who § 4B1.2. actually dangerous; § but are 4B1.2 U.S.S.G. harshly is intended to treat the career crimi- Second, § by limiting 5K2.13 to USSG nal, whether or not their is in actual crime history defendants “criminal those whose (“A violent”); Poff, hefty fact 926 F.2d at 595 does not indicate a incarceration need for to appropriate simply sentence because public,” protect Sentencing Commis- incapacitates and so reduces the likelihood § sion 5K2.13 removed USSG per- of further offenses. When the described the reach of from “career offenders.” Hav- however, nonviolent, incapac- son’s conduct is so, ing import it makes sense to done little important.... legal itation is less Because definition “non-violent offense” from the persons sanctions are less effective with suf- section on career offenders. fering abnormalities, system Third, § USSG 1B1.1 articulates a list of punishment on based deterrence also cur- general applicability definitions which in- sanction”) (Easterbrook, J., dissenting). tails cludes neither “crime of nor violence” “non- approach judge This allows the district provision specifies: violent” offense. That inquiry fact-specific governed by make a ... appear “[d]efinitions other [which] sec- the “crime of violence” definition USSG ____ designated general tions are not (“we § 4B1.2. See F.2d at applicability; applicability therefore their persuaded are not that section 4B1.2 should expressly sections other than those refer- govern application section must be on a enced determined case case ... Rather has broad comment, (n.2). § USSG basis.” discretion under section examine 5K2.13 to § 4B1.2’s USSG “crime of violence” defini- all the facts and a case to circumstances of applicability. tion therefore one of limited particular determine offense was ”).11 Fourth, in fact ‘nonviolent’ USSG 4B1.1 USSG policy 5K2.13 address different concerns.

C. While 4B1.1 USSG increases sentences for persons suggest whose criminal records noted, the As en banc court enables crimes, propensity to commit violent USSG again structure, us to language, examine encourages more lenient treatment purpose sentencing guidelines actually persons dangerous who are not appraise again the “nonviolent definition of but whose reduced mental contribut- Although offense” in USSG 5K2.13. our ed to the commission of a crime. initial view set forth Rosen was a reasoned interpretation represents that now the view short, phrasing, the choice of different appeals, of most courts of we now believe cross-reference, of a the absence and the analysis relationship USSG between explicit definitions to one attached section 5K2.13 and USSG 4B1.2 articulated other, suggest but not all that the Sen- developed the dissent in and later Poff tencing import Commission did intend to convincing. Chatman and Weddle is more the “crime violence” definition from USSG detailing already arguments

Without those 4B1.2 USSG 5K2.13. Of course the forth, especially set compelling adopt we find Commission could a defini- First, which, following observations. USSG tion of “non-violent if in con- offense” statute, formity no binding contains cross-reference with the could be judge. definition of 4B1.2’s “crime vio- the district Or it could delete the Judge Stapleton's elaboration in his concur- and Chatman is instructive. rence on the differences between the dissent (even rigid sanctions un-convicted conduct in USSG to “non-violent offense” reference conduct). punished di- can now be as relevant But in the absence some Commission, Sentencing departures we Through the the means of downward rection from (which here), unwilling apply to the “crime of violence” the is what concerns us Sen- in 4B1.2 to attempted articulated USSG tencing definition to amelio- Commission consequences USSG 5K2.13. rate the of certain kinds do, especially This to convictions. is difficult many of the Although convincing we find pinpointing it behavior in an when involves dissent, Pojf put in the arguments forth spectrum affixing quanti- infinite and almost Weddle, take a somewhat and we existing values. But whether the tative applicable standard. view of the different guideline permit Sentenc- structure can the judge applying the district Those cases direct just ing downward Commission to fashion inqui- specific 5K2.13 to make fact USSG every appropri- in case where it committed a ry defendant has ate, Sentencing Commis- it clear that question remains offense.” The “non-violent departures did intend to allow sion anything that constrains whether there is 5K2.13 for offenders who cir- the “facts and court’s review of district dangerous public. of the crime. cumstances” agree that the district court should We D. look at all the and facts circumstances criminology, al there has In modern crime, do within the but it should so context culpability ways a distinction between been Sentencing Reform Act and the under- sanction, im finding guilt and between and culpability. defining lying statute criminal recently, sentencing posing Until sentence. sentencing no guidelines offer Because unique role. Before the had been the courts’ “guidance” to define of- on how “non-violent mandatory sentences and sentenc advent fense,” enabling stat- we are led back to routinely to all guidelines, looked ing courts Act,12 ute, its Sentencing Reform passing before the facts and circumstances to be articulation of factors considered Indeed, of a the severe effects sentence. imposing particular Of interest sentence.13 mitigated conviction were often “borderline” here, define of- trying when to “non-violent by a lenient sentence. fense,” imposed is the need for the sentence offense, to seriousness of the to reflect the brought Act Reform But the just provide pun- protect public, and to adoption of significant changes. Since with ishment. sentencing the fact of convic- guidelines, tion, nature or character of the whatever the of the of-

crime, To assess the seriousness sometimes has carried concrete and 13. 18 U.S.C.A. sentence____ ble to similar for the the sentences tencing Commission. sentence.—The sentencing line in 3553(a) appropriate offense, (a) (b) purposes Factors to absence U.S.C. applicable policy general Application relationship provide, the court shall case guideline, 3553(b) of an sentence, having 3553(b) set prescribed factors articulated In the absence of an offenses of an offense other than court shall be considered in forth in subsection applicable sentencing guide- part: of the sentence (West provides, guidelines the court shall statements also &1985 impose guidelines offenders, have due part: in 18 U.S.C. Supp.1997). imposing a due imposing imposed regard applicable impose (a)(2). sentence applica- and to regard petty Sen- supplanted specific sufficient, graph (2) ^[*] comply U.S.C.A. vide most effective nal educational or care, (C) (D) (B) (A) the need promote respect conduct; to reflect to afford ^[*] (2) just punishment for the sense, or other correctional defendant; and with the protect provide the defendant of this subsection. but :{: 3553(a). these factors the seriousness of the the sentence adequate manner; vocational purposes set $ greater public for the It ^[*] deterrence from further crimes appears guidelines. than have been imposed— training, medical law, treatment offense; ^[*] forth necessary, that, offense, to needed largely crimi- para- in a pro- to fense,14 violence, force, we look to the elements of the crime actual or or threatened extortion, surrounding robbery, taking by and the Bank If conduct. fear.”16 there is no here, underlying force, violence, of tak- threatened or intim- consists actual or take, value, ing, attempting idation, anything or to of can be there no valid conviction 2113(a). violence, intimidation, by by robbery by § force or under In bank 18 U.S.C. requirement case, The proper- extortion.15 that the there could under be a conviction 2113(b) (theft ty § “by be taken either force and violence” or 18 without threat of U.S.C. force). “by seem, therefore, requires proof intimidation” of force or It would that with of threat force as an element of offense. bank convictions under the first Maddalena, 2113(a), paragraph § 893 F.2d at The term “in- of 819. 18 U.S.C. defen- put qualify timidation” means to or make fearful into dant could not for a under McCarty, § fear. 36 In presently F.3d at 1357. deter- 5K2.13 as USSG written. Of mining present, course, intimidation is this refers to under convictions 2113(a). question ordinary person § is whether an paragraph the first of The second position reasonably entering, the victim’s could infer paragraph that section describes bodily enter, harm attempting threat from the defendant’s or to intent to bank with Id. “The term felony acts. para- ‘extortion’ used 18 commit therein. The second 2113(a) obtaining property graph necessarily U.S.C. means does describe crime violence; person, per- from another other depend without the that would the felo- consent, by wrongful ny.17 son’s induced use of " 2113(a) punish § 14. ‘Offense’ means provisions, the offense conviction extortion. The (Rele- however, § and all relevant conduct IB 1.3 focus on different See Unit concerns. Conduct) Maldonado-Rivera, 934, meaning spec- vant unless a different is ed States 983 922 F.2d Cir.1990) (2d (“In 1951, ified or is otherwise clear enacting Congress' § from context.” comment, 1B1.1, (n.l). USSG principal protecting concern was the flow of contrast, commerce.... interstate in enact 2113, ing Congress's principal concern was to 2113(a) provides: 15. 18 U.S.C.A. protecting find a means the institutions in violence, [w]hoever, by by force and or intimi- interested”) Federal which the (citations omitted), Government dation, takes, take, attempts or to from the denied, 1211, cert. U.S. 501 another, presence person or or obtains or 2811, (1991). 115 L.Ed.2d S.Ct. attempts by any property to obtain extortion or 2113(a) Congress money In 1986 any thing amended ex- belonging or other of value to, case, control, pressly cover extortion in- custody, manage- or in directed at federal ment, bank, of, union, provision possession any sured banks make it the or "exclusive credit prosecuting H.Rep. any savings bank No. 99- extortion.” or and loan association. 33, 797, 6138, section, reprinted paragraph at in 1986 U.S.C.C.A.N. The second of this which is here, Report 6156. The Committee extor- applicable provides: stated that bank, prosecutable attempts any tionate conduct had been under ei- Whoever enters or to enter Act, union, 2113(a)] association, ther U.S.C. any savings [18 or the Hobbs credit or and loan any building part concluded clarification as to which or used whole or as a bank, union, applicable savings should be statute is desirable. Id. credit or as a and loan association, guidelines make with a distinction between the intent to commit such bank, union, Injury "Extortion Force or Threat or Seri- savings credit or in such and loan 2B3.2, association, thereof, Damage,” used, ous USSG and "Blackmail' building, part or or so Extortion,” bank, union, any felony affecting and Similar Forms of USSG such credit or applies "only savings The latter blackmail 2B3.3. such and loan and in association viola- States, any and similar forms of extortion where there clear- statute tion of larceny— of the United or ly person properly.” of violence no threat or comment, (n.l). imprisoned Shall be fined or under this title twenty years, not more than or both. 749, Selfa, 17.See United States v. 918 F.2d 752 n. Id. Cir.1990) ("The paragraph [of second 2113(a) 99-797, 33, entry H.Rep. attempt ] describes an enter reprinted No. in 1986 6138, felony a bank with intent to commit a in it. The U.S.C.C.A.N. § 6156. See 18 U.S.C.A. also 1951(b)(2) (West (the paragraph Supp.1997) second does not describe a crime of 1984 & denied, violence”), Act)(extortion "obtaining cert. prop 498 U.S. 111 S.Ct. Hobbs means another, consent, (1990); erty L.Ed.2d 532 with induced United States v. [their] force, Pick, (2d Cir.1983) ("Section wrongful use of actual or threatened violence, fear, 2113(a) prohibits entry or under of official of a bank the intent color right”). 'any' felony [including Both the fraud] Hobbs Act and 18 U.S.C. to commit mail against persons may ception of bank that force be other cases also

There might apply. committing the offense. used robbery where USSG commit a Conceivably, a defendant could Although conviction and extortion under the Hobbs separate, sentencing always been tied (18 1951(b)(2))involving neither Act U.S.C. the crime conviction least sense intimidation, violence, nor the threat of actual If they congruent. must be the ele- acting by an un Extortion official violence. require finding of the crime of vio- ments right a “non-violent of could be der color conduct, then a valid lent conviction could Adair, See, e.g., States v. offense.” United hardly permit finding on a sentence based Cir.1992) (“In (11th 316, F.2d 318 951 long as of non-violent conduct. So the bank official, prosecution public Act Hobbs victim been threatened government prove need not actual or threat harm, to and is seen have been threatened force, or duress because ‘the ened violence (reasonable objective per- under an standard by supplied element is the existence coercive son), the defendant cannot be found to have ”) (citing public itself United of the office acted a non-violent manner. Williams, (5th 123, 124 States v. Nonetheless, may argued it that be denied, 919, Cir.1980), U.S. 101 cert. 450 (as may by violent defined stat conduct be 1366, (1981)); L.Ed.2d 346 United S.Ct. 67 ute) but still warrant a more lenient sentence (4th 320, Billups, F.2d 330 States v. 692 by if committed a defendant with diminished Cir.1982) (Fear of economic harm will sustain dangerous to who is not fear need not Act violation. “The a Hobbs (as history). public by his criminal defined implicit consequence of a be the direct so, especially This where violence is defendant, govern by and the threat threatened, but the threat is not realized. proof is satisfied if it shows ment’s burden differently, put it does the term “non To harm and that the victim feared economic 5K2.13 include violent offense” USSG surrounding the al that the circumstances resulting in valid convictions under 18 acts leged rendered that fear extortionate conduct 2113(a) where the threat vio U.S.C.A reasonable”) (citations omitted), denied, cert. never carried out? Under the lence was 84, 820, 104 78 L.Ed.2d 93 464 S.Ct. U.S. guidelines, current we think answer is Cerilli, 415, (1983); F.2d United States 603 by by yes expressed us and the reasons Cir.1979) (3d (“where extortion under 425 Judge Stapleton thoughtful in his concurr right charged, one need not color of official ence.18 prove payment that was obtained denied, force, duress”), 444 fear or cert. U.S. (1980). E.

1043, 728, 728 100 S.Ct. 62 L.Ed.2d case, guilty found Askari was departures that under believe We teller, Ellen robbery. The bank of bank that in 5K2.13 exclude conduct USSG Ishizaki, robbery as follows: described force, force, or intimi volves actual threat up the middle dation, The fellow came to window under rea latter two measured Therefore, money up put to our person “non and he asked us standard. sonable counter____ thing said the same [H]e offenses” under USSG 5K2.13 violent pressed again. point At I the alarm per- not those which do involve a reasonable robberies, bank, regardless entiy way application of its current state of and in no limits its habitation, crime"). a federal burglaries, not covered under other or felonies Brown, Act"); sections (Felonious 36, (3d Cir.1976) Nevertheless, impedi- intent is appears F.2d there to be no taking by part drawing force and Sentencing of the crimes of "made Commission’s ment ([subsection] sentencing, purposes violence or intimidation this distinction. For a-first denied, (emphasis paragraph)") supplied), cert. "non- Commission could delete the requirement 52 L.Ed.2d 389 from USSG 431 U.S. S.Ct. violent offense” States, Or, (1977); application could condition v. United Williams Cir.1962) (With respect threat of vio- the second 5K2.13 on an unrealized 2113(a), guidelines, we Congress But current paragraph the "intent of lence. presently exists. entry attempted no distinction believe to make unlawful was button, pushed alarm. the silent He then because he did not commit a “non-violent window, way my his offense.” over to asked me for he, know, money you and then and I judgment We will affirm the of conviction finally then still hesitated and he told me I and sentence. give my money. had him three seconds my him gave money____ And then I [I STAPLETON, Judge, concurring: Circuit he had his hand in scared] [b]ecause I, too, Although question, it is a close am his shirt know if going and didn’t he was persuaded phrase the content of the or, pull gun you on me or a out knife offense,” as used in “non-violent U.S.S.G. know, was, know, point you 5K2.13, should be determined refer- seared. phrase ence to the definition “crime of 14a). teller, (App. at when told 4B1.2.1 violence” also conclude U.S.S.G. that she had three seconds to hand over the a downward is not authorized money by who someone had his hand in his However, by § 5K2.13 in this case. I reach shirt, ordinary person was fearful. An by that route conclusion a somewhat differ- position reasonably bank teller’s could infer a by ent from that the court. followed bodily threat of harm from Askari’s demand Looking Having scope that and actions. at the concluded of the elements conduct, phrase surrounding offense” in crime and the “nonviolent U.S.S.G. Askari by scope did 5K2.13 is not commit a “non-violent offense.” not controlled of the phrase violence” in “crime of U.S.S.G. Askari as a was sentenced “career offend- one must determine whether Aska- ¶ (Presentence 33). Report er.” robbery ri’s bank offense constitutes “non- applies only if 5K2.13 Askari’s criminal purposes violent offense” for the of U.S.S.G. history does not a need for indicate incarcer- § 5K2.13.1 conclude that it does not because protect ation public. Even if this bank robbery necessarily federal bank conviction robbery were classified as a non-violent of- finding involves a that the offense involved fense, may qualified Askari still not have for actual force or a threat of force and such a departure. a USSG 5K2.13 Askari’s crimi- finding, my view, precludes characteriza- history crimes, nal other violent in- contains tion of the offense as a non-violent one for robberies, cluding suggest- two armed bank purposes §of 5K2.13.1 ing may incapacitation necessary. his be (See (district App. noting court at 56a “[t]he took The dissent note not Poff long history crime, Defendant ... requirement 5K2.13’s that the offense of including violent crime----the criminal his- “non-violent,” conviction be but also of its tory pretty score in takes him this case much requirement the defendant’s criminal top range”); to the of the Presentence Re- history protect not indicate need to ¶¶ 18-32).19 port public. together, requirement Read this dual suggested dissenting judges to the

F. leniency 5K2.13 was intended to authorize Accordingly, hold Askari for who we could not those individuals suffer from dimin- qualify capacity for under USSG ished mental contributed to (1) another, person presence 19. Askari's criminal convictions include or bank or obtains or (1974); (2) robbery gunpoint robbery gun- attempts any by property to obtain extortion or point and the Uniform violation of Firearms Act money thing any belonging or other of value (1980); (3) (1982); (4) possession theft of a to, control, case, custody, manage- or in the (1983). (See by firearm a felon convicted Presen- of, ment, bank, union, possession any or credit 29-32). ¶¶ Report tence any savings or association. and loan public suggested While it that a has been official robbery” I use the term in the tradition- "bank may robbery by be bank able to "extort- commit robbery proscribed al sense. bank Traditional violence, ing” bank a threat of funds without by 2113(a) paragraph of 18 first U.S.C. regard would not traditional this as bank provides: which position application and I on the would take no [w]hoever, violence, by force and or intimi- §of 5K2.13 in such a case. dation, takes, take, attempts or from the dissent both take history of Chatman long so as neither the crimes their Poff sentencing should of the crime the view that court nor the character the defendant underlying Against facts to determine incapacitation. look a need for indicated ultimately the offense was background, the dissent non-violent. Poff although agree, helpful I believe it offense” “one that a “non-violent concluded court to take note of the mayhem did not occur”—one that in which conviction, essential elements of crime of not entail violence.” 926 “in the event did elements suggests not because those control 595. This conclusion F.2d at cases, leniency offense of 5K2.13 issue all but rath- is available where the U.S.S.G. findings necessarily implicit unrealized er because involved sort of conviction may preclude being long so as the defendant’s a conviction threat of violence meaning “non-violent offense” within the history does not indicate need criminal Moreover, § 5K2.13.2 I take a U.S.S.G. incapacitation. scope somewhat different view of similarly read Chatman phrase “non-violent offense.” leniency to authorize intended charged Askari was whose diminished mental for those paragraph of 18 long so as neither the first U.S.C. their crimes contributed 2113(a). taking, history That offense consists of nor the criminal indicates the crime take, value, rejected, anything incapacitation. attempting It howev- need for intimidation, violence, by er, that unre- force and position dissent opinion As court’s demon- cannot render an extortion. the threats of violence alized strates, requirement property that the be one. In the view of the a violent court, “by “by taken either force and violence” offenses never “[s]ome Chatman may, requires proof of force or physical in nonethe- intimidation” resulted violence offense, less, exceedingly threat of force as an element that a defendant is indicate incapacitated.” determining in whether intimidation is dangerous, be and should Thus, question ordinary sentencing present, if is whether an position reasonably a in the victim’s that “an offense involved person court determines bodily a harm as could infer threat real and serious threat of violence—such notes, weapon,” As court deadly it acts. also with a should defendant’s an assault term as used in 18 U.S.C. not offense” “extortion” that it is a “non-violent conclude 2113(a) obtaining property from an- Id. In the case means purposes of for court, person, person’s other con- without the the defendant had other before the Chatman sent, wrongful of actual a use by handing a teller induced robbed a bank note Thus, force, violence, stated, “People or fear. money will or threatened demanding every is the defendant con- I of this bank.” Id. ease which get hurt if don’t walk out para- robbery the first of bank The case was remanded to the victed at 1447. 21Í3(a), beyond a graph of there will be a presumably for a determination district court finding doubt that the defendant state of mind. reasonable of the defendant’s is, course, (1) scope obligation of that 5K2.13 will exclude from consistent with the 2. This (i.e. accept sentencing sentencing judge section exclude from consideration for capacity) necessarily offenses implicit based on diminished purposes facts Boggi, "crimes of violence” under jury’s F.3d that would not be verdict. United States 4B1.2(1), (3d Cir.1996) ("the against as where force district U.S.S.G. [court] 478-79 verdict, guilty person thereof is not an properly 'a of another or threat ... reasoned that aside, (e.g., transportation pur- sentencing accept essential element binds the set conduct), ") poses prohibited but necessarily implicit sexual such in the verdict.' the facts used, (2) Weston, is fact and will (quoting 212, force or threat thereof from United States (i.e., Cir.1992)). (1st approach scope include include in the of that section While this departure) offenses that produces as candidates for such the same result in U.S.S.C. violence” under U.S.S.G. it is would be "crimes of case as that reached 1.2(1), burglaiy produce 4B as the offense analytically different where and will distinct approach, against person of another or threat no force Under this in other situations. results employed. used in U.S.S.G. thereof is “nonviolent offense” as engaged reasonably- specific violent conduct offense characteristic increase for perceived involving as a threat of violence. actually those situations in which violence occurs.4 dissent,

Under the view taken the Poff finding the defendant’s my understanding conduct was It is that robberies in- reasonably perceived involving volving a threat of involving violence and all robberies violence relevant to whether the of- traditionally threats of violence have purposes fense is “non-violent” one for regarded equal of been as of seriousness be- court, reject 5K2.13. Like the Chatman necessarily cause threats of violence hold clearly that view. unacceptably high Section 5K2.13 evidences risk of realized violence an intent that there depar- emanating be no downward from the or from robber grounds ture on capaci- diminished mental attempting respond others to the threat. ty incapacitation where appears necessary to unacceptably high Because an risk of actual- protect and, public, many instances, injury ized violence and attendant exists threat of violence strong will be evidence of regard without to whether the defendant ex- such a violence, need. pected to society commit our traditionally considered that factor to ir- issue, presents While a closer I also culpability relevant to the defendant’s in a reject the Chatman court’s view that when- robbery context. ever a 5K2.13 motion is filed in a bank involving case not agree actualized vio- with the view that the limitations lence, Commission intended on the authority downward con- court to determine whether ferred preclude 5K2.13 are intended to the threat was a lenity only serious one that would have incapacitation where no need for been acted on however, had events unfolded different- agree, is indicated. I do not ly. Given that person the issue turns on the Com- where a threatens violence in the intent, guidance mission’s I look for robbing course of a bank as a result of Guideline, text of “Robbery” capacity, diminished mental no need for inca- and the text of the pacitation criminal statute that is indicated in the event the sen- guideline implement. tencing judge intended to Like believes the threat was not a statutes, most paragraph (i.e., the first probably of “serious” one would not have 2113(a) § distinguish does not between situa- been carried out had events unfolded differ- actually ently). noted, tions in which violence occurs and I As have the bank situations in which it is threatened but the statute deals with in situations which there is threat regarded is not realized.3 Both are high as a risk of actualized violence and attend- degree offenses of the same injury regard of seriousness. ant without to the state of the Similarly, § distinguish Moreover, 2B3.1 does not be- § defendant’s mind. 5K2.13 deals not, tween these two situations. It does for with situations in which diminished mental example, establish a capacity base offense level for to the commission of contributed 2113(a) § Thus, provide offenses and then a applying § a crime. 5K2.13 in a bank 2113(a) (1978), § 3. provides Title 18 U.S.C. Supreme for a maxi- the Court held that subsection “ imprisonment (d) years. mum requires of 20 Title 18 U.S.C. more than an assault and that ‘the 2113(d) § provides: phrase ‘by dangerous weapon the use of a or read, regardless punctuation, device' Whoever, must be of committing, attempting in or in to modifying provision commit, both the assault and the any (a) offense defined in subsections ” putting jeopardy provision.’ (b) section, in Id. at 11-12 n. any person, of this assaults 6, Hence, goal 98 S.Ct. at 912-13 n. puts jeopardy 6. the of person by in the life of the 2113(d) device, § punish severely dangerous is not to more weapon use of a the shall be actual use of imprisoned fined violence in bank under this title or robberies under not more 2113(a), § punish twenty-five years, severely but rather than more or both. face, dangerous weapon “the punishing On its use of a this can be read as or device” in 2113(d). engage violence—specifi- robbers who in such situations. 18 U.S.C. actual cally, assault—during the commission of their severely provide specific crime more than 4. U.S.S.G. 2B3.1 those who threat- does of- en reading violence. This is not the correct fense characteristic increase when violence re- 2113(d), Simpson personal injury per however. in v. United sults but not for violence States, 435 U.S. 98 S.Ct. 55 L.Ed.2d 70 se.

553 5K2.13, §in notwithstanding is necessarily involves a crime term used robbery context However, of his I the elements crime. nev- high risk actualized violence judgment my join to re- ertheless in col- with a diminished defendant activity. leagues, history com- Askari’s criminal in- high such risk That because frain from incapaci- suggests to me need dicates that under U.S.S.G. bination appropriate me reluctant to attribute because of a tation and makes protect public. to authorize an intent need Commission departures in bank rob- 5K2.13 downward bery nothing I Because find cases. I. attribution, I compels such an Guidelines rejects majority prior The properly our reject portion of the court’s this Chatman holding in v. United States decision. (3d Cir.1990). rejection majority’s scope phrase I hold would reasoning grounded in Rosen is in “non-violent offense” U.S.S.G. Judge Easterbrook’s dissent United States scope phrase not controlled (7th Cir.1991), Poff, F.2d as well as v. 4B1.2. “crime of violence” U.S.S.G. holding in v. hold nevertheless further would (D.C.Cir.1993), F.2d 1446 and United States is not autho- 5K2.13 downward Cir.1994). Weddle, of conviction is bank rized where offense However, Maj. Op. majority robbery. parts company with insofar as those cases joins concurring opin- Sloviter those cases direct the fact-specific engage inquiry concerning ion. conduct, actual cir- defendant’s offense, surrounding the cumstances order McKEE, Judge, concurring with Circuit particular if a is “non- LEWIS, to determine joins. Judge, whom Circuit Instead, major- violent” under 5K2.13. agree majority’s conclusion that with the ity a somewhat different view the “take[s] not intend to did Commission Maj. Op. at 547. It applicable standard.” import the “crime of violence” definition inquiry limits its here to elements provision of offender U.S.S.G. the career of conviction and allows those elements crime I think the into 4B1.2 U.S.S.G. govern determination whether Aska- its rejecting prior our is correct ri a “non-violent offense” under committed holding in States v. Rosen and United § 5K2.13. majority view in United States reasons, majority “[i]f the elements by Judge The espoused E aster- favor of the view However, finding require con- the crime a of violent in I write brook in his dissent Poff duct, hardly per- majority then a valid can concludes conviction separately because finding of non- mit a sentence based on crime not a “non-violent that Askari’s Maj. Op. at 549. After of the violent conduct.” upon based the elements offense” ap- considering the elements Askari’s That inconsistent crime. majority charge, in concludes by proach taken the dissent 2113(a)1 § a crime of Judge under U.S.C. jurisdictions that have followed those deny barring any consideration as reasoning. violence Rather than Easterbrook’s § crime” under 5K2.13. Under “non-violent departure because of Askari a 5K2.13 sentencing court crime, approach, once a con- require an of his we should elements aof crime include his that the elements specifics into cludes inquiry individualized intimidation, no a defendant is violence or if his actual conduct conduct to determine fact-specific, by case longer eligible for the offense” as amounts to “non-violent thing belonging money any 2113(a) value provides, part, or other in that: U.S.C. control, to, care, violence, custody, manage- Whoever, (a) by or in the by or in- force and take, takes, of, bank, union, timidation, ment, attempts any possession or credit or another, person presence or or obtains or any savings and association. loan any by property or attempts to obtain extortion pains inquiry govern a As the Commission was estab- case that would otherwise §in whether a crime is one “significantly reduced men- lish “of Although depends on its elements and not capacity” under 5K2.13. violence” tal conduct, log- so that an majority’s approach does have a certain on the defendant’s prospect of violence make the symmetry quite appealing, that is unrealized ic and analysis violence. This is an abnormal persuaded am not under crime one of sense, It detailed ought as limited as the ma- a term of art. took a to be make it so. Then comes jority concludes. definition to 5K2.13, in which “non-violent offense” Sentencing Reform Act and the result- appears elaboration or cross-refer- without ing Sentencing Guidelines have altered the read these in their ence. Best to words relationship the offense of convic- between ordinary sense rather than as tied to the tion, sanction that follows to and the criminal A of- term art in “non-violent k.Bl.2. symmetry majori- the extent that the of the (and ordinary legal lay) fense” in under- ty’s analysis longer required appro- is no standing mayhem is one which did out, priate.2 majority correctly points As the (the prospect occur. The of violence purposes 4B1.2 and 5K2.13 are offense, guide- “heartland” of the that are relevant not the same. The factors argot) presumptive range; lines’ sets the relevant,' necessarily § 4B1.2 under are not things they out than when turn better My appropriate, or even under permissible. might, departure is colleagues majority provide very (citation omitted) (em- Poff, 926 at 594 why convincing reasoned and statement of added). phasis the definition of “crime of violence” cannot Sentencing purposes control whether a is for a “non- One of the conviction uniformity purposes violent of a downward Reform Act was increase offense” upon sentencing reducing disparities mental ca- in sen- based “reduced However, tencing. pacity.” then re- See U.S. Guidelines (U.S.S.G.). Manual, A, meaning pt. stricts the of “non-violent” offense ch. A3 However, very '§ important purpose definition that it another was to apply proportionality sentencing holds does not under that Guideline. increase im- posing repre- 4B1.2 defines “crime of violence” to different sentences for crimes Section senting culpability. include offense that “has as an element different levels of Id. use, use, attempted seemingly contrary goals, or threatened use of To reconcile these However, Commission, alia, today adopt provided force.” we inter for de- physical reasoning partures guideline range. Easterbrook’s dissent outside of the policy Poff, upon and the relied 5K2.0. A that restricts eases have U.S.S.G. rationale, departures solely upon it. Under that based elements consider “all the facts and circum- of an offense is inconsistent "with the should Com- deciding attempt apportion stances of a case in whether a crime mission’s sanctions ” upon culpability. Although is a ‘non-violent offense’ under 5K2.13. based we properly F.2d at 1453. we con- conclude that one Once who commits by restricting culpable clude that we erred in Rosen more serious crime is more than one, of one a less “non-violent offense” to the definition who commits serious violence,” longer equation no “crime of we need tether does not work where the more ser- analysis to in ious crime is committed one who our 5K2.13 the definition is less just rejected. culpable capac- 4B1.2 that we have This because of a reduced mental ity. justice system point Judge long is best illustrated Easter- “The criminal has who, persons in brook in his dissent meted out lower sentences to Poff: —Watts, 243, U.S.-, (1997) (Guide 118 S.Ct. 139 L.Ed.2d 173 2. See United States v. 633, (1997) (sentencing S.Ct. 136 L.Ed.2d 554 a defendant to be sentenced based in lines allow jury court consider conduct of which part upon contained in counts of an conduct acquitted imposing a defendant a sentence pursuant that were dismissed to a indictment Baird, conviction); following v. bargain). plea — denied, U.S.-, (3d Cir.), 109 F.3d 856 cert. insane, dant, particular technically as in the de- manifested although not Poff, single he their actions.” tails of crime that or she has full command J., committed, (Easterbrook, dissenting). through is best reached fact- F.2d at 594 Moreover, prison specific investigation. resources “[s]carce when de- space greater achieve deterrence (citations omitted). Id. respon- against who are most ployed those Likewise, Appeals the Court of for the system’s legal threats and who sive to Ninth Circuit in United States Cantu was danger if not greatest deterred.” pose the sentencing inquiry persuaded that a court’s Id. at 595. eligibility into a defendant’s under 5K2.13 Chatman, Thus, which the here should be with toward undertaken view Maj. Op. approval, see cites with (9th Cir.1993) lenity. 12 eligible was for a court held that a defendant (citation omitted). There, agreed the court § 5K2.13 even downward analysis in with the and noted that (like Askari) before the sen- though he came “[l]enity purpose appropriate is because the robbery. bank tencing court convicted of compassion is of 5K2.13 to treat with some There, opined had that the the district court capacity those in whom a reduced mental ineligible was for a 5K2.13 de- defendant to of a crime.” contributed the commission given he a teller a parture because had Although Id. court in was con- Cantu robbery. threatening during the bank note post-traumatic cerned with whether stress concluded that the de- The capacity disorder could cause reduced mental to amounted conduct therefore fendant’s with under the Guidelines not Id. 1447. The Court of of violence. crime offense,” defendant committed “non-violent upon Appeals for the D.C. Circuit relied fact-specific inqui- recognized the court Judge and re- Easterbrook’s dissent to determine both ries must be undertaken 5K2.13 versed. court reasoned mental condition and the cir- defendant’s sentencing court with broad discre- vested a also, offense. See United cumstances con- all the relevant facts tion to consider (3d McBroom, States the Commis- cerning offense because Cir.1997) (“Section is to cre- 5K2.13 intended lenity purpose “to those sion’s treat significantly lenity ate for those whose re- capacity’ ‘reduced mental individuals whose them commit capacity mental cause duced commission of a crime.” [sic] contributed conviction.”). Id. at 1452. Thus, ineligi- that Askari is not conclude purposes of section contrast solely because ble for a point section The record shows of his conviction. leniency treat with those individuals whose that, under- although Askari had his hand mental contributed to reduced bank neath he ordered the his shirt when lenity a crime. Such commission of give money, employ- two bank teller to him because, part appropriate submit, ees him from the bank. chased out, points primary two of the Easterbrook just therefore, genuine issue as to there is punishing an individual rationales for intimidating dur- frightening he was how and deterrence— incarceration—desert However, I ing of the crime. the commission applied of their relevance when lose some the intimidation of the do not minimize capacity---- to those with reduced Maj. Op. teller whom confronted. See Askari Instead, the teller’s reaction should

at 539. context, evi- along with all of the other the term be assessed in this Considered whether, concluding upon based in section 5K2.13 re- dence “non-violent offense” circumstances, that, act, Askari commit- totality of the fers those offenses § 5K2.13. dangerous, ted a “non-violent offense” that reveal a defendant make that deter- incapacitated A court should and therefore need not independently con- of the definition would mination period of time the Guidelines above, (which, as 4B1.2 noted A determination tained otherwise recommend. offense). Bar- of the dangerousness defen- includes the elements regarding the of a considerations, eligi- ously ineligible grant of a ring a defendant’s to receive other by § bility can be deter- authorized 5K2.13 for a downward completion imposing only after the of such an mined and the order of district inquiry. prison individualized should be sentence of 210 months

affirmed. II. correctly order today The court affirms the my disagreement Despite with the conclu- court, doing path its to of the district but on majority my colleagues, agree I of the sion so, rejects My colleagues take the Rosen. af- majority’s ultimate decision to with the position defini that the “crime violence” firm the sentence because there addition- 4B1.2(a) not be used tion of USSG should departure provi- under the al considerations com to determine whether a defendant has restricted to sion. Section 5K2.13 is according mitted a “nonviolent offense” non-violent, persons offense is it also whose essentially § 5K2.13. For those rea USSG history requires that “a defendant’s criminal Sixth, Seventh, Eighth, sons stated does not indicate a need for incarceration to Ninth, Circuits, I find and Eleventh do not protect public.” See U.S.S.G. position persuasive. See United States Here, the district court noted that Askari (8th Cir.1996); 887, Mayotte, v. 76 F.3d crime, long history including had a violent 588, Poff, United States v. 926 F.2d 591-93 56a.) Therefore, agree I (App. crime. (7th Cir.1991) (en banc); v. United States regardless of whether or not the bank (11th Cir.1990); Russell, 917 F.2d robbery in this is classified as a “non- case Maddalena, 893 F.2d offense,” ineligible for the violent Askari is (6th Cir.1989); Borrayo, United States v. history criminal departure because his does (9th Cir.1989); see also Unit Thus, public. suggest protect need to 1446, 1454-55 ed States judgment majority. concur in the of the (D.C.Cir.1993) J., (D.H.Ginsburg, concur ring). GARTH, Judge, concurring: Circuit many light opinions on this issue agree of the district court that the order already Reporter, I found in the Federal feel However, I should be affirmed. reach this arguments no need to rehash the familiar by relying logic

result on the and common However, favor of Rosen3 our court’s inabil opinion for our court sense Seitz’s ity agree replace standard to Rosen (3d in United States v. 896 F.2d 789 provides perspective from which to new Cir.1990), the term and its conclusion appreciate strength. its something cannot mean “non-violent offense” opposite other than the of a “crime of vio- Having agreed reject teaching Rosen’s lence.” that a “nonviolent offense” is defined 4B1.2(a), my colleagues diverged that a defendant who has have Rosen teaches according up a “crime of violence” their efforts to come with a new defini- committed 4B1.2(a) eligible Reaching principles for a down- tion. to first is not back USSG criminology,” pro- departure for commission of a “nonviol- “modern ward capacity mulgated a ent offense” with reduced mental definition of “non-violent offense” respond that it to “the under USSG 5K2.13. See id. 791. Be- believes will need for imposed cause of a “crime of the sentence to reflect the serious- Askari was convicted violence,” offense, namely robbery, protect public, he is obvi- ness of the however, whole, arguments may Briefly, pro read as a and when the same -Rosen should be sections, First, appears should common sense word in related we as- be summarized as follows. meaning carries the same dictates that a "non-violent offense” is the con- sume the word Second, Fourth, "crime violence” is a verse of a "crime of violence.” both. the term sug- phrase appears parallel in other sections of structure of 4B1.1 broad See, e.g., gests apart be used to the Guidelines from 4B1.1. that the same definition should 2K2.1, 2K1.3, meaning §§ a defen- 4A1.1. Its assess whether the violent nature of exported support therefore can be 5K2.13 as well dant’s crime should a modification of Third, the Guidelines to these other sections. defendant’s sentence. Maj. Op. physical against use of provide just punishment.” threatened force a to rule, person, presented majority or whose behavior a seri- 547. Under potential injury physical ous risk of to oth- departures 5K2.13 exclude under USSG ers, ineligible for a were reduced sentence force, actual threat of conduct that involves capacity. By rejecting due to diminished force, intimidation, the latter two mea- or Rosen, our court has the. created need to person a standard. sured under reasonable fashion a that at can standard best Therefore, under “non-violent offenses” replicate the efforts of Commission codi- are those which do not USSG 5K2.13 4B1.2(a). fied at perception that involve a reasonable force against persons be used commit- I do some take solace the fact that the ting the majority’s evaluating new standard for de- offense. added). just Indeed, partures appears to do that. it Maj. Op. (emphasis at 549 Accord- majority gone out seems that has of its ingly, court must examine “the the district way reject in theory to Rosen but has em- surrounding the crime and the elements of Looking majority’s braced it in fact. at the there was conduct” to determine offense,” of new definition “non-violent I am perception a a actual force or reasonable of pressed a hard to think of ease in which the threat force. of produce would a definition result different concurrences, Judge Stapleton In their is, when Rosen: that a defendant’s approaches. Judge offer different McKee force, action would not involve threat “actual involving a Following conviction of crime force, intimidation, the of latter two mea- executed, threats of violence that were standard,” person a sured under reasonable Judge Stapleton have the district court would qualify but as a nonetheless would “crime underlying criminal statute and look 4B1.2(a). according violence” to USSG Chapter 2 of the the relevant section of attempt conjure up If the district court could dis- Guidelines. court’s such an example appears majori- from these an intent to award part cern texts HID of the There, lighter ty’s imagines defendants who were opinion. sentences to ex- violence, unlikely carry out by public their threats of in violation tortion official Judge Stapleton allow a defendant In would Act. order to come within the Hobbs standard, out appears unlikely public to have carried who court’s new official with eligible for a threat of violence to be down- not the result of diminished Judge drugs, acting intake voluntary ward under of alcohol or yet approach to defin- right, McKee offers another under color would have extort way ing In his concur- Act “non-violent offense.” funds in violation of the Hobbs rence, force, totality advocates a a threat of McKee that did involve test, person. judged by in which a district such a the circumstances reasonable required case, hypothesizes, to conduct an indi- that official court would be the court specifics inquiry eligible into the the would for a vidualized un- determine whether it new standard but not defendant’s conduct to the court’s a “non-violent offense.” der constituted Rosen. prosecution. it, agree never of such a inability have heard

As see our court’s any published I been to locate offense” in Nor have able on a definition “non-violent Indeed, notes, reports as the dissent of one. 5K2.13 illustrates the wisdom Rosen. majority’s 4B1.2(a), rule it is not even clear By utilizing Rosen harnessed than Rosen produce would different result Sentencing Commission’s efforts de- Dissenting Op. given a set facts. See violent and such lineate the boundaries between Thus, has pro- appears n. The Commission non-violent conduct. theory rejected not in sub- Rosen in but rule. When linked to duced a clear principles has from first simple stance: it fashioned the result was appears to mirror Rosen guidance produced a new rule straightforward every known to of facts that been defendants convicted of- set sensible results: use, so, I no reason to use, being This see involving attempted arise. fenses rule, sentencing judge. That abandon our Rosen with which five consideration agreed. because, already other circuits have as those circuits that have concluded,

rejected approach have the Rosen BECKER, Judge, Chief Circuit policies departure provisions behind the Dissenting. with) (and in are distinct from often tension the career offender and substantive offense I, II, IIIA, B, join I in Parts & C of guidelines, accordingly and that it does majority opinion, which overrule United an offense is make sense assess whether Rosen, (3d Cir.1990), States v. 896 F.2d 789 statutory “nonviolent” based on the elements that Rosen’s determination that and hold majority, crime. I would of the Unlike “non-violent offense” as used U.S.S.G. logic, logic follow that to its conclusion. That § by the defini- 5K2.13 should be controlled note, by Judge is buttressed McKee’s and tion of “crime of violence” used elsewhere incorrect. Judge concurring opinions. Guidelines was Garth’s analysis segments in these Scirica’s clearly opinion his is not sound but itself why only appropriate demonstrates logical permit course is to the district courts poli Section 5K2.13 of the Guidelines is a to consider all the facts and circumstances cy authorizing sentencing judges statement surrounding the commission of a crime when downwardly depart in circumstances when deciding qualifies whether that crime as a “suffering the offender is found to have been § non-violent offense under significantly capacity from reduced mental IIID, however, In Part holds resulting voluntary drugs from use of (and attempts explain why) we should guid other intoxicants.” is a Section 5K2.13 preclude sentencing judges granting departure, “encouraged.” one that ed is thus § departures 5K2.13 “traditional” bank States, See Koon v. United 518 U.S. 94- robbery invoking cases.1 After the Sentenc- 2035, 2045, 116 S.Ct. 135 L.Ed.2d 392 Act, ing Reform and ex- U.S.C. (1996). Although de ploring robbery the terms of the bank stat- pends upon judgment as to the extent to ute, 2113(a), 18 U.S.C. the court defines which reduced mental contributed to “non-violent offense” as those offenses offense, departure the commission percep- “which do not involve a reasonable optional, plain elements of discretion against persons may

tion that force be used ly present. committing Op. the offense.” at 549. The that: court also states ability The critical limitation on the seem, therefore, It would sentencing judge grant depar- para- convictions under the first ture is that defendant must have commit- 2113(a), graph of 18 U.S.C. a defendant not, ted a “non-violent offense.” This term is qualify could not for a notes, anywhere as the defined written____ presently USSG 5K2.13 adopted the Guidelines. we require the'elements of the crime [i]f violence,” based on “crime of definition conduct, finding of a valid violent then term of art used in the career of- hardly permit conviction could a sentence provision, fender and defined in 4B1.2. Un- finding based on a of non-violent conduct. 5K2.13, permits like which 548, 549. Id. at judges leniency appropriate to exercise circumstances, § 4B1.1 mandates a cer- any persuasive I do not believe that there tain class recidivist offenders receive the support categorical reasons to exclusion possible harshest sentence under the circum- from 5K2.13 of offense conduct by ratcheting up the criminal stances both analysis segments of Part III first specific history have otherwise left to fact and base offense levels. would 2113(a). paragraph adopt Judge Stapleton's U.S.C. 1. I reference to "tradi- the first of 18 proscribed Op. (Stapleton) See Concurr. at 548. tional" bank as that conduct (Easterbrook, dissenting). A at 595 Fur- J. ther, legal “[b’Jecause sanctions are less that, by applying Rosen was The effect of persons suffering effective men- with to “non- “crime of violence” standard the the abnormalities, system punishment a tal of analysis, the offense” violent based deterrence also curtails its sanc- statutory ele- judge would bound the be Id. tion.” ... determining of the whether ments offense “significantly an [W]hen individual with re- This is crime “nonviolent.” because the capacity” pose duced mental does not a “crime of is defined as an offense violence” danger public, and thus does use, use, attempted “has an element the incapacitated, need to be that individual is physical against use of force or threatened eligible departure. for a downward 4B1.2; person of another.” U.S.S.G. the context, Considered in this term Poff, the also United States v. 926 F.2d see (7th Cir.1991) (en banc) (Easterbrook, J., “non-violent offense” in re- section 5K2.13 594 act, (“[Wjhether that, to fers those offenses the dissenting) a crime is one ‘of reveal dangerous, defendant is not depends on its elements not on violence’ conduct.”). incapacitated actually and therefore need not be for the defendant’s What period relevant; the of time the would is the need Guidelines happened recommend____ otherwise A of determina- only look the elements of offense regarding dangerousness tion of a de- Accordingly, conviction. since crime fendant, particular as manifested defined to include force or bank is intimidation, 2113(a), single that he details crime or she 18 U.S.C. it could see committed, through is best reached a fact- be found to be a non-violent offense never specific investigation. Rosen construction.2 Chatman, (internal 986 F.2d at 1452 citations rejects majority The in favor of the Rosen omitted). majority recognizes The also contrary expressed in view United States foundation,finding policy U.S.S.G. Cir.1994), Weddle, 30 F.3d 540 “encourages § 5K2.13 more lenient treat- Chatman, persons actually who are not dan- ment (D.C.Cir.1993), Judge Easterbrook’s gerous but whose reduced noted dissent in These cases demon- Poff crime.” contributed to commission why necessarily examine the we must strate added). Op. (emphasis at 546 See facts of determine whether capacity” could “significantly Chatman, reduced mental policy The rationale discussed sentencing. As ground for lenience at be conjunction discretionary nature with Judge summarized in Chatman: Edwards supra, counsels discussed ability sentencing judges given must point section 5K2.13 is to treat

[T]he “re- facts of offense to deter- lenity those individuals whose to examine the with capacity” capacity depar- to the mine whether a diminished duced mental contributed end, Weddle, lenity appropriate. ture is To that commission of crime. Such Chatman, because, reject all Easter- and the dissent appropriate as Poff out, approach points primary factspecifie in favor of a two of the ratio- Rosen brook inquiry. incar- punishing nales individual (“We Court, a District therefore believe that

ceration—desert deterrence—lose deciding particular crime applied relevance when to when some their offense,’ as a ‘non-violent should capacity. qualifies with As to those reduced mental desert, sur- all the facts and circumstances “[pjersons who find difficult consider crime.”); rounding the commission conduct do not—consider- control their Weddle, (agreeing 30 F.3d at 540 dangerousness one side—de- ations Poff, 926 fact-specific approach); punishment as those who Chatman serve much (Easterbrook, J., dissenting) Poff, F.2d F.2d at 595 maliciously gain.” or for act commentary, Op. and its violence' in USSG 4B1.2 concedes as much. See ("If qualify as a 'non- would never offense in USSG 5K2.13 then 'non-violent' offense.”). term violent' defined reference to the ‘crime rob- of traditional bank refers offender convicted “non-violent offense” (concluding that found to have commit- bery could never be did not entail “crimes that event Thus, under violence.”). offense. Thus, ted a “non-violent” the essential distinction Chatman, Mu- majority’s construction of and Rosen is whether between Chatman qualify for a de- Askari could not hammad or the facts statutory of the crime definition regardless parture under will be outcome determinative.3 of the offense underlying circumstances his offense. factual rejects Yet, majority ostensibly while end, majority’s proposed “rea- To that arguments in claims to find the Rosen and does not save perception” sonable standard Chatman, Weddle, “con- and the dissent being analytically identical opinion from its fully it does not vincing,” Op. see Judge explains his to Rosen. As McKee necessary to its adopt inquiry the fact-based majority’s rea- concurring opinion, under the Instead, majority posits position. the own sentencing court concludes soning “once a “look at” the that the district court should include violence that the elements of a crime offense, do “within the but should so facts of intimidation, longer eli- a defendant is no or Act Sentencing the Reform the context of inqui- fact-specific, case gible for the case defining underlying criminal and the statute govern departure ry that would otherwise It then directs culpability.” id. at 547. See Op. Concurr. 5K2.13.” of the of- courts to “assess the seriousness (McKee) words, in In other such at 554. departure is to determine whether fense” majority us not to circumstance the directs by looking of the “to the elements warranted of the ease con- consider whether the facts surrounding conduct.” Id. at crime and the expression of vio- stitute a real or threat majority “non- holds that 548. And while lence, the crime itself is “of but whether on should be defined based violent offense” meaning of violence.” This restricts against perception that force the “reasonable very offense” “the definition “non-violent more persons be used”—which sounds majority] apply.” does not See holds [the specific inquiry—it concludes that: like a fact (McKee) Op. at 554. Concurr. approach, how this which require crime fail to see If the elements of the appears Judge Easterbrook’s rea- conduct, to credit finding then a valid of violent soning, substantially different from a is hardly permit a sentence conviction could straightforward application of Rosen or the finding of non-violent conduct. based on majority Judge aptly view in As Garth robbery victim has long as the bank So Poff. majority concurring opinion, the opines in his harm, and is seen to been threatened with reject “gone way Rosen in has out of its objective under an have been threatened theory it in fact.” See but has embraced (reasonable person), the defen- standard (Garth) Op. at 557. observe Concurr. to have acted dant cannot be found majority properly rejected Rosen in nonviolent manner. way theory, gone to em- but has out of its Id. at 549. brace it in fact. applicable provision of 18 U.S.C. Since the B 2113(a) statutory actual has as a element (the recog- important pause un- It is we force latter measured or threatened majority standard), significance of what the objective by definition an nize the der departure by scope split question broadens four 3. I note that the circuit caught presently the attention of before us has eliminating the "non-violent offense" limitation Commission, which has re- the U.S. interesting altogether. See id. It is cently proposed alternative amendments four Commission, obviously influenced the force of Rep.2051, 2078-79 5K2.13. See 62 Crim. L. dissent, explic- which it Easterbrook's Poff 21, 1998). (Jan. Option corresponds to the one references, itly appears over the to be in doubt majority Option corre- view. two Rosen—Poff many of the other best course to take. Unlike Op- sponds view. fact-intensive Chatman made in the proposals for amendment it has view, three, a variation on the Chatman tion op- proposes past, four distinct the Commission scope to exclude "defines the taking stance on this rather than a definite tions actual violence or a serious cases that involve Finally, option issue. threat of violence." Id. at notes, contrast, correctly majority consistent with its rea- today. holds As IIIC, soning majority in Part should have robbery* applicable bank element of the one Chatman. HID on modeled its result Part property takes the offender statute The facts of Chatman just like those “by “by intimi- and violence” either force presently before us. The unarmed defen- dation.” See Op. at 541. bank, passed dant walked into a teller discussed, element of the As demanding money, note vio- and threatened Muhammad Askari’s fate. that seals lence otherwise. The defendant left notes, However, prove also captured by bank without incident and was “intimidation,” government need police soon thereafter. Since it un- “ordinary person in the teller’s that an show clear from the record the district whether reasonably could infer a threat of position specific court had assessed the facts of the bodily acts.” Id. harm from the defendant’s depart, its case and exercised discretion Woodrup, (citing rejected categorically it had — denied, Cir.), cert. U.S. statutory based on (1996).) -, 136 L.Ed.2d 245 S.Ct. robbery, definition of bank D.C. Circuit diminish This means that a defendant whose resentencing. for a remanded the of the offense capacity at time ed 986 F.2d at 1454. The same result should beyond precluded be from a cavil could obtain As in the here. district despite a record that departure § 5K2.13 departure § rejected the 5K2.13 not on (a) clearly there no facts, demonstrates that was (correctly, the but because it believed (b) violence; out) there no real chance actual things pre- as have turned that it was (c) out; no being carried and one departing of violence cluded on the from based elements robbery states, Judge at the time the actual the But as bank crime. McKee Rosen, by rejected the This “we ly felt threatened defendant. once we have need no analysis § the longer consistent with desert our the result cannot be tether 5K2.13 just reject- supra § 4B1.2 have discussed definition in that we and deterrence rationales (McKee) by majority.4 Op. at 554.5 impliedly embraced ed.” Concurr. attempts opin qualify departure a majority HID of its not for under USSG 4. The Part written.”). suggest presently in which an as ion to a set of circumstances 5K2.13 robbery still could of bank offender convicted distinguish In order to itself departure. majori qualify for 5K2.13 a majority generate hypothetical a would need to ty's hypothetical, public could a official commit 2113(a) paragraph under of 18 U.S.C. the first robbery by violation of the bank extortion in capacity not a diminished that would foreclose Act, 1951(b)(2) U.S.C. without force Hobbs departure. majority has not done. See This Op. force. See at 547-549. As threat of ("While Op. (Stapleton) at n. 1 also Concurr. concurring opinion, Judge suggests Garth his suggested public a official be has been that facts, is a farfetched set of and is this somewhat "extorting” robbery by able to bank bank commit particularly helpful deciding whether the not violence, I funds without a threat of would not distinguish today majority fashions rule regard robbery as traditional bank and I this add that the able from Rosen. I would also application position would no on the take facts, although majority’s example, on its own case.”). a 5K2.13 in such robbery” appear styled as a "bank would prosecution involve Hobbs instead Judge Part IIIE and 5. Both the necessary not have element Act—which does as that we should McKee's concurrence conclude See the use of force or threat of force. United depar- also the district court’s denial of a affirm Addonizio, 1972) (3d Cir. States pursuant ture to 5K2.13 because Askari’s crim- (indicating Act violation can be based that Hobbs histoiy suggests protect public. a need to case, inal loss). In that on fear of economic eligible for a While true that be diminish- it is eligi majority’s hypothetical could be defendant requires capacity departure, § "a ed that departure for a even under Rosen. ble histoiy not If, hand, defendant’s criminal does indicate majority’s example on other public," protect the need for incarceration to prosecution under 18 U.S.C. would entail a 2113(a), while district court found Askari has majority's the terms of the own crime, long histoiy the district court did opinion would diminished seem, finding (“It expressly about need precluded. Op. make would be therefore, I believe that that robbery incarceration in case. that with convictions 2113(a) should made the district paragraph U.S.C. determination be under the first of 18 acts], [including court in the first instance. extortionate a defendant could follow the

II intended the Guidelines to “tradi- involving tional view” that crimes violence writing Stapleton, separately, also Judge involving only threats of violence crimes agrees of- that the definition “non-violent regarded being equal are as seriousness. used in 5K2.13 should not be con- fense” of the text Based an examination of both definition of of violence” trolled “crime robbery guideline robbery and the stat- provision, career offender used ute, However, he between majority, like the he con- finds no distinction realized 4B1.1. According- a downward is not threats. cludes that violence and unrealized in traditional bank cases. warranted ly, Judge concludes that Stapleton the Com- Judge Stapleton’s differs Although rationale mission to authorize did not intend downward majority’s, from the I believe somewhat departures in traditional bank cases up it still comes short. involving threats. only unrealized See id. at Hence, Judge Stapleton is of the view reasoning Judge Stapleton’s can be sum- First, involving that an rejects Judge unrealized threat follows. he marized as the findings view that could never be “non-violent.” Easterbrook’s jury guilt phase respect at the analysis disagree with this two rea- of violence or defendant’s use threats First, persuaded Judge sons. am essentially departure phase. at the irrelevant Stapleton’s findings “the reliance on neces- (Stapleton) Op. See Coneurr. at 550. sarily implicit analytically in a conviction” is believes, Stapleton majority, like the if a distinguishable Rosen approach. from the robbery necessarily en- conviction for bank necessary findings that are to a convic- jury finding tails that the con- defendant’s given always for a equiva- tion offense will least, was, reasonably perceived duct statutory lent to elements of the that of- violence, involving finding threat of a is, say implicit that fense—that a bank preclude of the of- should characterization robbery jury finding conviction is a that purposes. fense as “non-violent” there was inference of a a reasonable threat 547, 551. The See id. at difference between bodily saying harm is no different from Rosen, according Judge this view and robbery requires that the bank statute the Stapleton, is that while Rosen mandates that government prove that the victims reason- the the offense out- elements of control the Thus, cases, ably felt the threatened. it no Stapleton come in all view makes control, always sentencing the sense to that the elements do not but rath- me to hold court necessarily facts,” “findings implicit underlying er in a the con- should “look to the see may preclude” characterization of the Op. (Stapleton) viction Coneurr. at while simul- offense as “non-violent.” See id. at 551. taneously holding departure that a could be precluded by “implicit” facts—i.e. the ele- Judge Stapleton rejects Accordingly, also ments of—the conviction. reiterate the that view whenever a Chatman point Judges made both McKee and in- robbery made in a bank case motion is that Garth there is no difference between the violence, volving unrealized approach Rosen of violence” “crime opportunity make an court should have approach by depart the decision to which is independent determination whether or not per precluded by statutory se elements of a serious threat “was one that would (McKee) Op. the offense. See Coneurr. at have acted on had events dif- been unfolded (Garth) 553; Op. Coneurr. at rejection 556-558. ferently.” id. at 552.6 His See Judge Stapleton’s conclusion findings premised factual first cannot be need for such is rejection that the consistent with a Rosen. a belief Commission may suggest disagreed "exceedingly 6. the defendant is The Chatman with the that Judge dangerous” incapacitated. that to be to the extent Easterbrook’s and needs See dissent opinion suggest id. The such offenses could be read crime court described as those actually physical involve is which a real and serious threat of that does not violence "involved violence,” Chatman, example as an offense.” See and included assault "non-violent deadly weapon. id. This The court found instead that some with a determina- tion, however, actually was left to the district court. offenses that did not result in violence (Easterbrook, J., Second, Poff, 926 Judge Stapleton’s conclusion that sible. F.2d at adopted the “traditional Commission dissenting). light, whether the of- and actual violence should that threats view” actually posed fender was violent real departure con- treated same be violence, presented threat of or whether he majori- equally problematic. As the text unlikely that was to have real- threat been Chatman, analysis Poff, and Weddle ty’s ized, necessary is a central factual dis- indicates, major why reason we amply Thus, departure tinction in the it context. rejected analysis Rosen is that have necessarily does not follow that because the goals driving provisions policy robbery guideline offense does not distin- policy significantly different from the are guish between realized and unrealized vio- portions motivating the other goals provisions the departure lence that should 545-46, 546-47; Op. at see Guidelines. See similarly not make such distinction. Thus, F.2d at 1452. also policy good it sense to treat while make Moreover, it is not even obvious that the robbery use who violence offenders robbery guideline fully offense does not dis- those threaten violence for same as who tinguish between “situations which vio- computing applicable base purposes actually lence occurs and situations which level, goals impli- policy offense different threat real- it is threatened but’ the is not deci- cated when comes Op. (Stapleton) at 552. ized.” Concurr. sion, it does not neces- that context Judge Stapleton correct that sarily empty make to treat threats sense guideline, provide does not per violence as se the same. and actual specific for a base level enhancement Furthermore, Judge explains McKee 2B3.1(b)(3) However, § per se. violence concurring “Sentencing Re- opinion, the his graduated offense level increase mandates resulting Sentencing Guide- Act and the form bodily if the victim the sustained relationship between lines have altered the injury.7 recognize there can crimes conviction, and the criminal the offense violent conduct occurs but does where Op. follows.” Concurr. sanction (McKee) bodily injury, Guidelines vocabu- and thus 554. To use result this enhance- lary, the of the offense sets “heartland” squarely Staple- does not refute ment range by way sanction presumptive argument. Har- ton’s See United States v. offense In the bank base level. (3d Cir.1995) 1206, ris, (finding context, by is defined that heartland will be where the offender that there crimes Poff, prospect See mere of violence. injury bodily cause will use mace but will not (Easterbrook, J., dissenting). at 594 F.2d victims). time, At the same it seems Thus, same presumptive sanction is the plausible provision intent to read into this involved actual violence whether the offense to treat threats of the Commission serious 5K2.13, Section the threat of violence. violence the same as violence when that however, the of- is concerned with whether by injury. result Since threats does not of a for the conduct indicative need fense bodily injuries, see cannot cause themselves by given incapacitation entailed standard Sawyer, 115 indic- or whether the conduct is more offense Cir.1997) (holding psychological illness, society has of a and thus ative support injury itself cannot an enhance- Chatman, incapacitate. need a lesser 2B3.1(b)(3)), ment Commission (discussing incapacitation 986 F.2d at 1452 legitimate clearly intended treat threats rationale). Thus, “things turn out bet- when differently. Per- and substantial violence they might” and violence does ter than then, adopt occur, did not haps, Commission actually permis- becomes Bodily Injury Degree 2B3.1(b)(3) Increase in Level provides, part: 7. Section (A) Bodily Injury add bodily injury, victim increase If sustained (B) Bodily Injury add Serious according to seriousness (C) the offense level add 6 Permanent Life-Threat- Bodily ening Injury injury: of the actions Judge Stapleton’s “traditional view” whole- cavil the defendant’s were prompted by deep psychological distur- sale after all.8 that there was no real threat of bance and sum, principles In I would ad- follow my that makes no sense. violence. view vanced Weddle and per- if dissent. Even there is a reasonable reasons, foregoing respectful- For all the ception of a threat the bank teller ly Judge Nygaard dissent. Roth justifies a conviction and a base offense level join in this dissent. that is the same as if the offender had used violence, policy goals underlying

actual

Chapter Five of Guidelines are different policies underlying

from the the substantive provisions, jury’s and thus the factual necessarily pre-

determinations should not departure.

clude a

Ill O’NEILL, Bonnie A. on behalf of herself improvidence view Kerryn O’Neill; and the estate of L. highly publicized demonstrated a recent O’Neill, Appellants, Edmund J. Philadelphia area. In Decem- incident resembling in a drama the one ber us, currently mayor Darby before America UNITED STATES of Pennsylvania, Borough, a beloved and re- community, spected long-time member No. 97-7030. daylight into a local

walked broad Appeals, United States Court of robbery. and told a teller “This is a I have a Third Circuit. Sandberg, Darby bomb on me.” See Lisa Heist, Mayor Philadelphia In- Held in Bank 1,May 1998. 28, 1997, quirer, Apparently Dec. at B5. Rehearing May Denied $1,500, mayor walked out with but surren- la- dered to authorities about one half-hour BECKER, Judge, Present: Chief According police ter. investi- See id. SLOVITER, STAPLETON, MANSMANN, crime, gating mayor actually did not GREENBERG, SCIRICA, COWEN, possess a and col- bomb. See id. Friends NYGAARD, ALITO, ROTH, McKEE and leagues believe that his actions were the RENDELL, POLLAK,* Judges, Circuit per- product depression of chronic related to Judge. District Raphael sonal and financial troubles. See Sandberg, Depression Lewis & Lisa Tied to PETITION FOR SUR REHEARING Robbery, Philadelphia Inquirer, Bank Dee. SCIRICA, Judge. Circuit 30,1997, Bl, B6. (it petition rehearing by appel- If this were a federal case is not and filed be),9 having will not a district court would no lants the above-entitled case been have judges participated in grounds majority’s opinion under the to de- submitted to the who part grounds of this Court and to all the other downwards on of diminished decision judges regu- capacity. specifically, More have no available circuit of the circuit would service, grounds beyond judge if and no con- depart even it found lar active who Attorney accepting 8. Even that the Commission did not I am informed the United States court, mayor being prosecuted distinguish that the in state intend to between violent offenses prosecuted will in federal and that he involving and offenses a real to violence in threat context, court. change the that does not * Poliak, fact that court needs to examine H. The Honorable Louis Pennsyl- threat the offense conduct to determine if the District for the Eastern District of vania, enough justify being by designation, panel like rehear- was real treated who sat as to ing only. context. actual violence

Case Details

Case Name: United States v. Askari (Part II)

Court Name: Court of Appeals for the Third Circuit

Date Published: Apr 8, 1998

Citation: 140 F.3d 536

Docket Number: 95-1662

Court Abbreviation: 3rd Cir.