*1 s question of Walker finding jury’s on by the district court’s
liability tainted significant evidence
improper exclusion Walker did fabri-
tending to show testimony. his parts of defense
cate crucial the district court’s
Accordingly, we affirm issue and indemnification
judgment trial on the new
remand the case
liability issue. ordered.
So America, Appellee, STATES of
UNITED CHATMAN, Appellant.
McClellan 91-3294.
No. Appeals, States Court of Circuit. of Columbia
Argued Dec. 1992. March
Decided *2 2113(a) (1988),
tion of 18 appeals U.S.C. § sentence his of 37 months’ incarceration. sentencing At hearing, the District rejected request Court Chatman’s for a departure pursu- downward in his sentence ant to section 5K2.13 of the United States (“Guidelines”), Guidelines permits which sentence reductions for where the defen- offense[s]” “significantly dant suffers from a reduced capacity” to com- contributed mission of the crime. U.S.S.G. (1992). The District Court held that no departure was authorized under section 5K2.13, because Chatman used a threaten- ing robbery. note the commission of the However, appears that the District Cоurt underestimated the amount of discretion sentencing available to it in a decision in- volving Accordingly, section 5K2.13. we Chatman’s sentence vacate and remand the resentencing. case to the District Court for Background I. 22, 1991, April
On Chatman robbed $1,400 Washington, in cash from a bank Chatman, alone, acting D.C. unarmed and taxi to the told the took a cab bank and driver to for him. Chatman then en- wait bank, gave teller a tered the note and told her to it. The note demanded read Jaffee, Neil H. Asst. Public De- Federal cash, stated, $20,000 in and further “[n]o fender, Kramer, with whom A.J. Federal hurt, anything don’t do one will fool- I don’t walk Defender, brief, ap- Public was on the People get will hurt ish. if pellant. out this bank. There are us.” four of Berk, Atty., Asst. Steven N. U.S. gave envelope The teller an Chatman Atty., Jay Stephens, whom B. U.S. John R. $1,400 exploding dye containing Pelak, Fisher and Steven W. Asst. U.S. pack. left the bank without inci- Chatman brief, Attys., appellee. were hand; however, money dent pack to enter dye exploded as he was about EDWARDS, Before: BUCKLEY and awaiting then fled taxi cab. Chatman GINSBURG, Judges. D.H. Circuit building. he realized nearby into a When voluntarily surrendered trapped, he was he Opinion by for the Court filed Circuit police. Judge T. HARRY EDWARDS. subsequently pled guilty Chatman Concurring opinion Judge filed Circuit robbery, bank in violation of 18 U.S.C. D.H. GINSBURG. 2113(a). sentencing hearing At his be- EDWARDS, Judge: HARRY T. Circuit court, sought a fore the trial Chatman, departure applicable pled guilty McClellan who in downward from the robbery sentencing range bank of 37 to 46 the District Court to viola- Guidelines (June 1991) added). Hearing Transcript (emphasis of Plea question, not reach the I therefore do Chatman based incarceration. months’ Appeals ultimately if deter- the Court request on Guide- departure mines that the downward lines, that allows policy statement applicable, as to what down- would be in a situation which appropriate be- *3 departure would be ward a “non-violent has committed a defendant I of law that the rule as a matter cause suffering from diminished while offense” departure grant- would not be Specifically, capacity. mental it an act of violence in ed because was provides: handing threatening to the tell- the note If defendant committed a non-vio- the er.2 suffering signifi- from while lent offense The then séntenced Chatman re- capacity mental cantly reduced years of imprisonment months’ and two drugs or sulting voluntary use of from appeals supervised release. Chatman this may intoxicants, a lower sentence other sentence. to reflect the extent be warranted caрacity mental contribut- which reduced II. Discussion offense, pro- ed to the commission criminal histo- vided that the defendant’s appeal, argues Chatman that the Dis- On a need incarcera- ry does not indicate for incorrectly applied the Guide- trict Court public. protect tion to the the Chatman contends that lines. that, holding in “as a matter of Court erred added). (emphasis Chat- U.S.S.G. § law,” .threatening note in the the use of his diminished man offered evidence of robbery commission of an unarmed bank psycholog- form of capacity the being robbery from consid- precludes the psy- prepared by a licensed ical evaluation offense” under section ered a “non-violent argued his chologist. also agree, and remand the case 5K2.13. We offense,” crime was because light opinion. of our resentencing for weapon he no he committed the had when robbery, no one was harmed as a result Where, here, the District Court robbery, given he. and the note had depart has refused to from the Guidelines was, asserted, merely teller he an idle it lacked author the court believed threat. so, it ity merely to do not because to grant The District Court refused Chat- discretion, exercising its from refrained departure, ruling fol- man a downward subject review. See decision appellate lows: Hazel, 420, United States v. ("we (D.C.Cir.1991) may judge’s review capacity, agree to diminished I with As (or depart depart) where decision to looking government at the facts judge it that the misunderstood is evident case, of this this was a crime of violence. scope sentencing authority his under threatening presented The defendant Poff, guidelines"); United States teller; way there no note (en (7th Cir.) banc), cert. it the teller to know that was an idle — denied, —, U.S. S.Ct. threat. (1991)("a depart not to L.Ed.2d 67 decision agree I that no defendant appeal product if is the reviewable used, other than the threat force was author judge of a conclusion lacks note, he and that did surrender vol- depart"). ity to untarily by police, when confronted not, fact, and that did force he Meaning A. The “Non-Violent Of- threatening other than the note. But Under Section 5K2.1S fense” threatening itself is an act of vio- note violence, lence, primary question making a crime of raised this this impression appeal, question of first and the downward dimin- circuit, capacity inapplicable. therefore is how the term "non-violent ished (Oct. 1991) Tr.”). Transcript Sentencing Hearing ("Sentencing 11-12 meaning unrelated to "crime of should be fensе" a section 5K2.13 offense" violence," given it would have some indica The term is not applied. interpreted tion of this intention. See id. The court else anywhere in section 5K2.13 defined expressed concern that Guidelines, also without nor does section 5K2.13 courts of constraints examples "non-violent provide term, charged interpreting to that give To content fense[s]." guess left with "little to the defini would be but of courts have looked [to do] number Id. meaning." The other circuits violence" found in section as to its tion of "crime Guidelines, that section 4B1.2 con take the view which serves 4B1.2 of application of seсtion 5K2.13 add scheme trols the the sentence-enhancement part of See, See, e.g., e.g., Poff, analysis. court’s little offenders."3 for "career *4 Maddalena, 815, v. of violence" United States ("crime 893 F.2d F.2d at 591-92 926 (6th Cir.1989) 4B1.2 (relying on section of 819 section 4B1.2 and "non-violent under Rosen, F.2d at explanation); 896 mutually are fense" under section 5K2.13 without Rosen, 4B1.2 v. terms); (relying 791 on section United States exclusive inter Cir.1990) (same); support" "find no for different 789, (3d could F.2d 791 896 5K2.13). 91, pretation of section Borrayo, v. 898 F.2d 94 United States contrast, Cir.1989) (same). (9th the five compelling argument There is a dissenting judges in the Seventh Circuit’s seeking from be barred would en banc decision Poff embraced view departure under section 5K2.13 downward to de discretion the District Court’s 4B1.2 is if "crime in section of violence" section part contrapositive of "non-violent viewed as the See 4B1.2. bound section United See 5K2.13. offense" (Easterbrook, J., dis Poff, 926 F.2d at 594 Jones, 624, (7th 625 v. 932 F.2d States implicitly courts senting). At least two Cir.1991) (bank robbery in of sec violation position dissenters. share the of the Poff 2113(a) necessarily a "crime of vio Philibert, 947 F.2d States v. See United States 4B1.2); United lence" under section 1467, (11th Cir.1991) (interpreting sec 1471 749, (9th Cir.), cert. Selfa, v. F.2d 751 918 considering its rela tion 5K2.13 without 521, denied, 986, 112 111 S.Ct. 498 U.S. States v. 4B1.2); tionship to section (same); United States (1990) L.Ed.2d 532 707, (10th Spedalieri, 910 711 Cir. F.2d McVicar, (1st Cir.1990) 1 v. F.2d 907 1990) (same). We think the dissent Poff Indeed, deci (same). Ninth Circuit two approach. reasoned represents better 4B1.2 to section applying section sions convict that a defendant 5K2.13 have held majority, which the Govern The Poff robbery in violation of follow, ed of unarmed bank asks us to its decision ment based 2113(a) eligible for a down is not 4B1.2 on several factors. rely on section departure pursuant to section primarily emphasized the similar ward The court Sanchez, 933 F.2d v. United States See "crime of ity language of the the terms Borrayo, 898 Cir.1991); F.2d (9th offense," 747 con and "non-violent violence" primarily rests 94. This conclusion reading natural of at cluding that [the "[t]he contrapositives. First, section 4B1.2. components of they are two suggests terms two] 4B1.2 ex Moreover, 2 of Application Note at . ." 592. . of viol "robbery" as a "crime pressly lists opined that had the the court McVicar, 907 F.2d at Bor 1; See give "non-violent of ence." meant to Commission arson, in) dwelling, (1992) burglary or ex- (defining "career 3. See U.S.S.G. tortion, explosives, or other- offender"). use of involves “crime Under section presents serious wise involves conduct injury physical potential to another. risk of federal or state law means offense under 4B1.2(1) (1992). U.S.S.G. punishable by imprisonment for a term ex- expressly robbery" ceeding year Although is not an one that— “bank 4. use, offense, "robbery,” (i) attempted separate from has as an element the listed encompasses use, "robbery” physical force Guidelines assume use of or threatened another) robbery.” 2B3.1 of the Under section against person “bank use, or threatened rayo, 898 word against ing Commission "crime characterized merely force" robbery as specific ed States *5 S.Ct. Cir.1991), cert. includes ant to this dation," 18 U.S.C. § act lence." force According to some 4B1.2(1)(i) necessarily meaning of "by forc "has crime’s 2294, 119 L.Ed.2d "element" against facts the "threatened See as an violеnce" F.2d another defined Selfa, Wilson, interpretation, requirement (emphasis precedent statutory elements precedent, e constituting and element denied, suggests at intended person, one in section use violence, crime. 2113(a), includes courts, "of violence" person. F.2d at (and added). — see Second, regardless that that the Sentenc physical See, use, attempted unarmed (1992). Pursu U.S. 2113(a),which has "crime if any offense 751. On disregard a crime any one use e.g., Unit by been individual —, U.S.S.G. involves physical 6-7, force" within intimi of vio term bank read (4th in Borrayo, 898 have lines, decision violent violence’____”). sent there, the Guidelines commentary were ments relation greater text part attest It would instead detailed ent ‘crime § in omission a cross-reference interpretation 5K2.13 § has taken we formulations. 4B1.2, offense’ unless written to a numbering defer of violence’ the better than meaning rely on section if the among notes an this silence continuous have recognize that Commission the defendant say that the attention customary is not did But we the definition Commission not for “crime sections____ Amend- [473] been a unit argument. Although it laid as § integrated application defined § provide effort to think 5K2.13, a curious (“[bjecause 4B1.2. over 4B1.2. their easy supporting selectеd judge ... meant some committed [five] so associated whole.... defines of section As noted to write make See, e.g., ‘crime much may de- courts guide- to link differ- years aout ‘non- dis- it; *6 many crimes an “unrealized pros- that have fy prison sentences that are "at or near pect of as well. Id. For exam- violence” term authorized" for "career of maximum above, ple, as noted several courts have fenders," include those who have which statutory crime has a held that felony a "been convicted of a that is either includes the element that “threatened drug or offense and crime of violencе a necessarily force” is a “crime of physical of previously been convicted who ha[ve] 4B1.2, regardless under section either a `crime two felonies where each was See, surrounding the facts the crime. drug of violence’ or a offense. 28 U.S.C. Wilson, short, F.2d at 588. In e.g., 994(h)." Baskin, 886 United States v. depriving can read as ca- section 4B1.2 be denied, (D.C.Cir.1989), cert. doubt, of the reer offenders benefit 494 U.S. 110 S.Ct. 108 L.Ed.2d assuming In the service of and the worst. (1990). Longer for of sentences such indi- particular trends within an identifying justified by purposes are fenders ap- history, section 4B1.2 vidual’s criminal incarceration, as set out 18 U.S.C. as “crimes of vio- pears to сharacterize 3553(a)(2) (1988)5 and discussed in the that, many offenses taken individu- lence” Introductory Commentary to Part A of facts, might interpreted as ally on their be Specifically, Chapter 4 of the Guidelines. non-violent.6 prior defendant a record of crim- with [a] that motivate the policy But the concerns culpable is more than a inal behavior “crime of violence” deserving thus of definition of first offender and applicable are not to section greater punishment. General deterrence include, alia, (1) sentencing judge (holding purposes pro- F.2d at 389 that a 5. These inter "to (2) just punishment;” underlying vide to deter criminal to examine retains discretion conduct; (3) protect public “to from deciding offense is a case whether an facts of defendant____” U.S.C. further crimes of the 4B1.2). We a "crime of violence” under section 3553(a)(2). validity in this of Baskin do not address case. regard might 6. Our observation in this be read Baskin, implicitly questioning as our decision in analy- with this Consistent at 594-95. Id. discretion confers 5K2.13 Section sis, downward depar- a downward consider trial defen- “the where is disallowed a from suffers individual an where tures a history ... indicate[s] criminal capacity” dant’s mental reduced “significantly pub- protect aof for incarceration need the commission that contributed in- an when But contrast lic.” U.S.S.G. § offense.” “non-violent mental reduced “significantly of sec- point with dividual of section purposes , danger to the lenity pose those capacity” does is to treat inca- capaci- need to mental thus does “reduced public, whose individuals for eligible a crime. to commission individual pacitated, ty" contributed because, part appropriate departure. lenity is Such out, two points Easterbrook Judge context, in this Considered an punishing for rationales primary offense” term de- by incarceration—desert individual that, in the offenses to those rеfers relevance of their some terrence—lose danger is not á defendant act, reveal mental reduced those with applied to when incapacitat need not ous, therefore find desert, who “[p]ersons As to capacity. time Guidelines period ed for do not— conduct their to control difficult Poff, See recommend. otherwise would one dangerousness considerations J., dissent (Easterbrook, at 595 punishment as much side—deserve incapaci 5K2.13, “when (under ing) gain.” maliciously or act who those justification important is not tation J., dis- (Easterbrook, Poff, may be the condition mental punishment, sanc- legal Further, “[bjecause senting). A determination departure”). aof basis suffer- persons effective less tions are a defen dangerousness regarding abnormalities, system mental ing from details particular dant, manifested cur- also on deterrence based punishment commit she has he or crime that single Indeed, de- those Id. sanction.” tails its fact-specific through ted, reached is best reduced “significantly whose fendants believe therefore investigation. “volun- by the capacity” caused deciding Court, whether when intoxicants” “drugs other tary” use as a “non-violent qualifies particular consideration from excluded logically are the facts and all offense,” consider they have *7 because 5K2.13 section under the commission surrounding circumstances choice, and capacity their “diminished” crime. of the to abandon them may induce “legal threats ” Id. the case of their habits.... examination A brief Poff ’ to approach fact-specific the that reveals interpreted be must 5K2.13 Section offense” the term interpreting that, decreased with the the fact light of 5K2.13, section behind purpose the furthers desert, inca- and of deterrence relevance give con- to 4B1.2 relying on section while primary rationale the becоmes pacitation purpose. that defeats 5K2.13 to tent section were crimes whose incarcerating those for was woman disturbed mentally a Poff, In re- “significantly of result as a committed to threatening letters writing of convicted capacity.” mental duced claimed, behest, she (at the the President reduced “significantly why Consider of father) violation deceased of her ever should capacity” Circuit (1988). Seventh The U.S.C. § per- It is not that lenience. ground under sec- departure a downward that held short conditions suffering from sons defen- to the unavailable was tion 5K2.13 they dangerous; are not insanity legal gov- 4B1.2 that section Persuaded dant. and, dangerous very may be concluded 5E2.13, the erns condition,-effectively undet- the mental “crime awas crime that the defendant’s appro- may be hefty sentence A errable. because, as under and incapacitates it simply because priate the involves defined, crime cited of- further likelihood of so reduces against” physical force “threatened fenses. Court in the case District 4B1.2(l)(i); of the decision see person. U.S.S.G. § another unclear, on the based us. It is of the before theOn record F.2d at 591. Poff, transcript, how the sentencing defen- that the however, appeared case, it this case. 5K2.13 in applied section carry Court nor was able intended dant neither departure un- fact, deciding that a downward that, in In threats, suggesting her out to the was available section 5K2.13 In der offense.” a “non-violent crime was her defendant, stated: the court incapacitation instance, where such where, (and 5K2.13], agree I purpose As to serve little would [section play a reduced facts of looking at the noted, deterrence government desert and implausible case, violence. highly this a crime role), this was it seems threatening prohib- presented.a intended The Commission defendant way teller; no departure under there was note to the ait majority reached an idle But the to know was the teller (and, meaning by importing result threat. of sec- stringent policies) inadvertently, the that no the defendant agree I refuse 4B1.2 into section used, threat other than the force interpreting approach adopt such an vol- note, that he did surrender and required, 5K2.13, neither for it is po- by the confronted untarily when by the Guidelines. suggested, nor even itself threatening note But the lice.... violence, making this is an act of sum, language on the based I rule as matter violence.... Guidelines, differ of law structure that the downward [can- underlying section ing policy rationales ,9 granted... not] that a we hold and section depar considering whether to “the court that reference District Court’s under section con might lead one to warranted ture case” facts this by the way definition circum bound considered clude that the court 4B1.2.7 deciding under section of violence” “crime crime before of Chatman’s stances consider Rather, sentencing court must did not authorize section. 5K2.13 case in circumstances the facts and Govern recognize all departure. We is a “non-violent deciding a crime whether District Court argued to ment section 5K2.13 offense” facts of this case “looking at the violence.”10 a crime of plea, Guidelines.8 this is guilty Moreover, the Govern for both counsel Ap- Section Application B. to the cited appellant Baskin ment pellant’s Sentence applicability. urged its court, and trial Thus, trial court alluded since the that section Having determined fact- case,” and because ap- “facts of District Court’s not control *8 Baskin, one required by inquiry is 5K2.13, the turn to based we of section plication fact, held have circuit, those courts that that, some of In even were 8. in this at least note 7.We inquiry under the controls section 4B1.2 that section section 4B1.2 controls hold that we to underlying examined the section 5K2.13 have 5K2.13, be would nevertheless court the trial the crime whether case determine of the to facts underlying facts of the to authorized examine offense,” the where even a “non-violent grant determining to whether in the offense of definition purportedly met the issue crime at pursuant section to downward having an by virtue of "crime of violence” the jurisdiction, to in contrast In this use, "use, attempted the that element involved circuits, sentenc- "[a] of other in a number law See, e.g., physical force.” of or threatened use the facts tо ing judge discretion examine retains (concluding that & n. 5 Borrayo, at 94 898 F.2d it whether to determine predicate aof 2113(a) was robbery in violation of bank notwithstanding the violence a crime of was Commentary examining part by the a "crime predetermined guidelines’ to the case). the facts of be crimes it considers to of crimes list which Baskin, empha- at We 389. violence.” added). (emphasis at 11-12 Tr. 9. size, however, today does not our decision that at Id. 8. rely on Baskin. itself to limit not need Court District the did Court District the that might conclude “en- offense the determining whether sen imposing before facts the evaluate violence.” tailed] possibility, this accepting Even tence. the end of the however, not this would III. Conclusion matter. the reasons, we vacate foregoing the For decision court’s view, the trial In our case the and remand sentence appellant’s because, if a fact- even affirmed cannot resentencing, in Court District the to conducted, it is unclear inquiry was based opinion. foregoing the light of undertook Court the District to us whether ordered. So lenity, sec- as to viewa inquiry with that recommends. implicitly tion GINSBURG, H. Judge D. Circuit guided been have may well Court concurring: is, 4B1.2, which principles by the court, but opinion to I concur forgiving above, fаr less noted as that my view note to separately write nothing to indicate is There defendant. if Unit- obtain not case would in this result consider- took these court trial that (D.C.Cir. Baskin, F.2d v. ed States facts at the looking into account ations In circuit. of this law 1989), were not case. although that held the court Baskin trial that the it Thus, appears one is a crime whether determination nature extent misconstrued court meaning § within violence by sec- upon conferred' discretion of the made must be Sentencing Guidelines Chatman’s 5K2.13, vacate must we the elements reference first with Dis- to the the case' and remand sentence also, analyze must crime, court the district The District resentencing. trict Court in order particular case the facts whether thereupon reconsider Court should “in fact is the offense whether determine depar- a downward eligible for of violence.” crime[] [a] ture § I believe make remanding, we wish some Absent in tandem. read ought to be we differ on which point one clear “crime of vio- terms indication read might be dissent That dissent. are terms offense” lence” and does crime that suggest they are dictates sense art, common “non is a violence physical cases, key involve actually no- In both contrapositivеs. Poff, 926 See mean- offense.” “tease violent cannot We violence. tion is (“[a] J., dissenting) prepo- (Easterbrook, use of 594-95 the Commission’s ing from in which adjective.” one ... offense’ than rather phrase ‘non-violent sitional occur____ 588, 591 Poff, 926 ‘[N]on-violent did not mayhem States United is the event long Baskin Cir.1991). crimes that So (7th refers offense’ is mandat- violence.”). therefore, inquiry think a factual law, entail did not 4B1.2. pur- as well contrary ed under run a rule would such allow 5K2.13, is to which pose of notes, no other forthrightly theAs court incapacitation where departures offense" a "non-violent has defined offenses justified. Some particularly "crime of the converse anything but physical violence never resulted v. Maddale States violence." See a defendant nonetheless, Cir.1989)("[T]he indicate com may, (6th na, F.2d 815 *9 should be dangerous, guidelines and exceedingly 4B1.2 mentary is to section instance, of- Thus, an covered robbery as an offense incapacitated. includes serious 5K2.13 a real Thus provision.... involved that the fense defendant, did not a for he with to applicable assault not of violence—such threat offense"); United view, not, within non-violent in our commit weapon—is deadly (9th 742, 747 Sanchez, 933 F.2d In v. offense.” States a “non-violent compass of the оffense’ Cir.1991) ("Because `non-violent particular determining whether short, in to we defer guidelines, offense,” not defined aas qualifies
1455 ...") Court, ( Supreme A recent decision the of violence’ of `crime definition the States, 575, 110 Borrayo, 898 v. 495 U.S. Taylor v. United States United quoting (1990), Cir.1990)); (9th 2143, States L.Ed.2d 607 casts 91, United 109 94 S.Ct. F.2d (3rd Cir.1990); continuing Rosen, upon F.2d vitali 789 doubt additional v. (7th F.2d 588 Poff, 926 v. found ty Taylor, States In Court United of Baskin. Cir.1991). was not an element when violence crime, sentencing court is not prior implication of the Notwithstanding the underlying conduct. Id. at to look case, 9, page no see opinion in this court’s 600, at 2159. The Court did 110 S.Ct. contrary re in fact reached has circuit violence is say what be done when Spedalieri, v. In United States sult. crime, prior logic but element of the Cir.1990), ap (10th the court F.2d 707 provision of the jurisdiction suggests to the same for want peals declined consistently exer refusal to applied court’s should be the district Guidelines review depart downward un the court looks regard its discretion to whether cise Therefore, it did not have None solely der the elements of the crime. § upon question whether pass occasion theless, reaffirmed the this court has since to be construed 4B1.2 are 5K2.13 § v. holding of United States § Baskin. See v. Phili In States like fashion. United (D.C.Cir. Bradshaw, Cir.1991), the (11th bert, 947 F.2d Butler, 1991); also States v. sеe United departure was a downward held that court (D.C.Cir.1991). a defendant 5K2.13 for available § reaf- light post-Taylor the court’s telephone call but threatening who made Baskin, is con- panel firmation of relying upon the say whether was did not inquiry factual to conclude that a strained charged upon of the offense elements it is under 5K2.13 as required under § case, did it nor particular facts of differ- light of somewhat 4B1.2. In § relationship between at all discuss sections, underlying the two ent concerns 4B1.2. § § however, inquiry appropriate to the factual believing, If I am correct from the might different well be § circuits, other district court undеrtook inquiry the factual harmony, then the be construed must points the court pursuant to § inquiry is factual holding in Baskin Therefore, must remand- case out. compels the conclu required under § inquiry its court make for the district ed is warranted inquiry a factual sion pursuant other circuits well. The 5K2.13 as under § per question have examined the have Baskin, holding suasively criticized See, States v. Gon e.g., United however. (11th 550-51 zalez-Lopez, ("The sug Cir.1990) seems to D.C. Circuit OF AMERICAN INSTITUTE may not con sentencing
gest that court ARCHITECTS, Appellant, prior conviction when of a the facts sider v. offender but determining status as a career prior the facts it can review & FIRE CASUALTY INTERSTATE determining aрpropri when conviction COMPANY. cannot believe departure. ateness of No. 91-7167. re such a intended that the Commission Appeals, States Court John, 936 sult"); also United see States Circuit. District of Columbia Cir.1991) (3rd (noting that "it is F.2d 764 pointless, for but only impermissible, 25, 1992. Argued Nov. through to the defen to look 16, 1993. Decided March where actual criminal conduct" dant’s essential for a crime an prior conviction is *10 use or threatened of which is the
element
force).
fra
this circuit’s
that Chatman
lence"
of
4B1.2
tion
duced
sentencing court
der
whether
us
“non-violent.”
),
to this
section
circumstances
fense"
should
within
we are
Government
has committed
reject
departure for
conclusion.
particular
govern
Rather,
capacity."
therefore
thus
Several
the Government’s
meaning of section
has broad
persuaded
cannot be
examine
section
asks
offense
we
considerations
case to determine
application
a "crime
"significantly
believe
ineligible
us to
notes
discretion
5K2.13, and
all the
was
a "non-violent
hold
position
of vio
section
in fact
for a
facts
lead
sec
un
re
Poff,
For
more
senting).
Guidelines
violence"
adopted
computation
ry in the
§§
its
Commission
gest
these
mutually
4A1.1(f),
commentary twice
neither
instance,
significant
lack
phrases
by section
exclusive.
of a
4A1.2(p)
relationship between
has amended
time did
section
section
at
explicit
so
cross-reference
because
definition
criminal
tightly
(1992).
4A1.1
Table).
the Commission
(Easterbrook,
4B1.2. See
4B1.2
cross-referencing.
section
so
history
last two
that
(which guides
Moreover,
of "crime
many of
See
4B1.2
is all
expressly
they are
U.S.S.G.
catego
J.,
section
years,
sug
dis-
and
Guidelines
Sentencing Commission
of States
structure
the text
startWe
(1992)
253-54, 284-85
Manual,
C
Appendix
Guidelines
Nothing in the
Guidelines.
majority
461). The
(amendments
sug-
Application Notes
or in
themselves
mention
failure to
the Commission’s
took
to control
is meant
4B1.2
section
gests
property of
points ”[i]f
number
certain
to vari-
Guidelines,
assigns
levels
offense
which
taken..’..”
...
institution
financial
sentencing
"robbery,” a
forms
ous
(1992).
2B3.1(b)(l)
§
U.S.S.G.
level
the offense
to increase
instructed
ap
of criminal conduct dictates that a clear
in these amendments
section 5K2.13
message
society
repeated
that section 4B1.2
sent to
for the
be
proval
conclusion
5K2.13,
Poff, 926 F.2d
aggravate
see
criminal
the need
governs
behavior will
position rested on the erro
but that
punishment
with each recurrence.
appeals
have
belief that the courts
neous
A, Introductory
Pt.
U.S.S.G. Ch.
Com-
espoused by
view
uniformly adopted the
(1992). Furthermore,
mentary
lоnger sen-
Spedalieri, 910
majority. See
the Poff
guarantee incapacitation
tences
of those
(discussing application of sec
at 711
repeat
past
sug-
offenders
records
whose
mentioning
tion
without
gest propensity
to commit violent crimes.
4B1.2).
(statement
Cong.Rec. 26,518 (1982)
See
Second,
sup
significant policy concerns
Kennedy) (stating,
introducing
of Sen.
port
that section 5K2.13 and sec
the view
994(h),
progenitor
U.S.C.
interpreted indepen
“[sjhrinking
resources
law enforcement
entirely
the sections address
dently, for
targeted
incapacitating”
must
those
factor that has not been
different issues — a
crimes) (cit-
repeatedly
who
commit violent
construing
opinions
in most
sec
considered
Note)
(Background
ed in U.S.S.G. 4B1.1
594-
Poff, 926 F.2d at
tion 5K2.13. But see
(1992)).
(Easterbrook, J., dissenting). Section
concerns,
Reflecting
policy
these
the def-
a determination as to wheth
4B1.2 involves
inition of “crime of violence”
is a "career offender" and
er an individual
distinctively
is a
crafted “term
higher
receive a
sentence
should therefore
art,”
(Easterbrook, J.,