*

Honorable Stanley Marcus was a U.S. District Judge of the

Southern District of Florida sitting by designation as a member of

this panel when this appeal was argued and taken under submission.

On November 24, 1997, he took the oath of office as a United States

Circuit Judge of the Eleventh Circuit.

PUBLISH

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

_______________

No. 96-9176 _______________ D. C. Docket No. 1:96-CR-75-1

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

ANTHONY WAYNE WEBB,

Defendant-Appellant.

______________________________

Appeal from the United States District Court

for the Northern District of Georgia

______________________________

(April 30, 1998)

Before TJOFLAT, BIRCH and MARCUS*

, Circuit Judges.

BIRCH, Circuit Judge:

Anthony Wayne Webb appeals the 262-month sentence he

received following his conviction for attempted robbery of mail
2

matter, 18 U.S.C. § 2114(a). In vacating Webb’s sentence and

remanding this case for resentencing, we decide, in an issue of first

impression in this circuit, that a district court has the authority under

the Sentencing Guidelines to exercise its discretion to grant a

request for downward departure with respect to a defendant who

has been classified as a career offender.

I. BACKGROUND

For the purpose of resolving the issues raised in the appeal, the

facts underlying Webb’s conviction are undisputed: On January 16,

1996, Webb entered a United States Post Office and presented a

note to a postal clerk. According to Webb’s post-arrest statement,

the note indicated that this was a robbery and that the clerk should

give him all the money reserved for money orders. See Exh. 3.

Testimony at trial reveals that the postal worker screamed and ran

away after reading the note. Webb subsequently ran out of the post

office and was apprehended and arrested by two postal inspectors
1

Under this guideline provision, a defendant is a career

offender if (1) the defendant was at least eighteen years old at

the time of the instant offense, (2) the instant offense of

conviction is a felony that is either a crime of violence or a

controlled substance offense, and (3) the defendant has at least

3

within minutes of the attempted robbery. At the time this offense

was committed, Webb was fifty-one years old and had spent much

of his life committed to mental institutions or in prison.

It is also undisputed that Webb had robbed the same post

office in 1985; Webb pled guilty and was sentenced to ninety-six

months in custody for this offense. After his release on parole in

1991, Webb returned to the same post office and presented to two

postal clerks a note that was, in essence, identical to the one used

in the instant case. Following the 1991 incident, Webb was

convicted of forcibly intimidating postal service employees, in

violation of 18 U.S.C. § 111, and sentenced to thirty months’

imprisonment.

The Presentence Investigation Report (PSR) prepared in

connection with this case recommended that Webb be sentenced as

a career offender pursuant to U.S.S.G. § 4B1.1.1

 The PSR
two prior felony convictions of either a crime of violence or a

controlled substance offense. U.S.S.G. § 4B1.1.

4

specifically referenced the 1985 and 1991 post office incidents,

discussed above, as crimes of violence that justified Webb’s

qualification as a career offender. Both prior to and during the

sentencing proceeding, Webb objected to the enhancement of his

offense level based on his categorization as a career offender, and

argued that his prior conviction for intimidating a postal worker did

not constitute a crime of violence under the Sentencing Guidelines.

The government responded that the statutory offense for which

Webb had been convicted in 1991 involved force as an element;

alternately, the government posited that the conduct underlying the

federal charge, attempted robbery, necessarily implicated the use or

attempted use of force. The district court adopted the government’s

position and overruled Webb’s objection with respect to the career

offender enhancement.

Webb then moved for a downward departure in his sentence

and asked that the court reduce his sentence to approximately the
5

same level as it would have been without the career offender

enhancement. In support of his request, Webb primarily relied on

his arguments with respect to the enhancement in his sentence as

a career offender and noted that he consistently had sought through

criminal conduct only to be reinstitutionalized. The government, in

response, averred that a downward departure – particularly to the

degree sought by the defendant – was not warranted in this case.

Consistent with an implicit denial of Webb’s motion for downward

departure, the court then imposed sentence. Immediately thereafter,

Webb’s counsel stated: “Judge, we do object to the sentence

imposed for the reasons stated earlier, as well as the court’s failure

to engage in a downward departure because it agreed it couldn’t.”

R5-18. In response to this assertion, the court stated: “Let the

record so reflect. Thank you.” Id. After a short recess, the court

reconvened because the sentencing judge had neglected to inform

Webb of his right to appeal. At that time, the following exchange

took place:
6

The Court: Let the record further reflect that the

court did not grant the request Mr. Kish sought,

that I depart from the guidelines and impose a

lesser sentence, because that would be

contrary to my initial ruling earlier, and I

overrule you on the guideline issue.

However, I do feel that the guidelines in

this situation are very harsh, and I wish we

didn’t have the guideline. Maybe some

provision later on may provide the court with a

situation wherein the court, if there are

compelling reasons for doing so, can depart,

based on the court’s own assessment of what

the sentence ought to be. But in this case, I did

not find that, and for that reason I will let it

stand.

Mr. Webb: May I find out what that sentence

was again?

The Court: 262 months.

Mr. Webb: 362 months?

The Court: 262.

Mr. Vineyard: I want to make sure the record is

clear the court recognizes it has the authority to

downwardly depart but chose not to do so.

The Court: That’s what I said.
7

R5-19-20.

On appeal, Webb argues that the court erred in finding,

implicitly, that his 1991 conviction for intimidation of a postal worker,

18 U.S.C. § 111, constituted a “crime of violence” that served as one

of the two predicate offenses required to render Webb eligible for

status as a career offender. Webb additionally contends that the

district court erroneously believed that it lacked the authority to grant

a downward departure in his sentence. He further urges that the

guidelines do, in fact, authorize the court to downward depart and

that such a departure was warranted here. We address seriatim

each of Webb’s challenges to his sentence.

II. DISCUSSION

A. Career Offender Enhancement

We review a district court’s interpretation of the Sentencing

Guidelines de novo. United States v. Pinion, 4 F.3d 941, 943 (11th

Cir. 1993).
8

As noted, § 4B1.1 establishes that a defendant qualifies as a

career offender if, inter alia, he has at least two prior felony

convictions that constitute crimes of violence. The guidelines define

a crime of violence as

any offense under federal or state law

punishable by imprisonment for a term

exceeding one year that –

(I) has as an element the use,

attempted use, or threatened use of

physical force against the person of

another, or

(ii) is burglary of a dwelling, arson, or

extortion, involves use of explosives,

or otherwise involves conduct that

presents a serious potential risk of

physical injury to another.

U.S.S.G. § 4B1.2. The commentary further explicates the

definitional parameters of a crime of violence as specifically

including

murder, manslaughter, kidnaping, aggravated

assault, forcible sex offenses, robbery, arson,

extortion, extortionate extension of credit, and

burglary of a dwelling. Other offenses are
9

included where (A) that offense has as an

element the use, attempted use, or threatened

use of physical force against the person of

another, or (B) the conduct set forth (i.e.,

expressly charged) in the count of which the

defendant was convicted involved use of

explosives (including any explosive material or

destructive device) or, by its nature, presented

a serious potential risk of physical injury to

another. Under this section, the conduct of

which the defendant was convicted is the focus

of the inquiry.

U.S.S.G. § 4B1.2, comment. (n.2).

The statutory provision under which Webb was convicted in

1991, 18 U.S.C. § 111 [hereinafter § 111], provides, in relevant part,

that whoever

(1) forcibly assaults, resists, opposes, impedes,

intimidates, or interferes with any person

designated in section 1114 of this title while

engaged in or on account of the performance of

official duties . . .

. . . .

shall . . . be fined under this title or imprisoned

not more than three years, or both.
10

The final, documented judgment recording Webb’s 1991 conviction

under this statutory section describes the nature of the offense as

“Intimidation of a Postal Service Employee.” Exh. 5. 

Webb submits that the court erred in categorizing him as a

career offender based in part on his conviction for intimidation of

a postal worker because that offense does not implicate as an

element the use, threatened use, or attempted use of physical

force; in other words, Webb contends that the particular offense

conduct for which he was convicted is not a crime of violence as

that term is defined in the guidelines. In support of this

contention, Webb suggests that the plain statutory language

referenced in his judgment neither explicitly states nor contains by

reference to the statutory elements of the offense the use (actual,

attempted, or threatened) of physical force. Furthermore, because

the pertinent statutory language is unambiguous, we are precluded

from looking at the conduct underlying the conviction.
2

As noted by the government, one district court in Hawaii has

affirmed a magistrate judge’s decision to detain a defendant

indicted under § 111 without bail pending trial on the ground that

the offense with which the defendant had been charged, forcibly

interfering with a U.S. Marshal in the performance of his duties,

was a “crime of violence.” See U.S. v. Kanahele, 951 F. Supp. 921,

11

Webb’s argument is premised on two underlying principles:

First, Webb suggests that there is a legally cognizable distinction

between the terms “force” and “physical force” that differentiates

those types of crimes that may involve the possibility of “force” or

“violence” – as commonly understood and discussed in our case law

– from those that are specifically denominated “crimes of violence”

in the Sentencing Guidelines. Second, Webb assumes that the

language of § 111 is unambiguous on its face and therefore

precludes our examination of the actual conduct -- i.e., attempted

robbery -- underlying his conviction to determine whether it in fact

constitutes a crime of violence.

The government concedes that a prior conviction for

intimidation under § 111 has never been used as a predicate offense

to classify a defendant as a career offender under the Sentencing

Guidelines.2

 Nonetheless, the government submits that § 111
926 (D. Hawai’i 1995). The statutory provision at issue in

Kanahele sets forth the factors to be considered in determining a

defendant’s eligibility for release on bond prior to trial and

establishes that indictment for a “crime of violence” is to be

taken into account by the court in making that determination. See

18 U.S.C. 3142(f)(1)(A). Significantly, the definition of the

phrase “crime of violence” presented in the statute is virtually

identical to that employed in the guidelines under § 4B1.2. See 18

U.S.C. § 3156(a)(4). 

12

explicitly contains the word “force”, which modifies each of the

enumerated offenses for which a defendant could be convicted

under the statute, and therefore qualifies as a crime of violence

pursuant to the Sentencing Guidelines. In the alternative, the

government contends that the specific, actual offense conduct

underlying Webb’s indictment and conviction was a crime of

violence.

Webb’s attempt to distinguish between the terms “force,” as

used in § 111, and “physical force,” as used in the guidelines, is

not without some intrinsic appeal. Unfortunately, Webb points to

neither decisional law nor commentary within the guidelines that

isolates or differentiates these two terms, nor does he refer to any

source that specifically defines the elements of or illuminates the
13

meaning of “intimidation” as that term is used in § 111. Indeed,

we can find no case that expands upon the various types of nonphysical force that could be used to intimidate a government

official; similarly, no court has specifically distinguished those

aspects of the statute that necessarily implicate the use or

threatened use of physical violence, such as assault, from those

that may not involve such patently physical conduct. The vast

majority of cases involving a conviction pursuant to this statutory

provision concern criminal conduct that is manifestly physically

violent in nature. See, e.g., United States v. Morris, 131 F.3d

1136 (5th Cir. 1997) (assault with deadly weapon); United States

v. Garcia-Camacho, 122 F.3d 1265 (9th Cir. 1997) (assault);

United States v. DePace, 120 F.3d 233 (11th Cir. 1997) (same);

United States v. Segien, 114 F.3d 1014 (10th Cir. 1997) (assault

of corrections officer), petition for cert. filed (U.S. Aug. 26, 1997)

(No. 97-6568); United States v. Valdez-Torres, 108 F.3d 385
3

The Supreme Court had an opportunity to thoroughly examine

the legislative history of § 111 in United States v. Feola, 420

U.S. 671, 95 S. Ct. 1255, 43 L. Ed. 2d 541 (1975). Feola raised

the question of whether scienter was a required element of § 111.

In concluding that § 111 did not mandate that an assailant know

that his victim was a federal officer, the Court determined that

the statute was intended both to protect the lives and safety of

federal officers and to prevent the obstruction of the duties that

such officers perform. Although the legislative background

explored by the Court in Feola does express the concerns that § 111

likely was designed to address, this legislative history does

little to clarify whether each offense described in the statute was

intended to encompass solely physically violent conduct -- as in

assault -- or the entire spectrum of “force” that might be employed

to injure or impede a government officer in the performance of his

duties.

14

(D.C. Cir. 1997) (assault with vehicle); United States v. Matthews,

106 F.3d 1092 (2nd Cir. 1997) (assault with dangerous weapon).

Webb correctly notes that the government has rejected his

proposed distinction between “force” and “physical force” but has

not explicitly argued that § 111, particularly with regard to the

offense at issue here, is ambiguous on its face. Notwithstanding

this fact, we believe that the question of whether physical force

necessarily is an element of intimidation under this statutory

provision is ambiguous. The statute itself does not contain any

definitional, explanatory text that might shed some light on the

intended scope of the words “forcible” or “intimidates.”3

 The
15

dictionary defines the word “intimidate” as, inter alia, “to make timid;

fill with fear . . . ; to force into or deter from some action by inducing

fear.” The Random House Dictionary of the English Language, (2d

ed. 1987). We readily can imagine circumstances in which an

individual is able to induce fear by either physical means (i.e., the

threat of actual physical violence) or non-physical means (for

example, the threat of economic harm). Even assuming that we

adopt Webb’s argument that a legal distinction exists between

different types of force, we nonetheless cannot say with certainty

whether “forcible intimidation” under § 111 contains, as an element,

the use, attempted use, or threatened use of physical force.

Having found the statute to be ambiguous with regard to this

issue, we must look to the conduct underlying Webb’s conviction.

See United States v. Spell, 44 F.3d 936, 939 (11th Cir. 1995) (“[A]

district court only may inquire into the conduct surrounding a

conviction if ambiguities in the judgment make the crime of violence

determination impossible from the face of the judgment itself.”) It is
16

undisputed that the conduct that gave rise to Webb’s 1991

conviction for forcible intimidation was, as in the instant case,

attempted robbery. As previously noted, the Sentencing Guidelines

expressly denominate robbery as a crime of violence under § 4B1.2.

We are bound by the guidelines’ specific reference to this offense as

constituting a crime of violence, see Stinson v. United States, 508

U.S. 36, 42-43, 113 S. Ct. 1913, 1917-18, 123 L. Ed. 2d 598 (1993),

and therefore affirm the district court’s decision to sentence Webb

as a career offender.

 

B. Downward Departure

Generally, a defendant may not appeal a district court’s

refusal to depart downward. United States v. Baker, 19 F.3d 605,

614-15 (11th Cir. 1994). A defendant may appeal the court’s

failure to downward depart, however, on the ground that the court

erroneously believed it lacked the authority to depart. Id. at 615.
17

Webb posits that, in this instance, the district court denied his

request for a downward departure on the ground that it believed it

lacked the authority under the guidelines to grant such a request.

Webb further suggests that the relevant guideline provision does, in

effect, authorize a sentencing court to depart downward based on a

finding that a defendant’s career-offender classification overrepresents the seriousness of his prior criminal history or his

likelihood of recidivism. The government argues that a close

reading of the sentencing transcript reveals that the court, having

understood its authority to depart from the guidelines, considered

the factors pertinent to this particular case and determined that a

downward departure was not justified. The government concedes

that, given specific factual findings that might warrant a departure,

the guidelines theoretically do authorize a court to grant a

defendant’s request to downward depart.

First, our independent review of the sentencing transcript

reveals that the sentencing judge, at the very least, was bewildered
18

and ambivalent as to whether the guidelines authorized a downward

departure in this instance. We are cognizant of the government’s

assertion that, during the sentencing proceeding, the government

never seriously contested the authority of the court to depart

downward but argued that the extent of the departure sought by

Webb was excessive. The record also makes evident the attempt

of both the government and defense counsel to “clean up the record”

and extract from the court a statement clearly indicating its position

with respect to whether a departure was authorized in this instance.

Nonetheless, the court never provided a clear indication one way or

the other; indeed, the court appears to have agreed with both the

proposition that it lacked the authority to depart, see R5-18, as well

as the proposition that it had the discretion to depart but chose not

to do so in this case, see R5-20. Our ability to evaluate the court’s

reasoning for denying Webb’s request is further hindered by the

court’s speculation that “[m]aybe some provision later on may

provide the court with a situation wherein the court, if there are
19

compelling reasons for doing so, can depart, based on the court’s

own assessment of what the sentence ought to be,” R5-19,

juxtaposed with its observation that “in this case, I did not find that,

and for that reason I will let [the sentence] stand.” Id. As noted, the

record is far from clear as to the rationale underlying the court’s

denial of Webb’s request for downward departure; on balance,

however, the record more strongly suggests that the court believed

that it was not authorized to depart downward in this case. We

therefore resolve the ambiguity reflected in the record with respect

to this issue in favor of the defendant and conclude that the court’s

decision was based on its belief that it lacked the discretion to grant

Webb’s request for a departure. See United States v. Hadaway, 998

F.2d 917, 919 (11th Cir. 1993) (“Although the record is somewhat

ambiguous, it appears that the district court declined to depart

downward because it lacked the authority to do so rather than

because it determined that the facts did not warrant a departure.”)
4

Again, it is worth restating that the government’s position

in this appeal is that the district court understood its authority

20

We further conclude that the guideline provision pursuant to

which Webb seeks a departure in his sentence, U.S.S.G. § 4A1.3,

does authorize such a departure under certain circumstances. This

provision permits a court to depart either downward or upward

from a defendant’s prescribed sentence “[i]f reliable information

indicates that the criminal history category does not adequately

reflect the seriousness of the defendant’s past criminal conduct or

the likelihood that the defendant will commit other crimes . . . .”

U.S.S.G. § 4A1.3. Webb correctly notes that our circuit has never

explicitly held that § 4A1.3 confers on the sentencing court the

authority to depart downward, given the findings articulated above,

in the specific case of a defendant who has been classified as a

career offender. Consistent with every other circuit to have

addressed this issue, we now hold that § 4A1.3 does authorize the

sentencing court to downward depart regardless of a defendant’s

status as a career offender under § 4B1.1.4

 See e.g., United States
to depart but chose not to. The government does not challenge

Webb’s contention that § 4A1.3 does, in fact, authorize a court to

grant a defendant’s request for downward departure.

21

v. Shoupe, 35 F.3d 835, 839 (3rd Cir. 1994) (“[W]here a defendant’s

offense level has been augmented by the career offender provision,

a sentencing court may depart downward in both the criminal history

and offense level categories under § 4A1.3.”); United States v.

Reyes, 8 F.3d 1379 (9th Cir. 1993) (“Since it is well established that

a downward departure from career offender status is permissible .

. . we look only to the circumstances of this case to determine

whether the district court’s stated basis for departure is

appropriate.”) (citation omitted); United States v. Clark, 8 F.3d 839,

843 (D.C. Cir. 1993) (“The circuits that have confronted the issue

unanimously agree that the policy statement in § 4A1.3 permits a

downward departure . . . for those who would otherwise qualify as

career offenders . . . . Thus the district court was well within its legal

authority in basing its downward departure on this factor.”); United

States v. Rogers, 972 F.2d 489, 493 (2nd Cir. 1992) (“Contrary to
5

Our decision in United States v. Gonzalez-Lopez, 911 F.2d 542

(11th Cir. 1990), cert. denied , 500 U.S. 933 (1991), is not

inconsistent with our conclusion with respect to this issue.

Although Gonzalez-Lopez involved a request for downward departure

by a defendant classified pursuant to the Sentencing Guidelines as

a career offender, our rejection of the district court’s decision

to grant the defendant’s request was based solely on our

determination that the court’s stated reasons for departing

downward did not support such a departure; stated differently, we

held that the rationale enunciated by the court to justify its

decision to depart downward was contrary to both the text of the

guidelines and our prior decisional law. 

22

the government’s argument, there is nothing unique to career

offender status which would strip a sentencing court of its sensible

flexibility in considering departures.”) (internal quotation marks

omitted); United States v. Bowser, 941 F.2d 1019, 1023 (10th Cir.

1991) (“As a threshold issue, we agree . . . that the Sentencing

Guidelines permit the district court to depart downward from career

offender status.”); United States v. Brown, 903 F.2d 540, 545 (8th

Cir. 1990) ([Although] the government contends the guidelines

prohibit departure in all career offender cases . . . [t]he overall policy

provisions of the guidelines make clear that the Sentencing

Commission did not intend to so completely restrict sentencing

judges in this area.”5
23

We therefore conclude that the district court erroneously

believed that it lacked the discretion to depart downward in this

instance and, further, that § 4A1.3 does authorize a sentencing court

to downward depart given the appropriate factual determinations.

We express no view as to whether a downward departure should, in

fact, be granted in this case, but hold that the district court may

exercise its discretion to decide whether such a departure is

warranted with respect to Webb.

Accordingly, we VACATE Webb’s sentence and REMAND for

resentencing consistent with this opinion.