1997 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

3-5-1997

United States v. Askari

Precedential or Non-Precedential:

Docket 95-1662

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Recommended Citation

"United States v. Askari" (1997). 1997 Decisions. Paper 55.

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1

 FOR PUBLICATION 

 UNITED STATES COURT OF APPEALS 

 FOR THE THIRD CIRCUIT 

 ___________ 

 NO. 95-1662 

 ___________ 

 UNITED STATES OF AMERICA 

v. 

 MUHAMMAD ASKARI, 

 Appellant

 ____________________________________________ 

 Appeal from the United States District Court 

 for the Eastern District of Pennsylvania 

 D.C. Criminal No. 92-cr-00288 

 __________________ 

 Submitted Under Third Circuit LAR 34.1(a) 

 November 6, 1996 

 Before: BECKER, McKEE and GARTH, 

 Circuit Judges. 

 (Filed March 5, 1997) 

 _______________ 

 OPINION OF THE COURT 

 _______________ 

Per Curiam. 

 Muhammad Askari appeals the sentence imposed by the 

district court for his bank robbery conviction on the grounds 

that the court erred in refusing to grant a downward departure 

for diminished capacity under § 5K2.13 of the Sentencing 

Guidelines. Askari rests his argument on the facts that the 

unarmed bank robbery was non-violent and that he has a welldocumented history of serious psychiatric illness. 

 Askari's mental illness at the time he committed the 
2

bank robbery is not at issue. Indeed, prior to his sentencing, 

the district court found that Askari was not mentally competent, 

and committed him pursuant to 18 U.S.C. § 4244(d) to a federal 

institution for psychiatric care and treatment.1 After the 

warden at the U.S. Medical Center for Federal Prisoners at 

Springfield, Missouri, certified that Askari had recovered and 

was again mentally competent, the court sentenced him to 210 

months in prison, to be followed by three years supervised 

release. 

 The facts regarding the bank robbery are also not at 

issue. On April 23, 1992, Askari walked into the First Bank of 

Philadelphia at 1424 Walnut Street shortly after 2:00 p.m. He 

went to a closed teller's window and said two or three times, 

"Put the money on the counter." He then went to the window where 

bank teller Ellie Ishizaki was working and said, "You have three 

seconds to give me the money." Ishizaki gave him bait money. 

Askari then took the money and ran out the door. The tellers did 

 

1. Dr. Edward Guy examined Askari to assess whether he was 

competent to stand trial. Dr. Guy initially concluded that 

Askari was suffering from paranoid schizophrenia in partial 

remission, drug addiction, and seizure disorder. However, he 

still concluded that Askari was competent to stand trial. 

Following a second psychiatric evaluation before Askari's 

sentencing, Dr. Guy testified that Askari was not competent. 

Noting Askari's "history of serious mental illness," Dr. Guy 

found that Askari was too delusional to be able to cooperate with 

his attorney. The district court then ordered that Askari be 

committed. After two years of treatment at the U.S. Medical 

Center for Federal Prisoners at Springfield, Missouri, Askari was 

diagnosed as suffering from "Schizophrenia, Paranoid Type 

currently in remission with antipsychotic medication." The 

report noted that Askari initially "exhibited delusional thinking 

and auditory hallucinations" which improved with medication. The 

report concluded that Askari had been restored to competency. 
3

not see Askari carrying any weapon, and Askari did not use any 

force or make any verbal threats to harm anyone. He did, 

however, have his hand underneath his shirt. Two bank employees 

together with a Center City Special District employee chased 

Askari. They caught him on the 1400 block of Locust Street. 

Police later found the bait money in Askari's pants. They did 

not recover a weapon. 

 At sentencing, defense counsel argued for a downward 

departure based on Askari's mental illness. The court refused to 

grant the departure. First, the court ruled: 

I cannot depart downward for diminished capacity at the 

time of the offense based on the guidelines 

as I read them. They at least contain a 

policy statement that a downward departure 

for diminished capacity is limited to non 

violent offenses. 

* * * 

-- you're doing it [requesting a downward departure] 

against the backdrop of a commission that 

says no downward departure for diminished 

capacity at the time of the offense, if the 

offense is a violent crime. 

The court then went on to reject counsel's motion for a downward 

departure based on unusual mitigating circumstances not 

adequately considered by the guidelines. Finding that the 

guideline range was 210 to 240 months, the court imposed a 

sentence of 210 months in prison. 

 Askari's contention on appeal is that his unarmed bank 

robbery was a non-violent offense because he did not use any 

force or violence, verbally threaten anyone, or hurt anyone 

during the robbery. Askari, the argument continues, clearly 
4

suffered from diminished mental capacity. He had a long history 

of serious psychiatric illness and was diagnosed as paranoid 

schizophrenic. In Askari's submission, the court should have 

ruled that it had authority to depart downward under U.S.S.G. § 

5K2.13, which permits downward departures for diminished capacity 

if the defendant committed a "non-violent offense." 

 The district court, nevertheless, was quite correct in 

its holding. In United States v. Rosen, 896 F.2d 789, 791 (3d 

Cir. 1990), we held that the district court did not have the 

authority in a bank robbery sentence to depart downward because 

that offense is not a "non-violent offense." We so concluded by 

looking to a separate guidelines provision, § 4B1.2, which 

defines robbery as a "crime of violence." Although the circuits 

are split on this point, we are bound by our prior holding. 

Third Circuit Internal Operating Procedure 9.1.2

 The judgment of the district court will be affirmed. 

United States of America v. Muhammad Askari, No. 95-1662

 

2. Four other circuits have reached the same conclusion that 

this court reached in Rosen. United States v. Mazotte, 76 F.3d 

887, 889 (8th Cir. 1996); United States v. Poff, 926 F.2d 588, 

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

Maddaleny, 893 F.2d 815, 819 (6th Cir. 1989); United States v. 

Borrayo, 898 F.2d 91, 94 (9th Cir. 1989). However, two circuits, 

following Judge Easterbrook's dissent in Poff, have 

concluded that the "non-violent offense" requirement of § 5K2.13 

is not governed by the "crime of violence" definition contained 

in § 4B1.2. United States v. Weddle, 30 F.3d 532, 540 (4th Cir. 

1994); United States v. Chatman, 986 F.2d 1446, 1450 (D.C. Cir. 

1993). 
5

Becker, Circuit Judge, concurring. 

 Because of our decision in Rosen, and the constraints 

imposed on me by our internal operating procedures, I join the 

opinion and judgment of the court. I write separately because I 

believe that our decision in Rosen, that a downward departure is 

not available under §5K2.13 of the Sentencing Guidelines in 

relation to a crime, the commission of which involves no violence 

in fact, is incorrect and should be reconsidered by the Court en

banc. 

I. 

A. 

 Our discussion of the issue in Rosen was brief: 

Defendant contends that his crime was, in fact, non-violent 

because it did not involve physical force. Crimes of 

violence, however, include situations where force is 

threatened but not used. In other contexts, crimes of 

violence have been defined as offenses that have “as an 

element the use, attempted use, or threatened use of 

physical force. . . .” 18 U.S.C. § 16 (1988) (emphasis 

added); see U.S.S.G. § 4B1.2, comment. (N.1). 

Defendant would have us conclude that § 5K2.13's use of 

the term “non-violent” means something other than the 

opposite of a crime of violence. 

 

 We can find no support for such a contention and 

therefore find no error in the district court’s 

determination that defendant’s crime was not “nonviolent.” See United States v. Borrayo, 898 F.2d 91 

(9th Cir. 1989); cf. United States v. Poff, 723 F.Supp. 

79 (N.D. Ind. 1989). Consequently, guideline § 5K2.13 

does not authorize a downward departure for this 

defendant’s mental condition. 

United States v. Rosen, 896 F.2d 789, 791 (3d Cir. 1990). 

 The linchpin of Rosen, which I believe the panel 

accepted uncritically, is the proposition that the definition of 

"crime of violence" contained in § 4B1.2, which is the career 
6

offender provision, governs the meaning of "non-violent offense" 

in § 5K2.13. But the Rosen panel did not have the benefit of the 

arguments so incisively made by Judge Easterbrook, in his 

dissenting opinion in United States v. Poff, 926 F.2d 588, 593-96 

(7th Cir. 1991) (en banc), which have subsequently been adopted 

by the D.C. and Fourth Circuits. See United States v. Weddle, 30 

F.3d 532, 540 (4th Cir. 1994); United States v. Chatman, 986 F.2d 

1446, 1450-52 (D.C. Cir. 1993). These three opinions have 

explained why the definition of "crime of violence" contained in 

the career offender provision does not govern the meaning of § 

5K2.13, and have concluded that a sentencing court "must consider 

all the facts and circumstances of a case in deciding whether a 

crime is a 'non-violent offense.'" Chatman, 986 F.2d at 1453; 

see Poff, 926 F.2d at 594-96; Weddle, 30 F.3d at 540. I find 

these arguments, which I shall outline briefly, to be wholly 

persuasive. I also add some of my own. 

B. 

 I perforce begin with a description of the applicable 

Guidelines provisions. Section 5K2.13 of the Guidelines 

provides: 

If the defendant committed a non-violent offense while suffering 

from significantly reduced mental capacity not 

resulting from voluntary use of drugs or other 

intoxicants, a lower sentence may be warranted to 

reflect the extent to which reduced mental capacity 

contributed to the commission of the offense, provided 

that the defendant’s criminal history does not indicate 

a need for incarceration to protect the public. 
7

Section 5K2.13 does not define “violent” or “non-violent.” The 

only related definition contained in the guidelines is that found 

in the Career Offender Section, § 4B1.2: 

(1)The term "crime of violence" means any offense under federal 

or state law punishable by imprisonment for a term 

exceeding one year that -- 

 (i)has as an element the use, attempted use, or 

threatened use of physical force against 

the person of another, or 

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

extortion, involves use of explosives, 

or otherwise involves conduct that 

presents a serious potential risk of 

physical injury to another. 

The commentary to this section recites: 

2."Crime of violence" includes murder, manslaughter, kidnapping, 

aggravated assault, forcible sex offenses, 

robbery, arson, extortion, extortionate extension 

of credit, and burglary of a dwelling. Other 

offenses are included where (A) that offense has 

as an element the use, attempted use, or 

threatened use of physical force against the 

person of another, or (B) the conduct set forth 

(i.e., expressly charged) in the count of which 

the defendant was convicted involved use of 

explosives (including any explosive material or 

destructive device) or, by its nature, presented a 

serious potential risk of physical injury to 

another. Under this section, the conduct of which 

the defendant was convicted is the focus of 

inquiry. 

The term "crime of violence" does not include the offense of 

unlawful possession of a firearm by a felon. 

Where the instant offense is the unlawful 

possession of a firearm by a felon, §2K2.1 

(Unlawful Receipt, Possession, or Transportation 

of Firearms or Ammunition; Prohibited Transactions 

Involving Firearms or Ammunition) provides an 

increase in offense level if the defendant has one 

or more prior felony convictions for a crime of 

violence or controlled substance offense; and, if 

the defendant is sentenced under the provisions of 

18 U.S.C. § 924(e), §4B1.4 (Armed Career Criminal) 

will apply. 
8

C. 

 The position adopted in Rosen may be seen in its best 

light through the lens of Judge Flaum, in his opinion for the 

six-five en banc Poff majority of the Seventh Circuit. Judge 

Flaum argues that, because the “Guidelines should be read as a 

whole"; because the root word employed in both provisions is the 

same; and because § 4B1.2 does not limit its definition of 

“crimes of violence” to situations involving a career offender, 

the definition of “crimes of violence” in § 4B1.2 must govern the 

meaning of “violent offense” in § 5K2.13. Poff, 926 F.2d at 591. 

To hold otherwise, he reasons, would result in an absurdity, for 

a crime could constitute both a “crime of violence” and a “nonviolent offense.”3 Id. 

 

 

3Judge Flaum rejects Poff’s contention that the Commission’s 

failure to define “non-violent offense” in § 5K2.13 suggests that 

“the Commission meant different things by `violent offense’ and 

`crime of violence.’” He observes that: 

[c]ourts often say that the choice of different words reflects an 

intent to say something different. See, e.g., 

Zabielski v. Montgomery Ward & Co., 919 F.2d 1276, 1279 

(7th Cir. 1990). But here the Commission used the same 

word -- “violence.” True, in one case it used a 

negative construction -- “non-violent” -- and in the 

other case used a prepositional phrase containing the 

noun “violence” as a modifier rather than using the 

simpler adjective “violent” -- but the root, and 

meaning, are the same in both cases. . . . “[A] rather 

heavy load rests on him who would give different 

meanings to the same word or the same phrase when used 

a plurality of times in the same Act . . . .” United States v. 

Montgomery Ward & Co., 150 F.2d 369, 377 (9th Cir. 

1945). Appellant cannot meet that burden by asking us 

to tease meaning from the Commissions’s use of a 

prepositional phrase rather than an adjective. 

Poff, 926 F.2d at 591. 
9

 Judge Flaum finds further support for his position in 

the Armed Career Offender provision of 18 U.S.C. § 924, which 

defines “the term `violent felony’ to include any crime that has 

as an element the use, attempted use, or threatened use of 

physical force against the person of another, 18 U.S.C. § 

924(e)(2)(B)(i), a definition that mirrors that of ‘crime of 

violence’ in 18 U.S.C. § 16 and in § 4B1.2 of the Guidelines.” 

Poff, 926 F.2d at 592. Because little discernible difference 

separates a “violent felony” and a “violent offense,” Judge Flaum 

concludes that “had the Commission desired to distinguish among 

types of violence, it would have expanded its vocabulary. At a 

minimum, it would have offered a technical definition for each 

term.” Id. 

 Judge Flaum draws additional strength for his 

interpretation from his perception of the Commission’s policy 

choices: 

The Guidelines reflect the view that those who have a history of 

crimes of violence merit increased incarceration, and 

include those, like appellant, who have threatened 

violence in that category of defendants. In addition 

to limiting the authority of courts to decrease the 

sentences of defendants with reduced mental capacity to 

cases in which the defendant committed a non-violent 

offense, § 5K2.13 further circumscribed the authority 

of courts to depart on this basis by adding the proviso 

that “the defendant’s criminal history does not 

indicate a need for incarceration to protect the 

public.” Career offenders, by definition, fail to meet 

this condition. 

Id.

Under this view, even if a “crime of violence” and a “non-violent 

offense” were not mutually exclusive, § 5K2.13 would not 

authorize a downward departure for a career offender. If § 4B1.2 
10

did not govern the meaning of a “non-violent offense,” then a 

defendant could require additional incarceration because of his 

criminal history under § 4B1.2 and less incarceration because of 

the same history under § 5K2.13, an interpretation that Judge 

Flaum found to be so “illogical and inconsistent” that it could 

not be countenanced. Id.

II. 

A. 

 Much of Judge Flaum's opinion is couched in terms of 

linguistic analysis; however, I find such analysis ultimately 

unhelpful in resolving this difficult issue. While “crimes of 

violence” and “non-violent offense” employ the same root word, 

the phrases “readily may take meanings other than as opposites.” 

 Poff, 929 F.2d at 594 (Easterbrook, J., dissenting). More 

importantly, the distinct objectives of the two provisions at 

issue - § 4B1.2 and § 5K2.13 - counsel that the meaning of the 

former not govern that of the latter. 

 When it employed the phrase “crime of violence” in § 

4B1.2, the Sentencing Commission crafted a term of art intended 

to identify repeat offenders who deserve a longer sentence than 

others who have committed the same offense. See 28 U.S.C. § 

994(h). Longer sentences for these “career offenders” are 

“justified by the purposes of incarceration, as set out in 18 

U.S.C. § 3553(a)(2) (1988) and discussed in the Introductory 

Commentary to Part A of Chapter 4 of the Guidelines.” Chatman, 

986 F.2d at 1451 (footnote omitted). A repeat offender is more 
11

culpable than a first time offender and, therefore, deserves 

greater punishment. Moreover, longer sentences “guarantee 

incapacitation of those repeat offenders whose past records 

suggest a propensity to commit violent crimes.” Id. at 1451 

(citing 128 Cong. Rec. 26,518 (1982) (statement of Sen. 

Kennedy)). 

 In an effort to address these policy concerns, the 

Commission drafted a definition of “crime of violence” that 

captures crimes involving “an unrealized prospect of violence.” 

Poff, 929 F.2d at 594. Thus, § 4B1.2 penalizes a career offender 

for the elements of the crime for which he was charged and 

convicted and not for his actual conduct. Poff, 926 F.2d at 594 

(Easterbrook, J., dissenting); see also Chatman, 986 F.2d at 

1451. For example, courts have held that any crime that has as a 

statutory element “the threatened use of violence” constitutes a 

“crime of violence” per se, regardless of the facts surrounding 

the crime. Chatman, 986 F.2d at 1451. In the end, then, the 

phrase “crime of violence” captures crimes that are violent in an 

“abnormal sense.” Poff, 926 F.2d at 594 (Easterbrook, J., 

dissenting). 

 But when we consider § 5K2.13, we find that the phrase 

“non-violent offense” appears without definition and crossreference. Because the Commission has not provided otherwise, we 

first look to the “ordinary legal (and lay) understanding” of a 

"non-violent offense," a definition that excludes all crimes in 

which mayhem occurs. Id. (Easterbrook, J., dissenting). 

Although Judge Flaum has asserted that the definition of “crime 
12

of violence” is not limited to situations involving career 

offenders, id. at 591, the lack of a cross-reference to § 4B1.2 

is telling. The Guidelines often employ explicit crossreferencing, and “[i]t would have been easy to write § 5K2.13 to 

say that the judge may depart unless the defendant committed a 

`crime of violence.’” Id. at 594 (Easterbrook, J., dissenting). 

 For example, § 4A1.1, which guides computation of the 

criminal history category in the Sentencing Table, expressly 

adopts the definition of "crime of violence" set forth in § 

4B1.2. See 1992 U.S.S.G. § 4A1.2(p). Thus, the use of a 

different phrase suggests that the Sentencing Commission intended 

a different meaning. See Poff, 926 F.2d at 594 (Easterbrook, J., 

dissenting). Furthermore, although the Commission has recently 

amended § 4B1.2 and its commentary twice, and the controversy 

over this issue has simmered, the Commission has not suggested 

any relationship between § 5K2.13 and § 4B1.2. See 1992 U.S.S.G. 

Appendix C 253-54, 284-85 (amendments 433, 461). Against this 

backdrop, the Commission’s silence indicates that the provisions 

should be independently interpreted.4 

B. 

 

 

4The Poff majority interpreted the Commission's failure to 

reference § 5K2.13 in these amendments as tacit approval of the 

conclusion that the definition in § 4B1.2 extends to § 5K2.13. 

See Poff, 926 F.2d at 593. That position, however, rests on the 

erroneous belief that the courts of appeals have uniformly 

adopted the view espoused by the Poff majority. See, e.g., 

United States v. Spedalieri, 910 F.2d 707, 711 (10th Cir. 1990) 

(discussing application of § 5K2.13 without mentioning § 4B1.2). 

 As noted above, they ultimately have not. 
13

 The significance of the absence of an explicit crossreference is heightened by the obvious difference between the 

character of the downward departure provision and that of the 

career offender provision, a distinction of which the Commission 

was certainly aware. Section 5K2.13 is a guided departure, one 

that is thus “encouraged.” See Koon v. United States, 116 S. Ct. 

2035, 2045 (1996). Although a § 5K2.13 departure is tied to a 

judgment as to the extent to which reduced mental capacity 

contributed to the commission of the offense, a departure is 

optional, and elements of discretion permeate the provision. 

 Plainly, a Guideline provision that encourages the 

district court to exercise discretion to depart downward is the 

obverse of the career offender provision that in essence commands 

the harshest sentence possible under the circumstances by kicking 

up both the criminal history and base offense levels. This 

conclusion is not only buttressed but enhanced by the Supreme 

Court’s decision in Koon. While the commentators are not in 

agreement as to the sweep and import of Koon, see 9 Fed. 

Sentencing Rep. 1 (1996) (symposium on Koon), they agree that 

Koon does signal that the federal sentencing judges have greater 

discretion in the fashioning of departures than was previously 

thought.5 

 

 

5That the departure power also generally imports discretion 

is evident from the fact that unguided departures under § 5K2.0 

(where the case is outside the “heartland,” see 18 U.S.C. § 

3553(b) and 1992 U.S.S.G. ch. 1 part A 5-6) require the 

sentencing judge to consider the factors set forth in 18 U.S.C. § 

3553(a) which reference the kinds of (discretionary) factors that 

sentencing judges considered before the Guidelines. 
14

 Thus, the regime of departures contemplates the 

exercise of discretion by district judges to conform sentences to 

the actual crime committed, while the career offender provisions 

require judges to assume the worst. Indeed, in the course of 

identifying particular trends within an individual’s criminal 

history, § 4B1.2 appears to characterize as “crime[s] of 

violence” many offenses that, taken individually on their facts, 

might be interpreted as non-violent. As Judge Easterbrook has 

put it, while “[t]he prospect of violence (the `heartland’ of the 

offense, in the guidelines' argot) sets the presumptive range;” 

when the offender causes less turmoil than expected, “departure 

is permissible.” Poff, 926 F.2d at 594 (Easterbrook, J., 

dissenting).6 

 C. 

 In short, some factors at work in the departure 

sections of the Guidelines are in tension with those at work 

under the career offender sections, and it does not make sense to 

import a career offender-based definition of “crime of violence” 

into a departure section in the absence of a specific crossreference. Rather, it is better to permit the district courts to 

consider all the facts and circumstances surrounding the 

 

 

6As previously mentioned, Judge Flaum argues that the 

definition of “crime of violence” must govern § 5K2.13, for to 

hold otherwise would mean that a defendant could require 

additional incarceration because of his or her criminal history 

under § 4B1.2 and less incarceration because of the same history 

under § 5K2.13. Poff, 926 F.2d at 592. But this argument fails 

to understand the distinction between punishment based on the 

conduct constituting the elements of a crime and the actual 

conduct of the criminal. 
15

commission of a crime when deciding whether it qualifies as a 

non-violent offense under § 5K2.13. This rule furthers the sound 

policy of according the district courts discretion under the 

Guidelines regime wherever possible. 

 I note too that the mere fact that the case is a bank 

robbery does not make it ineligible for a § 5K2.13 departure. 

See Chatman, supra. I acknowledge that Askari had his hand 

underneath his shirt when he handed the teller the note. But he 

could not have been too frightening, because two bank employees 

chased him, which is an action they surely would have forgone had 

they thought he had a gun or was otherwise armed or dangerous. 

At all events, that determination should be a matter for the 

district court. 

 For the foregoing reasons, I believe that our decision 

in Rosen should be reconsidered by the Court en banc.