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. e du/thir dc ir c uit_1998/71CORRECTED REPRINT

Volume 1 of 2

Filed April 8, 1998

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 95-1662

UNITED STATES OF AMERICA

v.

MUHAMMAD ASKARI, Appellant

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

Submitted Pursuant to Third Circuit LAR 34.1(a) November 6, 1996 Before: BECKER, McKEE and GARTH, Circuit Judges

Argued En Banc October 29, 1997 Before: BECKER, Chief Judge; SLOVITER,* STAPLETON,
MANSMANN, GREENBERG, SCIRICA, COWEN, NYGAARD, ALITO, ROTH, LEWIS, McKEE, and GARTH, Circuit Judges

(Filed April 8, 1998)

___________________________________________________ ______________

*Judge Sloviter was Chief Judge of the Court of App eals for the Third Circuit at the time this appeal was argued. Judge S loviter completed her term as Chief Judge on January 31, 1998.DAVID L. McCOLGIN, ESQUIRE

ROBERT EPSTEIN, ESQUIRE (ARGUED) Defender Association of Philadelphia
Federal Court Division Lafayette Building, Suite 800
437 Chestnut Street Philadelphia, Pennsylvania 19106-

2414

Attorneys for Appellant

STEPHEN J. BRITT, ESQUIRE (ARGUED) Office of United States Attorney 615 Chestnut Street, Suite 1250 Philadelphia, Pennsylvania 19106

Attorney for Appellee

OPINION OF THE COURT

SCIRICA, Circuit Judge.

This case involves an interpretation of the sentenc ing guidelines. The issue on appeal before the en banc court is the continuing vitality of our opinion in United St ates v. Rosen, 896 F.2d 789 (3d Cir. 1990), addressing S 5K 2.13 of the United States Sentencing Commission, Guidelines Manual (Nov. 1997) which permits a downward departu re based on diminished capacity where the crime is non violent. The specific issue requires us to examine the meaning of "non-violent" offense under the sentenci ng guidelines.

Although resolution of this case would not necessar ily compel reexamination of Rosen, much has been writte n by other courts of appeals since our decision eight ye ars ago. The en banc court affords us the opportunity to rev isit the issue and modify our views.

2I.

A.

Muhammad Askari appeals his sentence for bank robbery under 18 U.S.C.A. S 2113(a) (West Supp. 199 7), contending the district court should have granted h im a downward departure for diminished capacity under US SG S 5K2.13 because (1) the unarmed bank robbery was n onviolent and (2) he has a well-documented history of serious psychiatric illness.

Askari's mental illness at the time he committed th e bank robbery is not at issue. Indeed, before sentencing, the district court found that Askari was not mentally c ompetent and committed him, under 18 U.S.C. S 4244(d), to a federal institution for psychiatric care and treatment.1 Af ter the
warden at the U.S. Medical Center for Federal Priso ners at Springfield, Missouri certified that Askari had rec overed and was again mentally competent, the court sentenc ed him to 210 months in prison. (See App. at 58a, 68a) .2

___________________________________________________ ______________

1. Dr. Edward Guy examined Askari to assess whether he was competent to stand trial. Dr. Guy initially concluded that As kari was suffering from paranoid schizophrenia in partial remission, drug a ddiction, and seizure disorder, but he concluded that Askari was competen t to stand trial. Following a second psychiatric evaluation before As kari'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 distric t court then ordered Askari's commitment. After two years of treatment a t the U.S. Medical Center for Federal Prisoners in Springfield, Missou ri, Askari was diagnosed as suffering from "Schizophrenia, Paranoi d Type currently in remission with antipsychotic medication." The repor t noted that Askari initially "exhibited delusional thinking and audito ry hallucinations," which improved with medication. The report conclude d that Askari was now competent. (See App. at 62a-67a, 68a).

2. Askari qualified as "a career offender in that h e was at least 18 years old at the time of the instant offense, the instant offense [was] a felony involving violence and the defendant [had] at least two prior felony
convictions for crimes of violence." Presentence Re port P 33. (See App. at 56a (district court noting, during sentencing, Aska ri "has a long history of crime including violent crime . . . . the crimin al history score in
this case takes him pretty much to the top of the range" but concluding "[b]ecause I am satisfied that the low end of the s entencing range will provide a sufficient deterrent and punishment I am going to sentence him at the bottom of the range with the discretion I have")).

3The facts regarding the bank robbery are not in dis pute.

On the afternoon of April 23, 1992, Askari entered the First Bank of Philadelphia at 1424 Walnut Street in Phila delphia. He approached a closed teller's window and said two or three times, "Put the money on the counter." Then, he went to an open window and told the bank teller, Ellen I shizaki, "You have three seconds to give me the money." Afte r Ishizaki gave him bait money, he ran out the door. Askari was not seen carrying a weapon, nor did he use forc e or make specific verbal threats of harm. When he deman ded money from bank teller Ishizaki, however, he had hi s hand underneath his shirt. Two bank employees along with a Center City Special District employee chased Askari and caught him two blocks away. Police later found the bait money in Askari's pants. They did not recover a wea pon. (See Presentence Report PP 5-8).

Askari was indicted for bank robbery, and, on July 10, 1992, was found guilty by a jury. At sentencing, de fense counsel argued for a downward departure based on As kari's diminished mental capacity, citing his history of s erious psychiatric illness and his diagnosis as a paranoid schizophrenic. The district court declined to grant the departure, explaining that the sentencing guideline s "contain a policy statement that a downward departu re for diminished capacity is limited to non[-]violent off enses . . . . [the] commission says [there is] no downward depart ure for diminished capacity at the time of the offense, if the offense is a violent crime." (App. at 45a). The court also rejected defendant's motion for downward departure based on unusual, mitigating circumstances not adequately considered by the guidelines.3

___________________________________________________ ______________

3. See USSG S 5K2.0, p.s. (permitting the impositio n of a sentence outside the range established by the guideline "if the court finds `that there exists an aggravating or mitigating circumsta nce of a kind, or to a degree, not adequately taken into consideration by the Sentencing Commission in formulating the guidelines that shoul d result in a sentence different from that described' ").

4B.

Askari appealed his sentence, contending the unarme d bank robbery was a non-violent offense because he d id not use force or violence, or verbally threaten or harm anyone during the robbery. A panel of our court rejected A skari's arguments and affirmed the district court:

In United States v. Rosen, 896 F.2d 789, 791 (3d Cir. 1990), we held that the district court did n ot have the authority in a bank robbery sentence to depa rt downward because that offense is not a `non- violent' offense. We so concluded by looking to a sep arate guidelines provision, [USSG] S 4B1.2, which defines robbery as a `crime of violence.' Although t he circuits are split on this point, we are bound by our prior holding.

United States v. Askari, No. 95-1662, 1997 WL 92051 , at *2 (3d Cir. Mar. 5, 1997), Order Vacating Opinion and Granting Rehearing En Banc, Mar. 27, 1997.

Nonetheless, we recognized disagreement among the courts of appeals whether the "crime of violence" d efinition contained in USSG S 4B1.24 governs the "non-violent " offense requirement of USSG S 5K2.13:

Four other circuits have reached the same
conclusion that this court reached in Rosen. United States v. Mayotte, 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 State s v. Maddalena, 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 Easte rbrook's dissent in Poff, have concluded that the "no n-violent

___________________________________________________ ______________

4. USSG S 4B1.1 enhances the offense level for "car eer offenders." See USSG S 4B1.1, comment. (backg'd.) (28 U.S.C.S 994(h ) "mandates that the Commission assure that certain `career' offende rs receive a sentence of imprisonment `at or near the maximum term author ized.' " USSG S 4B1.1 implements this directive by employing a de finition of career offender that tracks in large part the criteria set forth in 28 U.S.C. S 994(h)). USSG S 4B1.2 provides definitions for te rms used in USSG S 4B1.1, including "crime of violence."

5offense" requirement of S 5K2.13 is not gove rned by the

"crime of violence" definition contained inS 4B1.2. United States v. Weddle, 30 F.3d 532, 540 (4 th Cir. 1994); United States v. Chatman, 986 F.2d 14 46, 1450 (D.C. Cir. 1993).

Askari, 1997 WL 92051, at *2 n.2.

In a concurring opinion, Judge Becker, recognizing our controlling precedent in Rosen, suggested "that our decision in Rosen, that a downward departure is not availabl e under S 5K2.13 of the sentencing guidelines in relation t o a crime,
the commission of which involves no violence in fac t, is incorrect and should be reconsidered by the Court e n banc." Askari, 1997 WL 92051, at *2 (Becker, J., concurring). According to Judge Becker:

While `crimes of violence' and `non-violent offense' employ the same root word, the phrases `read ily may take meanings other than as opposites.' More importantly, the distinct objectives of the two provisions at issue -- S 4B1.2 and S 5K2.13 -- counsel that the meaning of the former not govern th at of the

latter.

* * *

In short, some factors at work in the depar ture
sections of the Guidelines are in tension wi th those at work under the career offender sections, and it does not make sense to import a career offender-b ased definition of `crime of violence' into a dep arture section in the absence of specific cross-reference. Rather, it is better to permit the district courts to cons ider all the facts and circumstances surrounding the comm ission of a crime when deciding whether it qualifie s as a non- violent offense under S 5K2.13.

Id. at *4-6 (citations omitted). We vacated our pan el
decision in Askari for reconsideration en banc.

II.

The able district judge, following our decision in United States v. Rosen, 896 F.2d 789 (3d Cir. 1990), deter mined

6that he lacked authority to depart downward.5 We re view

for "abuse of discretion." See United States v. Sal ly, 116 F.3d 76, 78 (3d Cir. 1997). By definition, a distri ct court
"abuses its discretion when it makes an error of la w. That a departure decision, in an occasional case, may ca ll for a legal determination does not mean, as a consequence , that parts of the review must be labeled de novo while o ther parts are labeled an abuse of discretion." Koon v. United States, 116 S. Ct. 2035, 2047-48 (1996) (citations omitted).
"The abuse of discretion standard includes review t o determine that the discretion was not guided by err oneous legal conclusions." Id. at 2048.

III.

A.

1.

USSG S 5K2.13, a policy statement permitting downwa rd departures,6 provides:

___________________________________________________ ______________

5. See App. at 45a ("I cannot depart downward for d iminished 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 off enses").

6. "The Guideline Manual contains three [types] of text: guidelines provisions, policy statements and commentary." Unit ed States v. Corrado, 53 F.3d 620, 624 (3d Cir. 1995). "When a c rime is covered by the Sentencing Guidelines, the sentence is computed based not only on the relevant guidelines, but also on the Sentencing Commission's policy statements and commentary." United States v. Thomps on, 70 F.3d 279, 281 (3d Cir. 1995) (per curiam) (citing United Stat es v. Bertoli, 40 F.3d 1384, 1404-05 (3d Cir. 1994)).

The Supreme Court has stated "[t]he principle that the Guidelines Manual is binding on federal courts applies as well to policy statements." Stinson v. United States, 508 U.S. 36, 42 (1993). " Furthermore, where `a policy statement prohibits a district court from ta king a specified action, the statement is an authoritative guide to the mean ing of the applicable guideline.' " Corrado, 53 F.3d at 624 (citing Willi ams v. United States, 503 U.S. 193, 201 (1992); United States v. Reilly, 33 F.3d 1396, 1424 n.1 (3d Cir. 1994)). See, e.g., United States v. Br annan, 74 F.3d 448, 454 n.9 (3d Cir. 1996) ("both the Policy Statements and the Commentary in the Sentencing Guidelines are binding on the federa l courts") (citation omitted).

7If the defendant committed a non-violent of fense

while suffering from significantly reduced m ental capacity not resulting from voluntary use of drugs or other intoxicants, a lower sentence may be w arranted
to reflect the extent to which reduced menta l capacity
contributed to the commission of the offense , provided that the defendant's criminal history does n ot indicate a need for incarceration to protect the public

.

USSG S 5K2.13, p.s. (emphasis supplied).

"Non-violent offense" is not defined in either USSG S 5K2.13 or the commentary.7 But the term "crime of violence" is defined in the "career offender" provi sions of Chapter 4.8 USSG S 4B1.1 enhances the offense level for

___________________________________________________ ______________

7. The sentencing guidelines describe departures:

The sentencing statute permits a court to de part from a guideline- specified sentence only when it finds `an ag gravating or mitigating circumstance of a kind, or to a degree, not adequately taken into consideration by the Sentencing Commission i n formulating the guidelines that should result in a sentence different than that described.' 18 U.S.C. S 3553(b). The Commiss ion intends the sentencing courts to treat each guideline as carving out a `heartland,' a set of typical cases embodyin g the conduct that each guideline describes. When a court finds an a typical case, one to which a particular guideline linguistically applies but where

conduct significantly differs from the norm, the cou rt may consider whether a departure is warranted.

USSG Ch. 3, Pt. A, intro. comment.

8. Chapter 4 of the sentencing guidelines addresses criminal history:

The Comprehensive Crime Control Act sets fo rth four purposes of sentencing. (See 18 U.S.C. S 3553(a)(2).) A defendant's record of past criminal conduct is directly relevant to tho se purposes. A
defendant with a record of prior criminal behavior is more culpable than a
first offender and thus deserving of greater punis hment. General deterence of criminal behavior will aggravat e the need for punishment with each recurrence. To protect the public from further crimes of the particular defendant, the like lihood of recidivism

and
future criminal behavior must be considered. Repeated criminal
behavior is an indicator of a limited likeli hood of successful
rehabilitation.USSG Ch.4, Pt. A, intro. comment.

8career offenders, and USSG S 4B1.2 provides definit ions for

terms used in USSG S 4B1.1, including "crime of vio lence":

The term `crime of violence' means any offen se under federal or state law, punishable by imprison ment for a term exceeding one year, that --

(1) has as an element the use, attempted use , or threatened use of physical force against the person of another, or

(2) is burglary of a dwelling, arson, or ext ortion, involves use of explosives, or otherwise inv olves conduct that presents a serious potential ri sk of physical injury to another.

USSG S 4B1.2(a).

An accompanying application note expands on this definition with concrete examples:

`Crime of violence' includes murder, manslau ghter, kidnaping, aggravated assault, forcible sex offenses, robbery, arson, extortion, extortionate exte nsion of credit, and burglary of a dwelling. Other of fenses are included as `crimes of violence' if (A) that offense has an element the use, attempted use, or threat ened 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 involve d use of explosives (including any explosive material or destructive device) or, by its nature, prese nted a serious potential risk of physical injury to another.

`Crime of violence' does not include the off ense of unlawful possession of a firearm by a felon.

USSG S 4B1.1, comment. (n.1) (emphasis supplied).9 If
"non-violent" offense in USSG S 5K2.13 is defined b y

___________________________________________________ ______________

9. While USSG S 5K2.13 is a policy statement, the s pecific definitions of "crime of violence" that accompany USSG S 4B1.2 in the application notes are "commentary." See United States v. McQuil kin, 97 F.3d 723, 731 (3d Cir. 1996) ("Commentary in the guidelines i s binding unless it
runs afoul of the Constitution or a federal statute , or is plainly

erroneous or inconsistent with the section of the guidelines it purports to interpret") (citation omitted), cert. denied, 117 S . Ct. 2413 (1997).

9reference to the term "crime of violence" in USSG S 4B1.2

and its commentary, then bank robbery would never q ualify
as a "non-violent" offense.

The general application principles articulated in t he Introduction to the sentencing guidelines supply a list of definitions "that are used frequently in the guidel ines and are of general applicability (except to the extent expressly modified in respect to a particular guideline or po licy statement)." USSG S 1B1.1, comment. (n.2). But, "no nviolent offense" and "crime of violence" do not app ear in
this list of definitions. The Introduction also dic tates that "[d]efinitions of terms also may appear in other se ctions. Such definitions are not designed for general appli cability; therefore, their applicability to sections other th an those expressly referenced must be determined on a case b y case basis." USSG S 1B1.1, comment. (n.2).

2.

Askari was convicted of bank robbery in violation o f 18 U.S.C.A. S 2113(a):

[w]hoever, by force and violence, or by inti midation, takes, or attempts to take, from the person or presence of another, or obtains or attempts to obtain by extortion any property or money or any other thing of value belonging to, or in the case, custody, control, management, or possession of, any bank, cred it union, or any savings and loan association.

"The requirement that property be taken either`by f orce and violence' or `by intimidation' requires proof o f force or
threat of force as an element of the offense." Unit ed States v. Maddalena, 893 F.2d 815, 819 (6th Cir. 1989).

In determining whether intimidation is present, an objective standard is employed from the perspective of the victim, i.e., "whether `an ordinary person in the t eller's position reasonably could infer a threat of bodily harm from the defendant's acts.' " United States v. Woodrup, 86 F.3d 359, 363 (4th Cir.) (citations omitted), cert. deni ed, 117 S. Ct. 332 (1996).

10As used in S 2113(a), the term `intimidation ' means `to

make fearful or put into fear.'

The Government is not required to show eith er an `express verbal threat or threatening displa y of a weapon.' Actual fear need not be proven, if the acts of the defendant would threaten an ordinary rea sonable person. Thus, the government need show only that an ordinary person in the teller's position wou ld feel a threat of bodily harm from the perpetrator's acts.

United McCarty, 36 F.3d 1349, 1357 (5th Cir. 1994) (citations omitted). See also Maddalena, 893 F.2d a t 819 (same).

The district court sentenced Askari under USSG S 2B 3.1 ("Robbery, Extortion, Blackmail") which punishes, i nter alia, robbery of the property of a financial institution. USSG
S 2B3.1 does not define the term "non-violent" offe nse, perhaps because the crime of robbery contemplates a t least some force, threat of force, or intimidation. While USSG S 2B3.1 provides for a guideline increase if a deat h threat was made, it is silent on the threat of bodily harm .10

___________________________________________________ ______________

10. USSG S 2B3.1(b)(2)(F) calls for an increase of 2 levels "if a threat

of

death was made."

`threat of death' . . . may be in the form o f an oral or written statement, act, gesture, or combination ther eof. Accordingly, the defendant does not have to state expressly h is intent to kill the victim in order for the enhancement to apply . For example, an oral or written demand using words such as `Give me the money or I will kill you,' `Give me the money or I will pull the pin on the grenade

I have in my pocket,' `Give me the money or I will shoot you,' `Give

me the money or else (where the defendant draws his hand across his throat in a slashing motion),' or `Give me t he money or you are

dead'
would constitute a threat of death. The cour t should consider that the intent of this provision is to provide a n increased offense

level for cases in which the offender(s) engaged i n conduct that would instill in a reasonable person, who is a vic tim of the offense, a

fear

of death.

USSG S 2B3.1, comment. (n.6).

11B.

Against this backdrop we examine the conflict among several courts of appeals interpreting "non-violent offense"
in USSG S 5K2.13. The discussion has centered on wh ether a sentencing judge must categorically adopt the"cri me of
violence" definition in USSG S 4B1.2 or whether the judge
has discretion to look to the facts and circumstanc es in

each case.

1.

In Rosen, the defendant pled guilty to sending a threatening communication through the mail to extor t money through threat of injury, in violation of 18 U.S.C. S 876. Defendant, an admitted compulsive gambler, w rote checks from a home equity credit line to satisfy gr owing gambling losses. Unable to make payment, he sent le tters to three acquaintances representing that, unless mo ney was received, their relatives would be harmed.

At sentencing, defendant presented expert testimony about his compulsive gambling and argued that he ne ither intended nor had the capability to carry out the th reats made in the letters. Sentencing the defendant under USSG S 2B3.2 ("Extortion by Force or Threat of Injury or Serious Damage"), the district court determined that defend ant's compulsive gambling did not constitute a mitigating factor justifying departure below the guideline minimum.

On appeal, defendant contended, inter alia, the dis trict court incorrectly refused to apply USSG S 5K2.13 be cause his crime was non-violent, i.e., it did not involve physical force. We disagreed:

Crimes of violence, however, include situati ons where
force is threatened but not used. In other c ontexts,
crimes of violence have been defined as offe nses that have `as an element the use, attempted use, or threatened use of physical force.' 18 U.S.C. S 61 (1988) . . . see U.S.S.G. S 4B1.2, comment. (n.1). Defendant
would have us conclude that S 5K2.13's use o f the term `non-violent' means something other than the opposite
of a crime of violence.

12We can find no support for such a contentio n and

therefore find no error in the district cour t's
determination that defendant's crime was not `non- violent.' 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 S 5K2.13 does not authorize a downward departure for this
defendant's mental condition.

Rosen, 896 F.2d at 791. We looked to the "crime of
violence" definition contained in USSG S 4B1.2 to d etermine
whether the defendant was entitled to a downward departure in USSG S 5K2.13 for "non-violent offense s."
Because defendant's crime constituted a "crime of v iolence," we found USSG S 5K2.13 inapplicable.

As recently as this year, we have cited Rosen. See United States v. McBroom, 124 F.3d 533, 542 (3d Cir. 1997) ("The basis for our holding in Rosen was that the definit ion of `crime of violence' contained in section 4B1.2, whi ch is the career offender provision, governs the meaning of`n onviolent' offense in section 5K2.13 . . . . we are[b ound] by our decision in Rosen, 3d Cir. I.O.P. 9.1").

2.

As we have noted, the question of whether "non-viol ent offense" in USSG S 5K2.13 may be defined by referen ce to
"crime of violence" in USSG S 4B1.2 has been answer ed differently by the different courts of appeals. Fiv e other
circuits are in accord with Rosen. See United State s v. Mayotte, 76 F.3d 887, 889 (8th Cir. 1996) ("The phr ase `non-violent offense' is not defined in the guideli nes. However, the term `crime of violence' is defined in Section 4B1.2 of the sentencing guidelines. We believe that a `nonviolent offense' necessarily excludes `crime of vio lence' "); United States v. Dailey, 24 F.3d 1323, 1327 (11th C ir. 1994) ("downward departure was not permissible for reduced mental capacity under U.S.S.G. S 5K2.13 aft er Dailey was convicted of a `crime of violence' "); U nited States v. Cantu, 12 F.3d 1506, 1513 (9th Cir. 1993) ("We h ave defined `non-violent' as the converse of a `crime o f violence' under U.S.S.G. S 4B1.2(1)(I)"); United States v. Ma ddalena,

13893 F.2d 815, 819 (6th Cir. 1989) ("the commentary to

section 4B1.2 of the guidelines includes robbery as an offense covered by the provision . . . . Thus secti on 5K2.13 is not applicable to defendant, for he did not comm it a nonviolent offense"); United States v. Poff, 926 F.2d 588, 591 (7th Cir. 1990) ("We decline to adopt [the defendan t's] argument that rests on the premise that the Guideli nes define the same act as both a `crime of violence' a nd a `nonviolent' offense") (citation omitted) (en banc) (6- 5 decision), cert. denied, 502 U.S. 827 (1991).

Two courts of appeals have embraced the view that t he district court's discretion to depart downward unde r USSG S 5K2.13 should not be restricted by USSG S 4B1.2. See United States v. Weddle, 30 F.3d 532, 540 (4th Cir. 1994) ("the Sentencing Commission did not intend to impor t [the `crime of violence' definition] from [USSG S 4B1.2 to USSG S 5K2.13]"). See also United States v. Morin, 124 F .3d 649, 653 (4th Cir. 1997) ("Although a definition of crim es of violence is found elsewhere in the guidelines, we h ave held that the definition of `crime of violence' in S 4B1 .2 of the sentencing guidelines (regarding career offenders) is not applicable to S 5K2.13 and its reference to`non-vio lent' offense"); United States v. Chatman, 986 F.2d 1446, 1450 (D.C. Cir. 1993) ("we are not persuaded that sectio n 4B1.2 should govern the application of section 5K2.13. Ra ther, we believe that the sentencing court has broad discret ion
under section 5K2.13 to examine all the facts and circumstances of a case to determine whether a part icular offense was in fact `non-violent' ").

In addition, five dissenting judges in the Poff dec ision share the same view. Poff, 926 F.2d at 595 ("differ ent terms in a carefully drafted code such as the guidelines connote different things . . . `non-violent' offense refers to crimes that in the event did not entail violence. When pri son is not justified by the need to incapacitate the defendant
, S 5K2.13 is available") (Easterbrook, J., dissentin g). Review
of Poff and Chatman illustrates the distinctions. S ee Weddle, 30 F.3d at 538 ("The Seventh Circuit's Poff decision and the D.C. Circuit's Chatman decision pr ovide the only detailed analyses of the issue presented")

.

143.

The Poff majority provides an elaborate argument in favor
of the first view -- that USSG S 4B1.2's "crime of violence"
definition controls USSG S 5K2.13's "non-violent of fense" requirement. First, the Poff majority emphasized th e similarity between the two phrases:

Courts often say that the choice of differe nt words reflects an intent to say something differen t. But here the Commission used the same word -- `violen ce.' True, in one case it used a negative constru ction-- `non-violent' -- and in the other case used a prepositional phrase containing the noun `vi olence' as a modifier rather than using the simpler adj ective `violent' -- but the root, and meaning, are the same in
both cases . . . . The Guidelines should be read as a whole, S 1B1.1(I), and when the same word ap pears in different, though related sections, that wor d likely bears the same meaning in both instances.

Poff, 926 F.2d at 591 (citations omitted).

The Poff majority then looked to the Armed Career Offender provision of 18 U.S.C.A. S 924(e)(2)(B)(I) (West Supp. 1997) where Congress defined "violent felony" to include any crime that, inter alia, "has as an elem ent of the use, attempted use, or threatened use of physical f orce against another," believing that definition mirrore d USSG S 4B1.2's "crime of violence." The Poff majority re asoned: "[i]f it is difficult to discern a difference betwe en `violent offense' and `crime of violence,' it is well nigh i mpossible to divine any distinction between a `violent felony' a nd a `violent offense.' " Id. at 592.

According to the Poff majority, if the Sentencing
Commission wanted to differentiate between differen t types of violence, it would have expressly included an al ternative
definition in USSG S 5K2.13:

We think it likely that had the Commission desired to distinguish among types of violence, it woul d have expanded its vocabulary. At a minimum, it wo uld have
offered a technical definition for each term . Perhaps a
cross-reference between the two sections wou ld have

15eliminated any possibility of confusion, but hindsight is

a demanding critic. It is hardly surprising that the Commission failed to foresee the argument th at a crime of violence can, under the same sentencing s cheme,
also be a non-violent offense.

* * *

Even if we believed that the Commission int ended to define violence differently in S 5K2.13, we could do little but guess as to its meaning.

Id. at 592 (citations omitted).

Looking to the underlying objectives of the two pro visions at issue, the Poff majority stated:

The Guidelines reflect the view that those w ho have a history of crimes of violence merit increase d incarceration, and include those, like appel lant, who have threatened violence in that category of defendants. In addition to limiting the auth ority of

courts to decrease the sentences of defendan ts with reduced mental capacity to cases in which th e defendant committed a non-violent offense, S 5K2.13 further circumscribed the authority of court s to depart on this basis by adding the proviso that `th e defendant's criminal history does not indica te a need for incarceration to protect the public.' Ca reer offenders, by definition, fail to meet this condition . . . . So even if the terms `non-violent offense' a nd`crime of violence' were not mutually exclusive, S 5K2 .13 would
not have authorized the district court to de part.

* * *

Because those suffering mental incapacities are effectively less deterrable (making the need for incapacitation greater), it would not be unr easonable to assume that the Commission believed departur es to be warranted only when there is little prospect that such a defendant will manifest any form of violen t behavior. That this reading would not subvert the purp ose of S 4B1.1 is a point that further commends it.

Id. at 592-93 (citations omitted). The Poff majorit y view still holds in the United States Court of Appeals for the Seventh

16Circuit. See United States v. Sullivan, 75 F.3d 297 , 300 (7th

Cir. 1996) ("this panel is bound by the en banc dec ision in
Poff and thus we affirm the district court's denial of a downward departure under S 5K2.13").

4.

The arguments of the Poff majority were countered b y Judge Easterbrook, who authored the dissenting opin ion. Both Chatman from the Court of Appeals for the Dist rict of Columbia Circuit and Weddle from the Court of Appea ls for the Fourth Circuit adopted and expanded upon the
rationale articulated in the Poff dissent. We outli ne the principal arguments set forth by the Poff dissent a nd the
Chatman and Weddle decisions here.

Starting with the text of USSG S 5K2.13, these deci sions note that "[n]othing in the Guidelines themselves o r in the Application Notes suggests that section 4B1.2 is me ant to control the interpretation and application of secti on 5K2.13." Chatman, 986 F.2d at 1450. The omission fr om USSG S 5K2.13 of either the phrase "crime of violen ce" or a
cross-reference was intentional:

It would have been easy to write S 5K2.13 to say that the judge may depart unless the defendant co mmitted a `crime of violence' as S 4B1.2 defines it; instead, the
Commission selected different formulations. Although it laid out a detailed meaning for `crime of violence' in S 4B1.2, it did not provide so much as a cro ss- reference in S 5K2.13, a curious omission if the Commission meant to link these phrases so ti ghtly that they are mutually exclusive.

Poff, 926 F.2d at 594 (Easterbrook, J., dissenting) . See Chatman, 986 F.2d at 1450 ("The lack of a cross-ref erence is all the more significant because so many of the Guidelines use explicit cross-referencing").

While the sentencing guidelines have been frequentl y amended, these decisions observe that the Sentencin g Commission has never altered USSG S 5K2.13 to specifically incorporate the "crime of violence" de finition. See Chatman, 986 F.2d at 1450 ("Moreover, the

17Commission has amended section 4B1.2 and its

commentary twice in the last two years, and neither time did the Commission suggest any relationship between section 5K2.13 and section 4B1.2") (citing Poff, 92 6 F.2d at 594 (Easterbrook, J., dissenting)).

Despite the common root word shared by "crime of violence" and "non-violent offense," the phrases ma y take meanings other than as opposites:

As the Commission was at pains to establish in S 4B1.2, whether a crime is one `of violence ' depends
on its elements and not on the defendant's c onduct, so that an unrealized prospect of violence make s the
crime one of violence. This is an abnormal s ense, a term of art. It took a detailed definition t o make it so. Then comes S 5K2.13, in which `non-violent o ffense' appears without elaboration or cross referen ce. Best to read these words in their ordinary sense rat her than as tied to the term of art in S 4B1.2. A `non-v iolent offense' in ordinary legal (and lay) understanding is one in which mayhem did not occur. The prospect of violence . . . sets the presumptive range; when thing s turn out better than they might, departure is permiss ible.

Poff, 926 F.2d at 594 (Easterbrook, J., dissenting)

.

Furthermore, these sections address different conce rns. USSG S 4B1.1 prescribes a formula to determine whet her a
defendant is a "career offender" who warrants incre ased
incarceration because of an extensive criminal hist ory.

In section 994(h), Congress directed the Com mission to ensure that the Guidelines specify prison se ntences that are `at or near the maximum term author ized' for `career offenders,' which include those who have`been convicted of a felony that is either a crime of violence or a drug offense and who have been previous ly
convicted of two felonies where each has eit her a crime of violence or a drug offense.' Longer sente nces for such offenders are justified by the purposes of incarceration, as set out in 18 U.S.C. S 355 3(a)(2) . . . . [They] guarantee incapacitation of those rep eat offenders whose past records suggest a prope nsity to
commit violent crimes.

18Reflecting these policy concerns, the defin ition of

`crime of violence' in section 4B1.2 is dist inctively a `term of art' designed to identify career of fenders . . . . section 4B1.2 appears to characterize as `cr imes of violence' many offenses that, taken individu ally on their facts, might be interpreted as non-vio lent.

Chatman, 986 F.2d at 1451 (citations omitted). By c ontrast, USSG S 5K2.13 encourages more lenient treatment:

the policy concerns that motivate the defini tion of
`crime of violence' in section 4B1.2 are not applicable to section 5K2.13 . . . . [the purpose of which ] is to treat with lenity those individuals whose `reduced mental capacity' contributed to the commission of a crime.

* * *

Considered in this context, the term `non-v iolent
offense' in section 5K2.13 refers to those o ffenses that, in the act, reveal that a defendant is not d angerous, and therefore need not be incapacitated for the period
of time the Guidelines would otherwise recom mend.

Chatman, 986 F.2d at 1451-52 (citations omitted). S ee Weddle, 30 F.3d at 540 ("U.S.S.G. S 5K2.13 is inten ded to create lenity for those who cannot control their ac tions but are actually dangerous; U.S.S.G. S 4B1.2 is intende d to treat harshly the career criminal, whether or not t heir actual crime is in fact violent"); Poff, 926 F.2d a t 595 ("A hefty sentence may be appropriate simply because it incapacitates and so reduces the likelihood of furt her offenses. When the described person's conduct is no nviolent, however, incapacitation is less important

.. . . Because legal sanctions are less effective with per sons suffering from mental abnormalities, a system of punishment based on deterrence also curtails sancti on") (Easterbrook, J., dissenting).

This approach allows the district judge to make a f actspecific inquiry not governed by the "crime of viol ence" definition of USSG S 4B1.2. See Chatman, 986 F.2d a t 1450 ("we are not persuaded that section 4B1.2 should go vern the application of section 5K2.13. Rather . . . the sentencing court has broad discretion under section 5K2.13

19to examine all the facts and circumstances of a cas e to

determine whether a particular offense was in fact` nonviolent' ").11

C.

As noted, the en banc court enables us to examine a gain the language, structure, and purpose of the sentenc ing guidelines and to appraise again the definition of" nonviolent offense" in USSG S 5K2.13. Although our ini tial view set forth in Rosen was a reasoned interpretation th at now represents the view of most courts of appeals, we n ow believe the analysis of the relationship between US SG S 5K2.13 and USSG S 4B1.2 articulated by the dissen t in Poff and later developed in Chatman and Weddle is m ore convincing.

Without detailing those arguments already set forth , we find especially compelling the following observatio ns. First,
USSG S 5K2.13 contains no cross-reference to USSG
S 4B1.2's definition of "crime of violence." Even t hough the Sentencing Commission has amended the sentencing guidelines over five-hundred times in the last nine years, it
has made no cross-reference in USSG S 5K2.13 linkin g "non-violent offense" to the "crime of violence" de finition in
S 4B1.2.

Second, by limiting USSG S 5K2.13 to those defendan ts whose "criminal history does not indicate a need fo r incarceration to protect the public," the Sentencin g Commission removed the USSG S 5K2.13 departure from the reach of "career offenders." Having done so, it makes little sense to import a definition of "non-violent offense"
from the section on career offenders.

Third, USSG S 1B1.1 articulates a list of definitio ns of general applicability which includes neither "crime of violence" nor "non-violent" offense. That provision specifies: "[d]efinitions . . . [which] appear in other sectio ns . . . . are not designated for general applicability; therefore their applicability to sections other than those expressl y

___________________________________________________ ______________

11. Judge Stapleton's elaboration in his concurrenc e on the differences
between the Poff dissent and Chatman is instructive

.

20referenced must be determined on a case by case bas is."

USSG S 1B1.1, comment. (n.2). USSG S 4B1.2's "crime of violence" definition is therefore one of limited ap plicability.

Fourth, USSG S 4B1.1 and USSG S 5K2.13 address different policy concerns. While USSG S 4B1.1 incre ases sentences for persons whose criminal records sugges t a propensity to commit violent crimes, USSG S 5K2.13 encourages more lenient treatment for persons who a re not actually dangerous but whose reduced mental capacit y contributed to the commission of a crime.

In short, the choice of different phrasing, the abs ence of a cross-reference, and the explicit definitions att ached to one section but not the other, all suggest that the Sentencing Commission did not intend to import the "crime
of violence" definition from USSG S 4B1.2 to USSG S 5K2.13. Of course the Sentencing Commission could adopt a definition of "non-violent offense" which, if in conformity with the statute, could be binding on th e district judge. Or it could delete the reference to "non-vio lent
offense" in USSG S 5K2.13. But in the absence of so me direction from the Sentencing Commission, we are unwilling to apply the "crime of violence" definiti on articulated in USSG S 4B1.2 to USSG S 5K2.13.

Although we find convincing many of the arguments p ut forth in the Poff dissent, Chatman, and Weddle, we take a somewhat different view of the applicable standard. Those cases direct the district judge applying USSG S 5K2 .13 to make a fact specific inquiry whether a defendant ha s committed a "non-violent offense." The question rem ains whether there is anything that constrains the distr ict
court's review of the "facts and circumstances" of the crime.

D.

In modern criminology, there has always been a distinction between culpability and sanction, betwe en finding guilt and imposing sentence. Until recently
, sentencing had been the courts' unique role. Before the advent of mandatory sentences and sentencing guidel ines, courts routinely looked to all the facts and circum stances before passing sentence. Indeed, the severe effects of a

21"borderline" conviction were often mitigated by a l enient

sentence.

But the Sentencing Reform Act brought with it signi ficant changes. Since adoption of the sentencing guideline s, the fact of conviction, whatever the nature or characte r of the crime, has carried concrete and sometimes rigid san ctions (even un-convicted conduct can now be punished as relevant conduct). Through the means of downward departures (which is what concerns us here), the Sentencing Commission has attempted to ameliorate t he consequences of certain kinds of convictions. This is difficult to do, especially when it involves pinpoi nting behavior in an almost infinite spectrum and affixin g quantitative values. But whether the existing guide line structure can permit the Sentencing Commission to f ashion a just downward departure in every case where it is appropriate, it is clear that the Sentencing Commis sion did not intend to allow departures in USSG S 5K2.13 for offenders who may be dangerous to the public.

We agree that the district court should look at all the facts and circumstances of the crime, but it should do so within the context of the Sentencing Reform Act and the underlying statute defining criminal culpability. B ecause the sentencing guidelines offer no "guidance" on ho w to define "non-violent offense," we are led back to th e enabling statute, the Sentencing Reform Act,12 and its artic ulation of the factors to be considered in imposing sentence.1 3 Of

___________________________________________________ ______________

12. 18 U.S.C. S 3553(b) provides, in part:

(b) Application of guidelines in imposing a sentence . . . . In the absence of an applicable sentencing guid eline, the court shall impose an appropriate sentence, having due r egard for the purposes set forth in subsection (a)(2). In the absen ce of an applicable sentencing guideline in the case of an offen se other than a petty offense, the court shall also have due regar d for the relationship

of the sentence imposed to the sentences prescr ibed by guidelines applicable to similar offenses and offenders , and to the applicable policy statements of the Sentencing Commissi on.

18 U.S.C.A. S 3553(b) (West 1985 & Supp. 1997).

13. The general factors articulated in 18 U.S.C.S 3 553(a) provide, in part:

22particular interest here, when trying to define "no n-violent

offense," is the need for the sentence imposed to r eflect the seriousness of the offense, to protect the public, and to provide just punishment.

To assess the seriousness of the offense,14 we look to the elements of the crime and the surrounding conduct. Bank robbery, the underlying offense here, consists of t aking, or attempting to take, anything of value, by force and violence, by intimidation, or by extortion.15 The requirement that the

___________________________________________________ ______________

(a) Factors to be considered in imposing a s entence.-- The court shall impose a sentence sufficient, but not greater than necessary, to comply with the purposes set forth in par agraph (2) of this
subsection.

* * *

(2) the need for the sentence imposed --

(A) to reflect the seriousness of the offen se, to promote respect for the law, and to provide just punishment for the offense;

(B) to afford adequate deterrence to crimin al conduct;

(C) to protect the public from further crim es of the defendant;

and

(D) to provide the defendant with needed ed ucational or vocational training, medical care, or other correctional treatment in the most effective manner;

18 U.S.C.A. S 3553(a). It appears that, in a specif ic sense, these factors have been largely supplanted by the sentencing guid elines.

14. " `Offense' means the offense of conviction and all relevant conduct under S 1B1.3 (Relevant Conduct) unless a different meaning is specified
or is otherwise clear from the context." USSGS 1B1. 1, comment. (n.1).

15. 18 U.S.C.A. S 2113(a) provides:

[w]hoever, by force and violence, or by inti midation, takes, or attempts to take, from the person or presenc e of another, or
obtains or attempts to obtain by extortion any prope rty or money or any other thing of value belonging to, or in the case, custody, control, management, or possession of, any bank, cred it union, or any savings and loan association.

The second paragraph of this section, which is not applicable here,provides:

23property be taken either "by force and violence" or "by

intimidation" requires proof of force or threat of force as an element of the offense. Maddalena, 893 F.2d at 819. The term "intimidation" means to make fearful or put in to fear. McCarty, 36 F.3d at 1357. In determining whether intimidation is present, the question is whether an ordinary person in the victim's position reasonably could in fer a threat of bodily harm from the defendant's acts. Id . "The term `extortion' as used in 18 U.S.C. 2113(a) means obtaining property from another person, without the other person's consent, induced by the wrongful use of ac tual or threatened force, violence, or fear."16 If there i s no taking by

___________________________________________________ ______________

Whoever enters or attempts to enter any ban k, credit union, or any savings and loan association, or any bui lding used in whole or in part as a bank, credit union, or as a sav ings and loan association, with the intent to commit in su ch bank, credit union, or in such savings and loan association, or building, or part thereof, so used, any felony affecting such bank, cre dit union, or such savings and loan association and in violatio n of any statute of the United States, or any larceny --

Shall be fined under this title or imprisone d not more than twenty years, or both.

Id.

16. H.Rep. No. 99-797, at 33, reprinted in 1986 U.S .C.C.A.N. 6138, 6156. See also 18 U.S.C.A. S 1951(b)(2) (West 1984 & Supp . 1997) (the Hobbs Act)(extortion means "obtaining of property from an other, with [their] consent, induced by wrongful use of actual or threa tened force, violence, or fear, or under color of official right"). Both t he Hobbs Act and 18 U.S.C. S 2113(a) punish extortion. The provisions, however, focus on
different concerns. See United States v. Maldonado- Rivera, 922 F.2d 934, 983 (2d Cir. 1990) ("In enacting S 1951, Congress' principal concern was protecting the flow of interstate commerce . . . . In contrast, in enacting S 2113, Congress's principal concern was tofind a m eans of protecting
the institutions in which the Federal Government is interested") (citations omitted), cert. denied, 501 U.S. 1211 (1 991).

In 1986 Congress amended S 2113(a) to expressly cov er extortion
directed at federal insured banks and make it the"e xclusive provision for prosecuting bank extortion." H.Rep. No. 99-797, at 33, reprinted in 1986 U.S.C.C.A.N. 6138, 6156. The Committee Report state d that extortionate conduct had been prosecutable under either the [18 U.S.C. S 2113(a)] or

24extortion, actual or threatened force, violence, or

intimidation, there can be no valid conviction for bank robbery under 18 U.S.C. S 2113(a). In that case, th ere could be a conviction under 18 U.S.C. S 2113(b) (theft wi thout threat of force). It would seem, therefore, that wi th bank robbery convictions under the first paragraph of 18 U.S.C. S 2113(a), a defendant could not qualify for a depa rture under USSG S 5K2.13 as presently written. Of course , this refers to convictions only under the first paragrap h of S 2113(a). The second paragraph of that section des cribes entering, or attempting to enter, a bank with inten t to commit a felony therein. The second paragraph does not necessarily describe a crime of violence; that woul d depend on the felony.17

There also may be other cases of bank robbery where USSG S 5K2.13 might apply. Conceivably, a defendant could commit a bank robbery by extortion under the Hobbs Act (18 U.S.C. S 1951(b)(2)) involving neither inti midation,

___________________________________________________ ______________

the Hobbs Act, and concluded that clarification as to which should be the applicable statute is desirable. Id.

The guidelines make a distinction between "Extortio n by Force or Threat of Injury or Serious Damage," USSG S 2B3.2, and "Blackmail and Similar Forms of Extortion," USSG S 2B3.3. The latt er applies "only to
blackmail and similar forms of extortion where ther e clearly is no threat of violence to person or property." USSG S 2B3.3, c omment. (n.1).

17. See United States v. Selfa, 918 F.2d 749, 752 n .2 (9th Cir. 1990) ("The second paragraph [of S 2113(a)] describes an entry or attempt to enter a bank with intent to commit a felony in it. The second paragraph does not describe a crime of violence"), cert. deni ed, 498 U.S. 986 (1990); United States v. Pick, 724 F.2d 297, 301 (2d Cir. 1 983) ("Section 2113(a) prohibits entry of a bank with the intent to commit `any' felony [including mail fraud] and in no way limits its app lication to robberies, burglaries, or felonies not covered under other sec tions of the Act"); United States v. Brown, 547 F.2d 36, 39 (3d Cir. 19 76) (Felonious intent is not "made part of the crimes of taking by force and violence or by intimidation ([subsection] a-first paragraph)") (em phasis supplied), cert. denied, 431 U.S. 905 (1977); Williams v. United Sta tes, 301 F.2d 276, 277 (7th Cir. 1962) (With respect to the second par agraph of S 2113(a), the "intent of Congress was to make any unlawful en try or attempted entry of a bank, regardless of its current state of habitation, a federal crime").

25actual violence, nor the threat of violence. Extort ion by an

official acting under color of right could be a "no n-violent offense." See, e.g., United States v. Adair, 951 F. 2d 316, 318 (11th Cir. 1992) ("In a Hobbs Act prosecution o f a public official, the government need not prove actu al or threatened force, violence or duress because `the c oercive element is supplied by the existence of the public office itself ' ") (citing United States v. Williams, 621 F.2d 123, 124 (5th Cir. 1980), cert. denied, 450 U.S. 919 (1981)) ; United States v. Billups, 692 F.2d 320, 330 (4th Cir. 1982 ) (Fear of
economic harm will sustain a Hobbs Act violation. " The fear need not be the consequence of a direct or implicit threat by the defendant, and the government's burden of pr oof is
satisfied if it shows that the victim feared econom ic harm and that the circumstances surrounding the alleged
extortionate conduct rendered that fear reasonable" ) (citations omitted), cert. denied, 464 U.S. 820 (19 83); United States v. Cerilli, 603 F.2d 415, 425 (3d Cir. 1979) ("where extortion under color of official right is charged, one need not prove that the payment was obtained by force, f ear or duress"), cert. denied, 444 U.S. 1043 (1980).

We believe that departures under USSG S 5K2.13 excl ude conduct that involves actual force, threat of force , or intimidation, the latter two measured under a reaso nable person standard. Therefore, "non-violent offenses" under
USSG S 5K2.13 are those which do not involve a reas onable perception that force against persons may be used i n committing the offense.

Although conviction and sentencing are separate, sentencing has always been tied to the crime of con viction at least in the sense that they must be congruent. If the elements of the crime require a finding of violent conduct, then a valid conviction could hardly permit a sente nce based on a finding of non-violent conduct. So long as the bank robbery victim has been threatened with harm, and is seen to have been threatened under an objective sta ndard (reasonable person), the defendant cannot be found to have
acted in a non-violent manner.

Nonetheless, it may be argued that conduct may be violent (as defined by statute) but still warrant a more lenient sentence if committed by a defendant with

26diminished mental capacity who is not dangerous to the

public (as defined by his criminal history). This m ay be so, especially where violence is threatened, but the th reat is not realized. To put it differently, does the term "non-violent offense" in USSG S 5K2.13 include acts resulting in valid convictions under 18 U.S.C.A. S 2113(a) where the t hreat of
violence was never carried out? Under the current guidelines, we think the answer is yes for the reas ons expressed by us and by Judge Stapleton in his thoug htful
concurrence.18

E.

In this case, Askari was found guilty of bank robbe ry. The bank teller, Ellen Ishizaki, described the robb ery as follows:

The fellow came up to the middle window and he asked us to put our money up on the counter . . . . [H]e said the same thing again. At that point I presse d the alarm button, the silent alarm. He then pushed his way over to my window, asked me for the money and the n he, you know, and I still hesitated and then fin ally he told me I had three seconds to give him my money. And then I gave him my money . . . . [I was scar ed] [b]ecause he had his hand in his shirt and I didn't know if he was going to pull a gun out on me or a knife or, you know, at that point I was, you know, scared.

(App. at 14a). The bank teller, when told that she had three seconds to hand over the money by someone who had h is hand in his shirt, was fearful. An ordinary person in the bank teller's position reasonably could infer a thr eat of bodily harm from Askari's demand and actions. Looki ng at the elements of the crime and the surrounding condu ct,
Askari did not commit a "non-violent offense."

___________________________________________________ ______________

18. Nevertheless, there appears to be no impediment to the Sentencing Commission's drawing this distinction. For purposes of sentencing, the Sentencing Commission could delete the "non-violent offense" requirement from USSG S 5K2.13. Or, it could condit ion application of
USSG S 5K2.13 on an unrealized threat of violence. But under the current guidelines, we believe no distinction prese ntly exists.

27Askari was sentenced as a "career offender." (Prese ntence

Report P 33). USSG S 5K2.13 applies only if Askari' s criminal history does not indicate a need for incar ceration to protect the public. Even if this bank robbery we re classified as a non-violent offense, Askari may sti ll not have qualified for a USSG S 5K2.13 departure. Askari's c riminal history contains other violent crimes, including tw o armed bank robberies, suggesting his incapacitation may b e necessary. (See App. at 56a (district court noting "[t]he Defendant . . . has a long history of crime, includ ing violent crime . . . . the criminal history score in this ca se takes him pretty much to the top of the range"); Presentence Report PP 18-32).19

F.

Accordingly, we hold Askari could not qualify for departure under USSG S 5K2.13 because he did not co mmit
a "non-violent offense."

We will affirm the judgment of conviction and sente nce.

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19. Askari's criminal convictions include (1) bank robbery at gunpoint (1974); (2) robbery at gunpoint and violation of th e Uniform Firearms Act (1980); (3) theft (1982); and (4) possession of a f irearm by a convicted felon (1983). (See Presentence Report PP 29-32).

28