1998 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

4-8-1998

United States v. Askari

Precedential or Non-Precedential:

Docket 95-1662

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Recommended Citation

"United States v. Askari" (1998). 1998 Decisions. Paper 70.

http://digitalcommons.law.villanova.edu/thirdcircuit_1998/70
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 Appeals for the Third 

Circuit at the time this appeal was argued. Judge Sloviter 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 sentencing 

guidelines. The issue on appeal before the en banc court is 

the continuing vitality of our opinion in United States v. 

Rosen, 896 F.2d 789 (3d Cir. 1990), addressing S 5K2.13 of 

the United States Sentencing Commission, Guidelines

Manual (Nov. 1997) which permits a downward departure 

based on diminished capacity where the crime is nonviolent. The specific issue requires us to examine the 

meaning of "non-violent" offense under the sentencing 

guidelines. 

Although resolution of this case would not necessarily 

compel reexamination of Rosen, much has been written by 

other courts of appeals since our decision eight years ago. 

The en banc court affords us the opportunity to revisit the 

issue and modify our views. 

 2 
I. 

A. 

Muhammad Askari appeals his sentence for bank 

robbery under 18 U.S.C.A. S 2113(a) (West Supp. 1997), 

contending the district court should have granted him a 

downward departure for diminished capacity under USSG 

S 5K2.13 because (1) the unarmed bank robbery was nonviolent and (2) he has a well-documented history of serious 

psychiatric illness. 

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

robbery is not at issue. Indeed, before sentencing, the 

district court found that Askari was not mentally competent 

and committed him, under 18 U.S.C. S 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. (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 Askari was suffering from 

paranoid schizophrenia in partial remission, drug addiction, and seizure 

disorder, but he 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 

Askari's commitment. After two years of treatment at the U.S. Medical 

Center for Federal Prisoners in 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 was 

now competent. (See App. at 62a-67a, 68a). 

2. Askari qualified as "a career offender in that he 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 Report P 33. (See App. at 

56a (district court noting, during sentencing, Askari "has a long history 

of crime including violent crime . . . . the criminal 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 sentencing 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")). 

 3 
The facts regarding the bank robbery are not in dispute. 

On the afternoon of April 23, 1992, Askari entered the First 

Bank of Philadelphia at 1424 Walnut Street in Philadelphia. 

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 Ishizaki, 

"You have three seconds to give me the money." After 

Ishizaki gave him bait money, he ran out the door. Askari 

was not seen carrying a weapon, nor did he use force or 

make specific verbal threats of harm. When he demanded 

money from bank teller Ishizaki, however, he had his 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 weapon. 

(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, defense 

counsel argued for a downward departure based on Askari's 

diminished mental capacity, citing his history of serious 

psychiatric illness and his diagnosis as a paranoid

schizophrenic. The district court declined to grant the 

departure, explaining that the sentencing guidelines 

"contain a policy statement that a downward departure for 

diminished capacity is limited to non[-]violent offenses . . . . 

[the] commission says [there is] no downward departure 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 imposition of a sentence 

outside the range established by the guideline "if the court finds `that 

there exists an aggravating or mitigating circumstance of a kind, or to a 

degree, not adequately taken into consideration by the Sentencing 

Commission in formulating the guidelines that should result in a 

sentence different from that described' "). 

 4 
B. 

Askari appealed his sentence, contending the unarmed 

bank robbery was a non-violent offense because he did not 

use force or violence, or verbally threaten or harm anyone 

during the robbery. A panel of our court rejected Askari'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 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, [USSG] S 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. 

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" definition 

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 States 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 Easterbrook's 

 dissent in Poff, have concluded that the "non-violent 

_________________________________________________________________ 

4. USSG S 4B1.1 enhances the offense level for "career offenders." See 

USSG S 4B1.1, comment. (backg'd.) (28 U.S.C.S 994(h) "mandates that 

the Commission assure that certain `career' offenders receive a sentence 

of imprisonment `at or near the maximum term authorized.' " USSG 

S 4B1.1 implements this directive by employing a definition 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 terms used in USSG 

S 4B1.1, including "crime of violence." 

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

 "crime of violence" definition contained inS 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). 

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 available under 

S 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." 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 `readily 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 that of the 

 latter. 

* * * 

 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 specific cross-reference. Rather, it is 

 better to permit the district courts to consider all the 

 facts and circumstances surrounding the commission 

 of a crime when deciding whether it qualifies as a non- 

 violent offense under S 5K2.13. 

Id. at *4-6 (citations omitted). We vacated our panel 

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), determined 

 6 
that he lacked authority to depart downward.5 We review 

for "abuse of discretion." See United States v. Sally, 116 

F.3d 76, 78 (3d Cir. 1997). By definition, a district court 

"abuses its discretion when it makes an error of law. That 

a departure decision, in an occasional case, may call for a 

legal determination does not mean, as a consequence, that 

parts of the review must be labeled de novo while other 

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 to 

determine that the discretion was not guided by erroneous 

legal conclusions." Id. at 2048. 

III. 

A. 

1. 

USSG S 5K2.13, a policy statement permitting downward 

departures,6 provides: 

_________________________________________________________________ 

5. See App. at 45a ("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"). 

6. "The Guideline Manual contains three [types] of text: guidelines 

provisions, policy statements and commentary." United States v. 

Corrado, 53 F.3d 620, 624 (3d Cir. 1995). "When a crime 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. Thompson, 70 F.3d 279, 

281 (3d Cir. 1995) (per curiam) (citing United States 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 taking a specified 

action, 

the statement is an authoritative guide to the meaning of the applicable 

guideline.' " Corrado, 53 F.3d at 624 (citing Williams 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. Brannan, 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 federal courts") (citation 

omitted). 

 7 
 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. 

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" provisions 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 depart from a guideline- 

 specified sentence only when it finds `an aggravating or mitigating 

 circumstance of a kind, or to a degree, not adequately taken into 

 consideration by the Sentencing Commission in formulating the 

 guidelines that should result in a sentence different than that 

 described.' 18 U.S.C. S 3553(b). The Commission intends the 

 sentencing courts to treat each guideline as carving out a 

 `heartland,' a set of typical cases embodying the conduct that each 

 guideline describes. When a court finds an atypical case, one to 

 which a particular guideline linguistically applies but where 

conduct 

 significantly differs from the norm, the court 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 forth 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 those purposes. A 

defendant 

 with a record of prior criminal behavior is more culpable than a 

first 

 offender and thus deserving of greater punishment. General 

 deterence of criminal behavior will aggravate the need for 

 punishment with each recurrence. To protect the public from further 

 crimes of the particular defendant, the likelihood of recidivism 

and 

 future criminal behavior must be considered. Repeated criminal 

 behavior is an indicator of a limited likelihood of successful 

 rehabilitation. 
USSG Ch.4, Pt. A, intro. comment. 

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

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

 The term `crime of violence' means any offense under 

 federal or state law, punishable by imprisonment 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 extortion, 

 involves use of explosives, or otherwise involves 

 conduct that presents a serious potential risk 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, manslaughter, 

 kidnaping, aggravated assault, forcible sex offenses, 

 robbery, arson, extortion, extortionate extension of 

 credit, and burglary of a dwelling. Other offenses are 

 included as `crimes of violence' if (A) that offense has 

 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. 

 `Crime of violence' does not include the offense 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 by 

_________________________________________________________________ 

9. While USSG S 5K2.13 is a policy statement, the specific definitions of 

"crime of violence" that accompany USSG S 4B1.2 in the application 

notes are "commentary." See United States v. McQuilkin, 97 F.3d 723, 

731 (3d Cir. 1996) ("Commentary in the guidelines is 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). 

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

and its commentary, then bank robbery would never qualify 

as a "non-violent" offense. If "non-violent" offense in USSG 

S 5K2.13 is defined by reference to the term"crime of 

violence" in USSG S 4B1.2 and its commentary, then bank 

robbery would never qualify as a "non-violent" offense. 

The general application principles articulated in the 

Introduction to the sentencing guidelines supply a list of 

definitions "that are used frequently in the guidelines and 

are of general applicability (except to the extent expressly 

modified in respect to a particular guideline or policy 

statement)." USSG S 1B1.1, comment. (n.2). But, "nonviolent offense" and "crime of violence" do not appear in 

this list of definitions. The Introduction also dictates that 

"[d]efinitions of terms also may appear in other sections. 

Such definitions are not designed for general applicability; 

therefore, their applicability to sections other than those 

expressly referenced must be determined on a case by case 

basis." USSG S 1B1.1, comment. (n.2). 

2. 

Askari was convicted of bank robbery in violation of 18 

U.S.C.A. S 2113(a): 

 [w]hoever, by force and violence, or by intimidation, 

 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, credit union, 

 or any savings and loan association. 

"The requirement that property be taken either`by force 

and violence' or `by intimidation' requires proof of force or 

threat of force as an element of the offense." United 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 teller's 

position reasonably could infer a threat of bodily harm from 

the defendant's acts.' " United States v. Woodrup, 86 F.3d 

 10 
359, 363 (4th Cir.) (citations omitted), cert. denied, 117 S. 

Ct. 332 (1996). 

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

 make fearful or put into fear.' 

 The Government is not required to show either an 

 `express verbal threat or threatening display of a 

 weapon.' Actual fear need not be proven, if the acts of 

 the defendant would threaten an ordinary reasonable 

 person. Thus, the government need show only that an 

 ordinary person in the teller's position would 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 at 819 

(same). 

The district court sentenced Askari under USSG S 2B3.1 

("Robbery, Extortion, Blackmail") which punishes, inter alia, 

robbery of the property of a financial institution. USSG 

S 2B3.1 does not define the term "non-violent" offense, 

perhaps because the crime of robbery contemplates at least 

some force, threat of force, or intimidation. While USSG 

S 2B3.1 provides for a guideline increase if a death 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 of an oral or written 

 statement, act, gesture, or combination thereof. Accordingly, the 

 defendant does not have to state expressly his 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 the money or you are 

dead' 

 would constitute a threat of death. The court should consider that 

 the intent of this provision is to provide an increased offense 

level 

 for cases in which the offender(s) engaged in conduct that would 

 instill in a reasonable person, who is a victim of the offense, a 

fear 

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

 11 
B. 

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 whether 

a sentencing judge must categorically adopt the"crime of 

violence" definition in USSG S 4B1.2 or whether the judge 

has discretion to look to the facts and circumstances in 

each case. 

1. 

In Rosen, the defendant pled guilty to sending a 

threatening communication through the mail to extort 

money through threat of injury, in violation of 18 U.S.C. 

S 876. Defendant, an admitted compulsive gambler, wrote 

checks from a home equity credit line to satisfy growing 

gambling losses. Unable to make payment, he sent letters 

to three acquaintances representing that, unless money 

was received, their relatives would be harmed. 

At sentencing, defendant presented expert testimony

about his compulsive gambling and argued that he neither 

intended nor had the capability to carry out the threats 

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 defendant's 

compulsive gambling did not constitute a mitigating factor 

justifying departure below the guideline minimum. 

On appeal, defendant contended, inter alia, the district 

court incorrectly refused to apply USSG S 5K2.13 because 

his crime was non-violent, i.e., it did not involve physical 

force. We disagreed: 

 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. 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 of the term 

 `non-violent' means something other than the opposite 

 of a crime of violence. 

 12 
 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 `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 determine 

whether the defendant was entitled to a downward 

departure in USSG S 5K2.13 for "non-violent offenses." 

Because defendant's crime constituted a "crime of violence," 

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 definition of 

`crime of violence' contained in section 4B1.2, which is the 

career offender provision, governs the meaning of`nonviolent' offense in section 5K2.13 . . . . we are[bound] by 

our decision in Rosen, 3d Cir. I.O.P. 9.1"). 

2. 

As we have noted, the question of whether "non-violent 

offense" in USSG S 5K2.13 may be defined by reference to 

"crime of violence" in USSG S 4B1.2 has been answered 

differently by the different courts of appeals. Five other 

circuits are in accord with Rosen. See United States v. 

Mayotte, 76 F.3d 887, 889 (8th Cir. 1996) ("The phrase 

`non-violent offense' is not defined in the guidelines. 

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 violence' "); 

United States v. Dailey, 24 F.3d 1323, 1327 (11th Cir. 

1994) ("downward departure was not permissible for 

reduced mental capacity under U.S.S.G. S 5K2.13 after 

Dailey was convicted of a `crime of violence' "); United States 

v. Cantu, 12 F.3d 1506, 1513 (9th Cir. 1993) ("We have 

defined `non-violent' as the converse of a `crime of violence' 

under U.S.S.G. S 4B1.2(1)(I)"); United States v. Maddalena, 

 13 
893 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 section 5K2.13 

is not applicable to defendant, for he did not commit a nonviolent offense"); United States v. Poff, 926 F.2d 588, 591 

(7th Cir. 1990) ("We decline to adopt [the defendant's] 

argument that rests on the premise that the Guidelines 

define the same act as both a `crime of violence' and 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 the 

district court's discretion to depart downward under 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 import [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 crimes of 

violence is found elsewhere in the guidelines, we have 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-violent' 

offense"); United States v. Chatman, 986 F.2d 1446, 1450 

(D.C. Cir. 1993) ("we are not persuaded that section 4B1.2 

should govern the application of section 5K2.13. Rather, we 

believe that the sentencing court has broad discretion 

under section 5K2.13 to examine all the facts and 

circumstances of a case to determine whether a particular 

offense was in fact `non-violent' "). 

In addition, five dissenting judges in the Poff decision 

share the same view. Poff, 926 F.2d at 595 ("different 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 prison is not 

justified by the need to incapacitate the defendant, 

S 5K2.13 is available") (Easterbrook, J., dissenting). Review 

of Poff and Chatman illustrates the distinctions. See 

Weddle, 30 F.3d at 538 ("The Seventh Circuit's Poff

decision and the D.C. Circuit's Chatman decision provide 

the only detailed analyses of the issue presented"). 

 14 
3. 

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 offense" 

requirement. First, the Poff majority emphasized the 

similarity between the two phrases: 

 Courts often say that the choice of different words 

 reflects an intent to say something different. 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 . . . . The Guidelines should be read as a 

 whole, S 1B1.1(I), and when the same word appears in 

 different, though related sections, that word 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 element of the 

use, attempted use, or threatened use of physical force 

against another," believing that definition mirrored USSG 

S 4B1.2's "crime of violence." The Poff majority reasoned: 

"[i]f it is difficult to discern a difference between `violent 

offense' and `crime of violence,' it is well nigh impossible to 

divine any distinction between a `violent felony' and a 

`violent offense.' " Id. at 592. 

According to the Poff majority, if the Sentencing 

Commission wanted to differentiate between different types 

of violence, it would have expressly included an alternative 

definition in USSG S 5K2.13: 

 We think it likely 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. Perhaps a 

 cross-reference between the two sections would have 

 15 
 eliminated any possibility of confusion, but hindsight is 

 a demanding critic. It is hardly surprising that the 

 Commission failed to foresee the argument that a crime 

 of violence can, under the same sentencing scheme, 

 also be a non-violent offense. 

 * * * 

 Even if we believed that the Commission intended 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 provisions 

at issue, the Poff majority stated: 

 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, S 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 . . . . 

 So even if the terms `non-violent offense' and`crime of 

 violence' were not mutually exclusive, S 5K2.13 would 

 not have authorized the district court to depart. 

* * * 

 Because those suffering mental incapacities are 

 effectively less deterrable (making the need for 

 incapacitation greater), it would not be unreasonable to 

 assume that the Commission believed departures to be 

 warranted only when there is little prospect that such 

 a defendant will manifest any form of violent behavior. 

 That this reading would not subvert the purpose of 

 S 4B1.1 is a point that further commends it.

Id. at 592-93 (citations omitted). The Poff majority view still 

holds in the United States Court of Appeals for the Seventh 

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

Cir. 1996) ("this panel is bound by the en banc decision 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 by 

Judge Easterbrook, who authored the dissenting opinion. 

Both Chatman from the Court of Appeals for the District of 

Columbia Circuit and Weddle from the Court of Appeals for 

the Fourth Circuit adopted and expanded upon the 

rationale articulated in the Poff dissent. We outline the 

principal arguments set forth by the Poff dissent and the 

Chatman and Weddle decisions here. 

Starting with the text of USSG S 5K2.13, these decisions 

note that "[n]othing in the Guidelines themselves or in the 

Application Notes suggests that section 4B1.2 is meant to 

control the interpretation and application of section 

5K2.13." Chatman, 986 F.2d at 1450. The omission from 

USSG S 5K2.13 of either the phrase "crime of violence" 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 committed 

 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 cross- 

 reference in S 5K2.13, a curious omission if the 

 Commission meant to link these phrases so tightly 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-reference 

is all the more significant because so many of the 

Guidelines use explicit cross-referencing"). 

While the sentencing guidelines have been frequently 

amended, these decisions observe that the Sentencing 

Commission has never altered USSG S 5K2.13 to 

specifically incorporate the "crime of violence" definition. 

See Chatman, 986 F.2d at 1450 ("Moreover, the 

 17 
Commission 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, 926 F.2d at 

594 (Easterbrook, J., dissenting)). 

Despite the common root word shared by "crime of 

violence" and "non-violent offense," the phrases may 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 conduct, so 

 that an unrealized prospect of violence makes the 

 crime one of violence. This is an abnormal sense, a 

 term of art. It took a detailed definition to make it so. 

 Then comes S 5K2.13, in which `non-violent offense' 

 appears without elaboration or cross reference. Best to 

 read these words in their ordinary sense rather than as 

 tied to the term of art in S 4B1.2. A `non-violent offense' 

 in ordinary legal (and lay) understanding is one in 

 which mayhem did not occur. The prospect of violence 

 . . . sets the presumptive range; when things turn out 

 better than they might, departure is permissible. 

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

Furthermore, these sections address different concerns. 

USSG S 4B1.1 prescribes a formula to determine whether a 

defendant is a "career offender" who warrants increased 

incarceration because of an extensive criminal history. 

 In section 994(h), Congress directed the Commission to 

 ensure that the Guidelines specify prison sentences 

 that are `at or near the maximum term authorized' 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 previously 

 convicted of two felonies where each has either a crime 

 of violence or a drug offense.' Longer sentences for 

 such offenders are justified by the purposes of 

 incarceration, as set out in 18 U.S.C. S 3553(a)(2) . . . . 

 [They] guarantee incapacitation of those repeat 

 offenders whose past records suggest a propensity to 

 commit violent crimes. 

 18 
 Reflecting these policy concerns, the definition of 

 `crime of violence' in section 4B1.2 is distinctively a 

 `term of art' designed to identify career offenders . . . . 

 section 4B1.2 appears to characterize as `crimes of 

 violence' many offenses that, taken individually on 

 their facts, might be interpreted as non-violent. 

Chatman, 986 F.2d at 1451 (citations omitted). By contrast, 

USSG S 5K2.13 encourages more lenient treatment: 

 the policy concerns that motivate the definition 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-violent 

 offense' in section 5K2.13 refers to those offenses that, 

 in the act, reveal that a defendant is not dangerous, 

 and therefore need not be incapacitated for the period 

 of time the Guidelines would otherwise recommend. 

Chatman, 986 F.2d at 1451-52 (citations omitted). See 

Weddle, 30 F.3d at 540 ("U.S.S.G. S 5K2.13 is intended to 

create lenity for those who cannot control their actions but 

are actually dangerous; U.S.S.G. S 4B1.2 is intended to 

treat harshly the career criminal, whether or not their 

actual crime is in fact violent"); Poff, 926 F.2d at 595 ("A 

hefty sentence may be appropriate simply because it

incapacitates and so reduces the likelihood of further 

offenses. When the described person's conduct is nonviolent, however, incapacitation is less important .. . . 

Because legal sanctions are less effective with persons 

suffering from mental abnormalities, a system of 

punishment based on deterrence also curtails sanction") 

(Easterbrook, J., dissenting). 

This approach allows the district judge to make a factspecific inquiry not governed by the "crime of violence" 

definition of USSG S 4B1.2. See Chatman, 986 F.2d at 1450 

("we are not persuaded that section 4B1.2 should govern 

the application of section 5K2.13. Rather . . . the

sentencing court has broad discretion under section 5K2.13 

 19 
to examine all the facts and circumstances of a case to 

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

C. 

As noted, the en banc court enables us to examine again 

the language, structure, and purpose of the sentencing 

guidelines and to appraise again the definition of"nonviolent offense" in USSG S 5K2.13. Although our initial view 

set forth in Rosen was a reasoned interpretation that now 

represents the view of most courts of appeals, we now 

believe the analysis of the relationship between USSG 

S 5K2.13 and USSG S 4B1.2 articulated by the dissent in 

Poff and later developed in Chatman and Weddle is more 

convincing. 

Without detailing those arguments already set forth, we 

find especially compelling the following observations. First, 

USSG S 5K2.13 contains no cross-reference to USSG 

S 4B1.2's definition of "crime of violence." Even though 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 linking 

"non-violent offense" to the "crime of violence" definition in 

S 4B1.2. 

Second, by limiting USSG S 5K2.13 to those defendants 

whose "criminal history does not indicate a need for 

incarceration to protect the public," the Sentencing 

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 definitions of 

general applicability which includes neither "crime of 

violence" nor "non-violent" offense. That provision specifies: 

"[d]efinitions . . . [which] appear in other sections . . . . are 

not designated for general applicability; therefore their 

applicability to sections other than those expressly 

_________________________________________________________________ 

11. Judge Stapleton's elaboration in his concurrence on the differences 

between the Poff dissent and Chatman is instructive. 

 20 
referenced must be determined on a case by case basis." 

USSG S 1B1.1, comment. (n.2). USSG S 4B1.2's "crime of 

violence" definition is therefore one of limited applicability. 

Fourth, USSG S 4B1.1 and USSG S 5K2.13 address 

different policy concerns. While USSG S 4B1.1 increases 

sentences for persons whose criminal records suggest a 

propensity to commit violent crimes, USSG S 5K2.13 

encourages more lenient treatment for persons who are not 

actually dangerous but whose reduced mental capacity 

contributed to the commission of a crime. 

In short, the choice of different phrasing, the absence of 

a cross-reference, and the explicit definitions attached 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 the district 

judge. Or it could delete the reference to "non-violent 

offense" in USSG S 5K2.13. But in the absence of some 

direction from the Sentencing Commission, we are 

unwilling to apply the "crime of violence" definition 

articulated in USSG S 4B1.2 to USSG S 5K2.13. 

Although we find convincing many of the arguments put 

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 has 

committed a "non-violent offense." The question remains 

whether there is anything that constrains the district 

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, between 

finding guilt and imposing sentence. Until recently, 

sentencing had been the courts' unique role. Before the 

advent of mandatory sentences and sentencing guidelines, 

courts routinely looked to all the facts and circumstances 

before passing sentence. Indeed, the severe effects of a 

 21 
"borderline" conviction were often mitigated by a lenient 

sentence. 

But the Sentencing Reform Act brought with it significant 

changes. Since adoption of the sentencing guidelines, the 

fact of conviction, whatever the nature or character of the 

crime, has carried concrete and sometimes rigid sanctions 

(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 the 

consequences of certain kinds of convictions. This is 

difficult to do, especially when it involves pinpointing 

behavior in an almost infinite spectrum and affixing 

quantitative values. But whether the existing guideline 

structure can permit the Sentencing Commission to fashion 

a just downward departure in every case where it is

appropriate, it is clear that the Sentencing Commission 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. Because 

the sentencing guidelines offer no "guidance" on how to 

define "non-violent offense," we are led back to the enabling 

statute, the Sentencing Reform Act,12 and its articulation of 

the factors to be considered in imposing sentence.13 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 guideline, the court shall 

 impose an appropriate sentence, having due regard for the purposes 

 set forth in subsection (a)(2). In the absence of an applicable 

 sentencing guideline in the case of an offense other than a petty 

 offense, the court shall also have due regard for the relationship 

of 

 the sentence imposed to the sentences prescribed by guidelines 

 applicable to similar offenses and offenders, and to the applicable 

 policy statements of the Sentencing Commission. 

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

13. The general factors articulated in 18 U.S.C.S 3553(a) provide, in 

part: 

 22 
particular interest here, when trying to define "non-violent 

offense," is the need for the sentence imposed to reflect 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 taking, 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 sentence.-- The court 

 shall impose a sentence sufficient, but not greater than necessary, 

 to comply with the purposes set forth in paragraph (2) of this 

 subsection. 

* * * 

 (2) the need for the sentence imposed -- 

 (A) to reflect the seriousness of the offense, to promote respect 

 for the law, and to provide just punishment for the offense; 

 (B) to afford adequate deterrence to criminal conduct; 

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

 and 

 (D) to provide the defendant with needed educational 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 specific sense, these factors 

have been largely supplanted by the sentencing guidelines. 

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 intimidation, 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, credit union, or any 

 savings and loan association. 

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

 23 
property 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 into 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 infer 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 actual or 

threatened force, violence, or fear."16 If there is no taking by 

_________________________________________________________________ 

 Whoever enters or attempts to enter any bank, credit union, or 

 any savings and loan association, or any building used in whole or 

 in part as a bank, credit union, or as a savings and loan 

 association, with the intent to commit in such bank, credit union, 

 or in such savings and loan association, or building, or part 

thereof, 

 so used, any felony affecting such bank, credit union, or such 

 savings and loan association and in violation of any statute of the 

 United States, or any larceny -- 

 Shall be fined under this title or imprisoned 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 another, with [their] 

consent, induced by wrongful use of actual or threatened force, violence, 

or fear, or under color of official right"). Both the 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 means of protecting 

the institutions in which the Federal Government is interested") 

(citations omitted), cert. denied, 501 U.S. 1211 (1991). 

In 1986 Congress amended S 2113(a) to expressly cover extortion 

directed at federal insured banks and make it the"exclusive 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 stated that extortionate 

conduct had been prosecutable under either the [18 U.S.C. S 2113(a)] or 

 24 
extortion, 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, there could 

be a conviction under 18 U.S.C. S 2113(b) (theft without 

threat of force). It would seem, therefore, that with bank 

robbery convictions under the first paragraph of 18 U.S.C. 

S 2113(a), a defendant could not qualify for a departure 

under USSG S 5K2.13 as presently written. Of course, this 

refers to convictions only under the first paragraph of 

S 2113(a). The second paragraph of that section describes 

entering, or attempting to enter, a bank with intent to 

commit a felony therein. The second paragraph does not 

necessarily describe a crime of violence; that would 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 intimidation, 

_________________________________________________________________ 

the Hobbs Act, and concluded that clarification as to which should be 

the applicable statute is desirable. Id. 

The guidelines make a distinction between "Extortion 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 latter applies "only to 

blackmail and similar forms of extortion where there clearly is no threat 

of violence to person or property." USSG S 2B3.3, comment. (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. denied, 498 U.S. 986 

(1990); 

United States v. Pick, 724 F.2d 297, 301 (2d Cir. 1983) ("Section 2113(a) 

prohibits entry of a bank with the intent to commit `any' felony 

[including mail fraud] and in no way limits its application to robberies, 

burglaries, or felonies not covered under other sections of the Act"); 

United States v. Brown, 547 F.2d 36, 39 (3d Cir. 1976) (Felonious intent 

is not "made part of the crimes of taking by force and violence or by 

intimidation ([subsection] a-first paragraph)") (emphasis supplied), cert. 

denied, 431 U.S. 905 (1977); Williams v. United States, 301 F.2d 276, 

277 (7th Cir. 1962) (With respect to the second paragraph of S 2113(a), 

the "intent of Congress was to make any unlawful entry or attempted 

entry of a bank, regardless of its current state of habitation, a federal 

crime"). 

 25 
actual violence, nor the threat of violence. Extortion by an 

official acting under color of right could be a "non-violent 

offense." See, e.g., United States v. Adair, 951 F.2d 316, 

318 (11th Cir. 1992) ("In a Hobbs Act prosecution of a 

public official, the government need not prove actual or 

threatened force, violence or duress because `the coercive 

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 proof is 

satisfied if it shows that the victim feared economic harm 

and that the circumstances surrounding the alleged 

extortionate conduct rendered that fear reasonable") 

(citations omitted), cert. denied, 464 U.S. 820 (1983); 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, fear or 

duress"), cert. denied, 444 U.S. 1043 (1980). 

We believe that departures under USSG S 5K2.13 exclude 

conduct that involves actual force, threat of force, or 

intimidation, the latter two measured under a reasonable 

person standard. Therefore, "non-violent offenses" under 

USSG S 5K2.13 are those which do not involve a reasonable 

perception that force against persons may be used in 

committing the offense. 

Although conviction and sentencing are separate, 

sentencing has always been tied to the crime of conviction 

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 sentence 

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 standard 

(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 

 26 
diminished mental capacity who is not dangerous to the 

public (as defined by his criminal history). This may be so, 

especially where violence is threatened, but the threat 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 threat of 

violence was never carried out? Under the current 

guidelines, we think the answer is yes for the reasons 

expressed by us and by Judge Stapleton in his thoughtful 

concurrence.18 

E. 

In this case, Askari was found guilty of bank robbery. 

The bank teller, Ellen Ishizaki, described the robbery 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 pressed the alarm 

 button, the silent alarm. He then pushed his way over 

 to my window, asked me for the money and then he, 

 you know, and I still hesitated and then finally he told 

 me I had three seconds to give him my money. And 

 then I gave him my money . . . . [I was scared] 

 [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 his 

hand in his shirt, was fearful. An ordinary person in the 

bank teller's position reasonably could infer a threat of 

bodily harm from Askari's demand and actions. Looking at 

the elements of the crime and the surrounding conduct, 

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 condition application of 

USSG S 5K2.13 on an unrealized threat of violence. But under the 

current guidelines, we believe no distinction presently exists. 

 27 
Askari was sentenced as a "career offender." (Presentence 

Report P 33). USSG S 5K2.13 applies only if Askari's 

criminal history does not indicate a need for incarceration 

to protect the public. Even if this bank robbery were 

classified as a non-violent offense, Askari may still not have 

qualified for a USSG S 5K2.13 departure. Askari's criminal 

history contains other violent crimes, including two armed 

bank robberies, suggesting his incapacitation may be 

necessary. (See App. at 56a (district court noting "[t]he 

Defendant . . . has a long history of crime, including violent 

crime . . . . the criminal history score in this case 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 commit 

a "non-violent offense." 

We will affirm the judgment of conviction and sentence. 

_________________________________________________________________ 

19. Askari's criminal convictions include (1) bank robbery at gunpoint 

(1974); (2) robbery at gunpoint and violation of the Uniform Firearms Act 

(1980); (3) theft (1982); and (4) possession of a firearm by a convicted 

felon (1983). (See Presentence Report PP 29-32). 

 28