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,*fn1 Stapleton, Mansmann, Greenberg, Scirica, Cowen, Nygaard, Alito, Roth, Lewis, McKEE, and Garth, Circuit Judges
The opinion of the court was delivered by: 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 § 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 non-violent. 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.
Muhammad Askari appeals his sentence for bank robbery under 18 U.S.C.A. § 2113(a) (West Supp. 1997), contending the district court should have granted him a downward departure for diminished capacity under USSG § 5K2.13 because (1) the unarmed bank robbery was non-violent 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. § 4244(d), to a federal institution for psychiatric care and treatment.*fn2 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).*fn3 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 ¶¶ 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.*fn4
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] § 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 § 4B1.2*fn5 governs the "non-violent" offense requirement of USSG § 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 offense" requirement of § 5K2.13 is not governed by the "crime of violence" definition contained in§ 4B1.2. United States v. Weddle, 30 F.3d 532, 540 (4th Cir. 1994); United States v. Chatman, 986 F.2d 1446, 1450 (D.C. Cir. 1993).
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 § 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 -- § 4B1.2 and § 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 § 5K2.13.
Id. at *4-6 (citations omitted). We vacated our panel decision in Askari for reconsideration en banc.
The able district Judge, following our decision in United States v. Rosen, 896 F.2d 789 (3d Cir. 1990), determined that he lacked authority to depart downward.*fn6 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.
USSG § 5K2.13, a policy statement permitting downward departures,*fn7 provides:
If the defendant committed a non-violent offense while suffering from significantly reduced mental capacity not resulting from voluntary use of drugs or other intoxicants, a lower sentence may be warranted to reflect the extent to which reduced mental capacity contributed to the commission of the offense, provided that the defendant's criminal history does not indicate a need for incarceration to protect the public.
USSG § 5K2.13, p.s. (emphasis supplied).
"Non-violent offense" is not defined in either USSG § 5K2.13 or the commentary.*fn8 But the term "crime of violence" is defined in the "career offender" provisions of Chapter 4.*fn9 USSG § 4B1.1 enhances the offense level for career offenders, and USSG § 4B1.2 provides definitions for terms used in USSG § 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.
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 § 4B1.1, comment. (n.1) (emphasis supplied).*fn10 If "non-violent" offense in USSG § 5K2.13 is defined by reference to the term "crime of violence" in USSG § 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 § 1B1.1, comment. (n.2). But, "non-violent 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 § 1B1.1, comment. (n.2).
Askari was convicted of bank robbery in violation of 18 U.S.C.A. § 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 359, 363 (4th Cir.) (citations omitted), cert. denied, 117 S. Ct. 332 (1996).
As used in § 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 § 2B3.1 ("Robbery, Extortion, Blackmail") which punishes, inter alia, robbery of the property of a financial institution. USSG § 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 § 2B3.1 provides for a guideline increase if a death threat was made, it is silent on the threat of bodily harm.*fn11
Against this backdrop we examine the conflict among several courts of appeals interpreting "non-violent offense" in USSG § 5K2.13. The Discussion has centered on whether a sentencing Judge must categorically adopt the"crime of violence" definition in USSG § 4B1.2 or whether the Judge has discretion to look to the facts and circumstances in each case.
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. § 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 § 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 § 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. § 61 (1988) . . . see U.S.S.G. § 4B1.2, comment. (n.1). Defendant would have us conclude that § 5K2.13's use of the term `non-violent' means something other than the opposite of a crime of violence.
We can find no support for such a contention and therefore find no error in the district court's determination that defendant's crime was not `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 § 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 § 4B1.2 to determine whether the defendant was entitled to a downward departure in USSG § 5K2.13 for "non-violent offenses." Because defendant's crime constituted a "crime of violence," we found USSG § 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`non-violent' offense in ...