(D.C. Criminal No. 92-cr-00288)
Before: Becker, McKEE and Garth, Circuit Judges
Before: Sloviter* Chief Judge, Becker, Stapleton, Mansmann, Greenberg, Scirica, Cowen, Nygaard, Alito, Roth, Lewis, McKEE and Garth, Circuit Judges
The opinion of the court was delivered by: Becker, Chief Circuit Judge.
On Appeal from the United States District Court for the Eastern District of Pennsylvania
Submitted Pursuant to Third Circuit LAR 34.1(a)
Argued En Banc October 29, 1997
(EN BANC OPINION FILED APRIL 8, 1998)
PRESENT: BECKER, Chief Judge, SLOVITER, STAPLETON, GREENBERG, SCIRICA, COWEN, NYGAARD, ALITO, ROTH, McKEE, and GARTH, Circuit Judges.**
* Judge Sloviter was Chief Judge at the time this appeal was argued. Judge Sloviter completed her term as Chief Judge on January 31, 1998.
** Although Judge Mansmann and judge Lewis were present on the en banc panel, they were unable to be present on this petition due to illness.
ORDER SUR PETITION FOR RECONSIDERATION OF EN BANC
On April 8, 1998, we filed an en banc opinion holding that defendant Muhammad Askari could not qualify for a departure under § 5K2.13 of the United States Sentencing Guidelines because he did not commit a "non-violent offense." United States v. Askari, No. 95-1662, Slip Op. at 28 (3d Cir. 1998) (en banc). We construed "non-violent offenses" for purposes of § 5K2.13 as "those [offenses] which do not involve a reasonable perception that force against persons may be used in committing the offense." Id. at 26.
One day before our opinion was filed, on April 7, 1998, the United States Sentencing Commission proposed an amendment to § 5K2.13 of the Sentencing Guidelines which provides inter alia that a departure for diminished capacity is not available if "the facts and circumstances of the defendant's offense indicate a need to protect the public because the offense involved actual violence or a serious threat of violence." U.S.S.G. § 5K2.13 (amendment proposed April 7, 1998). The ...