United States v. Askari (Part II - Amended)

Opinions of the United
1998 Decisions States Court of Appeals
for the Third Circuit

4-8-1998

United States v. Askari (Part II - Amended)
Precedential or Non-Precedential:

Docket 95-1662

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CORRECTED REPRINT

Volume 2 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.
STAPLETON, Circuit Judge, concurring:

Although it is a close question, I, too, am persuaded that
the content of the phrase "non-violent offense," as used in
U.S.S.G. S 5K2.13, should not be determined by reference
to the definition of the phrase "crime of violence" in
U.S.S.G. S 4B1.2. I also conclude that a downward
departure is not authorized by S 5K2.13 in this case.
However, I reach that conclusion by a route somewhat
different from that followed by the court.

Having concluded that the scope of the phrase "non-
violent offense" in U.S.S.G. S 5K2.13 is not controlled by the
scope of the phrase "crime of violence" in U.S.S.G. S 4B1.2,
one must determine whether Askari's bank robbery offense
constitutes a "non-violent offense" for the purposes of
U.S.S.G. S 5K2.13. I conclude that it does not because a
federal bank robbery conviction necessarily involves a
finding that the offense involved actual force or a threat of
force and such a finding, in my view, precludes
characterization of the offense as a non-violent one for
purposes of S 5K2.13.1

The Poff dissent took note not only of S 5K2.13's
requirement that the offense of conviction be "non-violent,"
but also of its requirement that the defendant's criminal
history not indicate a need to protect the public. Read
together, this dual requirement suggested to the dissenting
judges that S 5K2.13 was intended to authorize leniency for
those individuals who suffer from diminished mental
_________________________________________________________________

1. I use the term "bank robbery" in the traditional sense. Traditional
bank robbery is proscribed by the first paragraph of 18 U.S.C. S 2113(a)
which 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.

While it has been suggested that a public official may be able to commit
bank robbery by "extorting" bank funds without a threat of violence, I
would not regard this as traditional bank robbery and I would take no
position on the application of S 5K2.13 in such a case.

30
capacity that contributed to their crimes so long as neither
the history of the defendant nor the character of the crime
indicated a need for incapacitation. Against this
background, the Poff dissent ultimately concluded that a
"non-violent offense" is "one in which mayhem did not
occur" -- one that "in the event did not entail violence." 926
F.2d at 594, 595. This conclusion suggests that leniency is
available where the offense of conviction involved any sort
of unrealized threat of violence so long as the defendant's
criminal history does not indicate the need for
incapacitation.

The Chatman court similarly read S 5K2.13 as intended
to authorize leniency for those whose diminished mental
capacity contributed to their crimes so long as neither the
crime nor the criminal history indicates a need for
incapacitation. It rejected, however, the position of the Poff
dissent that unrealized threats of violence cannot render an
offense a violent one. In the view of the Chatman court,
"[s]ome offenses that never result in physical violence may,
nonetheless, indicate that a defendant is exceedingly
dangerous, and should be incapacitated." 986 F.2d at
1454. Thus, if the sentencing court determines that "an
offense involved a real and serious threat of violence--such
as an assault with a deadly weapon," it should conclude
that it is not a "non-violent offense" for purposes of
S 5K2.13. Id.. In the case before the Chatman court, the
defendant had robbed a bank by handing a note to a teller
demanding money and stating, "People will get hurt if I
don't walk out of this bank." Id. at 1447. The case was
remanded to the district court presumably for a
determination of the defendant's state of mind.

Chatman and the Poff dissent both take the view that the
sentencing court should look to the underlying facts to
determine whether the offense was non-violent. I agree,
although I believe it may be helpful for a sentencing court
to take note of the essential elements of the crime of
conviction, not because those elements control the U.S.S.G.
S 5K2.13 issue in all cases, but rather because the findings
necessarily implicit in a conviction may preclude it from
being a "non-violent offense" within the meaning of
U.S.S.G. S 5K2.13.2 Moreover, I take a somewhat different
view of the scope of the phrase "non-violent offense."
_________________________________________________________________

2. This is, of course, consistent with the obligation of a sentencing
judge
to accept for sentencing purposes the facts necessarily implicit in the

31
Askari was charged with bank robbery under the first
paragraph of 18 U.S.C. S 2113(a). That offense consists of
taking, or attempting to take, anything of value, by force
and violence, by intimidation, or by extortion. As the court's
opinion demonstrates, the requirement that the 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, and 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. As the court also notes,
the term "extortion" as used in 18 U.S.C.S 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. Thus, in every case in
which the defendant is convicted of bank robbery under the
first paragraph of S 2113(a), there will be a beyond a
reasonable doubt finding that the defendant was violent or
engaged in conduct reasonably perceived as involving a
threat of violence.

Under the view taken by the Poff dissent, afinding that
the defendant's conduct was reasonably perceived as
involving a threat of violence is not relevant to whether the
_________________________________________________________________

jury's verdict. United States v. Boggi, 74 F.3d 470, 478-79 (3d Cir. 1996)
("the district court . . . properly reasoned that `a guilty verdict, not
set
aside, binds the sentencing court to accept the facts necessarily implicit
in the verdict.' ") (quoting from United States v. Weston, 960 F.2d 212,
218 (1st Cir. 1992)). While this approach to U.S.S.C. S 5K2.13 produces
the same result in a bank robbery case as that reached in Rosen, it is
analytically distinct and will produce different results in other
situations.
Under this approach, "nonviolent offense" as used in U.S.S.G. S 5K2.13
will (1) exclude from the scope of that section (i.e. exclude from
consideration for a departure based on diminished capacity) offenses
that would not be "crimes of violence" under U.S.S.G. S 4B1.2(1), as
where force against the person of another or the threat thereof is not an
essential element (e.g., transportation for purposes of prohibited sexual
conduct), but such force or threat thereof is in fact used, and will (2)
include in the scope of that section (i.e., include as candidates for such
a departure) offenses that would be "crimes of violence" under U.S.S.G.
S 4B1.2(1), as where the offense is burglary and no force against the
person of another or threat thereof is employed.

32
offense is a "non-violent" one for purposes of S 5K2.13. Like
the Chatman court, I reject that view. Section 5K2.13
clearly evidences an intent that there be no downward
departure on grounds of diminished mental capacity where
incapacitation appears necessary to protect the public, and,
in many instances, a threat of violence will be strong
evidence of such a need.

While it presents a closer issue, I also reject the Chatman
court's view that whenever a S 5K2.13 motion is filed in a
bank robbery case not involving actualized violence, the
Sentencing Commission intended the sentencing court to
determine whether the threat was a serious one that would
have been acted on had events unfolded differently. Given
that the issue turns on the Commission's intent, I look for
guidance to the text of S 2B3.1, the "Robbery" Guideline,
and the text of the criminal statute that guideline was
intended to implement. Like most robbery statutes, the first
paragraph of S 2113(a) does not distinguish between
situations in which violence actually occurs and situations
in which it is threatened but the threat is not realized.3
Both are regarded as offenses of the same degree of
seriousness. Similarly, S 2B3.1 does not distinguish
_________________________________________________________________

3. Title 18 U.S.C. S 2113(a) provides for a maximum imprisonment of 20
years. Title 18 U.S.C. S 2113(d) provides:

Whoever, in committing, or in attempting to commit, any offense
defined in subsections (a) and (b) of this section, assaults any
person, or puts in jeopardy the life of any person by the use of a
dangerous weapon or device, shall be fined under this title or
imprisoned not more than twenty-five years, or both.

On its face, this can be read as punishing bank robbers who engage in
actual violence--specifically, assault--during the commission of their
crime more severely than those who only threaten violence. This is not
the correct reading of S 2113(d), however. In Simpson v. United States,
435 U.S. 6 (1978), the Supreme Court held that subsection (d) requires
more than an assault and that " `the phrase `by the use of a dangerous
weapon or device' must be read, regardless of punctuation, as modifying
both the assault provision and the putting in jeopardy provision.' " Id.
at
13 n.6. Hence, the goal of S 2113(d) is not to punish more severely the
actual use of violence in bank robberies under S 2113(a), but rather to
punish more severely "the use of a dangerous weapon or device" in such
situations. 18 U.S.C. S 2113(d).

33
between these two situations. It does not, for example,
establish a base offense level for S 2113(a) offenses and
then provide for a specific offense characteristic increase for
those situations in which violence actually occurs.4

It is my understanding that robberies involving violence
and all robberies involving only threats of violence have
traditionally been regarded as of equal seriousness because
threats of violence necessarily hold an unacceptably high
risk of realized violence whether emanating from the robber
or from others attempting to respond to the threat. Because
an unacceptably high risk of actualized violence and
attendant injury exists without regard to whether the
defendant expected to commit violence, our society has
traditionally considered that factor to be irrelevant to the
defendant's culpability in a robbery context.

I agree with the view that the limitations on the
downward departure authority conferred by S 5K2.13 are
intended to preclude lenity only where no need for
incapacitation is indicated. I do not agree, however, that
where a person threatens violence in the course of robbing
a bank as a result of diminished mental capacity, no need
for incapacitation is indicated in the event the sentencing
judge believes the threat was not a "serious" one (i.e.,
probably would not have been carried out had events
unfolded differently). As I have noted, the bank robbery
statute deals with situations in which there is a high risk
of actualized violence and attendant injury without regard
to the state of the defendant's mind. Moreover,S 5K2.13
deals with situations in which diminished mental capacity
has contributed to the commission of a crime. Thus,
applying S 5K2.13 in a bank robbery context necessarily
involves a crime with a high risk of actualized violence and
a defendant with a diminished capacity to refrain from such
high risk activity. That combination suggests to me a need
for incapacitation and makes me reluctant to attribute to
the Commission an intent to authorize S 5K2.13 downward
departures in bank robbery cases. Because I find nothing
in the Guidelines that compels such an attribution, I reject
this portion of the Chatman court's decision.
_________________________________________________________________

4. U.S.S.G. S 2B3.1 does provide a specific offense characteristic
increase
when violence results in personal injury but not for violence per se.

34
I would hold that the scope of the phrase "non-violent
offense" in U.S.S.G. S 5K2.13 is not controlled by the scope
of the phrase "crime of violence" in U.S.S.G. S 4B1.2. I
would nevertheless further hold that a S 5K2.13 downward
departure is not authorized where the offense of conviction
is bank robbery.

Judge Sloviter joins this concurring opinion.

35
McKEE, Circuit Judge, concurring with whom Lewis, Circuit
Judge, joins.

I agree with the majority's conclusion that the Sentencing
Commission did not intend to import the "crime of violence"
definition from the career offender provision of U.S.S.G.
S 4B1.2 into U.S.S.G. S 5K2.13. I think the majority is
correct in rejecting our prior holding in United States v.
Rosen and the majority view in United States v. Poff in favor
of the view espoused by Judge Easterbrook in his dissent in
Poff. However, I write separately because the majority
concludes that Askari's crime was not a "non-violent
offense" based upon the elements of the crime. That is
inconsistent with the approach taken by the dissent in Poff,
and those jurisdictions that have followed Judge
Easterbrook's reasoning. Rather than deny Askari a
S 5K2.13 departure because of the elements of his crime,
we should require an individualized inquiry into the
specifics of his conduct to determine if his actual conduct
amounts to a "non-violent offense" as that term is used in
S 5K2.13, notwithstanding the elements of his crime.
However, I nevertheless join in the judgment of my
colleagues, because Askari's criminal history indicates that
a departure under U.S.S.G. S 5K2.13 is not appropriate
because of a need to protect the public.

I.

The majority properly rejects our prior holding in United
States v. Rosen, 896 F.2d 789 (3d Cir. 1990). The majority's
rejection of the reasoning of Rosen is grounded in Judge
Easterbrook's dissent in United States v. Poff , 926 F.2d 588
(7th Cir. 1991), as well as the holding in United States v.
Chatman, 986 F.2d 1446 (D.C. Cir. 1993), and United
States v. Weddle, 30 F.3d 532, 540 (4th Cir. 1994). Maj.
Op. at 17. However, the majority parts company with those
cases insofar as those cases direct the sentencing court to
engage in a fact-specific inquiry concerning the defendant's
actual conduct, and the circumstances surrounding the
offense, in order to determine if a particular offense is "non-
violent" under S 5K2.13. Instead, the majority "take[s] a
somewhat different view of the applicable standard." Maj.
Op. at 21. It limits its inquiry here to the elements of the

36
crime of conviction and allows those elements to govern its
determination of whether Askari committed a "non-violent
offense" under S 5K2.13.

The majority reasons, "[i]f the elements of the crime
require a finding of violent conduct, then a valid conviction
can hardly permit a sentence based on a finding of non-
violent conduct." Maj. Op. at 26. After considering the
elements of Askari's robbery charge, the majority concludes
that robbery under 18 U.S.C. S 2113(a)1 is a crime of
violence barring any consideration as a "non-violent crime"
under S 5K2.13. Under this approach, once a sentencing
court concludes that the elements of a crime include
violence or intimidation, a defendant is no longer eligible for
the fact-specific, case by case inquiry that would otherwise
govern a departure for a "significantly reduced mental
capacity" under S 5K2.13. Although the majority's approach
does have a certain logic and symmetry that is quite
appealing, I am not persuaded that the analysis under
S 5K2.13 ought to be as limited as the majority concludes.

The Sentencing Reform Act and the resulting Sentencing
Guidelines have altered the relationship between the
offense of conviction, and the criminal sanction that follows
to the extent that the symmetry of the majority's analysis is
no longer required or appropriate.2 As the majority correctly
points out, the purposes of S 4B1.2 and S 5K2.13 are not
the same. The factors that are relevant under S 4B1.2 are
_________________________________________________________________

1. 18 U.S.C. S 2113(a) provides, in part, that:

(a) Whoever, 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 care, custody,
control,
management, or possession of, any bank, credit union, or any
savings and loan association.

2. See United States v. Watts, ___ U.S. ___, 117 S. Ct. 633 (1997)
(sentencing court may consider conduct of which the jury acquitted a
defendant in imposing a sentence following a conviction); United States
v. Baird, 109 F.3d 856 (3d Cir.), cert. denied, 118 S. Ct. 243 (1997)
(Guidelines allow a defendant to be sentenced based in part upon
conduct contained in counts of an indictment that were dismissed
pursuant to a plea bargain).

37
not necessarily relevant, or even appropriate, under
S 5K2.13. My colleagues in the majority provide a very
reasoned and convincing statement of why the definition of
"crime of violence" cannot control whether a conviction is
for a "non-violent offense" for purposes of a downward
departure based upon "reduced mental capacity." However,
the majority then restricts the meaning of "non-violent"
offense under S 5K2.13 by the very definition that it holds
does not apply under that Guideline. Section 4B1.2 defines
"crime of violence" to include any offense that "has as an
element the use, attempted use, or threatened use of
physical force." However, today we adopt the reasoning of
Judge Easterbrook's dissent in Poff, and the cases that
have relied upon it. Under that rationale, a sentencing
court should consider "all the facts and circumstances of a
case in deciding whether a crime is a `non-violent offense' "
under S 5K2.13. Chatman, 986 F.2d at 1453. Once we
conclude that we erred in Rosen by restricting "non-violent
offense" to the definition of "crime of violence," we need no
longer tether our S 5K2.13 analysis to the definition in
S 4B1.2 that we have just rejected. This point is best
illustrated by Judge Easterbrook in his dissent in Poff:

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 make 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 (the
"heartland" of the offense, in the guidelines' argot) sets
the presumptive range; when things turn out better
than they might, departure is permissible.

Poff, 926 F.2d at 594 (citation omitted) (emphasis added).

One of the purposes of the Sentencing Reform Act was to
increase uniformity in sentencing by reducing disparities in
sentencing. See U.S. Sentencing Guidelines Manual, ch. 1,

38
pt. A, at A3 (U.S.S.G.). However, another important purpose
was to increase proportionality in sentencing by imposing
different sentences for crimes representing different levels
of culpability. Id. To reconcile these seemingly contrary
goals, the Commission, inter alia, provided for departures
outside of the guideline range. See U.S.S.G. S 5K2.0. A
policy that restricts departures based solely upon the
elements of an offense is inconsistent with the
Commission's attempt to apportion sanctions based upon
culpability. Although we may properly conclude that one
who commits a more serious crime is more culpable than
one who commits a less serious one, that equation does not
work where the more serious crime is committed by one
who is less culpable because of a reduced mental capacity.
"The criminal justice system long has meted out lower
sentences to persons who, although not technically insane,
are not in full command of their actions." Poff, 926 F.2d at
594 (Easterbrook, J., dissenting). Moreover, "[s]carce
resources and prison space achieve greater deterrence
when deployed against those who are most responsive to
the legal system's threats and who pose the greatest danger
if not deterred." Id. at 595.

Thus, in Chatman, which the majority here cites with
approval, see Maj. Op. at 19-20, the court held that a
defendant was eligible for a downward departure under
S 5K2.13 even though he (like Askari) came before the
sentencing court convicted of bank robbery. There, the
district court had opined that the defendant was ineligible
for a S 5K2.13 departure because he had given a teller a
threatening note during the bank robbery. The sentencing
court concluded that the defendant's conduct therefore
amounted to a crime of violence. Id. at 1447. The Court of
Appeals for the D.C. Circuit relied upon Judge
Easterbrook's dissent in Poff, and reversed. The court
reasoned that S 5K2.13 vested a sentencing court with
broad discretion to consider all the relevant facts
concerning the offense because the Commission's purpose
was "to treat with lenity those individuals whose`reduced
mental capacity' contributed to [sic] commission of a
crime." Id. at 1452.

In contrast to the purposes of section 4B1.2, the point
of section 5K2.13 is to treat with leniency those

39
 individuals whose reduced mental capacity contributed
to commission of a crime. Such lenity is appropriate in
part because, as Judge Easterbrook points out, two of
the primary rationales for punishing an individual by
incarceration -- desert and deterrence -- lose some of
their relevance when applied to those with reduced
mental capacity. . . .

. . . .

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. A
determination regarding the dangerousness of a
defendant, as manifested in the particular details of a
single crime that he or she has committed, is best
reached through a fact-specific investigation.

Id. (citations omitted).

Likewise, the Court of Appeals for the Ninth Circuit in
United States v. Cantu was persuaded that a sentencing
court's inquiry into a defendant's eligibility underS 5K2.13
should be undertaken with a view toward lenity. 12 F.3d
1506, 1510 (9th Cir. 1993)(citation omitted). There, the
court agreed with the analysis in Chatman, and noted that
"[l]enity is appropriate because the purpose of S 5K2.13 is
to treat with some compassion those in whom a reduced
mental capacity has contributed to the commission of a
crime." Id. Although the court in Cantu was concerned with
whether post-traumatic stress disorder could cause
reduced mental capacity under the Guidelines not with
whether the defendant committed a "non-violent offense,"
the court recognized that fact-specific inquiries must be
undertaken to determine both the defendant's mental
condition and the circumstances of the offense. See also,
United States v. McBroom, 124 F.3d 533, 547 (3d Cir. 1997)
("Section 5K2.13 is intended to create lenity for those
whose significantly reduced mental capacity cause them to
commit the offense of conviction.").

Thus, I conclude that Askari is not ineligible for a
S 5K2.13 departure solely because of his robbery conviction.

40
The record shows that, although Askari had his hand
underneath his shirt when he ordered the bank teller to
give him money, two bank employees chased him from the
bank. I submit, therefore, there is a genuine issue as to
just how frightening or intimidating he was during the
commission of the crime. However, I do not minimize the
intimidation of the bank teller whom Askari confronted. See
Maj. Op. at 27. Instead, the teller's reaction should be
assessed along with all of the other evidence in concluding
whether, based upon the totality of the circumstances,
Askari committed a "non-violent offense" under S 5K2.13. A
sentencing court should make that determination
independently of the definition contained in S 4B1.2 (which,
as noted above, includes the elements of the offense).
Barring other considerations, a defendant's eligibility for a
S 5K2.13 departure can be determined only after the
completion of such an individualized inquiry.

II.

Despite my disagreement with the conclusion of the
majority of my colleagues, I agree with the majority's
ultimate decision to affirm the sentence because there are
additional considerations under the departure provision.
Section 5K2.13 is not only restricted to persons whose
offense is non-violent, it also requires that "a defendant's
criminal history does not indicate a need for incarceration
to protect the public." See U.S.S.G.S 5K2.13. Here, the
district court noted that Askari had a long history of crime,
including violent crime. (App. at 56a.) Therefore, I agree
that regardless of whether or not the bank robbery in this
case is classified as a "non-violent offense," Askari is
ineligible for the departure because his criminal history
does suggest a need to protect the public. Thus, I concur in
the judgment of the majority.

41
GARTH, Circuit Judge, concurring:

I agree that the order of the district court should be
affirmed. However, I reach this result by relying on the logic
and common sense of Judge Seitz's opinion for our court in
United States v. Rosen, 896 F.2d 789 (3d Cir. 1990), and its
conclusion that the term "non-violent offense" cannot mean
something other than the opposite of a "crime of violence."

Rosen teaches that a defendant who has committed a
"crime of violence" according to USSG S 4B1.2(a) is not
eligible for a downward departure for commission of a "non-
violent offense" with reduced mental capacity under USSG
S 5K2.13. See id. at 791. Because Askari was convicted of
a "crime of violence," namely bank robbery, he is obviously
ineligible to receive the grant of a downward departure
authorized by S 5K2.13 and the order of the district court
imposing a sentence of 210 months in prison should be
affirmed.

The court today correctly affirms the order of the district
court, but on its path to doing so, rejects Rosen. My
colleagues take the position that the "crime of violence"
definition of USSG S 4B1.2(a) should not be used to
determine whether a defendant has committed a "non-
violent offense" according USSG S 5K2.13. For essentially
those reasons stated by the Sixth, Seventh, Eighth, Ninth,
and Eleventh Circuits, I do not find this position
persuasive. See 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); United States v. Russell, 917 F.2d
512, 517 (11th Cir. 1990); United States v. Maddalena, 893
F.2d 815, 819 (6th Cir. 1989); United States v. Borrayo, 898
F.2d 91, 94 (9th Cir. 1989); see also United States v.
Chatman, 986 F.2d 1446, 1454-55 (D.C. Cir. 1993) (D.H.
Ginsburg, J., concurring).

In light of the many opinions on this issue already found
in the Federal Reporter, I feel no need to rehash the
familiar arguments in favor of Rosen.3 However, our court's
_________________________________________________________________

3. Briefly, however, the pro-Rosen arguments may be summarized as
follows. First, common sense dictates that a "non-violent offense" is the
converse of a "crime of violence." Second, the parallel structure of

42
inability to agree on a standard to replace Rosen provides
a new perspective from which to appreciate its strength.

Having agreed to reject Rosen's teaching that a "non-
violent offense" is defined by S 4B1.2(a), my colleagues have
diverged in their efforts to come up with a new definition.
Reaching back to first principles of "modern criminology,"
the majority has promulgated a definition of "non-violent
offense" that it believes will respond to "the need for the
sentence imposed to reflect the seriousness of the offense,
to protect the public, and to provide just punishment." Maj.
Op. at 23. Under the majority rule,

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.

Maj. Op. at 26 (emphasis added). Accordingly, the district
court must examine "the elements of the crime and the
surrounding conduct" to determine whether there was
actual force or a reasonable perception of a threat of force.

In their concurrences, Judge Stapleton and Judge McKee
offer different approaches. Following conviction of a crime
involving threats of violence that were not executed, Judge
Stapleton would have the district court look to the
underlying criminal statute and the relevant section of
Chapter 2 of the Guidelines. If the district court could
discern from these texts an intent to award lighter
sentences to defendants who were unlikely to carry out
_________________________________________________________________

S 4B1.1 and S 5K2.13 suggests that the same definition should be used
to assess whether the violent nature of a defendant's crime should
support a modification of the defendant's sentence. Third, the Guidelines
should be read as a whole, and when the same word appears in related
sections, we should assume that the word carries the same meaning in
both. Fourth, the term "crime of violence" is a broad phrase that appears
in other sections of the Guidelines apart from S 4B1.1. See, e.g., USSG
SS 2K2.1, 2K1.3, 4A1.1. Its meaning therefore can be exported to
S 5K2.13 as well as to these other sections.

43
their threats of violence, Judge Stapleton would allow a
defendant who appears unlikely to have carried out a threat
of violence to be eligible for a downward departure under
S 5K2.13. Judge McKee offers yet another approach to
defining "non-violent offense." In his concurrence, Judge
McKee advocates a totality of the circumstances test, in
which a district court would be required to conduct an
individualized inquiry into the specifics of the defendant's
conduct to determine whether it constituted a "non-violent
offense."

As I see it, our court's inability to agree on a definition of
"non-violent offense" in S 5K2.13 illustrates the wisdom of
Rosen. By utilizing S 4B1.2(a), Rosen harnessed the
Sentencing Commission's efforts to delineate the
boundaries between violent and non-violent conduct. The
Commission produced a clear rule. When linked to
S 5K2.13 by Rosen, the result was simple and
straightforward guidance that produced sensible results:
defendants convicted of offenses involving the use,
attempted use, or threatened use of physical force against
a person, or whose behavior presented a serious potential
risk of physical injury to others, were ineligible for a
reduced sentence due to diminished capacity. By rejecting
Rosen, our court has created the need to fashion a
standard that at best can only replicate the efforts of the
Commission codified at S 4B1.2(a).

I do take some solace in the fact that the majority's new
standard for evaluating departures appears to do just that.
Indeed, it seems that the majority has gone out of its way
to reject Rosen in theory but has embraced it in fact.
Looking at the majority's new definition of "non-violent
offense," I am hard pressed to think of a case in which the
definition would produce a result different from Rosen: that
is, when a defendant's action would not involve "actual
force, threat of force, or intimidation, the latter two
measured under a reasonable person standard," but
nonetheless would qualify as a "crime of violence" according
to USSG S 4B1.2(a).

The court's attempt to conjure up such an example
appears in part IIID of the majority's opinion. There, the
court imagines extortion by a public official in violation of

44
the Hobbs Act. In order to come within the court's new
standard, a public official with a diminished mental
capacity not the result of voluntary intake of alcohol or
drugs, acting under color of right, would have to extort
funds in violation of the Hobbs Act in a way that did not
involve a threat of force, as judged by a reasonable person.
In such a case, the court hypothesizes, that official would
be eligible for a S 5K2.13 departure under the court's new
standard but not under Rosen.

I have never heard of such a prosecution. Nor have I been
able to locate any published reports of one. Indeed, as the
dissent notes, it is not even clear that the majority's rule
would produce a different result than Rosen given such a
set of facts. See Dissenting Op. at n.2. Thus, it appears
that the majority has rejected Rosen in theory but not in
substance: it has fashioned from first principles a new rule
that appears to mirror Rosen in every set of facts that has
been known to arise. This being so, I see no reason to
abandon our Rosen rule, with which five other circuits have
agreed.

45
BECKER, Chief Circuit Judge, Dissenting.

I join in Parts I, II, and IIIA, B, & C of the majority
opinion, which overrule United States v. Rosen, 896 F.2d
789 (3d Cir. 1990), and hold that Rosen's determination
that "non-violent offense" as used in U.S.S.G. S 5K2.13
should be controlled by the definition of "crime of violence"
used elsewhere in the Sentencing Guidelines was incorrect.
Judge Scirica's analysis in these segments of his opinion is
not only sound but itself clearly demonstrates why the only
appropriate and logical course is to permit the district
courts to consider all the facts and circumstances
surrounding the commission of a crime when deciding
whether that crime qualifies as a non-violent offense under
S 5K2.13.

In Part IIID, however, the court holds that (and attempts
to explain why) we should preclude sentencing judges from
granting S 5K2.13 departures in "traditional" bank robbery
cases.1 After invoking the Sentencing Reform Act, 18 U.S.C.
S 3553, and exploring the terms of the bank robbery
statute, 18 U.S.C. S 2113(a), the court defines "non-violent
offense" as those offenses "which do not involve a
reasonable perception that force against persons may be
used in committing the offense." Op. at 26. The court also
states that:

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. . . . [i]f 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.

Id. at 29, 31.

I do not believe that there any persuasive reasons to
support the categorical exclusion from S 5K2.13 of offense
conduct that the analysis in the first segments of Part III
would have otherwise left to fact specific consideration by
_________________________________________________________________

1. I adopt Judge Stapleton's reference to "traditional" bank robbery as
that conduct proscribed by the first paragraph of 18 U.S.C. S 2113(a).
See Concurr. Op. (Stapleton) at 30.

46
the sentencing judge. That is because, as those circuits
that have already rejected the Rosen approach have
concluded, the policies behind the departure provisions are
distinct from (and often in tension with) the career offender
and substantive offense guidelines, and that it accordingly
does not make sense to assess whether an offense is "non-
violent" based on the statutory elements of the crime.
Unlike the majority, I would follow that logic to its
conclusion. That logic, I note, is buttressed by Judge
McKee's and Judge Garth's concurring opinions.

I

Section 5K2.13 of the Guidelines is a policy statement
authorizing sentencing judges to downwardly depart in
circumstances when the offender is found to have been
"suffering from significantly reduced mental capacity not
resulting from voluntary use of drugs or other intoxicants."
Section 5K2.13 is a guided departure, one that is thus
"encouraged." See Koon v. United States, 116 S.Ct. 2035,
2045 (1996). Although a S 5K2.13 departure depends upon
a judgment as to the extent to which reduced mental
capacity contributed to the commission of the offense, a
departure is optional, and elements of discretion are plainly
present.

The critical limitation on the ability of the sentencing
judge to grant a S 5K2.13 departure is that the defendant
must have committed a "non-violent offense." This term is
not, as the majority notes, defined anywhere in the
Guidelines. In Rosen, we adopted a definition based on
"crime of violence," a term of art used in S 4B1.1, the career
offender provision, and defined in S 4B1.2. Unlike S 5K2.13,
which permits sentencing judges to exercise leniency in
appropriate circumstances, S 4B1.1 mandates that a certain
class of recidivist offenders receive the harshest sentence
possible under the circumstances by ratcheting up both the
criminal history and base offense levels.

A

The effect of Rosen was that, by applying the "crime of
violence" standard to the "non-violent offense" analysis, the

47
sentencing judge would be bound by the statutory elements
of the offense in determining whether the crime was "non-
violent." This is because a "crime of violence" is defined as
an offense that "has an element the use, attempted use, or
threatened use of physical force against the person of
another." U.S.S.G. S 4B1.2; see also United States v. Poff,
926 F.2d 588, 594 (7th Cir. 1991) (en banc) (Easterbrook,
J., dissenting) ("[W]hether a crime is one `of violence'
depends on its elements and not on the defendant's
conduct."). What actually happened is not relevant; the
court need only look to the elements of the offense of
conviction. Accordingly, since the crime of bank robbery is
defined to include force or intimidation, see 18 U.S.C.
S 2113(a), it could never be found to be a non-violent
offense under the Rosen construction.2

The majority rejects Rosen in favor of the contrary view
expressed in United States v. Weddle, 30 F.3d 532, 540 (4th
Cir. 1994), United States v. Chatman, 986 F.2d 1446 (D.C.
Cir. 1993), and in Judge Easterbrook's noted dissent in
Poff. These cases demonstrate why we must necessarily
examine the facts of the offense to determine whether
"significantly reduced mental capacity" could be a ground
for lenience at sentencing. As Judge Edwards summarized
in Chatman:

[T]he point of section 5K2.13 is to treat with lenity
those individuals whose "reduced mental capacity"
contributed to the commission of a crime. Such lenity
is appropriate because, as Judge Easterbrook points
out, two of the primary rationales for punishing an
individual by incarceration -- desert and deterrence --
lose some of their relevance when applied to those with
reduced mental capacity. As to desert, "[p]ersons who
find it difficult to control their conduct do not --
considerations of dangerousness to one side -- deserve
as much punishment as those who act maliciously or
for gain." Poff, 926 F.2d at 595 (Easterbrook, J.
_________________________________________________________________

2. The majority concedes as much. See Op. at 9-10 ("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.").

48
 dissenting). Further, "[b]ecause legal sanctions are less
effective with persons suffering from mental
abnormalities, a system of punishment based on
deterrence also curtails its sanction." Id. . . .

[W]hen an individual with "significantly reduced mental
capacity" does not pose a danger to the public, and
thus does not need to be incapacitated, that individual
is eligible for a downward departure.

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.
. . . A determination regarding the dangerousness of a
defendant, as manifested in the particular details of a
single crime that he or she has committed, is best
reached through a fact-specific investigation.

Chatman, 986 F.2d at 1452 (internal citations omitted). The
majority also recognizes this policy foundation,finding that
U.S.S.G. 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."
See Op. at 21 (emphasis added).

The policy rationale discussed in Chatman, in
conjunction with the discretionary nature of S 5K2.13
discussed supra, counsels that sentencing judges must be
given the ability to examine the facts of the offense to
determine whether a diminished capacity departure is
appropriate. To that end, Weddle, Chatman, and the Poff
dissent all reject the Rosen approach in favor of a fact-
specific inquiry. See Chatman, 986 F.2d at 1452 ("We
therefore believe that a District Court, when deciding
whether a particular crime qualifies as a `non-violent
offense,' should consider all the facts and circumstances
surrounding the commission of the crime."); Weddle, 30
F.3d at 540 (agreeing with the Chatman fact-specific
approach); Poff, 926 F.2d at 595 (Easterbrook, J.,
dissenting) (concluding that "non-violent offense" refers to
"crimes that in the event did not entail violence."). Thus,
the essential distinction between Chatman and Rosen is

49
whether the statutory definition of the crime or the facts of
the offense will be outcome determinative.3

Yet, while the majority ostensibly rejects Rosen and
claims to find the arguments in Chatman, Weddle, and the
Poff dissent "convincing," see Op. at 20, it does not fully
adopt the fact-based inquiry necessary to its own position.
Instead, the majority posits that the district court should
"look at" the facts of the offense, but should do so "within
the context of the Sentencing Reform Act and the
underlying statute defining criminal culpability." See id. at
22. It then directs courts to "assess the seriousness of the
offense" to determine whether a departure is warranted by
looking "to the elements of the crime and the surrounding
conduct." Id. at 23. And while the majority holds that "non-
violent offense" should be defined based on the "reasonable
perception that force against persons may be used" --
which sounds more like a fact specific inquiry-- it
concludes that:

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.
_________________________________________________________________

3. I note that the circuit split on the question presently before us has
caught the attention of the U.S. Sentencing Commission, which has
recently proposed four alternative amendments toS 5K2.13. See 62
Crim. L. Rep. 2051, 2078-79 (Jan. 21, 1998). Option one corresponds to
the Rosen - Poff majority view. Option two corresponds to the Chatman
fact-intensive view. Option three, a variation on the Chatman view,
"defines the scope of the departure to exclude cases that involve actual
violence or a serious threat of violence." Id. at 2078. Finally, option
four
broadens the scope of the departure by eliminating the "non-violent
offense" limitation altogether. See id. It is interesting that the
Commission, obviously influenced by the force of Judge Easterbrook's
Poff dissent, which it explicitly references, appears to be in doubt over
the best course to take. Unlike many of the other proposals for
amendment it has made in the past, the Commission proposes four
distinct options rather than taking a definite stance on this issue.

50
Id. at 26.

Since the applicable provision of 18 U.S.C. S 2113(a) has
as a statutory element actual or threatened force (the latter
measured under an objective standard), by definition an
offender convicted of traditional bank robbery could never
be found to have committed a "non-violent" offense. Thus,
under the majority's construction of Chatman, Muhammad
Askari could not qualify for a departure under S 5K2.13
regardless of the factual circumstances underlying his
offense. To that end, the majority's proposed "reasonable
perception" standard does not save its opinion from being
analytically identical to Rosen. As Judge McKee explains in
his concurring opinion, under the majority's reasoning
"once a sentencing court concludes that the elements of a
crime include violence or intimidation, a defendant is no
longer eligible for the fact-specific, case by case inquiry that
would otherwise govern a departure . . . under S 5K2.13."
Concurr. Op. (McKee) at 37. In other words, in such a
circumstance the majority directs us not to consider
whether the facts of the case constitute a real expression or
threat of violence, but whether the crime itself is "of
violence." This restricts the meaning of "non-violent offense"
by "the very definition [the majority] holds does not apply."
See Concurr. Op. (McKee) at 38.

I fail to see how this approach, which appears to credit
Judge Easterbrook's reasoning, is substantially different
from a straightforward application of Rosen or the majority
view in Poff. As Judge Garth aptly opines in his concurring
opinion, the majority has "gone out of its way to reject
Rosen in theory but has embraced it in fact." See Concurr.
Op. (Garth) at 44. I observe that the majority has properly
rejected Rosen in theory, but has gone out of its way to
embrace it in fact.

B

It is important that we pause and recognize the
significance of what the majority holds today. As the
majority correctly notes, one element of the applicable bank
robbery statute is that the offender takes property either
"by force and violence" or "by intimidation." See Op. at 12.

51
As discussed, it is this element of the offense that seals
Muhammad Askari's fate. However, as the majority also
notes, to prove "intimidation," the government need only
show that an "ordinary person in the teller's position
reasonably could infer a threat of bodily harm from the
defendant's acts." Id. (citing United States v. Woodrup, 86
F.3d 359, 363 (4th Cir.), cert. denied, 117 S. Ct. 332 (1996).
This means that a defendant whose diminished mental
capacity at the time of the offense is beyond cavil could be
precluded from a S 5K2.13 departure despite a record that
clearly demonstrates that (a) there was no actual violence;
(b) there was no real chance of violence being carried out;
and (c) no one in the bank at the time of the robbery
actually felt threatened by the defendant. This result
cannot be consistent with the desert and deterrence
rationales discussed supra and impliedly embraced by the
majority.4
_________________________________________________________________

4. The majority attempts in Part IIID of its opinion to suggest a set of
circumstances in which an offender convicted of bank robbery still could
qualify for a S 5K2.13 departure. In the majority's hypothetical, a public
official could commit bank robbery by extortion in violation of the Hobbs
Act, 18 U.S.C. S 1951(b)(2) without force or the threat of force. See Op.
at 25-26. As Judge Garth suggests in his concurring opinion, this is a
somewhat far-fetched set of facts, and is not particularly helpful in
deciding whether the rule the majority fashions today is distinguishable
from Rosen. I would also add that the majority's example, on its own
facts, although styled as a "bank robbery" would appear to involve
instead a prosecution under the Hobbs Act -- which does not have as a
necessary element the use of force or the threat of force. See United
States v. Addonizio, 451 F.2d 49, 72 (3d Cir. 1972) (indicating that
Hobbs Act violation can be based on fear of economic loss). In that case,
the majority's hypothetical defendant could be eligible for a S 5K2.13
departure even under Rosen. If, on the other hand, the majority's
example would entail a prosecution under 18 U.S.C.S 2113(a), by the
terms of the majority's own opinion a diminished capacity departure
would be precluded. See Op. at 25 ("It would seem, therefore, that with
bank robbery convictions under the first paragraph of 18 U.S.C.
S 2113(a) [including extortionate acts], a defendant could not qualify for
a departure under USSG S 5K2.13 as presently written.").

In order to distinguish itself from Rosen, the majority would need to
generate a hypothetical under the first paragraph of 18 U.S.C. S 2113(a)
that would not foreclose a diminished capacity departure. This the

52
In contrast, to be consistent with its reasoning in Part
IIIC, the majority should have modeled its result in Part
IIID on Chatman. The facts of Chatman are just like those
presently before us. The unarmed defendant walked into a
bank, passed the teller a note demanding money, and
threatened violence otherwise. The defendant left the bank
without incident and was captured by the police soon
thereafter. Since it was unclear from the record whether the
district court had assessed the specific facts of the case and
exercised its discretion to depart, or whether it had
categorically rejected the S 5K2.13 departure based on the
statutory definition of bank robbery, the D.C. Circuit
remanded for a resentencing. See Chatman, 986 F.2d at
1454. The same result should obtain here. As in Chatman,
the district court rejected the S 5K2.13 departure not on the
facts, but because it believed (correctly, as things have
turned out) that it was precluded from departing based on
the elements of the crime. But as Judge McKee states, once
we have rejected Rosen, "we need no longer tether our
S 5K2.13 analysis to the definition in S 4B1.2 that we have
just rejected." Concurr. op. (McKee) at 38.5

II

Judge Stapleton, writing separately, also agrees that the
definition of "non-violent offense" used in S 5K2.13 should
_________________________________________________________________

majority has not done. See also Concurr. Op. (Stapleton) at n.1 ("While
it has been suggested that a public official may be able to commit bank
robbery by "extorting" bank funds without a threat of violence, I would
not regard this as traditional bank robbery and I would take no position
on the application of S 5K2.13 in such a case.").

5. Both the majority in Part IIIE and Judge McKee's concurrence
conclude that we should also affirm the district court's denial of a
departure pursuant to S 5K2.13 because Askari's criminal history
suggests a need to protect the public. While it is true that to be
eligible
for a diminished capacity departure, S 5K2.13 requires that "a
defendant's criminal history does not indicate a need for incarceration to
protect the public," and while the district court found that Askari has a
long history of crime, the district court did not expressly make a finding
about the need for incarceration in this case. I believe that that
determination should be made by the district court in the first instance.

53
not be controlled by the definition of "crime of violence"
used in the career offender provision, S 4B1.1. However, like
the majority, he concludes that a downward departure is
not warranted in traditional bank robbery cases. Although
Judge Stapleton's rationale differs somewhat from the
majority's, I believe that it still comes up short.

Judge Stapleton's reasoning can be summarized as
follows. First, he rejects Judge Easterbrook's view that the
findings of the jury at the guilt phase with respect to the
defendant's use of violence or threats are essentially
irrelevant at the departure phase. See Concurr. Op.
(Stapleton) at 34. Judge Stapleton believes, like the
majority, that if a conviction for bank robbery necessarily
entails a jury finding that the defendant's conduct was, at
least, reasonably perceived as involving a threat of violence,
this finding should preclude characterization of the offense
as "non-violent" for S 5K2.13 purposes. See id. at 30, 34.
The difference between this view and Rosen, according to
Judge Stapleton, is that while Rosen mandates that the
elements of the offense control the outcome in all cases,
under the Stapleton view the elements do not always
control, but rather the "findings necessarily implicit in a
conviction may preclude" characterization of the offense as
"non-violent." See id. at 31.

Accordingly, Judge Stapleton also rejects the Chatman
view that whenever a S 5K2.13 motion is made in a bank
robbery case involving unrealized violence, the sentencing
court should have the opportunity to make an independent
determination whether or not the threat "was a serious one
that would have been acted on had events unfolded
differently." See id. at 33.6 His rejection of the need for such
_________________________________________________________________

6. The Chatman court disagreed with the Poff dissent to the extent that
Judge Easterbrook's opinion could be read to suggest that any crime
that does not actually involve physical violence is a "non-violent
offense."
See Chatman, 986 F.2d at 1454. The court found instead that some
offenses that did not actually result in violence may suggest that the
defendant is "exceedingly dangerous" and needs to be incapacitated. See
id. The court described such offenses as those which "involved a real and
serious threat of violence," and included as an example assault with a
deadly weapon. See id. This determination, however, was left to the
district court.

54
factual findings is premised on a belief that the Sentencing
Commission intended the Guidelines to follow the
"traditional view" that crimes involving violence and crimes
involving only threats of violence are regarded as being of
equal seriousness. Based on an examination of the text of
both the robbery guideline and the robbery statute, he finds
no distinction between realized violence and unrealized
threats. Accordingly, Judge Stapleton concludes that the
Commission did not intend to authorize downward
departures in traditional bank robbery cases involving only
unrealized threats. See id. at 34. Hence, Judge Stapleton is
of the view that an offense involving an unrealized threat
could never be "non-violent."

I disagree with this analysis for two reasons. First, I am
not persuaded that Judge Stapleton's reliance on "the
findings necessarily implicit in a conviction" is analytically
distinguishable from the Rosen approach. The findings that
are necessary to a conviction for a given offense will always
be equivalent to the statutory elements of that offense --
that is, to say that implicit in a bank robbery conviction is
a jury finding that there was a reasonable inference of a
threat of bodily harm is no different from saying that the
bank robbery statute requires the government to prove that
the victims reasonably felt threatened. Thus, it makes no
sense to me to hold that the sentencing court should"look
to the underlying facts," see Concurr. Op. (Stapleton) at 31,
while simultaneously holding that a departure could be
precluded by "implicit" facts -- i.e. the elements of -- the
conviction. I reiterate the point made by both Judges
McKee and Garth that there is no difference between the
Rosen "crime of violence" approach and an approach by
which the decision to depart is per se precluded by the
statutory elements of the offense. See Concurr. Op. (McKee)
at 38; Concurr. op. (Garth) at 51-52. Judge Stapleton's first
conclusion cannot be consistent with a rejection of Rosen.

Second, Judge Stapleton's conclusion that the
Commission has adopted the "traditional view" that threats
and actual violence should be treated the same in the
departure context is equally problematic. As the majority's
analysis of Poff, Chatman, and Weddle amply indicates, a
major reason why we have rejected the Rosen analysis is

55
that the policy goals driving the departure provisions are
significantly different from the policy goals motivating the
other portions of the Guidelines. See Op. at 18-19, 21; see
also Chatman, 986 F.2d at 1452. Thus, while it may make
good policy sense to treat bank robbery offenders who use
violence the same as those who only threaten violence for
purposes of computing the applicable base offense level,
different policy goals are implicated when it comes to the
departure decision, and in that context it does not
necessarily make sense to treat empty threats and actual
violence as per se the same.

Furthermore, as Judge McKee explains in his concurring
opinion, the "Sentencing Reform Act and the resulting
Sentencing Guidelines have altered the relationship
between the offense of conviction, and the criminal sanction
that follows." Concurr. Op. (McKee) at 37. To use
Guidelines vocabulary, the "heartland" of the offense sets
the presumptive sanction range by way of the base offense
level. In the bank robbery context, that heartland is defined
by the mere prospect of violence. See Poff, 926 F.2d at 594
(Easterbrook, J., dissenting). Thus, the presumptive
sanction is the same whether the offense involved actual
violence or the threat of violence. Section 5K2.13, however,
is concerned with whether the offense conduct is indicative
of a need for the standard incapacitation entailed by a given
offense or whether the conduct is more indicative of a
mental illness, and thus society has a lesser need to
incapacitate. See Chatman, 986 F.2d at 1452 (discussing
incapacitation rationale). Thus, when "things turn out
better than they might" and violence does not actually
occur, a departure becomes permissible. Poff, 926 F.2d at
594 (Easterbrook, J., dissenting). In that light, whether the
offender was actually violent or posed a real threat of
violence, or whether he presented a threat that was unlikely
to have been realized, is a central and necessary factual
distinction in the departure context. Thus, it does not
necessarily follow that because the robbery offense
guideline does not distinguish between realized and
unrealized violence that the departure provisions should
similarly not make such a distinction.

Moreover, it is not even obvious that the robbery offense

56
guideline does not fully distinguish between "situations in
which violence actually occurs and situations in which it is
threatened but the threat is not realized." Concurr. Op.
(Stapleton) at 33. Judge Stapleton is correct that S 2B3.1,
the robbery offense guideline, does not provide for a specific
base level enhancement for violence per se. However,
S 2B3.1(b)(3) mandates a graduated offense level increase if
the victim of the robbery sustained a bodily injury.7 I
recognize that there can be crimes where violent conduct
occurs but does not result in bodily injury, and thus this
enhancement does not squarely refute Judge Stapleton's
argument. See United States v. Harris, 44 F.3d 1206, 1218
(3d Cir. 1995) (finding that there will be crimes where the
offender will use mace but will not cause bodily injury to
victims). At the same time, it seems plausible to read into
this provision an intent of the Commission to treat serious
threats the same as violence only when that violence does
not result in injury. Since threats by themselves cannot
cause bodily injuries, see United States v. Sawyer, 115 F.3d
857, 859 (11th Cir. 1997) (holding that psychological injury
by itself cannot support an enhancement under
S 2B3.1(b)(3)), the Commission clearly intended to treat
legitimate threats and substantial violence differently.
Perhaps, then, the Commission did not adopt Judge
Stapleton's "traditional view" wholesale after all.8

In sum, I would follow the principles advanced in
_________________________________________________________________

7. Section 2B3.1(b)(3) provides, in part:

If any victim sustained bodily injury, increase the offense level
according to the seriousness of the injury:

Degree of Bodily Injury Increase in Level
(A) Bodily Injury add 2
(B) Serious Bodily Injury add 4
(C) Permanent or Life-Threatening Bodily
Injury add 6

8. Even accepting that the Commission did not intend to distinguish
between violent offenses and offenses involving a real threat to violence
in the departure context, that does not change the fact that the
sentencing court needs to examine the offense conduct to determine if
the threat was real enough to justify being treated like actual violence
in
the departure context.

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Chatman, Weddle and the Poff dissent. Even if there is a
reasonable perception of a threat by the bank teller that
justifies a conviction and a base offense level that is the
same as if the offender had used actual violence, the policy
goals underlying Chapter Five of the Guidelines are
different from the policies underlying the substantive
offense provisions, and thus the jury's factual
determinations should not necessarily preclude a
departure.

III

The improvidence of the majority view is demonstrated by
a recent highly publicized incident in the Philadelphia area.
In December of 1997, in a drama resembling the one
currently before us, the mayor of Darby Borough,
Pennsylvania, a beloved and respected long-time member of
the community, walked into a local bank in broad daylight
and told a teller "This is a robbery. I have a bomb on me."
See Lisa Sandberg, Darby Mayor Held in Bank Heist,
Philadelphia Inquirer, Dec. 28, 1997, at B5. Apparently the
mayor walked out with $1,500, but surrendered to
authorities about one half-hour later. See id. According to
the police investigating the crime, the mayor did not
actually possess a bomb. See id. Friends and colleagues
believe that his actions were the product of chronic
depression related to personal and financial troubles. See
Raphael Lewis & Lisa Sandberg, Depression Tied to Bank
Robbery, Philadelphia Inquirer, Dec. 30, 1997, at B1, B6.

If this were a federal case (it is not and will not be),9 a
district court would have no grounds under the majority's
opinion to depart downwards on grounds of diminished
capacity. More specifically, it would have no grounds to
depart even if it found beyond cavil that the defendant's
actions were prompted by a deep psychological disturbance
and that there was no real threat of violence. In my view
that makes no sense.
_________________________________________________________________

9. I am informed by the United States Attorney that the mayor is being
prosecuted in state court, and that he will not be prosecuted in federal
court.

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For all the foregoing reasons, I respectfully dissent. Judge
Nygaard and Judge Roth join in this dissent.

A True Copy:
Teste:

Clerk of the United States Court of Appeals
for the Third Circuit

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