concurring:
I concur in the opinion of the court, but write separately to note my view that the result in this case would not obtain if United States v. Baskin, 886 F.2d 383 (D.C.Cir. 1989), were not the law of this circuit. In Baskin the court held that although the determination whether a crime is one of violence within the meaning of § 4B1.2 of the Sentencing Guidelines must be made first with reference to the elements of the crime, the district court must also, analyze the facts of the particular case in order to determine whether the offense is “in fact [a] crime[] of violence.”
I believe that § 4B1.2 and § 5K2.13 ought to be read in tandem. Absent some indication that the terms “crime of violence” and “non-violent offense” are terms of art, common sense dictates that they are contrapositives. In both cases, the key notion is violence. We cannot “tease meaning from the Commission’s use of a prepositional phrase rather than an adjective.” United States v. Poff, 926 F.2d 588, 591 (7th Cir.1991). So long as Baskin is the law, therefore, a factual inquiry is mandated under § 5K2.13 as well as § 4B1.2.
As the court forthrightly notes, no other court has defined a "non-violent offense" as anything but the converse of a "crime of violence." See United States v. Maddalena, 893 F.2d 815 (6th Cir.1989) ("[T]he 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 non-violent offense"); United States v. Sanchez, 933 F.2d 742, 747 (9th Cir.1991) ("Because `non-violent offense’ is not defined in the guidelines, we defer to *1455the definition of `crime of violence’ ...") (quoting United States v. Borrayo, 898 F.2d 91, 94 (9th Cir.1990)); United States v. Rosen, 896 F.2d 789 (3rd Cir.1990); United States v. Poff, 926 F.2d 588 (7th Cir.1991).
Notwithstanding the implication of the court’s opinion in this case, see page 9, no circuit has in fact reached a contrary result. In United States v. Spedalieri, 910 F.2d 707 (10th Cir.1990), the court of appeals declined for want of jurisdiction to review the district court’s refusal to exercise its discretion to depart downward under § 5K2.13. Therefore, it did not have occasion to pass upon the question whether § 5K2.13 and § 4B1.2 are to be construed in like fashion. In United States v. Philibert, 947 F.2d 1467 (11th Cir.1991), the court held that a downward departure was available under § 5K2.13 for a defendant who made a threatening telephone call but did not say whether it was relying upon the elements of the offense charged or upon the facts of the particular case, nor did it discuss at all the relationship between § 5K2.13 and § 4B1.2.
If I am correct in believing, with the other circuits, that § 4B1.2 and § 5K2.13 must be construed in harmony, then the holding in Baskin that a factual inquiry is required under § 4B1.2 compels the conclusion that a factual inquiry is warranted under § 5K2.13 as well. The other circuits that have examined the question have persuasively criticized the holding of Baskin, however. See, e.g., United States v. Gonzalez-Lopez, 911 F.2d 542, 550-51 (11th Cir.1990) ("The D.C. Circuit seems to suggest that a sentencing court may not consider the facts of a prior conviction when determining status as a career offender but that it can review the facts of a prior conviction when determining the appropriateness of departure. We cannot believe that the Commission intended such a result"); see also United States v. John, 936 F.2d 764 (3rd Cir.1991) (noting that "it is not only impermissible, but pointless, for the court to look through to the defendant’s actual criminal conduct" where the prior conviction is for a crime an essential element of which is the use or threatened use of force).
A recent decision of the Supreme Court, Taylor v. United States, 495 U.S. 575, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990), casts additional doubt upon the continuing vitality of Baskin. In Taylor, the Court found that when violence was not an element of the prior crime, the sentencing court is not to look to the underlying conduct. Id. at 600, 110 S.Ct. at 2159. The Court did not say what should be done when violence is an element of the prior crime, but logic suggests that the same provision of the Guidelines should be applied consistently with regard to whether the court looks solely to the elements of the crime. Nonetheless, this court has since reaffirmed the holding of Baskin. See United States v. Bradshaw, 935 F.2d 295, 303 (D.C.Cir. 1991); see also United States v. Butler, 924 F.2d 1124, 1132 (D.C.Cir.1991).
In light of the court’s post-Taylor reaffirmation of Baskin, this panel is constrained to conclude that a factual inquiry is required under § 5K2.13 as it is under § 4B1.2. In light of the somewhat different concerns underlying the two sections, however, the factual inquiry appropriate to § 5K2.13 might well be different from the factual inquiry the district court undertook pursuant to § 4B1.2, as the court points out. Therefore, the case must be remanded for the district court to make its inquiry pursuant to § 5K2.13.