United States v. Askari, (3rd Cir. 1998)

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Filed August 7, 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: SLOVITER* Chief Judge, BECKER, STAPLETON,

MANSMANN, GREENBERG, SCIRICA, COWEN, NYGAARD,

ALITO, ROTH, LEWIS, McKEE and GARTH, Circuit Judges

(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 OPINION

BECKER, Chief Circuit Judge.

On April 8, 1998, we filed an en banc opinion holding

that defendant Muhammad Askari could not qualify for a

departure under S 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 S 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 S 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. S 5K2.13 (amendment proposed

April 7, 1998). The amendment substitutes this language in

place of the "non-violent offense" requirement in the

current version of S 5K2.13.

On April 20, 1998, the defendant (timely) filed a petition

for reconsideration of our en banc opinion based on this

proposed amendment. The defendant argues that the

proposed amendment should be treated as a "clarifying

amendment" under our jurisprudence, and should therefore

be given considerable weight in our attempt to determine

the meaning of S 5K2.13. Citing United States v. Joshua,

976 F.2d 844, 853 (3d Cir. 1992). On the merits, the

defendant contends that, under the proposed amendment,

the question of whether his offense indicates "a need to

protect the public because the offense involved actual

violence or a serious threat of violence" is properly for the

district court to consider in the first instance on the basis

of all the facts and circumstances of the offense. Since the

defendant is currently serving a 210 month sentence, and

could benefit from a resentencing, the question whether a

remand is appropriate here holds more than purely

academic interest.

The government filed an answer to the petition on May

15, 1998. It agrees with the defendant that the proposed

amendment is "clarifying." However, the government rejects

defendant's argument that a remand is necessary here.

According to the government, because a reasonable person

could infer a threat of harm from defendant's actions, his

threat of violence was "serious" and therefore even under

the proposed amendment the S 5K2.13 departure should

still be precluded. Alternatively, the government contends

that the defendant has a "long and violent criminal history,"

which precludes a departure under both the present and

the amended versions of S 5K2.13.

A majority of the en banc court has voted to grant the

motion for reconsideration, and hence it is hereby granted.

However, the premise of the reconsideration is the

Sentencing Commission's clarifying amendment toS 5K2.13

becoming operative. Since that event cannot occur until

November 1, 1998 (the date by which Congress must act to

prevent the amendment from taking effect), the court has

decided to stay the mandate until that date, and it is

hereby stayed. If Congress rejects the amendment, the

original en banc opinion shall take effect and the clerk will

issue the mandate accordingly. If Congress does not by

November 1, 1998 act, the clerk shall enter an order

formally vacating the opinion on the docket. The court will

thereafter decide whether or not to remand the matter to

the district court for further proceedings.

BY THE COURT:

/s/ Edward R. Becker

Chief Circuit Judge

DATED: August 7, 1998

A True Copy:

Teste:

Clerk of the United States Court of Appeals

for the Third Circuit

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