Appeal from the United States District Court for the Eastern District of Pennsylvania
D.C. Criminal No. 92-cr-00288
Before: BECKER, McKEE and GARTH, Circuit Judges.
Submitted Under Third Circuit LAR 34.1(a) November 6, 1996
Muhammad Askari appeals the sentence imposed by the district court for his bank robbery conviction on the grounds that the court erred in refusing to grant a downward departure for diminished capacity under Section(s) 5K2.13 of the Sentencing Guidelines. Askari rests his argument on the facts that the unarmed bank robbery was non-violent and that 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, prior to his sentencing, the district court found that Askari was not mentally competent, and committed him pursuant to 18 U.S.C. Section(s) 4244(d) to a federal institution for psychiatric care and treatment. *fn1 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, to be followed by three years supervised release.
The facts regarding the bank robbery are also not at issue. On April 23, 1992, Askari walked into the First Bank of Philadelphia at 1424 Walnut Street shortly after 2:00 p.m. He went to a closed teller's window and said two or three times, "Put the money on the counter." He then went to the window where bank teller Ellie Ishizaki was working and said, "You have three seconds to give me the money." Ishizaki gave him bait money. Askari then took the money and ran out the door. The tellers did not see Askari carrying any weapon, and Askari did not use any force or make any verbal threats to harm anyone. He did, however, have his hand underneath his shirt. Two bank employees together with a Center City Special District employee chased Askari. They caught him on the 1400 block of Locust Street. Police later found the bait money in Askari's pants. They did not recover a weapon.
At sentencing, defense counsel argued for a downward departure based on Askari's mental illness. The court refused to grant the departure. First, the court ruled:
I cannot depart downward for diminished capacity at the time of the offense based on the guidelines as I read them. They at least contain a policy statement that a downward departure for diminished capacity is limited to non violent offenses.
-- you're doing it [requesting a downward departure] against the backdrop of a commission that says no downward departure for diminished capacity at the time of the offense, if the offense is a violent crime.
The court then went on to reject counsel's motion for a downward departure based on unusual mitigating circumstances not adequately considered by the guidelines. Finding that the guideline range was 210 to 240 months, the court imposed a sentence of 210 months in prison.
Askari's contention on appeal is that his unarmed bank robbery was a non-violent offense because he did not use any force or violence, verbally threaten anyone, or hurt anyone during the robbery. Askari, the argument continues, clearly suffered from diminished mental capacity. He had a long history of serious psychiatric illness and was diagnosed as paranoid schizophrenic. In Askari's submission, the court should have ruled that it had authority to depart downward under U.S.S.G. Section(s) 5K2.13, which permits downward departures for diminished capacity if the defendant committed a "non-violent offense." The district court, nevertheless, was quite correct in its holding. 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 ...