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United States v. Askari

November 05, 1998

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)

Before: Becker, McKEE and Garth, Circuit Judges

The opinion of the court was delivered by: Becker, Chief Judge.

As amended December 14, 1998.

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)

David L. McCOLGIN, Esquire Robert Epstein, Esquire Defender Association of Philadelphia Federal Court Division Lafayette Building, Suite 800 437 Chestnut Street Philadelphia, Pennsylvania 19106- 2414 Attorneys for Appellant Stephen J. Britt, Esquire Office of United States Attorney 615 Chestnut Street, Suite 1250 Philadelphia, Pennsylvania 19106 Attorney for Appellee

Before: Becker, McKEE and Garth, Circuit Judges

The opinion of the court was delivered by: Becker, Chief Judge.

Submitted Pursuant to Third Circuit LAR 34.1(a) November 6, 1996

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

(Filed: April 8, 1998)

SUBMITTED SUR PETITION FOR RECONSIDERATION OF EN BANC Pursuant to Third Circuit LAR 34.1(a) (October 5, 1998)

Present: BECKER, Chief Judge, SLOVITER, STAPLETON, GREENBERG, SCIRICA, NYGAARD, ALITO, ROTH, LEWIS, McKEE, GARTH and COWEN,*fn1 Circuit Judges.

(Filed November 5, 1998)

OPINION OF THE COURT SUR PETITION FOR RECONSIDERATION OF EN BANC

This opinion is prompted by an unusual concatenation of circumstances: (1) the United States Sentencing Commission adopted an amendment to the Sentencing Guidelines rendering more flexible the circumstances under which a sentencing court can make a downward departure when a defendant convicted of certain kinds of offenses has been shown to possess significantly reduced mental capacity at the time of the offense; (2) this court, sitting en banc, filed an opinion one day after adoption of the Guideline amendment rejecting the interpretation that the Guideline amendment suddenly recognized; and (3) because the amendment is a "clarifying" amendment which, under our jurisprudence, applies to pending cases, it becomes possible that the defendant, who sought relief from our decision before our mandate was issued and who clearly had significantly reduced mental capacity at the time of the offense, could receive a lesser sentence than that which the district court imposed and which the en banc court of appeals affirmed.

Shortly after we filed our opinion, and when the terms of the newly-adopted Guideline amendment became known, defendant Muhammad Askari sought reconsideration of our en banc decision. We granted the motion. We now vacate the en banc opinion and remand the case to the district court so that it may reconsider the sentence in light of the Guidelines amendment, and, in particular, make findings or draw legal Conclusions in the first instance about the two facts that will likely determine whether Askari's sentence will be reduced: (1) whether Askari's offense involved "actual violence or a serious threat of violence"; and (2) whether Askari's criminal history indicates "a need to incarcerate the defendant or protect the public." See U.S.S.G. § 5K2.13.*fn2 Before explaining our ratio decedendi, we will recapitulate the facts of the majority in our first en banc opinion.

I. Facts and Procedural ...


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