U.S. v. Chatman, 91-3294

• Citation: 300 U.S. App. D.C. 97,986 F.2d 1446
• Decision Date: 16 March 1993
• Docket Number: No. 91-3294,91-3294
• Parties: UNITED STATES of America, Appellee, v. McClellan CHATMAN, Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (District of Columbia)

Page 1446

986 F.2d 1446

300 U.S.App.D.C. 97

UNITED STATES of America, Appellee, v. McClellan CHATMAN, Appellant.

No. 91-3294.

United States Court of Appeals District of Columbia Circuit.

Argued Dec. 11, 1992.

Decided March 16, 1993.

On Appeal from the United States District Court for the District of Columbia (No. 91-00277-01).

Neil H. Jaffee, Asst. Federal Public Defender, with whom A.J. Kramer, Federal Public Defender, was on the brief, for appellant.

Steven N. Berk, Asst. U.S. Atty., with whom Jay B. Stephens, U.S. Atty., John R. Fisher and Steven W. Pelak, Asst. U.S. Attys., were on the brief, for appellee.

Before: EDWARDS, BUCKLEY and D.H. GINSBURG, Circuit Judges.

Opinion for the Court filed by Circuit Judge HARRY T. EDWARDS.

Concurring opinion filed by Circuit Judge D.H. GINSBURG.

HARRY T. EDWARDS, Circuit Judge:

McClellan Chatman, who pled guilty in the District Court to bank robbery in violation of 18 U.S.C. § 2113(a) (1988), appeals his sentence of 37 months' incarceration. At the sentencing hearing, the District Court rejected Chatman's request for a downward departure in his sentence pursuant to section 5K2.13 of the United States Sentencing Guidelines ("Guidelines"), which permits sentence reductions for "non-violent offense[s]" where the defendant suffers from a "significantly reduced mental capacity" that contributed to commission of the crime. U.S.S.G. § 5K2.13 (1992). The District Court held that no departure was authorized under section 5K2.13, because Chatman used a threatening note in the commission of the robbery. However, it appears that the District Court underestimated the amount of discretion available to it in a sentencing decision involving section 5K2.13. Accordingly, we vacate Chatman's sentence and remand the case to the District Court for resentencing.

I. BACKGROUND

On April 22, 1991, Chatman robbed $1,400 in cash from a bank in Washington, D.C. Chatman, unarmed and acting alone, took a taxi cab to the bank and told the driver to wait for him. Chatman then entered the bank, gave a teller a note and told her to read it. The note demanded $20,000 in cash, and further stated, "[n]o one will be hurt, don't do anything foolish. People will get hurt if I don't walk out of this bank. There are four of us." ¹

The teller gave Chatman an envelope containing $1,400 and an exploding dye pack. Chatman left the bank without incident with the money in hand; however, the dye pack exploded as he was about to enter the awaiting taxi cab. Chatman then fled into a nearby building. When he realized he was trapped, he voluntarily surrendered to the police.

Chatman subsequently pled guilty to bank robbery, in violation of 18 U.S.C. § 2113(a). At his sentencing hearing before the trial court, Chatman sought a downward departure from the applicable Guidelines sentencing range of 37 to 46 months' incarceration. Chatman based this request on section 5K2.13 of the Guidelines, a policy statement that allows a downward departure in a situation in which a defendant has committed a "non-violent offense" while suffering from diminished mental capacity. Specifically, section 5K2.13 provides:

If the defendant committed a non-violent offense while suffering from significantly reduced mental capacity not resulting from voluntary use of drugs or other intoxicants, a lower sentence may be warranted to reflect the extent to which reduced mental capacity contributed to the commission of the offense, provided that the defendant's criminal history does not indicate a need for incarceration to protect the public.

U.S.S.G. § 5K2.13 (emphasis added). Chatman offered evidence of his diminished mental capacity in the form of a psychological evaluation prepared by a licensed psychologist. Chatman also argued that his crime was a "non-violent offense," because he had no weapon when he committed the robbery, no one was harmed as a result of the robbery, and the note he had given the teller was, he asserted, merely an idle threat.

The District Court refused to grant Chatman a downward departure, ruling as follows:

As to diminished capacity, I agree with the government that looking at the facts of this case, this was a crime of violence. The defendant presented a threatening note to the teller; there was no way for the teller to know that it was an idle threat.

I agree with the defendant that no force was used, other than the threat in the note, and that he did surrender voluntarily when confronted by the police, and that he did not, in fact, use any force other than the threatening note. But the threatening note itself is an act of violence, making this a crime of violence, and the downward departure for diminished capacity is therefore inapplicable.

I therefore do not reach the question, if the Court of Appeals ultimately determines that the downward departure would be applicable, as to what downward departure would be appropriate because I rule as a matter of law that the downward departure would not be granted because it was an act of violence in handing the threatening note to the teller. ²

The court then sentenced Chatman to 37 months' imprisonment and two years of supervised release. Chatman appeals this sentence.

II. DISCUSSION

On appeal, Chatman argues that the District Court incorrectly applied the Guidelines. Chatman contends that the District Court erred in holding that, "as a matter of law," the use of a threatening note in the commission of an unarmed bank robbery precludes the robbery from being considered a "non-violent offense" under section 5K2.13. We agree, and remand the case for resentencing in light of our opinion.

Where, as here, the District Court has refused to depart from the Guidelines because the court believed it lacked authority to do so, and not because it merely refrained from exercising its discretion, the decision is subject to appellate review. See United States v. Hazel, 928 F.2d 420, 423 (D.C.Cir.1991) ("we may review the judge's decision to depart (or not to depart) where it is evident that the judge misunderstood the scope of his sentencing authority under the guidelines"); United States v. Poff, 926 F.2d 588, 591 (7th Cir.) (en banc), cert. denied, --- U.S. ----, 112 S.Ct. 96, 116 L.Ed.2d 67 (1991) ("a decision not to depart is reviewable on appeal if it is the product of a conclusion that the judge lacks authority to depart").

A. The Meaning of "Non-Violent Offense" Under Section 5K2.13

The primary question raised by this appeal, a question of first impression in this circuit, is how the term "non-violent offense" under section 5K2.13 should be interpreted and applied. The term is not defined in section 5K2.13 or anywhere else in the Guidelines, nor does section 5K2.13 provide examples of "non-violent offense[s]." To give content to that term, a number of courts have looked to the definition of "crime of violence" found in section 4B1.2 of the Guidelines, which serves as part of the sentence-enhancement scheme for "career offenders." ³ See, e.g., Poff, 926 F.2d at 591-92 ("crime of violence" under section 4B1.2 and "non-violent offense" under section 5K2.13 are mutually exclusive terms); United States v. Rosen, 896 F.2d 789, 791 (3d Cir.1990) (same); United States v. Borrayo, 898 F.2d 91, 94 (9th Cir.1989) (same). In contrast, the five dissenting judges in the Seventh Circuit's en banc decision in Poff embraced the view that the District Court's discretion to depart downward under section 5K2.13 should not be bound by section 4B1.2. See Poff, 926 F.2d at 594 (Easterbrook, J., dissenting). At least two courts implicitly share the position of the Poff dissenters. See United States v. Philibert, 947 F.2d 1467, 1471 (11th Cir.1991) (interpreting section 5K2.13 without considering its relationship to section 4B1.2); United States v. Spedalieri, 910 F.2d 707, 711 (10th Cir.1990) (same). We think the dissent in Poff represents the better reasoned approach.

The Poff majority, which the Government asks us to follow, based its decision to rely on section 4B1.2 on several factors. The court primarily emphasized the similarity of the language in the terms "crime of violence" and "non-violent offense," concluding that "[t]he natural reading of [the two] terms suggests that they are contrapositives...." 926 F.2d at 592. Moreover, the court opined that had the Sentencing Commission meant to give "non-violent offense" a meaning unrelated to "crime of violence," it would have given some indication of this intention. See id. The court also expressed concern that without the constraints of section 4B1.2, courts charged with interpreting section 5K2.13 would be left with "little [to do] but guess as to its meaning." Id. The other circuits that take the view that section 4B1.2 controls the application of section 5K2.13 add little to the Poff court's analysis. See, e.g., United States v. Maddalena, 893 F.2d 815, 819 (6th Cir.1989) (relying on section 4B1.2 without explanation); Rosen, 896 F.2d at 791 (relying on section 4B1.2 because court could "find no support" for different interpretation of section 5K2.13).

There is a compelling argument that Chatman would be barred from seeking a downward departure under section 5K2.13 if "crime of violence" in section 4B1.2 is viewed as the contrapositive of "non-violent offense" in section 5K2.13. See United States v. Jones, 932 F.2d 624, 625 (7th Cir.1991) (bank robbery in violation of section 2113(a) is necessarily a "crime of violence" under section 4B1.2); United States v. Selfa, 918 F.2d 749, 751 (9th Cir.), cert. denied, 498 U.S. 986, 111 S.Ct. 521, 112 L.Ed.2d 532 (1990) (same); United States v. McVicar, 907 F.2d 1, 1 (1st Cir.1990) (same). Indeed, two Ninth Circuit decisions applying section 4B1.2 to section 5K2.13 have held that a defendant convicted of unarmed bank robbery in violation of section 2113(a) is not eligible for a downward departure pursuant to section 5K2.13. See United States v. Sanchez, 933 F.2d 742, 747 (9th Cir....