United States v. Marcel Aparicio-Soria

Rehearing en banc granted, September 25, 2013
PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-4603
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
MARCEL APARICIO-SORIA,
Defendant - Appellant.
Appeal from the United States District Court for the District of
Maryland, at Greenbelt. Deborah K. Chasanow, Chief District
Judge. (8:11-cr-00616-DKC-1)
Argued: March 22, 2013 Decided: July 5, 2013
Before WILKINSON and DAVIS, Circuit Judges, and Jackson L.
KISER, Senior United States District Judge for the Western
District of Virginia, sitting by designation.
Affirmed by published opinion. Judge Wilkinson wrote the
opinion, in which Judge Kiser joined. Judge Davis wrote an
opinion, concurring in part and dissenting in part.
ARGUED: Sapna Mirchandani, OFFICE OF THE FEDERAL PUBLIC
DEFENDER, Greenbelt, Maryland, for Appellant. Paul Nitze,
OFFICE OF THE UNITED STATES ATTORNEY, Baltimore, Maryland, for
Appellee. ON BRIEF: James Wyda, Federal Public Defender,
Baltimore, Maryland for Appellant. Rod J. Rosenstein, United
States Attorney, Baltimore, Maryland, for Appellee.
WILKINSON, Circuit Judge:
In sentencing defendant Marcel Aparicio-Soria for illegally
reentering the United States, the district court applied the
“crime-of-violence enhancement” in U.S.S.G. § 2L1.2(b)(1)(A)(ii)
on the basis of a previous Maryland conviction for resisting
arrest. Aparicio-Soria challenges that decision here. Adopting
the categorical approach, we find that the Maryland offense of
resisting arrest constitutes a crime of violence under § 2L1.2.
We therefore affirm the judgment of the district court.
I.
In April 2012, Aparicio-Soria pleaded guilty in the U.S.
District Court for the District of Maryland to illegally
reentering the United States after having been previously
convicted of an aggravated felony and deported, see 8 U.S.C.
§ 1326(a) and (b)(2). While the conviction that had prompted
his removal was for theft, the main issue before the district
court concerned another prior state conviction -- for resisting
arrest under Md. Code, Crim. Law § 9-408(b)(1).
The question was whether Maryland’s resisting arrest
offense qualifies as a “crime of violence” under U.S.S.G.
§ 2L1.2(b)(1)(A)(ii). That provision calls for the application
of a twelve- or sixteen-level sentencing enhancement (depending
on criminal history) for any defendant convicted of illegally
2
reentering or staying in the country who was “previously . . .
deported, or unlawfully remained in the United States, after . .
. a conviction for a felony that is . . . a crime of violence.”
The pertinent commentary, in turn, defines “crime of violence”
to include several enumerated offenses and “any other offense
under federal, state, or local law that has as an element the
use, attempted use, or threatened use of physical force against
the person of another.” U.S.S.G. § 2L1.2 cmt. n.1(B)(iii).
Only the latter part of this definition, which is known as the
“force clause,” is at issue here, as there is no dispute that
defendant’s conviction is not an enumerated offense.
The district court held that defendant’s resisting arrest
conviction satisfies the force clause and thus constitutes a
crime of violence. The court first employed the so-called
“categorical approach” for determining the applicability of
sentencing enhancements, which stems from Taylor v. United
States, 495 U.S. 575 (1990). The court found, however, that the
type of force required to sustain a conviction for resisting
arrest under Maryland law is insufficient, as a general matter,
to trigger the enhancement. The court then turned to the
“modified categorical approach,” examining the factual statement
incorporated into the charging document to determine whether the
underlying charge involved a sufficient element of force.
3
In that declaration, titled “Application for Statement of
Charges,” a law enforcement officer attested to the following
facts. On May 3, 2006, shortly before midnight, another officer
witnessed a pick-up truck driven by the defendant “swerv[ing]
over the road” and “cross[ing] the painted lane markings several
times.” The officer “attempted to stop the vehicle by
activating the emergency lights and siren in his agency marked
police cruiser,” but the defendant took flight --
“accelerat[ing] at a high rate of speed,” “ma[king] two u-turns
in the median,” “swerv[ing] towards and tr[ying] to strike” an
officer, and colliding with a vehicle belonging to a civilian.
Officers were eventually “able to deploy stop sticks which
deflated both [of the truck’s] passenger side tires,” and
shortly thereafter, Aparicio-Soria stopped the truck in a
hotel’s parking lot and fled on foot into the lobby, where a
struggle ensued. He first “fail[ed] to place his hands behind
his back and actively resist[ed]” the officers. The officers
released a K-9 dog and shocked the defendant with a Taser three
times, but he continued “resisting and assaulting” them “for
approximately two minutes.” Finally, he “bit the right hand” of
one of the officers. Aparicio-Soria was ultimately subdued and
transported to a local hospital. An officer smelled alcohol on
his breath and administered a field sobriety test at the
hospital, which the defendant failed.
4
The district court concluded that because Aparicio-Soria
had assaulted the officers during the hotel confrontation (and
bitten one of them, in particular), the type of force involved
was sufficient to render his resisting arrest conviction a crime
of violence. As a result, the court recalculated his Guidelines
range to include the sixteen-level crime-of-violence enhancement
pursuant to § 2L1.2(b)(1)(A)(ii) in place of the eight-level
“aggravated-felony enhancement” pursuant to § 2L1.2(b)(1)(C)
that the pre-sentence report had recommended. This resulted in
raising the advisory Guidelines range from between twenty-four
and thirty months to between fifty-seven and seventy-one months.
The court then granted a downward variance based on the factors
in 18 U.S.C. § 3553(a) and ultimately sentenced the defendant to
thirty-six months of incarceration.
II.
In appealing his sentence, Aparicio-Soria presses several
arguments for why the district court should not have applied the
U.S.S.G. § 2L1.2(b)(1)(A)(ii) crime-of-violence enhancement to
his Maryland resisting arrest conviction. First, he contends,
the district court erred in proceeding beyond the categorical
approach and purporting to apply the modified categorical
approach. Second, he asserts that even if the modified
categorical approach is applicable, the district court employed
5
it incorrectly by focusing on the concrete facts underlying his
crime rather than the elements required for the conviction.
Finally, the defendant argues that, in any event, the conduct
described in the charging document was insufficient to
demonstrate the necessary level of force. This is so, he
explains, because that document contains multiple theories of
how he may have committed the offense, and it is impossible to
know to which theory or theories he ultimately pleaded guilty.
The government counters each of these points.
Additionally, because this court can affirm the judgment below
on any ground supported by the record, United States v. McHan,
386 F.3d 620, 623 (4th Cir. 2004), the government contends that
the district court was mistaken, as an initial matter, in
concluding under the categorical approach that Maryland
resisting arrest law does not require a type of force sufficient
to satisfy the force clause of § 2L1.2 cmt. n.1(B)(iii). For
the following reasons, we find this argument persuasive, and we
therefore affirm the judgment on the basis of a categorical
analysis without reaching the other questions discussed above.
III.
The categorical approach constitutes the proper vehicle for
resolving the issues presented by this appeal. The modified
categorical approach “serves a limited function: It helps
6
effectuate the categorical analysis when a divisible statute,
listing potential offense elements in the alternative, renders
opaque which element played a part in the defendant’s
conviction.” Descamps v. United States, No. 11-9540, slip op.
at 5 (U.S. June 20, 2013). In this case, Aparicio-Soria’s prior
conviction is predicated on a nondivisible statute;
consequently, the modified approach “has no role to play.” Id.
at 9. As a result, there is no need for this Court to attempt
to parse the record associated with Aparicio-Soria’s prior
conviction or to rely on attenuated factual inferences with
respect to the conduct underlying that conviction. See id. at
13-15. Instead, the categorical approach merely requires that
we compare (1) the elements of the offense category contained in
the force clause of the crime-of-violence enhancement and (2)
the elements of the offense of resisting arrest under Maryland
law. See id. at 1, 5; Taylor v. United States, 495 U.S. 575,
598-602 (1990). We proceed to consider these matters in turn.
A.
When interpreting a sentencing enhancement under the
categorical approach, a court must first establish the “generic,
contemporary meaning” of the predicate offense in question,
which generally corresponds to the “sense in which the term is
now used in the criminal codes of most States.” Taylor, 495
U.S. at 598. This method makes good sense with respect to
7
specifically enumerated offenses -- such as “[m]urder,
manslaughter, kidnapping, [and] aggravated assault,” to name a
few from the enhancement at issue here, U.S.S.G. § 2L1.2 cmt.
n.1(B)(iii). The method, however, must be adapted slightly
where the offense in question is stated more broadly in a force
clause, a “residual clause,” or the like. This is because there
is little to no “sense in which the term is now used in the
criminal codes of most States” where the “term” in question is,
for instance, the force clause at issue here (which, to repeat,
encompasses “any other offense . . . that has as an element the
use, attempted use, or threatened use of physical force against
the person of another,” id.). See United States v. Torres-
Miguel, 701 F.3d 165, 167-68, 170 (4th Cir. 2012).
Nevertheless, Taylor still proves instructive, and this
court has thus employed the categorical approach in various
force and residual clause contexts. See, e.g., id. at 167-68(applying Taylor to force clause at issue here); United States
v. Seay, 553 F.3d 732, 736-37 (4th Cir. 2009) (applying Taylor
to force and residual clauses in U.S.S.G. § 4B1.2(a)). At
bottom, Taylor established the principle that enhancement
predicates “must have some uniform definition independent of the
labels employed by the various States’ criminal codes.” 495
U.S. at 592. We respect that principle by first determining
what the force clause of the crime-of-violence enhancement means
8
as a general matter, apart from how any individual jurisdiction
defines any given offense or enhancement, and then asking
whether the elements of the conviction at issue align with that
uniform definition. See Johnson v. United States, 130 S. Ct.
1265, 1269 (2010) (“The meaning of ‘physical force’ in [18
U.S.C.] § 924(e)(2)(B)(i) is a question of federal law, not
state law. And in answering that question we are not bound by a
state court’s interpretation of a similar -- or even identical -
- state statute.”).
Because the two provisions employ identical language, the
parties agree that precedent interpreting the force clause in
the definition of the “violent felony” portion of the Armed
Career Criminal Act (ACCA), 18 U.S.C. § 924(e)(2)(B)(i), is
pertinent to our analysis of the force clause in the crime-of-
violence enhancement. Compare id. (encompassing any offense
that, inter alia, “has as an element the use, attempted use, or
threatened use of physical force against the person of
another”), with U.S.S.G. § 2L1.2 cmt. n.1(B)(iii) (same).
Indeed, this court has recently reiterated that “[w]e rely on
precedents evaluating whether an offense constitutes a ‘crime of
violence’ under the Guidelines interchangeably with precedents
evaluating whether an offense constitutes a ‘violent felony’
under the ACCA, because the two terms have been defined in a
manner that is substantively identical.” United States v.
9
Gomez, 690 F.3d 194, 197 (4th Cir. 2012) (internal quotation
marks omitted).
We thus recognize, in particular, the Supreme Court’s
exposition of the ACCA’s force clause in Johnson. There, the
Court held that because the ACCA “does not define ‘physical
force,’ . . . [we] give the phrase its ordinary meaning.” 130
S. Ct. at 1270. Following examination of several dictionary
entries and exploration of the pertinent statutory landscape,
Johnson concluded: “We think it clear that in the context of a
statutory definition of ‘violent felony,’ the phrase ‘physical
force’ means violent force -- that is, force capable of causing
physical pain or injury to another person.” Id. at 1271. The
Court accordingly held that “the slightest offensive touching” -
- which could fulfill the “force element” of the common-law
crime of battery -- was insufficient. Id. at 1270. Thus, the
enhancement was deemed inapplicable, as the defendant had been
convicted of a battery offense requiring only the “most ‘nominal
contact,’ such as a ‘ta[p] . . . on the shoulder without
consent.’” Id. at 1269-70, 1274 (alterations in original).
In light of this ruling, the question we must answer is
whether Maryland’s resisting arrest offense “has as an element
the use, attempted use, or threatened use of physical force
against the person of another,” U.S.S.G. § 2L1.2 cmt.
n.1(B)(iii), where “physical force” means “violent force -- that
10
is, force capable of causing physical pain or injury to another
person,” Johnson, 130 S. Ct. at 1271. As the ensuing analysis
demonstrates, we conclude that it does.
B.
Aparicio-Soria was convicted of resisting arrest pursuant
to Md. Code, Crim. Law § 9-408(b)(1), which provides that “[a]
person may not intentionally . . . resist a lawful arrest.” In
determining the applicability of sentencing enhancements based
on state convictions, federal courts are bound by the relevant
state courts’ interpretations of the predicate crime. Johnson,
130 S. Ct. at 1269 (citing Johnson v. Fankell, 520 U.S. 911, 916
(1997)). In Rich v. State, the Maryland Court of Special
Appeals made clear that the statutory offense of resisting
arrest includes three elements harkening back to the common law:
(1) “that a law enforcement officer arrested or attempted to
arrest the defendant”; (2) “that the officer had probable cause
to believe that the defendant had committed a crime, i.e., that
the arrest was lawful”; and (3) that the defendant both
“refus[ed] to submit” to the arrest “and resist[ed] by force or
threat of force.” 44 A.3d 1063, 1071, 1077 (Md. Ct. Spec. App.
2012). The meaning of the third requirement, called the
“resistance element,” is at issue here.
1.
11
As an initial matter, the defendant contends that Rich,
which was issued in 2012, demonstrates that at the time he was
convicted in 2006, Maryland law did not necessarily require
force as part of the resistance element. This argument fails.
To be sure, Rich explained that some previous opinions,
“while not focusing specifically on whether force is a required
element of resisting arrest, have sent mixed signals as to
whether force is necessary or whether simple failure to submit
to an arrest is sufficient to constitute the crime.” 44 A.3d at
1071. The court, however, called the first of those cases
“aberrant” and ultimately concluded -- based on treatises, the
“original formulation” of the common-law elements, “the
consistently forceful character of the conduct at issue in
Maryland’s resisting arrest case law,” and certain individual
opinions -- that “both a refusal to submit to lawful arrest and
resistance by force or threat of force are necessary to commit
the offense of resisting arrest in Maryland.” Id. at 1077.
Rich in no way characterized this holding as breaking new
ground, instead making clear that it merely clarified what the
law had always been. Indeed, the court stated that the
underlying “wrongful conduct reported in the Maryland case law,
in which convictions for resisting lawful arrests have been
upheld, has never consisted simply of . . . actions that did not
amount to ‘resistance by force.’” Id. at 1082 (emphasis added).
12
Having thus established that force was as much an element
of the Maryland crime of resisting arrest at the time of
defendant’s conviction as it is now, we must determine what type
of force suffices -- and whether such force satisfies the
standards of the crime-of-violence enhancement.
2.
Aparicio-Soria maintains that the force capable of
sustaining a Maryland resisting arrest conviction falls short of
the force required for application of the crime-of-violence
enhancement in two interconnected ways. First, he asserts that
even de minimis force is adequate, thus rendering the offense
overbroad in relation to Johnson’s interpretation requiring
“violent force -- that is, force capable of causing physical
pain or injury to another person.” 130 S. Ct. at 1271. Second,
he claims that force applied to mere objects is enough, thus
rendering the offense overbroad under the enhancement’s plain
text requiring “physical force against the person of another.”
U.S.S.G. § 2L1.2 cmt. n.1(B)(iii) (emphasis added). These
contentions rest on a misguided attempt to parse the pertinent
precedent far too finely. An abundance of evidence makes
manifest that state law demands violent force directed against
the person of another.
Rich’s comprehensive canvassing of relevant authority
provides several particularly instructive data points. First,
13
the court expressly described the offense of resisting arrest as
“undergird[ed]” by conduct having a “forceful and violent
character.” 44 A.3d at 1072 (emphasis added). Second, the
court interpreted a decision from Maryland’s highest court as
stating that “[t]he specific conduct punishable [as the broader
offense of obstructing a law enforcement officer], in contrast
to conduct punishable as resisting arrest, did not need to rise
to the level of violence or resistance and could be verbal in
nature,” thus implying that “violence” and “resistance” may be
interchangeable in this context. Id. at 1073 (emphasis added)
(citing Busch v. State, 426 A.2d 954 (Md. 1981)). Likewise, in
further distinguishing the offense of obstruction from that of
resisting arrest, the court quoted precedent stating that to
constitute obstruction, “it is not necessary that there be an
actual or technical assault upon the officer,” plainly
indicating that force directed against the person of another is
required for the offense of resistance. Id. at 1078 (emphasis
added) (quoting Titus v. State, 32 A.3d 44, 53 (Md. 2011)).
Third, in concluding that mere flight fails the force
requirement, Rich held that “[t]he purpose of criminalizing
resistance to a lawful arrest is to protect police officers from
the substantial risk of physical injury.” Id. at 1080. Rich
cited the Model Penal Code’s resisting arrest offense, which
requires the creation of “a substantial risk of bodily injury to
14
the public servant or anyone else, or employ[ment of] means
justifying or requiring substantial force to overcome the
resistance.” Id. (quoting Model Penal Code § 242.2). The
commentary, the court emphasized, states that “[t]he effect of
this language is to exempt from criminal liability non-violent
refusal to submit to arrest and such minor forms of resistance
as running from a policeman or trying to shake free from his
grasp.” Id. (quoting Model Penal Code § 242.2 cmt. 2).
Accordingly, the central point of Rich’s extended
explication of resisting arrest was to make clear that the
offense is tailored to safeguarding individuals, especially law
enforcement officers, from bodily harm. The court explicitly
noted “[t]he dangers of proscribing conduct too broadly for
purposes of resisting arrest” and stated that
the charge of resisting arrest is amenable to “grave
abuse” by police officers and prosecutors: “Minor acts
of evasion and resistance are sufficiently ambiguous
to give rise to honest error, sufficiently elusive to
encourage false allegations, and sufficiently
commonplace to afford general opportunity for
discriminatory enforcement.”
Id. (quoting Model Penal Code § 242.2 cmt. 2). Rich further
confirmed that this police-protective policy limits resisting
arrest to conduct that is both violent and directed against the
person of another by endorsing an opinion from a different
jurisdiction holding that actions “not . . . directed against
the officers” and lacking “any immediate potential for violence”
15
failed to qualify as a similar crime. Id. at 1079 (quoting
Coghill v. United States, 982 A.2d 802, 807 (D.C. 2009)).
Finally, Rich cited the facts from a number of Maryland
decisions as exemplifying “resistance by force,” id. at 1082 --
describing the defendant’s conduct in Nicolas v. State, 44 A.3d
396 (Md. 2012), as “pushing, hitting, and struggling with
police”; in Purnell v. State, 827 A.2d 68 (Md. 2003), as
“pushing back against officers attempting to handcuff him”; in
Barnhard v. State, 602 A.2d 701 (Md. 1992), as “‘scuffling’ with
and swinging at police”; in Cooper v. State, 737 A.2d 613 (Md.
Ct. Spec. App. 1999), as “pulling from officer’s grasp and
punching him repeatedly in the head”; and in Washington v.
State, 589 A.2d 493 (Md. Ct. Spec. App. 1991), as “striking
officer, knocking him off balance, and running away.” Likewise,
Rich repeatedly invoked the conduct underlying the classic
English case of Regina v. Bentley, 4 Cox C.C. 406, 406-08
(1850), to illustrate the offense, retelling how the defendant
“violently assaulted and seriously injured” an officer and was
subsequently indicted for “cutting and wounding with intent to
resist his lawful apprehension.” 44 A.3d at 1072-74. The court
thus relied exclusively on conduct that was indubitably both
violent in character and directed against the person of another
in characterizing the essential nature of resisting arrest. In
16
doing so, it demonstrated that lesser or differently aimed force
cannot suffice.
3.
It should be clear from the comprehensive discussion in the
Rich decision that a conviction for resisting arrest requires
the use, attempted use, or threatened use of violent force
against another person. As Descamps makes clear, the
categorical approach requires an elements-based rather than a
conduct-based methodology. Slip op. at 5. The conduct
underlying prior state court decisions, however, may provide
probative evidence of how the law defines the elements of the
offense in question. See Moncrieffe v. Holder, 133 S. Ct. 1678,
1686-87 (2013) (looking to underlying conduct in state court
decisions to construe the elements of a state drug offense);
United States v. Diaz-Ibarra, 522 F.3d 343, 352-53 (4th Cir.
2008) (discussing the facts underlying a number of state cases
at length and relying on those decisions as “typical of the kind
of conduct to which [the statute in question] is applied” in
order to find the existence of an element of the offense). In
this case, that evidence is overwhelming.
Since 1950, the Maryland appellate courts have issued
opinions describing the facts underlying convictions for
resisting arrest (including juvenile delinquency determinations)
in numerous cases. Every case, save one, demonstrates that the
17
defendant acted in a manner involving violent force directed
against the person of another -- indeed, against a law
enforcement officer. The single outlier, of course, is Rich, in
which the defendant’s conviction was overturned on account of
the fact that he simply attempted to flee and stiffened his arms
as officers tried to handcuff him. Id. at 1066, 1070.
The cases demonstrate a singular recognition on the part of
Maryland appellate courts that the offense of resisting arrest
must not be allowed to leap its proper bounds. A broad array of
precedent from the Maryland Court of Appeals illuminates the
application of violent force against the person of another
needed for a resisting arrest conviction: Nicolas, 44 A.3d at
399-401 (defendant “pushed” officer, “hit [another] in the
face,” fought with one for “two to three minutes” including
“grabb[ing] each other and . . . pushing each other against the
walls and hitting each other,” continued “fighting” and
“struggl[ing]” “the whole way” to police car); Arthur v. State,
24 A.3d 667, 670 (Md. 2011) (“struggle[d] as three officers
attempted to arrest him,” “continued kicking and pulling,”
caused officer to sprain ankle); Wilson v. State, 975 A.2d 877,
881-82 (Md. 2009) (“struggle[d]” as officer attempted to place
handcuffs); Polk v. State, 835 A.2d 575, 577 (Md. 2003) (“bit
[officer’s] arm, breaking the skin on his wrist”); Purnell, 827
A.2d at 71 (“pushed [o]fficer . . . into a wall, “went to the
18
ground” with another officer); Johnson v. State, 749 A.2d 769,
769 (Md. 2000) (“kicked and flailed” when officers attempted to
effect arrest); In re Tariq A-R-Y, 701 A.2d 691, 692 (Md. 1997)
(“punched and kicked” officers); Clark v. State, 629 A.2d 1239,
1241 (Md. 1993) (“scuffle[d]” with officer); Barnhard, 602 A.2d
at 703 (threatened that officers would “have a shooting,”
threatened to kill one, “balled his fists,” “started swinging
[a] loose handcuff” at them, “scuffle[d]” with them); Shifflett
v. State, 572 A.2d 167, 168 (Md. 1990) (“fight ensued” when bail
bondsmen attempted to effect arrest); Trusty v. State, 521 A.2d
749, 752 (Md. 1987) (“struggle[d]” with officers); Diehl v.
State, 451 A.2d 115, 117 (Md. 1982) (“kick[ed] and
struggle[ed],” “again began kicking,” caused injury to one
officer’s finger and bruises to another’s legs); Rodgers v.
State, 373 A.2d 944, 945 (Md. 1977) (“grabbed [o]fficer . . .
around the waist,” “wielded a straight edged razor and slashed
[o]fficer . . . across the arm”); Downs v. State, 366 A.2d 41,
43 (Md. 1976) (“scuffle ensued” when officer attempted to effect
arrest); Palacorolle v. State, 211 A.2d 828, 829 (Md. 1965)
(“while enroute to the police station the appellant lunged at
[o]fficer . . . [,] attempting to strike and kick him”).
Numerous decisions from Maryland’s intermediate appellate
court underscore the very same point: Britton v. State, 30 A.3d
236, 239 (Md. Ct. Spec. App. 2011) (“violently resisted,”
19
“punch[ed] and kick[ed] the officers,” “continued to struggle”
despite being “tasered two more times”); Jones v. State, 924
A.2d 336, 339-40 (Md. Ct. Spec. App. 2007) (“swerved” in vehicle
“directly toward an officer, causing him to dive out of the way
to avoid being struck”); Lamb v. State, 786 A.2d 783, 786 (Md.
Ct. Spec. App. 2001) (“punched [officer] three or four times”);
Grant v. State, 786 A.2d 34, 38 (Md. Ct. Spec. App. 2001)
(engaged in “a wrestling match and a fight” with officers,
“kicked” and “struck [one] several times [with his] arms and
legs”); Cooper, 737 A.2d at 615-16 (“punched [officer]
repeatedly in the head,” “struck [another] in the face”); In re
Jason Allen D., 733 A.2d 351, 355 (Md. Ct. Spec. App. 1999)
(discussed below), overruled on other grounds by In re Antoine
M., 907 A.2d 158 (Md. 2006); In re Albert S., 664 A.2d 476, 479
(Md. Ct. Spec. App. 1995) (“made a ‘fake motion’ as if he was
going to hit the officer,” “pushed up against the officer,”
“attempted to kick the officers”); Briggs v. State, 599 A.2d
1221, 1223 (Md. Ct. Spec. App. 1992) (“threw his arms up,
striking [officer] and knocking [officer’s] watch off his
wrist,” “was fighting violently,” “kicked [another officer]
close to the groin”); Washington, 589 A.2d at 495 (“struck
[o]fficer . . . in the shoulder and knocked him off balance”);
Thomas v. State, 582 A.2d 586, 586 (Md. Ct. Spec. App. 1990)
(“During the struggle, a deputy was stabbed with a ballpoint pen
20
and a police officer was struck.”); Johnson v. State, 542 A.2d
429, 432 (Md. Ct. Spec. App. 1988) (“struck the detective in the
stomach and again in the chest”); Curtin v. State, 483 A.2d 81,
84 (Md. Ct. Spec. App. 1984) (“In the course of this melee, [one
officer] was struck and kicked and [another] was bitten by the
appellant.”); Hoes v. State, 368 A.2d 1080, 1082 (Md. Ct. Spec.
App. 1977) (discussed below); Kraft v. State, 305 A.2d 489, 491
(Md. Ct. Spec. App. 1973) (discussed below), overruled on other
grounds by Goode v. State, 398 A.2d 801 (Md. Ct. Spec. App.
1979); Jordan v. State, 300 A.2d 701, 702 (Md. Ct. Spec. App.
1973) (“pushed [officer] out of the way,” “struggle then
ensued”); Tillery v. State, 280 A.2d 302, 303 (Md. Ct. Spec.
App. 1971) (attempted to punch one officer and kick another,
“tore the badge of a [third officer’s] uniform and clenched it
in his right hand with the pin . . . in an outward position,
swinging . . . in a violent manner at each of the three
[o]fficers”); Lyles v. State, 269 A.2d 178, 180 (Md. Ct. Spec.
App. 1970) (“tussl[ed] on the floor and wrestl[ed]” with
security guard, “bumped [guard] on the side of the head [with]
nightstick”); Streeter v. State, 248 A.2d 119, 120 (Md. Ct.
Spec. App. 1968) (“continuously struggl[ed] to break away” from
officer); Williams v. State, 244 A.2d 619, 621 (Md. Ct. Spec.
App. 1968) (“When the officer attempted to place handcuffs on
the appellant, a scuffle arose, with both the officer and the
21
appellant falling to the floor, during which the appellant
kicked [the officer].”); Carwell v. State, 232 A.2d 903, 905
(Md. Ct. Spec. App. 1967) (“became very violent,” “struggled for
four or five minutes,” “bit” one officer and otherwise “injured”
another); McIntyre v. State, 232 A.2d 279, 280 (Md. Ct. Spec.
App. 1967) (one defendant “struggl[ed]” with officer; other
defendant got “on top of” officer, “hit[]” him “in the jaw,”
“took another swing at [him] under arrest”); McGee v. State, 229
A.2d 432, 433 (Md. Ct. Spec. App. 1967) (“struggled” with
officers, “flail[ed] his arms and push[ed officers] away,”
“pull[ed], push[ed] and la[id] hold of . . . officer”).
We find in this lengthy and unbroken line of cases yet
further evidence that Maryland law requires violent force
against the person of another in order to justify a charge of
resisting arrest. It is, moreover, evidence that Aparicio-Soria
is unable to counter. 1 Indeed, he challenges just three of those
1
The Maryland Court of Appeals’ decision in Nicolas, 44
A.3d 396, upon which Aparicio-Soria relies, does not persuade us
otherwise. Nicolas neither affirmed nor even referenced any
actual resisting arrest conviction for conduct that was not both
violent and directed against the person of another. The
correctness of the defendant’s conviction for resisting arrest
was not even in question; rather, as relevant here, the court
limited its grant of certiorari to the pure sentencing question
whether the defendant’s “convictions for second degree
assault . . . merge into his conviction for resisting arrest.”
Id. at 398. And, in any event, the actions supporting the
resisting arrest charge included pushing, punching, and
generally brawling with police officers. Id. at 399-401.
(Continued)
22
three-dozen-plus decisions, arguing that “there is no indication
that the defendant[s] used violent force at all.” Appellant’s
Reply Br. 4. Examination of this small handful of opinions,
however, reveals that although they may be less explicit than
the government suggests, the defendants’ actions were in fact
portrayed as violent and confrontational. In any event, the
conduct described in these cases was at most ambiguous -- and,
therefore, clearly insufficient to outweigh the mass of case law
addressed above.
First, In re Jason Allen D. described how the defendant
“pulled his arms into his stomach very tightly” to avoid being
handcuffed. 733 A.2d at 355. After officers “took him to the
ground,” he “continued to resist and pull away.” Id. “[I]t
took approximately one-and-one-half minutes to subdue him,” id.,which indicates that he actively struggled against the officers.
Indeed, Rich specifically emphasized the vicious nature of the
Nicolas defendant’s conduct in coming to its conclusion on
resisting arrest described above. 44 A.3d at 1076, 1082.
Hypotheticals (such as an individual holding a door closed
in order to prevent an officer from arresting him, a scenario to
which Nicolas adverted, 44 A.3d at 408 n.5) are just that:
hypotheticals. As demonstrated, a mass of Maryland precedent
makes clear that resisting arrest involves violent conduct
directed against the person of another. We cannot disrespect
decades of actual state court decisions by broadening the
elements of an offense that the Maryland courts have taken such
pains to narrow.
23
Second, although Hoes stated that the difficulty arresting the
defendant was attributable at least in part to his size and
disability, the court also made clear that officers were able to
“satisfactorily consummate[]” the arrest only after engaging in
a “fracas” with the defendant, plainly suggestive of a violent
confrontation. 368 A.2d at 1082. Finally, Kraft stated that
“[a] struggle ensued” when officers attempted to arrest the
defendant, describing him as “extremely hostile and foul” and
“just wild and fighting, belligerent and screaming.” 305 A.2d
at 491. The defendant also “threatened” the officers. Id. To
be sure, many of the details disclosed by the court involved the
defendant verbally berating the officers, id., but the court
plainly indicated that he also acted physically aggressive
toward them.
In sum, Rich crystallized the foundational concept of
Maryland criminal law -- as confirmed by case after case -- that
the offense of resisting arrest is narrowly focused and designed
to capture only conduct that is both violent and directed
against the person of another. By urging an untenably broad
reading of the pertinent precedent, the defendant seeks to have
this court declare that state law actually runs in the opposite
direction, widening the basis of the offense. The dissent
likewise is unable to identify even a single outlier where a
Maryland appellate court sustained or even described an actual
24
resisting arrest conviction in the absence of violent force.
The dissent surprisingly resists the commendable efforts of the
Maryland courts to make certain that this particular offense
does not metastasize and apply casually to conduct less serious
than the direction of violent force aimed at another, almost
always the officer attempting to make the arrest. 2 We decline to
depart from the clearly defined center of gravity of state law
2
First, the dissent asserts that Williams v. State, 57 A.3d
508 (Md. Ct. Spec. App. 2012), cert. granted, 62 A.3d 730 (Md.
2013), affirmed a resisting arrest conviction “based on acts not
constituting violent force.” Post at 40, 41 n.10. That
decision, however, explicitly stated that the defendant
“struggl[ed] to escape,” “thus necessitating the use of a taser
by the deputy to effectuate the arrest.” Williams, 57 A.3d at
520. The question before the court was not whether the
defendant’s conduct was sufficiently forceful but, rather,
whether force directed against a bystander assisting with the
arrest (instead of against a law enforcement officer himself)
could suffice. Id. at 519-20. Second, the dissent points to
Olson v. State, 56 A.3d 576 (Md. Ct. Spec. App. 2012), as
purportedly involving “non-violent force.” Post at 41 n.10.
The Olson court, however, made clear that the defendant
“charg[ed] at the officers” -- that is, that he approached them
“with his hands raised and appeared to be in an aggressive
manner as if he was going to punch them or wrestle with them.”
56 A.3d at 584 (internal quotation marks and brackets omitted).
The court also made clear that the defendant had “conced[ed]
that the . . . element [requiring] resistance ‘by force or
threat of force,’ was satisfied.” Id. at 589 n.5. Finally, the
dissent clings to McNeal v. State, 28 A.3d 88 (Md. Ct. Spec.
App. 2011), aff’d on other grounds, 44 A.3d 982 (Md. 2012).
Post at 41 n.10. But the only pertinent description of the
defendant’s conduct in McNeal simply states that “[w]hen a[n]
officer attempted to handcuff [him], [he] resisted, got free,
and fled.” 28 A.3d at 90. This bare recitation is far too
opaque to determine whether the defendant’s actions were violent
or not.
25
and, consequently, find that defendant’s conviction falls within
the force clause of the crime-of-violence enhancement.
4.
One last point warrants discussion. In Descamps, the
Supreme Court reserved the question of “whether, in determining
a crime’s elements, a sentencing court should take account not
only of the relevant statute’s text, but of judicial rulings
interpreting it.” Slip op. at 20. For several reasons, we do
not think the reservation in Descamps should be interpreted to
prohibit our or, for that matter, the dissent’s reference to
state case law in construing the elements of the state crime at
issue here. For one thing, an unqualified demand that federal
courts must decide the reach and meaning of state statutory
crimes without the benefit of state court decisions would
constitute an affront to our federal system, in effect
substituting the judgment of federal judges for that of state
judges whose familiarity with the elements of predicate offenses
under state law surpasses our own. See Descamps, slip op. at 2
(Kennedy, J., concurring) (expressing federalism concerns in a
related context).
Moreover, the Supreme Court itself has on prior occasions
repeatedly looked to state judicial rulings when interpreting
the meaning of a state statute for purposes of the categorical
approach. In Johnson, for example, the Court held not just that
26
it could look to state court decisions in applying the
categorical approach, but that it was in fact “bound by the
Florida Supreme Court’s interpretation of state law, including
its determination of the elements of” the state crime of
conviction at issue in that case. 130 S. Ct. at 1269; see also,
e.g., Sykes v. United States, 131 S. Ct. 2267, 2271, 2275 (2011)
(relying on state court case law interpreting the elements of a
state crime in applying the categorical approach); James v.
United States, 550 U.S. 192, 202-03 (2007) (same); Gonzales v.
Duenas-Alvarez, 549 U.S. 183, 190-194 (2007) (same). And where,
for example, a state court has applied its burglary statute to
conduct well outside the generic definition of burglary, the
Supreme Court has been willing to treat that decision as
evidence that the state crime was not categorically a violent
felony. See Descamps, slip op. at 3 (referring to shoplifting
conduct to show coverage of state statute is broader than the
generic burglary offense); see also Moncrieffe, 133 S. Ct. at
1687. 3
3
In light of this fact, perhaps what the Court was
reserving in Descamps was a decidedly narrower question -– not
whether state case law may ever be consulted in the course of
applying the categorical approach, but rather whether judicial
rulings may turn an indivisible state statute into a divisible
one such as would permit the application of the modified
categorical approach. But of course that question is not
implicated in this case, where the panel is in agreement that
(Continued)
27
C.
Finally, our conclusion that defendant’s Maryland resisting
arrest conviction categorically qualifies under the crime-of-
violence enhancement draws support from this court’s treatment
of the same crime in closely analogous contexts. United States
v. Wardrick held that a Maryland common-law resisting arrest
conviction categorically qualified as a “violent felony” within
the meaning of the ACCA. 350 F.3d 446, 455 (4th Cir. 2003).
And Wardrick’s reasoning was confirmed by United States v.
Jenkins, which held that the same common-law forerunner to the
present statutory offense categorically constituted a “crime of
violence” under the “career-offender enhancement” defined at
U.S.S.G. § 4B1.2. 631 F.3d 680, 682-83, 685 (4th Cir. 2011).
Of particular significance here, Jenkins expressly framed the
question before the court as “whether the Resisting Arrest
Offense . . . ‘involve[s] purposeful, violent, and aggressive
conduct,’” id. at 684 (brackets in original) (quoting Begay v.
United States, 553 U.S. 137, 144-45 (2008)) -- ultimately
answering in the affirmative, id. at 684-85.
the modified categorical approach does not apply to Aparicio-
Soria’s prior conviction.
28
To be sure, the specific textual hooks on which Wardrick
and Jenkins hung their holdings were the residual clauses of the
respective provisions, both of which encompass offenses that,
inter alia, “involve[] conduct that presents a serious potential
risk of physical injury to another.” Wardrick, 350 F.3d at 454-
55 (quoting 18 U.S.C. § 924(e)(2)(B)(ii)); Jenkins, 631 F.3d at
682 (quoting U.S.S.G. § 4B1.2(a)(2)). From this foundation, the
defendant attempts to argue that the Fourth Circuit implicitly
denied that the force clauses of those provisions, which are
identical to the Guidelines language in question here, also
reach Maryland’s resisting arrest offense. Compare U.S.S.G.
§ 2L1.2 cmt. n.1(B)(iii) (encompassing any offense that, inter
alia, “has as an element the use, attempted use, or threatened
use of physical force against the person of another”), with 18
U.S.C. § 924(e)(2)(B)(i) (same), and U.S.S.G. § 4B1.2(a)(1)
(same).
This simply does not follow. Nothing in either opinion
indicates that the court rejected the proposition that -- or
even specifically considered whether -- the offense qualified
under the pertinent force clause. To be sure, the fact that a
crime falls within a clause referencing a serious risk of injury
does not necessarily mean that the risk of injury arises from
the application of violent force. Nonetheless, the two are
related, the serious risk of “physical injury to another” rising
29
-- as it often does -- with the use of “physical force against
the person of another.” It would thus strain credulity to treat
a Maryland resisting arrest conviction differently here than in
Wardrick and Jenkins absent some particular and persuasive
justification for doing so. Based on the above analysis, we
find no such justification. To cut the circuit’s jurisprudence
so fine would only further complicate an area of law in need of
less confusion, not more. 4
4
The dissent attempts to gain support from this court’s
opinion in United States v. Torres-Miguel, 701 F.3d 165 (4th
Cir. 2012), which held that a California threat offense did not
categorically qualify under the crime-of-violence enhancement.
Torres-Miguel, however, does not control the present case for a
number of reasons. First, the panel in Torres-Miguel was not
compelled to accommodate two previous opinions from this court
squarely holding that the precise crime at issue here
constituted both a “violent felony” and a “crime of violence”
under federal sentencing enhancements. In this case, by
contrast, we are required to consider and honor the forceful
holdings in both Wardrick and Jenkins doing exactly that.
Second, the panel in Torres-Miguel did not have before it a
circumstance in which the state courts had made a concerted
effort to keep the offense at issue from spreading to the non-
violent conduct covered by other offenses. Here, as the long
line of state precedent discussed above makes clear, Maryland
appellate courts have endeavored to ensure that the offense of
resisting arrest is tailored to safeguarding individuals,
especially law enforcement officers, from bodily harm. That the
offense thus requires violent force against the person of
another is not only logical. To say otherwise puts us at odds
with a vast body of Maryland law.
It has become a matter of much discussion whether a
particular statement made by the Supreme Court in Gonzales v.
Duenas-Alvarez -- that “to find that a state statute creates a
crime outside the generic definition of a listed crime in a
federal statute . . . requires a realistic probability, not a
theoretical possibility, that the State would apply its statute
(Continued)
30
IV.
While the parties have presented us with a copious helping
of doctrine and precedent, much of it is far afield from the
narrow question of the characterization of the particular
Maryland offense at issue. It is important that courts not
casually label prior offenses “crimes of violence,” lest
defendants face inflated sentences without the establishment of
all of the elements required by an enhancement. At the same
time, ignoring the plainly violent character of a predicate
crime would evince a stark disregard of legislative intent.
Although the categorical approach cautions courts not to delve
into the factual particulars of a defendant’s predicate
conviction, it does not require judges to dispense sentences
blindly. Imaginative hypotheticals and theoretical propositions
must yield to the commanding consensus of state precedent and to
sound federal sentencing principles. Given the efforts of
Maryland courts to ensure that resisting arrest not apply to
to conduct that falls outside the generic definition of a
crime,” 549 U.S. 183, 193 (2007) -- applies to the analysis of
“unlisted” crimes in force and residual clauses. See James v.
United States, 550 U.S. 192, 208-09 (2007); Torres-Miguel, 701
F.3d at 170-71; Seay, 553 F.3d at 736-37. We believe that the
reasons stated previously in this opinion are sufficient to
support the panel’s conclusion as to this offense without
entering that complex thicket in this case.
31
varieties of passive behavior and the concrete realities with
which Maryland cases have dealt year after year, we conclude
that resisting arrest constitutes a “crime of violence” within
the meaning of U.S.S.G. § 2L1.2(b)(1)(A)(ii). To hold otherwise
would place us at odds with reality and practicality, not a
propitious place for the sober enterprise of federal sentencing
to be. 5
For the foregoing reasons, we affirm the judgment of the
district court.
AFFIRMED
5
Our friend in dissent seems determined to find
disagreement where little exists. We agree that the categorical
approach must be applied here. Ante at 6; post at 31. We agree
that the force clause found in the enhancement at issue requires
violent force. Ante at 9-10; post at 32-33. We agree that the
categorical approach is an elements-bound rather than a conduct-
based methodology. Ante at 16-17; post at 36-38. And we
apparently agree that the federal sentencing process suffers
from some measure of confusion that should not be compounded.
Ante at 28-29; post at 35, 45. The disagreement lies in the
dissent’s refusal to contemplate conduct discussed in prior case
law even as illumination of the elements established by a
powerful consensus of state appellate decisions. The
categorical approach necessarily proscribes review of the facts
underlying a particular predicate offense. There is a point,
however, at which the cumulative restrictions on inquiry will
send federal sentencing further into the ether, leaving it
theoretically interesting, perhaps, but progressively ill-
informed.
32
DAVIS, Circuit Judge, concurring in part and dissenting in part:
I agree with the majority’s conclusion that the categorical
approach applies here. See United States v. Gomez, 690 F.3d 194,
199 (4th Cir. 2012). 1 I disagree, however, with the majority’s
determination, based on its freewheeling analysis of underlying
conduct in a smattering of reported cases involving the Maryland
offense of resisting arrest, that Maryland’s resisting arrest
statute includes as an element the perpetrator’s use of “violent
force” and thus categorically qualifies as a crime of violence
under U.S.S.G. § 2L1.2(b)(1)(A)(ii), the applicable guideline. 2
I
Under the categorical approach, we are restricted to
looking “only to the statutory definition of the state crime and
the fact of conviction to determine whether the conduct
criminalized by the statute, including the most innocent
conduct, qualifies as a ‘crime of violence.’” United States v.
1
We delayed release of our opinions in this case pending
the Supreme Court’s decision in Descamps v. United States, No.
11-9540 (U.S. June 20, 2013). As the majority notes, ante, at 7
& 17, the reasoning and holding in Descamps strongly affirm the
correctness of Judge Floyd’s trenchant analysis of “indivisible
statutes” for our Court in Gomez.
2
The above statement of the majority’s holding clears away
the underbrush from the majority’s more oblique locution: “[W]e
conclude that resisting arrest constitutes a ‘crime of violence’
within the meaning of U.S.S.G. § 2L1.2(b)(1)(A)(ii).” Ante, at
31-32.
Diaz-Ibarra, 522 F.3d 343, 348 (4th Cir. 2008) (citing Taylor v.
United States, 495 U.S. 575, 599-601 (1990)) (emphasis added).
Application note 1.B.iii to U.S.S.G. § 2L1.2(b)(1)(A)(ii)
defines “crime of violence” as “any of the following offenses
under federal, state, or local law: Murder, manslaughter,
kidnapping, aggravated assault, forcible sex offenses . . .
statutory rape, sexual abuse of a minor, robbery, arson,
extortion, extortionate extension of credit, burglary of a
dwelling, or any other offense under federal, state, or local
law that has as an element the use, attempted use, or threatened
use of physical force against the person of another.” (emphasis
added). As the majority notes, the latter part of the definition
is referred to as the “force” clause and, alternatively, the
“elements” clause.
In Johnson v. United States, the Supreme Court explained
that “in the context of a statutory definition of ‘violent
felony,’ the phrase ‘physical force’ means violent force--that
is, force capable of causing physical pain or injury to another
person.” 130 S. Ct. 1265, 1271 (2010) (emphasis in original). 3
Under the “force” clause of application note 1.B.iii’s
3
Recognizing the similarity in the language used in the
Armed Career Criminal Act (the “ACCA”) defining “violent
felony,” and the “force” clause of the Sentencing Guidelines, we
have interchangeably relied on cases in the two contexts to
interpret the terms within them. Gomez, 690 F.3d at 197.
34
definition of “crime of violence,” and the Supreme Court’s
decision in Johnson, to qualify as a “crime of violence,”
Maryland’s resisting arrest offense must have as an element the
use, attempted use, or threatened use of physical force (meaning
violent force--that is, force capable of causing physical pain
or injury to another person) against the person of another. Id.
The district court correctly concluded that it does not. 4
In so concluding, the district court correctly relied on
the Maryland Court of Appeals’ decision in Nicolas v. State, 44
A.3d 396, 409 (Md. 2012), which analyzed whether second degree
assault and resisting arrest convictions merge under Maryland’s
required evidence test. In its analysis, which of course homed
in on the elements of the two offenses, the Nicolas court held
that a conviction for second degree assault merges into the
conviction for resisting arrest because
[a]ll of the elements of second degree assault are
included within the offense of resisting arrest. The
‘force’ that is required to find a defendant guilty of
resisting arrest is the same as the ‘offensive
4
The distinguished judge who imposed the sentence in this
case has been a federal judge in the District of Maryland for
over 25 years: more than seven years as a magistrate judge and
nearly twenty years as a district judge. Before taking the
bench, she was for eight years the Chief of the Criminal Appeals
Division in the Office of the Attorney General of Maryland. All
of which is to say that the judge knows something about Maryland
criminal law and practice, including both the historical and
contemporary elements of common law and statutory criminal
offenses prosecuted in Maryland courts.
35
physical contact’ that is required to find a defendant
guilty of the battery variety of second degree
assault.
Nicolas, 44 A.3d at 409 (emphasis added). It is firmly
established that Maryland second degree assault covers “any
attempt to apply the least force to the person of another,” Lamb
v. State, 786 A.2d 783, 798 (Md. Ct. Spec. App. 2001) (quoting
Ott v. State, 273 A.2d 630, 633 (Md. Ct. Spec. App. 1971)). It
is therefore not categorically a crime of violence under federal
sentencing enhancement provisions, as members of this Court,
including the author of today’s majority opinion, have long
acknowledged. See United States v. Taylor, 659 F.3d 339, 345–46
(4th Cir. 2011). 5 Thus, the district court correctly concluded
5
Judge Wilkinson reasoned as follows in Taylor:
The Maryland statute prohibiting second-degree
assault provides that “[a] person may not commit an
assault,” which in turn is defined as “the crimes of
assault, battery, and assault and battery, which
retain their judicially determined meanings.” Md. Code
Ann., Crim. Law §§ 3–201(b),[3]–203(a). Because this
definition is so broad, we have frequently recognized
our inability to discern from a conviction and the
statute's elements alone whether a defendant actually
committed a violent felony. See United States v.
Alston, 611 F.3d 219, 222–23 (4th Cir. 2010) (using
modified categorical approach to determine whether
Maryland second-degree assault qualifies as a violent
felony); United States v. Harcum, 587 F.3d 219, 224
(4th Cir. 2009) (same).
659 F.3d at 345-46. Of course, after Descamps v. United States,
No. 11-9540 (U.S. June 20, 2013), convictions under the Maryland
second degree assault statute can no longer be analyzed for
(Continued)
36
that resisting arrest in Maryland is not categorically a crime
of violence because the Maryland courts have “not said that the
amount of force necessary to constitute resisting arrest is
greater than that required for second degree assault [i.e., de
minimis].” J.A. 109 (emphasis added).
Under Johnson, because the force necessary to support a
conviction for resisting arrest in Maryland--the most innocent
conduct that can qualify for the offense--includes a mere
offensive touching, the Maryland statute does not have as an
element the use, attempted use, or threatened use of violent
force, and thus is not categorically a “crime of violence.” See
Johnson, 130 S. Ct. at 1271. This being so, we should vacate the
judgment and remand for resentencing, which most likely will
yield the same 36-month period of incarceration actually
imposed. See infra p. 49 n.16.
II
The syllogism pointing to the correct outcome in this case
is embarrassingly simple. How, then, does the majority get such
an easy case so wrong? The answer no doubt lies in my good
colleague’s continued frustration with the major mess that
federal sentencing enhancement law has become, cf. United States
federal sentencing enhancement purposes pursuant to the modified
categorical approach.
37
v. Vann, 660 F.3d 771, 801-07 (4th Cir. 2011) (en banc)
(Wilkinson, J., concurring in the judgment), 6 coupled with a
strong desire to expand the use of the modified categorical
approach to broad statutory offenses such as Maryland’s
resisting arrest offense. 7
A
6
The profusion of opinions here, however,
illustrates the obvious difficulties that courts are
experiencing in applying the residual clause of 18
U.S.C. § 924(e)(2)(B)(ii). Whether this is due to the
fondness of Congress for vague formulations or the
propensity of judges to weave intricate webs of
doctrine, I do not know. Whatever the reason, when an
inquiry becomes overly complex, the best course is to
repair to simplicity . . . .
Vann, 660 F.3d at 801 (Wilkinson, J., concurring in the
judgment); cf. United States v. Rodriguez, 711 F.3d 541, 545 n.2
(5th Cir. 2013) (en banc) (complaining that judicial “confusion
and gymnastics . . . result from the categorical and modified-
categorical approaches in their current form”).
7
See Vann, 660 F.3d at 802 (Wilkinson, J., concurring in
the judgment) (“I believe the court has no choice but to adopt
in this case a modified categorical approach.”); id. at 804(“[W]hen a statute is too broad to categorically serve as an
ACCA predicate, the proper approach is not to throw up our hands
and abandon the purpose of the statute, but rather to proceed
with the modified categorical approach.”). My friend is not
alone in his views. Cf. Moncrieffe v. Holder, 133 S. Ct. 1678,
1686-87 (2013) (Alito, J., dissenting) (“I would hold that the
categorical approach is not controlling where the state
conviction at issue was based on a state statute that [is overly
broad] . . . . In such situations, it is appropriate to look
beyond the elements of the state offense and to rely as well on
facts that were admitted in state court or that, taking a
realistic view, were clearly proved.”). Nevertheless, to date,
those views belong solely in dissenting opinions, not majority
opinions. Cf. id.38
The majority first relies on its harvest of cases from the
government’s brief to reason that “[s]ince 1950, the Maryland
appellate courts have issued opinions describing the facts
underlying convictions for resisting arrest,” and “[e]very case,
save one, demonstrates that the defendant acted in a manner
involving violent force directed against . . . a law enforcement
officer.” Ante, at 17-18. Even if true (and it’s not), so what?
The majority’s attempt to support its desired outcome by
recounting the actual conduct underlying some of the scores of
resisting arrest cases in Maryland appellate courts entirely
disregards this Court’s consistent adherence to the rule that,
under the categorical approach, we look only to the statutory
definition of the state crime and the fact of conviction. The
majority gives mere lip service to the principle that we are to
engage in an elements-based inquiry, not a conduct-based one. 8
8
Even judged by its own dubious metric of counting opinions
and divining the import of ambiguous language, the majority’s
tack is deeply flawed. Like the intermediate appellate courts of
any state of more than 5 million residents, many living in
abject poverty and suffering the scourge of substance abuse, the
Maryland Court of Special Appeals publishes a small percentage
of its annual output of opinions, particularly opinions in
criminal cases. The majority cannot count, and thus refuses to
contemplate, the many unknown unpublished (and indeed,
effectively unreviewable) opinions in the relevant genre, which
has grown over the years.
In fact, in the just-concluded legislative session, the
Maryland General Assembly authorized two additional judgeships
(rather than the four sought) for the 13-member court on the
(Continued)
39
See Descamps, slip op. at 5 (“The key, we emphasized, is
elements, not facts.”); United States v. Romo–Villalobos, 674
F.3d 1246, 1249 (11th Cir. 2012) (“While Johnson proscribes us
from relying on state case law to determine whether a crime
requires ‘violent force,’ it expressly directs us to look to
state cases to determine the elements of the state offense.”),
cert. denied, 133 S. Ct. 248 (2012) (emphasis added). 9
basis of a need summarized by the fiscal note accompanying the
bill’s passage. See Dep’t of Legislative Servs., Md. Gen.
Assembly, Fiscal & Policy Note for S.B. 239, 2013 Sess. at 3:
Court of Special Appeals
The judicial workload standards indicate a need
for four additional judgeships. The Court of Special
Appeals has not received additional judgeships since
the bench was increased to 13 judges in 1977. Over
that 35-year period, filings have increased by 41.9%
and dispositions have increased by 37.8%. In addition,
the number of opinions increased by 38.4% and the
length of opinions by 137%. The caseload per judge has
increased by 41.9%.
Available at
http://167.102.242.144/search?client=mgaleg_default&proxystylesh
eet=mgaleg_default&output=xml_no_dtd&getfields=author.title.keyw
ords&filter=0&entqr=3&ie=latin1&oe=UTF-
8&num=100&q=239&site=2013rs (visited May 4, 2013). And see infra
n.11.
9
Romo–Villalobos is particularly instructive here because
the Eleventh Circuit was assessing a Florida resisting arrest
statute that provided as follows, in pertinent part: “Whoever
knowingly and willfully resists, obstructs, or opposes any
officer . . . in the lawful execution of any legal duty, by
offering or doing violence to the person of such officer . . .
is guilty of a felony of the third degree . . . .” Florida
Statute § 843.01. See 674 F.3d at 1249 (emphasis in original).
(Continued)
40
The majority also relies, heavily but inexplicably, on the
Maryland Court of Special Appeals’ decision in Rich v. State, 44
A.3d 1063, 1077 (Md. Ct. Spec. App. 2012). But Rich simply held
that Maryland appellate courts had sometimes used “or” when they
should have used “and” to describe the resisting arrest offense
because “both a refusal to submit to lawful arrest and
resistance by force or threat of force are necessary to commit
the offense of resisting arrest in Maryland.” Id. (emphasis in
original). The Rich court did not state, let alone hold, that
resisting arrest required violent force. In fact, it is more
accurate to say that it did the opposite by citing the Maryland
Court of Appeals’ holding in Nicolas that “[t]he ‘force’ that is
required to find a defendant guilty of resisting arrest is the
same as the ‘offensive physical contact’ that is required to
find a defendant guilty of the battery variety of second degree
assault” (i.e., de minimis contact). Id. (quoting Nicolas, 44
A.3d at 409) (emphasis added). 10
The differences between the elements in the Florida resisting
arrest statute and those in the Maryland resisting arrest
statute are as obvious as is the majority’s misguided attempt to
ignore those differences in its interpretation of the latter.
10
The Attorney General of Maryland, in an appeal to this
Court challenging the district court’s denial of qualified
immunity to a county sheriff as to claims brought by a
terminated deputy sheriff pursuant to 42 U.S.C. § 1983, recently
cited and interpreted Rich as follows in his appellate brief:
(Continued)
41
By my count (assuming arguendo that counting is an accepted
methodology in this appeal), in various ways the Rich court used
the phrase “by force” sixteen times; it never used the phrase
“by violent force.” Indeed, in Rich, the Court of Special
Appeals reversed a conviction for resisting arrest even where
the defendant conceded (clearly on the basis of the bench and
bar’s then understanding of the elements of the Maryland offense
of resisting arrest, i.e., that running away was sufficient)
that he had indeed resisted arrest. See id. at 1070 n.2. The
defendant’s unavailing concession was entirely consistent with
the view of the trial judge and the arguments of the state
prosecutor. See id. at 1066. Contrary to the majority’s repeated
suggestions, the reversal in Rich was not based on a lack of
“violent force”; it was based on the absence of any showing of
force whatsoever. How the majority can now claim that Rich’s
clarification that force (or threat of force) is a necessary
The elements of resisting arrest are (1) refusal to
submit to lawful arrest and (2) resistance by force or
threat of force. Rich, 205 Md. App. at 250. Force
includes conduct such as . . .: scuffling with an
officer, pulling away, struggling to get away, or
going limp. Id. at 253 n.8, 258.
Appellant’s Reply Br., Durham v. Jones, No. 12-2303, 2013 WL
1904669, at *13 (4th Cir. May 7, 2013). One would suppose that
the Attorney General of Maryland knows something about Maryland
criminal law, including Maryland case law interpreting Maryland
criminal statutes.
42
element of the offense (in combination with a refusal to submit)
somehow equates to a holding that violent force is what the
court meant to say, is utterly beyond my comprehension. 11
The majority further argues that “conduct underlying past
convictions . . . may provide probative evidence of how the law
defines the elements of the offense in question,” ante, at 17,
but such an inquiry into previous convictions under the statute
is entirely unnecessary and inappropriate when a state’s highest
court has--as Maryland’s has--clearly stated how it defines the
element of force, and what it encompasses. Here, that definition
undoubtedly covers de minimis physical contact. See Nicolas, 44
A.3d at 409; see also Williams v. State, 57 A.3d 508 (Md. Ct.
Spec. App. 2012) (resisting arrest conviction based on acts not
constituting violent force affirmed; citing with approval
Maryland Pattern Jury Instruction, requiring jury finding merely
of “force” for resisting arrest conviction), cert. granted, 62
A.3d 730 (Md. 2013). We do not need “evidence” of what the law
is or “data points,” see ante, at 13, to decide this case. The
highest court of Maryland has told us what the law is, as the
experienced district judge concluded. All we need is the ability
11
Counting again, my computer tells me that the Rich
opinion contains slightly in excess of 11,000 words. It would be
more than passing strange, therefore, if the majority were
unable to find a few snippets of dicta which, taken out of
context, might marginally support the majority’s thesis.
43
to read the Court of Appeals’ opinion and follow its teaching.
Obviously, the majority can do the former but is, curiously,
disabled from doing the latter. 12
Manifestly, the majority misapprehends our task in this
case as a search for some “generic” version of resisting arrest,
12
As with the majority’s apparent interpretation of words
such as “struggle” and “push” as synonyms for “violent force,”
see ante, at 18-22, there is a distinctly Orwellian cast to the
majority’s disclaimer that it must not “disrespect decades of
actual state court decisions,” ante, at 23 n. 1, inasmuch as the
majority proceeds to do exactly that by “disrespecting” the
Maryland Court of Appeals’ holding that “[t]he ‘force’ that is
required to find a defendant guilty of resisting arrest is the
same as the ‘offensive physical contact’ that is required to
find a defendant guilty of the battery variety of second degree
assault.” Nicolas, 44 A.3d at 409. Equally Orwellian is the
majority’s insincere hat-tip to federalism, see ante, at 26.
In any event, as I have already explained, see n.8 supra,
even on the majority’s flawed “numerosity” thesis, the majority
has overlooked additional Maryland precedents that wholly
undermine the majority’s arithmetic. See Williams, 57 A.3d 508(resisting arrest conviction based on acts not constituting
violent force affirmed; citing with approval Maryland Pattern
Jury Instruction for resisting arrest), cert. granted, 62 A.3d
730 (Md. 2013); Olson v. State, 56 A.3d 576 (Md. Ct. Spec. App.
2012), cert. denied, 62 A.3d 731 (Md. 2013) (resisting arrest
conviction affirmed but resentencing ordered; non-violent force
described); McNeal v. State, 28 A.3d 88 (Md. Ct. Sp. App. 2011)
(same), aff’d on other grounds, 44 A.3d 982 (Md. 2012). I leave
to the reader’s judgment whether the majority’s attempts to
distinguish these cases pass muster, including whether the
majority’s studied failure to mention jury instructions matters.
See Descamps, slip op. at 20 n.5 (noting that “California’s
pattern jury instructions do not require the jury to find
invasion of a possessory right before convicting a defendant of
burglary” as part of the reason for rejecting the government’s
attempt to recast the broad California burglary statute into
“generic burglary”).
44
as if resisting arrest were one of the enumerated offenses in
the applicable guideline. See ante, at 17 (declaring majority’s
need “to find the existence of an element of [resisting arrest]”
and citing for support United States v. Diaz-Ibarra, 522 F.3d
343 (4th Cir. 2008), in which this Court had observed, 522 F.3d
at 348, “Before we can determine whether Diaz-Ibarra’s crimes
constituted ‘sexual abuse of a minor,’ however, we must know
what ‘sexual abuse of a minor’ means.”). For a recent example of
this Court’s performance of that task, see Judge Wilkinson’s
excellent opinion in United States v. Rangel–Castaneda, 709 F.3d
373 (4th Cir. 2013) (identifying elements of “generic” crime of
statutory rape). 13 But as I have explained, that is not our task
here; we need only accept, as we must, the state courts’
13
To be sure, the opinion in Rangel–Castaneda has not met
with universal acclaim:
This recent opinion is puzzling in that it recognizes
that the simple strategy of “counting noses” will not
work in all cases, acknowledges that states retain
discretion to define the offense of statutory rape how
they see fit, yet still relies on a state-by-state
survey to define the “generic, contemporary meaning”
of “statutory rape” in § 2L1.2. [Rangel–Castaneda, 709
F.3d at 379]. In our view, this inconsistent rationale
makes our court’s harmonizing approach all the more
important.
United States v. Rodriguez, 711 F.3d 541, 550 n.13 (5th Cir.
2013) (en banc); but see id. at 574-78 (Dennis, J., dissenting)
(expressing strong approval of Rangel–Castaneda).
45
statement of the elements of the Maryland offense of resisting
arrest. Johnson, 130 S. Ct. at 1269.
Indeed, our recent opinion in United States v. Torres-
Miguel, 701 F.3d 165 (4th Cir. 2012), makes this point with
unmistakable clarity. There, we held that a California threat
“to commit a crime that will result in death or great bodily
injury” is not categorically a crime of violence, under the same
provision of the Sentencing Guidelines that is at issue in this
case. Id. at 168-71. We so held even though the defendant
pointed to no case in which the California courts had actually
applied the statute to conduct that did not involve a threat of
violence. Id. at 170.
Properly viewed, therefore, analysis of the unlisted
resisting arrest crime at issue here and the threat crime at
issue in Torres-Miguel is materially different from that
applicable to the listed offenses at issue in Diaz-Ibarra,
Rangel–Castaneda, and similar cases. Neither resisting arrest
nor the California threat crime outlaws a listed crime and
neither has a recognizable generic definition, much less one
involving “violent force.” Thus, in the case at hand, as in
Torres-Miguel, it is inappropriate to search for a “generic”
crime as does the majority. In sum, as already mentioned, we
have no better “evidence” of the elements of resisting arrest
than what the Maryland Court of Appeals has declared, a
46
declaration which shows that resisting arrest does not
categorically require violent force.
B
Tellingly, the majority also attempts to support its
reasoning by noting that this Court has held that a Maryland
resisting arrest conviction qualifies as a “violent felony” for
purposes of the ACCA and the U.S.S.G. § 4B1.2 enhancements under
their respective “residual clauses.” This is a very inconvenient
truth for the majority, however, as the majority only
acknowledges, in the blink of an eye, the vastly different
language used in the “force” (or “elements”) clause and the
“residual” clause, and it entirely overlooks the significantly
different analysis 14 applied to each.
The “residual” clause under the ACCA covers offenses that
“involve[] conduct that presents a serious potential risk of
physical injury to another.” United States v. Wardrick, 350 F.3d
446, 454 (4th Cir. 2003) (quoting 18 U.S.C. § 924(e)(2)(B)(ii)). The “force” clause at issue here, however,
encompasses any offense that “has as an element the use,
14
The Supreme Court has clarified that in considering
whether a prior offense falls categorically within the ACCA’s
residual clause, “the proper inquiry is whether the conduct
encompassed by the elements of the offense, in the ordinary
case, presents a serious potential risk of injury to another.”
James v. United States, 550 U.S. 192, 197 (2007) (emphasis
added).
47
attempted use, or threatened use of physical force against the
person of another.” U.S.S.G. § 2L1.2(b)(1) cmt. n.1(B)(iii)
(emphasis added). The clauses are readily, one might say even
painfully obviously, distinguishable, and the Supreme Court has
given clear guidance that, unlike the “residual clause,” the
“force clause” is read to require “violent force.” Johnson, 130
S. Ct. at 1271. The clauses are distinct for a reason. That a
Maryland conviction for resisting arrest qualifies as a crime of
violence under one, is in no way dispositive of whether it
qualifies under the other. 15
III
In a case arising from a dispute over fruits and
vegetables, a federal judge can call an apple an orange and a
carrot a tomato if he chooses to do so. But even if he can
persuade a second federal judge to agree with him, through
linguistic jiu jitsu or otherwise, that apple remains an apple,
and that carrot is still a carrot. Similarly, a federal judge
might wish fervently that federal sentencing jurisprudence was
15
In fact, as the Supreme Court itself has acknowledged,
here in the immigration context, not even all residual clauses
yield the same result. See Leocal v. Ashcroft, 543 U.S. 1, 10 n.
7 (2004) (distinguishing residual clause in 18 U.S.C. § 16(b),
which encompasses conduct “that, by its nature, involves a
substantial risk that physical force against the person or
property of another may be used,” from a Guidelines’ residual
clause that does not mention physical force).
48
unfailingly coherent, always consistent with his view of
“legislative intent,” wholly symmetrical and enduringly cogent.
Accordingly, he might wish that, in particular, the “elements
clause” and the “force clause” and the “residual clause” in such
laws always yield the identical outcome when they apply
separately to the same underlying criminal offense. But federal
sentencing jurisprudence does not meet those criteria, and those
clauses do not operate with the harmony that judge might desire.
And merely saying they do does not make it so. It appears that
the majority’s holding is the first of its kind; that innovation
is not helpful.
The damage done here is not so much to Aparicio-Soria, who
is well past the mid-point of his 36-month sentence and who is
likely to be returned to his country of origin even before his
sentence expires. 16 The damage done here is to the rule of law in
this circuit, a much more lasting wound.
16
It is worth noting, as well, that even if the district
court had adopted the 24-to-30 month advisory guidelines range
recommended in the Pre-Sentence Investigation Report and refused
to apply the 16-level enhancement, judging by the district
court’s significant downward variance (from a 51-to-71 month
range) Aparicio-Soria would likely have received the same
sentence. Thus, even if we vacated the judgment and remanded for
resentencing, as we should, reimposition of a 36-month sentence
is the most likely result. On this record, and in view of the
district court’s unchallenged explanation for its sentence, a
36-month sentence would be entirely reasonable, either way.
49