United States v. Aparicio-Soria

• Decision Date: 14 January 2014
• Docket Number: No. 12–4603.,12–4603.
• Citation: 740 F.3d 152
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. Marcel APARICIO–SORIA, Defendant–Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

740 F.3d 152

UNITED STATES of America, Plaintiff–Appellee,

v.Marcel APARICIO–SORIA, Defendant–Appellant.

No. 12–4603.

United States Court of Appeals,Fourth Circuit.

Argued: Dec. 12, 2013.

Decided: Jan. 14, 2014.

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, Office of the Federal Public Defender, Baltimore, Maryland, for Appellant.

Rod J. Rosenstein, United States Attorney, Office of the United States Attorney, Baltimore, Maryland, for Appellee.

Before TRAXLER, Chief Judge, and WILKINSON, NIEMEYER, MOTZ, KING, GREGORY, SHEDD, DUNCAN, AGEE, DAVIS, KEENAN, WYNN, DIAZ, FLOYD, and THACKER, Circuit Judges.

Vacated and remanded by published opinion. Judge DAVIS wrote the opinion, in which Chief Judge TRAXLER, and Judges MOTZ, KING, GREGORY, SHEDD, DUNCAN, AGEE, KEENAN, WYNN, DIAZ, FLOYD, and THACKER joined. Judge WILKINSON wrote a dissenting opinion, in which Judge NIEMEYER joined.

ON REHEARING EN BANC

DAVIS, Circuit Judge:

The issue before us is whether the Maryland crime of resisting arrest, Md. Code, Crim. Law § 9–408(b)(1), “has as an element the use, attempted use, or threatened use of physical force against the person of another,” and therefore qualifies categorically as a “crime of violence” within the meaning of U.S. Sentencing Guideline § 2L1.2, the reentry Guideline. We hold that it does not.

The reentry Guideline advises federal district judges to increase by twelve or sixteen the offense level of a defendant convicted of unlawfully entering or remaining in the United States if that defendant has a prior felony conviction for “a crime of violence.” U.S.S.G. § 2L1.2(b)(1)(A). “Crime of violence” is defined in the Commentary to the reentry Guideline as including two groups of offenses: the first group is certain listed offenses, such as murder, kidnapping, or arson; the second is “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). This latter provision is referred to as “the force clause.”

Having pleaded guilty to one count of unlawful reentry of a deported alien after sustaining an aggravated felony conviction, 8 U.S.C. § 1326(a) and (b)(2), Marcel Aparicio–Soria was sentenced in the District of Maryland to a thirty-six month term of imprisonment and a three-year term of supervised release. The Government had argued at sentencing that Aparicio–Soria's sentence should be enhanced according to the force clause of the reentry Guideline because he has a prior 2006 Maryland conviction for resisting arrest. The district court agreed, imposing the sentence based on two rulings: first, it ruled that Aparicio–Soria's prior conviction for resisting arrest did not qualify categorically as a crime of violence because “the degree of force” required for a conviction pursuant to the Maryland resisting arrest statute is less than that contemplated by the force clause, J.A. 109; and second, it applied the modified categorical approach to evaluate the relevant documentation surrounding Aparicio–Soria's resisting arrest conviction, and it concluded that his particular conviction qualified as a crime of violence. The documentation indicated that Aparicio–Soria had bitten a law enforcement officer attempting to arrest him.

On appeal, the parties agree, in light of intervening precedent, Descamps v. United States, ––– U.S. ––––, 133 S.Ct. 2276, 2282, 186 L.Ed.2d 438 (2013), that the district court's application of the modified categorical approach was error, but they disagree about the result reached with respect to the categorical approach. In Descamps, the Supreme Court held that federal sentencing courts are prohibited from applying the modified categorical approach when the state crime in question “has a single, indivisible set of elements.” 133 S.Ct. at 2282. Because the Maryland crime of resisting arrest has a single and indivisible set of elements, infra at 7, Descamps makes clear that the district court's application of the modified categorical approach was improper.

We may, however, affirm the district court on any ground in the record, including those rejected by the district judge. United States v. Moore, 709 F.3d 287, 293 (4th Cir.2013). Accordingly, the Government maintains that we should affirm the judgment because the Maryland crime of resisting arrest qualifies categorically as a crime of violence under the force clause of the reentry Guideline. Aparicio–Soria defends the district court's ruling on this point, arguing that his prior Maryland conviction for resisting arrest does not qualify categorically as a crime of violence. We review the district court's ruling de novo. United States v. Gomez, 690 F.3d 194, 197 (4th Cir.2012).

This case requires application of the framework outlined by the Supreme Court in Johnson v. United States, 559 U.S. 133, 130 S.Ct. 1265, 1269–70, 176 L.Ed.2d 1 (2010), in which the Court compared the Florida offense of felony battery to the force clause in the Armed Career Criminal Act to assess whether the former qualifies categorically as a “violent felony.” Although Johnson involved construction of the term “violent felony” in the Armed Career Criminal Act and not the reentry Guideline,¹ we nevertheless consider its interpretation controlling in this case because the language of the force clause in the Armed Career Criminal Act and the reentry Guideline is identical, and we have previously relied on case law construing one provision as helpful in construing the other. United States v. Montes–Flores, 736 F.3d 357, 363 (4th Cir.2013).

To determine whether a state crime qualifies categorically as a crime of violence pursuant to the force clause of the reentry Guideline, we compare the force clause with the elements of the state crime at issue and assess whether the latter contains 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). As required by the categorical approach, our analysis is restricted to “the fact of conviction and the statutory definition of the prior offense.” Taylor v. United States, 495 U.S. 575, 603, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990) (construing the Armed Career Criminal Act). To the extent that the statutory definition of the prior offense has been interpreted by the state's highest court, that interpretation constrains our analysis of the elements of state law. Johnson, 130 S.Ct. at 1269.

We begin with the force clause. The Supreme Court has given the term “physical force” as used in an identical force clause a particular meaning: “ violent force—that is, force capable of causing physical pain or injury to another person.” Id. at 1271. This construction of violent force specifically excludes from consideration “the slightest offensive touching,” id. at 1270, and it does so in large part because of the context in which the term appears—in a definition of the term “violent felony.” See id. at 1271.

We next analyze the prior state crime. The Maryland statute criminalizing resisting arrest provides in pertinent part that “[a] person may not intentionally ... resist a lawful arrest.” Md.Code, Crim. Law § 9–408(b)(1). Although resisting arrest was previously a common law crime, the Maryland General Assembly's codification of it did not change the elements of resisting arrest,²Williams v. State, 435 Md. 474, 79 A.3d 931, 944 (2013), which are:

(1) that a law enforcement officer attempted to arrest the defendant;

(2) that the defendant knew that a law enforcement officer was attempting to arrest [him] [her]; and

(3) that the defendant refused to submit to the arrest and resisted the arrest by force.

Maryland Pattern Jury Instructions–Criminal 4:27 (1995).

The third element of a Maryland resisting arrest offense requires resistance “by force.” Precedent from the state's highest court indicates that the force required for conviction of resisting arrest is no more than the type of de minimis force constituting an offensive touching. In Nicolas v. State, 426 Md. 385, 44 A.3d 396, 409 (2012), the Maryland Court of Appeals held that convictions for resisting arrest and second degree assault merge because “[a]ll of the elements of second degree assault are included within the offense of resisting arrest.” And in this context, the court stated that the force required for sustaining a resisting arrest conviction “is the same as the ‘offensive physical contact’ that is required to find a defendant guilty of the battery variety of second degree assault.” Id.³ (citation omitted). The salient point is that the force requirement of the Maryland crime of resisting arrest requires only offensive physical contact.

The last step in the analysis is comparing the force clause with the elements of Maryland resisting arrest. The precise issue before us is whether a Maryland conviction for resisting arrest contains as an element the use, attempted use, or threatened use of violent force capable of causing physical pain or injury against another person. U.S.S.G. § 2L1.2 cmt. n. 1(B)(iii); Johnson, 130 S.Ct. at 1271. It does not. According to the Court of Appeals of Maryland, the force required for conviction pursuant to the Maryland resisting arrest statute is merely “offensive physical contact,” Nicolas, 44 A.3d at 409, a threshold far lower than violent force capable of causing pain or injury to another. We have recently emphasized this point, applying Descamps to hold that the Maryland offense of second degree assault (1) contains indivisible elements and therefore is not amenable to the modified categorical approach, and (2) categorically is not a crime of violence, United States v. Royal, 731 F.3d 333, 341–42 (4th Cir.2013), Karimi v. Holder, 715...