United States v. Aparicio-Soria

• Decision Date: 05 July 2013
• Docket Number: No. 12–4603.,12–4603.
• Citation: 721 F.3d 317
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. Marcel APARICIO–SORIA, Defendant–Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

721 F.3d 317

UNITED STATES of America, Plaintiff–Appellee,

v.Marcel APARICIO–SORIA, Defendant–Appellant.

No. 12–4603.

United States Court of Appeals, Fourth Circuit.

Argued: March 22, 2013.

Decided: July 5, 2013.

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.

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.

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, see8 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 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, 110 S.Ct. 2143, 109 L.Ed.2d 607 (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.

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.

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 resistingarrest 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 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 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, ––– U.S. ––––, 133 S.Ct. 2276, 186 L.Ed.2d 438 (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 2285–86. 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 2287–88. 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 2281, 2283;Taylor v. United States, 495 U.S. 575, 598–602, 110 S.Ct. 2143, 109 L.Ed.2d 607 (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, 110 S.Ct. 2143. This method makes good sense with respect to 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 questionis, 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).

Nev...