United States v. Proctor

• Citation: 28 F.4th 538
• Decision Date: 16 March 2022
• Docket Number: No. 19-7071,19-7071
• Parties: UNITED STATES of America, Plaintiff - Appellee, v. John Richard PROCTOR, Defendant - Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (4th Circuit)

28 F.4th 538

UNITED STATES of America, Plaintiff - Appellee,

v.John Richard PROCTOR, Defendant - Appellant.

No. 19-7071

United States Court of Appeals, Fourth Circuit.

Argued: January 27, 2022

Decided: March 16, 2022

ARGUED: Jason Edward Neal, HARRIS, WILTSHIRE & GRANNIS LLP, Washington, D.C., for Appellant. Jonathan Scott Tsuei, OFFICE OF THE UNITED STATES ATTORNEY, Greenbelt, Maryland, for Appellee. ON BRIEF: James Wyda, Federal Public Defender, Baltimore, Maryland, Paresh Patel, Assistant Federal Public Defender, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Greenbelt, Maryland; Christopher J. Wright, HARRIS, WILTSHIRE & GRANNIS LLP, Washington, D.C., for Appellant. Erek L. Barron, United States Attorney, Baltimore, Maryland, David I. Salem, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Greenbelt, Maryland, for Appellee.

Before GREGORY, Chief Judge, and MOTZ and WYNN, Circuit Judges.

Reversed and remanded by published opinion. Judge Wynn wrote the opinion, in which Chief Judge Gregory and Judge Motz joined.

WYNN, Circuit Judge:

John Proctor was sentenced as an armed career criminal under the Armed Career Criminal Act, 18 U.S.C. § 924(e). After the Supreme Court struck down a provision of that Act as unconstitutional, Proctor filed a 28 U.S.C. § 2255 motion to correct his sentence. The district court denied his motion, however, because it found that Proctor still qualified as an armed career criminal under the statute's "force" clause. Proctor appealed, arguing that this clause is inapplicable because one of his predicate convictions—Maryland assault with intent to prevent lawful apprehension or detainer—is not a categorically "violent felony" for Armed Career Criminal Act purposes. We agree, and therefore reverse the district court's decision and remand with instructions to correct Proctor's sentence.

I.

On December 8, 2004, a grand jury issued a four-count Superseding Indictment charging Proctor with various drug and firearms offenses. In exchange for dismissing two of these charges, Proctor pleaded guilty to one count of possession with intent to distribute cocaine base in violation of 21 U.S.C. § 841(a)(1) ("Count 2"), and one count of unlawful possession of a firearm as a previously convicted felon in violation of 18 U.S.C. § 922(g) ("Count 4").

In general, a violation of § 922(g) subjects a defendant to a maximum sentence of ten years' imprisonment. See 18 U.S.C. § 924(a)(2). However, the Armed Career Criminal Act provides that a person who violates § 922(g) and who "has three previous convictions ... for a violent felony or a serious drug offense, or both, ... shall be ... imprisoned not less than fifteen years. " Id. § 924(e)(1) (emphasis added).

At sentencing, the district court found that Proctor was subject to the fifteen-year mandatory minimum sentence as an armed career criminal based on two serious drug offenses and one violent felony. The "violent felony" in question was a 1986 conviction for assault with intent to prevent lawful apprehension, in violation of the since-repealed Md. Code Ann. art. 27, § 386 (repealed 1996) [hereinafter " § 386"]. Ultimately, the district court sentenced Proctor to concurrent sentences of 324 months' imprisonment on Counts 2 and 4.

Proctor has made several attempts to reduce his sentence, with some success: in 2011, the district court reduced Proctor's concurrent sentences to 292 months due to retroactive changes to the Sentencing Guidelines; and in 2020, the court further reduced his concurrent sentences to 240 months each pursuant to § 404 of the First Step Act. However, Proctor's initial attempt to vacate his sentence did not fare as well. In 2007, he filed a 28 U.S.C. § 2255 motion that raised claims of ineffective assistance of counsel, but the district court denied his motion and we declined to issue a certificate of appealability. See United States v. Proctor , 329 F. App'x 502, 503 (4th Cir. 2009) (per curiam).

But in 2016, this Court granted Proctor authorization to file a second or successive motion under § 2255 after concluding he had made a "prima facie showing" that the new rule of constitutional law announced in Johnson v. United States (Johnson II ), 576 U.S. 591, 135 S.Ct. 2551, 192 L.Ed.2d 569 (2015),¹ and held to apply retroactively to cases on collateral review by Welch v. United States , 578 U.S. 120, 130, 136 S.Ct. 1257, 194 L.Ed.2d 387 (2016), "may apply to his case," specifically his enhanced § 922(g) sentence.² J.A. 30.³

Before Johnson II , the Armed Career Criminal Act defined a "violent felony" as "any crime punishable by imprisonment for a term exceeding one year" that (1) "has as an element the use, attempted use, or threatened use of physical force against the person of another" (the force clause); (2) "is burglary, arson, or extortion, [or] involves use of explosives" (the enumerated clause); or (3) "otherwise involves conduct that presents a serious potential risk of physical injury to another" (the residual clause). 18 U.S.C. § 924(e)(2)(B) (2012).

But Johnson II held that the Act's residual clause is "unconstitutionally vague" because it leaves "grave uncertainty about how to estimate the risk posed by a crime" and "how much risk it takes for a crime to qualify as a violent felony."

576 U.S. at 597–98, 135 S.Ct. 2551. Thus, because Johnson II abrogated the Act's residual clause, § 386 can only qualify as a predicate if it falls under either the enumerated clause or the force clause. Because there is no question that assault with intent to prevent lawful apprehension is not burglary, arson, extortion, or a use-of-explosives offense, Proctor's § 386 conviction must satisfy the Act's force clause to remain a valid predicate. And since the U.S. Probation Office only identified three qualifying prior convictions in Proctor's Presentence Report, Proctor's § 386 conviction must qualify as a predicate for his armed-career-criminal designation to stand.

In his present § 2255 motion, Proctor argues that he no longer qualifies for such a designation because assault with intent to prevent lawful apprehension under § 386 does not satisfy the force clause and therefore cannot serve as one of his three predicate convictions for application of the Armed Career Criminal Act. Specifically, Proctor contends that since assault with intent to prevent lawful apprehension can be accomplished with "no more than de minimis touching of someone in order to prevent arrest," Pet'r's Mot. to Correct Sentence at 8, Proctor v. United States , No. RWT-16-1671, 2019 WL 141370 (D. Md. Jan. 9, 2019), it cannot be classified as a "violent felony" under the categorical test for the force clause described in Descamps v. United States , 570 U.S. 254, 261, 133 S.Ct. 2276, 186 L.Ed.2d 438 (2013).

The district court rejected this argument, finding that assault with intent to prevent lawful apprehension is indeed a "violent felony" under the Armed Career Criminal Act's "force" clause. Proctor , 2019 WL 141370, at *3. As support, the court looked to Maryland case law and found that acts supporting a conviction under § 386 had consistently involved the exercise of more than de minimis force, such as "striking a store employee with a vehicle, firing shots at officers, striking an officer with a vehicle, and striking a homeowner with a bar from a weightlifting set." Id. In addition, the district court noted that several state courts had found that assault with intent to prevent lawful apprehension was a "crime of violence" that could support a further state-law conviction for "use of a handgun in the commission of a crime of violence." Id. at *4 (quoting Sangster v. State , 70 Md.App. 456, 521 A.2d 811, 821 (Md. Ct. Spec. App. 1987), aff'd , 312 Md. 560, 541 A.2d 637 (1988) ). The court also declined to issue a certificate of appealability. Id.

Proctor next filed a motion to alter the court's judgment pursuant to Fed. R. Civ. P. 59(e). In his motion, he contended that our en banc decision in United States v. Aparicio-Soria , 740 F.3d 152 (4th Cir. 2014) (en banc), had held that an equivalent offense—the Maryland crime of resisting arrest—categorically failed to qualify as a violent felony. He also pointed out that our recent decision in United States v. Jones , 914 F.3d 893 (4th Cir. 2019), had concluded that a similar South Carolina offense, assaulting an officer while resisting arrest, was not a "violent felony" because it could be accomplished by de minimis conduct such as offensive touching. Proctor's case was reassigned to a different district court judge, who rejected his arguments after applying Rule 59(e)'s stringent standard of review. Specifically, the court found that since no Maryland cases had sustained the application of § 386 to such de minimis conduct, there was no "realistic probability that Maryland would apply the offense to conduct that does not involve the use, attempted use, or threatened use of violent physical force against another." J.A. 45.

Proctor timely appealed and requested a certificate of appealability. We granted a certificate of appealability "on the issue of whether Maryland's now-repealed crime of assault with intent to prevent lawful apprehension [under § 386 ] ... qualifies as a categorical violent felony for purposes of [the Armed Career Criminal Act]." J.A. 47.

II.

"We review de novo a district court's legal conclusions concerning a denial of § 2255 relief." Jones , 914 F.3d at 899. This "encompasses the question of whether a prior conviction qualifies as a ‘violent felony’ under the [Armed Career Criminal Act]." Id.

We begin this inquiry by describing our well-settled test for assessing whether a state offense qualifies as a violent felony under the Armed Career Criminal Act's force clause. Then, we apply this test to the now-repealed Maryland statute at issue.

A.

The Armed Career Criminal Act's force clause defines a "violent felony" as "any crime punishable by imprisonment for a term exceeding one year" that "has as an element...