United States v. Marcel Aparicio-Soria, 2014 U.S. App. LEXIS 715

Background

Defendant Marcel Aparicio-Soria pleaded guilty to unlawful reentry; at sentencing the Government sought a Guideline increase under U.S.S.G. § 2L1.2(b)(1)(A) based on a 2006 Maryland resisting-arrest conviction.
The reentry Guideline’s Commentary defines a “crime of violence” either by listed offenses or by the force clause: any offense that "has as an element the use, attempted use, or threatened use of physical force against the person of another."
The district court held Maryland resisting arrest was not categorically a crime of violence (finding its force element lower than federal “violent force”), but applied the modified categorical approach and concluded Aparicio‑Soria’s particular conviction (he bit an officer) qualified.
On appeal, Descamps precludes use of the modified categorical approach because Maryland resisting arrest has indivisible elements; parties therefore disputed whether the Maryland offense categorically meets the force clause.
The Fourth Circuit majority applied Johnson’s definition of "physical force" (violent force capable of causing pain or injury), relied on the Maryland Court of Appeals’ decision in Nicolas and Williams, and concluded the Maryland statute requires only "offensive physical contact," not violent force.
Judgment: the court vacated the enhancement, holding Maryland resisting arrest does not categorically qualify as a "crime of violence" under the Guideline force clause, and remanded for resentencing.

Issues

Issue	Government's Argument	Aparicio‑Soria's Argument	Held
Whether Maryland resisting arrest "has as an element the use, attempted use, or threatened use of physical force against the person of another" (force clause)	The statute is inherently violent; resisting arrest can only be punished when physical, often violent, force is used; many published Maryland cases involve violent conduct	Maryland resisting arrest requires only "offensive physical contact" or mere refusal to submit and therefore does not require the violent force Johnson requires	Held: Not a categorical crime of violence — Maryland resisting arrest requires only offensive contact, not violent force capable of causing pain/injury
Whether district court could apply the modified categorical approach to identify violent conduct in this defendant’s prior conviction	Modified categorical approach should be used to examine conviction documents showing defendant bit an officer	Descamps prohibits the modified categorical approach because Maryland statute is indivisible	Held: Descamps bars the modified categorical approach here; court must apply the categorical inquiry
Whether precedent treating resisting arrest as violent under residual-clause analyses supports force-clause treatment	Prior Fourth Circuit cases (Wardrick, Jenkins) found resisting arrest fit residual-clause predicates and so show it is violent	Residual-clause analyses are distinct; risk-of-injury (residual) differs from element-of-violent-force (force clause)	Held: Residual-clause precedents are inapplicable to force-clause inquiry
Whether Maryland intermediate-court decisions showing violent applications foreclose a categorical finding of nonviolent status	The volume of violent-case examples shows a realistic probability Maryland convictions require violent force	Categorical analysis looks to statutory elements and highest-state-court interpretations (Nicolas, Williams) which indicate only offensive contact/ refusal to submit is required	Held: Court follows Maryland Court of Appeals precedents; quantity of violent examples does not alter categorical-elements analysis

Key Cases Cited

Descamps v. United States, 133 S. Ct. 2276 (U.S. 2013) (the modified categorical approach is impermissible when the statute has a single, indivisible set of elements)
Johnson v. United States, 559 U.S. 133 (U.S. 2010) ("physical force" in an identical force clause means violent force capable of causing physical pain or injury)
Taylor v. United States, 495 U.S. 575 (U.S. 1990) (categorical approach requires looking to statutory elements and fact of conviction)
Nicolas v. State, 44 A.3d 396 (Md. 2012) (Maryland Court of Appeals: resisting arrest’s force element equated to offensive physical contact)
Williams v. State, 79 A.3d 931 (Md. 2013) (Maryland Court of Appeals recitation of resisting arrest elements emphasizes refusal to submit)
United States v. Royal, 731 F.3d 333 (4th Cir. 2013) (Maryland second-degree assault is not categorically a crime of violence under the force clause)
United States v. Karimi, 715 F.3d 561 (4th Cir. 2013) (same holding for Maryland assault in force-clause analysis)
Gonzales v. Duenas‑Alvarez, 549 U.S. 183 (U.S. 2007) ("realistic probability" test for whether a state statute reaches nongeneric conduct)
James v. United States, 550 U.S. 192 (U.S. 2007) (the "ordinary case" and Duenas‑Alvarez principles applied in residual-clause context)
Shepard v. United States, 544 U.S. 13 (U.S. 2005) (Permitted sources for modified categorical inquiry)