Lead Opinion
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
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)(l)(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 undеr 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. l(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 Apari-cio-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 bеcause “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. -,
We may, however, affirm the district court on any ground in the record, including those rejected by the district judge. United States v. Moore,
This case requires application of the framework outlined by the Supreme Court in Johnson v. United States,
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. l(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,
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
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,
(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,
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. l(B)(iii); Johnson,
The Government makes several arguments in response, none of which we find persuasive. It cites Rich v. State,
The Government persists, citing two of our prior cases — United States v. Wardrick,
The Government pushes on. After all, it contends, offenses that criminalize conduct that presents a serious risk of physical injury cannot be far removed from those that contain as an element the use of violent force. It is perhaps instinctively alluring to conflate the risk of physical injury with the use of violent force, but we refuse to do so because it is directly contrary to Supreme Court and sound Fourth Circuit precedent: Sykes v. United States, - U.S. -,
The Government’s last argument is that there is no way to be convicted of resisting arrest in Maryland without the use of violent force — and it cites thirty-eight published opinions by the Maryland appellate courts to support its claim, all of which arguably involved the defendant’s use of violent force. Armed with this mountain of cases, the Government urges us to avoid exercising our “legal imagination” when analyzing the resisting arrest offense, and instead asks us to examine whether there is “a realistic probability, not a theoretical possibility, that [Maryland] would apply its statute to conduct that falls outside” the realm of violent force. Govt. Br. 19-21 (quoting Gonzales v. Duenas-Alvarez,
But this case does not require an exercise of imagination, merely mundane legal research skills: we have precedent from Maryland’s highest court stating that the degree of force required as an element of Maryland resisting arrest is “offensive physical contact,” Nicolas,
Even with its raft of cases, the Government’s argument misses the point of the categorical approach and “wrenches the Supreme Court’s language in Duenas-Al-varez from its context.” United States v. Torres-Miguel,
The judgment of the district court is vacated and the case is remanded for re-sentencing in accordance with this opinion.
VACATED AND REMANDED.
Notes
. The relevant provision of the Armed Career Criminal Act provides that a defendant convicted of being a felon in possession of a firearm, 18 U.S.C. § 922(g), is subject to a fifteen-year mandatory minimum sentence if he has three previous "violent felony” convictions. 18 U.S.C. § 924(e)(1). “Violent felony” is defined in the statute as any crime “punishable by imprisonment for a term exceeding one year” that either “has as an element the use, attempted usе, or threatened use of physical force against the person of another” (the force clause), or "is burglary, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another.” Id. § 924(e)(2)(B). The second category involving physical injury is referred to as "the residual clause.”
. The Supreme Court has not yet addressed whether- — and if so, how — the categorical approach applies to common law crimes. See Descamps,
. At the sentencing hearing in this case, the district court expressly relied on Nicolas,
. The Government argues that the discussion in Nicolas,
Dissenting Opinion
with whom NIEMEYER, Circuit Judge, joins, dissenting:
The majority is right that the categorical approach governs here. It is wrong to apply that approach in a manner that is heedless of the pertinent Supreme Court decisions and wholly untethered from reality itself. Decade upon decade of Maryland resisting arrest law paints a clear picture of violent force unleashed against arresting officers. Case after case recounts violent outbursts by defendants: fighting, pushing, and hitting an officer; biting an officer with sufficient force to break the skin; dragging an officer to the ground; swinging handcuffs at an officer; wielding a straight-edged razor against an officer and slashing his arm; driving a vehicle in an attempt to run an officer over; punching an officer repeatedly in the head; stabbing an officer with a ballpoint pen; tearing the badge off an officer’s uniform and swinging at the officers with the badge’s pin; kicking an officer in the groin; striking an officer in the stomach and chest. See Appendices I & II.
This is the offense that the majority claims is not a crime of violence. And the above is but a sampler.
Whether described as a fracas or a physical struggle, the force underlying the Maryland resisting arrest offense is, and has been, consistently violent. The list of violent acts committed by defendants in this context is both lengthy and uniform. By contrast, any incident involving mere “offensive touching” is wholly absent. Johnson v. United States,
A chief aim of the resisting arrest offense is to protect the physical safety of the arresting officer. In holding this not a crime of violence, the majority denies this purpose its rightful effect. Even fоr judges as capable as my good colleagues, there is a danger in ruling at a far and cosseted remove. It is always sad to say what should never need to be said: these street encounters are not tea and crumpets. It is silly to pretend the force directed at police officers is nothing more than a mere touch. It is one thing to recognize that police officers are, like the rest of us, deeply fallible. It is fair to note that their failings carry greater consequence because they wear the badge of state. It is right that law punish officers for their excesses and correct their mistakes. And yet, law must also respect their own need for personal safety and
I do not know whether to refer to my friends in the majority as the simple majority, the super-majority, the ultra-majority, or the uber-majority, but this decision, even if it were unanimous, would still be very wrong. To deny, as the majority does, obvious effect to the term “crime of violence,” is thus more than a negation of congressional intent. To deny that the unbroken litany of violent acts against police officers is even violent evinces more than an averted eye from its recipients. It breeds, in the end, a disrespect for law itself.
The question in this case may be simply posed: do the Supreme Court decisions in Gonzales v. Duenas-Alvarez,
The force clause here is typical. It provides a sentencing enhancement for defendants previously convicted of any “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). Force clauses such as this one are familiar features of our law. They appear both in statutes and in the Sentencing Guidelines. See 18 U.S.C. § 16(a); id. § 924(e)(2)(B)©; U.S.S.G. § 4B1.2 (a)(1). They represent Congress’s attempt to ensure that those who engage (often repeatedly) in violent acts towards others recеive a commensurate punishment. How these clauses are applied and interpreted is important.
The contribution of Duenas-Alvarez and James is to make the sentencing of violent offenders a practical exercise. If those cases apply to force clauses, as I believe they do, it is certain that under the categorical approach, approved by the Supreme Court in Descamps v. United States, — U.S.-,
In the face of the grounded and practical approach of Duenas-Alvarez and James, the majority takes abstract flight. It ignores James altogether and finds that resort to Duenas-Alvarez “misses the point of the categorical approach.” Maj. op. at 157. In short, it gives James the silent treatment and Duenas-Alvarez the back of its hand insofar as they apply to force clauses. Contrary to the majority’s logic, the proper application of Duenas-Alvarez and James mandates a single conclusion: that in “the ordinary case,” James,
It remains the law of this circuit that Duenas-Alvarez and its successor James do not, as a matter of law, apply to unlisted offenses. United States v. Torres-Miguel,
The result of all this is the dramatic curtailment of the legitimate scope of force clauses. Despite the clear pattern of “the ordinary case,” see James,
The consequences stretch beyond the majority’s refusal to apply established Supremе Court precedent. The majority introduces disuniformity in federal sentencing. It creates conflict among the circuits. It undermines congressional intent by carving out an exception to force clauses nowhere in their language. It declares that violent acts against those attempting to do nothing more than effect a lawful arrest do not register in the judicial consciousness and that, as a statutory matter, violence directed at law enforcement officers is not really violence after all.
I.
The Supreme Court’s decisions on sentencing provisions for violent acts make good sense, especially if they are taken as a whole. Much of the early debate concerned whether a categorical or modified categorical approach to predicate offenses would apply. The categorical approach, in all but the specialized instance of a divisible statute, has prevailed. See Descamps,
A.
The categorical approach has significant benefits, namely, sparing district courts the need to explore the underlying facts of predicate convictions, and giving defendants the benefits of earlier plea bargains to lesser offenses. See Descamps,
Under the categorical approach, these facts, although clearly violent, are excluded from consideration for the sake of promoting what are plainly significant systemic benefits. See Descamps,
[T]o find that a state statute creates a crime outside the generic definition of a listed crime in a federal statute requires more than the application of legal imagination to a state statute’s language. It requires a realistic probability, not a theoretical possibility, that the State would apply its statute to conduct that falls outside the generic definition of a crime.
The James Court cited this language from Duenas-Alvarez and applied it to the unlisted offense of attempted burglary in the residual clause at issue in that case, which covered crimes that present a “serious potential risk of physical injury to another.” 18 U.S.C. § 924(e)(2)(B)(ii). James observed that the categorical approach does not require “every conceivable factual offense covered by a statute [to] necessarily present a serious potential risk of injury before the offense can be deemed a violent felony.”
B.
Nothing in the logic of Duenas-Alvarez or James renders the “realistic probability” test inapplicable to force clause predicates. But in refusing to discuss James or to give more than dismissive lip service to Duenas-Alvarez, the majority accepts the benefits of the categorical approach and wholly ignores the Supreme Court’s effort to offset its costs. By basing its inquiry purely on elements, the majority uses the most abstract approach to sentencing possible — an approach divorced from the context and grounding that actual cases provide. The majority discards reality in favor of a formalism that is mandated neither by logic nor law.
The majority’s refusal to consider case conduct as an interpretive guide to the elements of a crime is wanting on multiple counts. To begin with, matching state law elements with statutory or Guidelines provisions cannot be the whole inquiry for the obvious reason that most state offenses were not designed with federal sentencing enhancements in mind. There is no single catechism — such as “violent force” — that
But the damage to federal sentencing wrought by the majority’s approach is more serious than these mere practical problems would suggest. By putting such emphasis upon elements alone, divorced from the practical inquiry mandated by Duenas-Alvarez and James, the majority has placed federal sentencing at a double remove from reality. Not only do we refrain for good and sufficient reason from investigating the facts underlying defendant’s specific predicate conviction, but we are now also barred from examining the actual conduct involved in the mine run of state cases. The Supreme Court, of course, looks to state cases to identify the elements of a predicate offense, see, e.g., Sykes v. United States, — U.S.-,
To effectively prohibit this inquiry into conduct is to pursue an exercise in abstraction for the very inquiry in the criminal justice system that is supposed to be the most grounded and individualized. See 18 U.S.C. § 3661 (“No limitation shall be placed on the information concerning the background, character, and conduct of a person convicted of an offense which a court of the United States may receive and consider for the purpose of imposing an appropriate sentence.”). The majority’s willingness to place limitations of every sort and variety upon the sentencing inquiry prizes formalism over reality, thus upsetting the careful balance drawn by the federal sentencing regime. See Setser v. United States, — U.S. -,
It matters not that this latest limitation is one that does not pertain to the particular defendant’s circumstances, because it definitely does pertain to the all — important question of whether his predicate offense was, “in the ordinary case,” see James,
II.
The damage wrought by the majority’s general approach to sentencing is compounded by its handling of the particular Maryland offense of resisting arrest. It has introduced not only an unwarranted amount of abstraction into the process, but
A.
The historiс purposes of resisting arrest offenses are twofold. The first is to safeguard the arresting officer from violent force at the hands of the arrestee. It can be dangerous to make an arrest, and the resisting arrest crime was designed to lessen the potential for serious harm. See, e.g., United States v. Jenkins,
To serve these dual purposes, the offense has been limited to violent force directed, in most instances, at the arresting officer. In the classic case of Regina v. Bentley, 4 Cox C.C. 408, 408 (1850), for example, the defendant was convicted of resisting arrest after he “violently assaulted and seriously injured” the arresting officer. The facts recounted in Bentley continue to represent the paradigmatic offense conduct. Consistent with this common law understanding, Section 242.2 of the Model Penal Code cabins the offense to defendants who “create[ ] a substantial risk of bodily injury to the public servant or anyone else, or employ[ ] means justifying or requiring substantial force to overcome the resistance.” Maryland adheres to this conception of the offense: the underlying conduct described in the reported cases is, in the words of a state court, “consistently forceful.” Rich,
Including violent force as an element of the offense also limits the discretion of discriminatory or overreaching prosecutors. As Rich notes, “[mjinor 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 еnforcement.” Id. at 1080 (internal quotation marks omitted). The Model Penal Code similarly concludes that “authorizing criminal punishment for every trivial act of resistance would invite abusive prosecution.” § 242.1, explanatory notes. The two central purposes of the offense — protecting officers from serious harm and protecting defendants from prosecutorial overreach — thus dovetail in the requirement that a non-violent act will not suffice for conviction.
B.
It is essential to comprehend the common understanding or nature of a state offense, even in crimes not specifically listed or enumerated, when applying federal sentencing enhancements. Although the search for a generic definition is formally limited to the context of listed crimes, many state offenses retain traditional definitions shared by a host of jurisdictions and the common law. See Williams v. State,
In Rich, as noted, the court stressed that violent force was essential to a resisting arrest conviction, and that the Maryland courts quite rightly and properly had sought to prevent the offense from metastasizing to cover nonviolent conduct. In the absence of violent force, Rich reversed the conviction.
The majority rests its whole analysis on the holding in Nicolas v. State that the Maryland crime of second-degree assault merges with the Maryland crime of resisting arrest for sentencing purposes.
In basing its entire conclusion on this bit of dicta, the majority ignores Duenas-Al-varez’s admonition that a defendant, in order to escape the application of a federal sentencing enhancement, must be able to identify concrete cases in which the predicate offense was actually applied in the manner he proposes.
Quite apart from the hypothetical world, defendant’s conduct in Nicolas plainly included the use of violent force: he “pushed” one officer, “hit [another] in the face,” and fought with one for “two to three minutes.” The fight included “grabbing] each other and ... pushing each other against the walls and hitting each other.” Finally, he continued “fighting” and “struggling]” “the whole way” to the police cruiser.
Defendant’s burden is not an obscure one. All he has to do is show actual instances in which Maryland courts are sustaining convictions for resistance to arrest in the absence of violent force. He and the majority have succeeded in showing only the opposite. In conducting this whole inquiry, it is essential that courts look closely at state law, because the predicate conviction is most often, though not always, a state offense. But this is also a federal sentencing proceeding, and in insisting that the inquiry involve a “realistic probability, not a theoretical possibility, that the State would apply its statute to conduct that falls outside the” federal enhancement, Duenas-Alvarez,
The majority’s errant conclusion that Maryland has departed from the common understanding of the resisting arrest offense also introduces disuniformity into federal sentencing and exacerbates a conflict within the circuits. As a result of this decision, there is now a dramatic difference in how the circuits approach the use of force against arresting officers. For example, in United States v. Carthorne,
Quite apart from the fact that officers on the receiving end of violent attacks upon their person will wonder what in the world we are doing, the departure from the sound approach shared by the Supreme Court, the Maryland judiciary and our sister circuits is, to understate the matter, a prescription for problems down the roаd.
III.
An arrest, by its nature, is a tense and volatile event. The aim of law should be,
Arrestees are entitled to be treated with dignity and respect. They are not objects to be gratuitously brutalized, no matter what their respective offenses may prove to be. Where officers use unwarranted force, courts have historically held them to account. Excessive force claims are an established and important part of our law. See Graham v. Connor,
Law enforcement officers, too, are deserving of dignity, not to mention physical safety. Officers may not be popular figures (except perhaps when one needs them), but they do play their necessary part in permitting law to function as law. Here they were doing what they had every right to do: make a lawful arrest. I do not believe appellant thinks officers are blocks of wood or slabs of stone, but the shrug of indifference which he invites as our response to violent acts committed against them suggests to the contrary. The one who dons a uniform is not thereby dehumanized. No occupation-need numb us to the fact that all persons, officers and arrestees alike, feel the sting of violent and aggressive acts. -It is sad, really, that courts would strip protection from those whom Congress wished to protect, and in so doing, sever law so dramatically from the law enforcement function.
It is sad too that my friends in the majority had the chance to invest with equal dignity both sides of this fraught encounter, but now that chance has been lost. It is altogether good and right that excessive force on the part of police is actionable under federal law, but it is profoundly wrong that violence against those very same persons is without the proper federal statutory effect. There is no question that resisting arrest must involve violent force directed at the person of arresting officers. It is a crime of violence. More than that, it is an affront to law. I have gathered Maryland cases in two appendices to make my point. From them, the reader can readily discern that the crime involves violence directed at arresting officers “in the ordinary case,” James,
Appendices
I.
Resisting Arrest Decisions of the Maryland Court of Appeals
• Nicolas v. State,
• Arthur v. State,
• Wilson v. State,
• Polk v. State,
• Purnell v. State,
• Johnson v. State,
• In re Tariq A-R-Y,
• Barnhard v. State,
•Att’y Grievance Comm’n of Md. v. Hamby,
• Trusty v. State,
• Rodgers v. State,
• Downs v. State,
• Palacorolle v. State,
II.
Resisting Arrest Decisions of the Maryland Court of Special Appeals
• Gutloff v. State,
• Britton v. State,
• Jones v. State,
• Lamb v. State,
• Grant v. State,
• Cooper v. State,
• Himple v. State,
• Briggs v. State,
• Washington v. State,
• Thomas v. State,
• Johnson v. State,
• Curtin v. State,
• Kraft v. State,
• Tillery v. State,
• Lyles v. State,
• Williams v. State,
• Carwell v. State, 2 MdApp. 45,
• McIntyre v. State,
• McGee v. State,