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United States v. Aparicio–Soria, No. 12-4603

Decided: January 14, 2014

On rehearing en banc, the Fourth Circuit held that the Maryland crime of resisting arrest, Md. Code, Crim. Law § 9-408(b)(1), does not categorically qualify as a “crime of violence” under U.S. Sentencing Guideline § 2L1.2 (the reentry Guideline).  The Fourth Circuit therefore vacated the judgment of the United States District Court for the District of Maryland and remanded Marcel Aparicio–Soria’s (Aparicio–Soria) case for resentencing.

Aparicio–Soria pled guilty to a count of unlawful reentry of a deported alien subsequent to an aggravated felony conviction, under 8 U.S.C. §§ 1326(a) and (b)(2).  At sentencing, the Government argued that Aparicio–Soria’s sentence should be enhanced pursuant to the reentry Guideline, which advises federal district judges to enhance the offense level of a defendant convicted of certain immigration offenses “if that defendant has a prior conviction for ‘a crime of violence,’” U.S.S.G. § 2L1.2(b)(1)(A).  Specifically, the Government argued that Aparicio–Soria’s sentence should be enhanced pursuant to the “force clause” of the reentry Guideline—under which a state offense “that has as an element the use, attempted use, or threatened use of physical force against another” constitutes a crime of violence, U.S.S.G. § 2L1.2 cmt. N.1(B)(iii)—due to Aparicio–Soria’s prior conviction for resisting arrest in Maryland.  The district court found that, under the categorical approach, Aparicio–Soria’s prior conviction did not constitute a crime of violence under the force clause; however, under the modified categorical approach, his prior conviction did constitute a crime of violence.  Aparicio–Soria appealed.

The intervening precedent Descamps v. United States, 133 S. Ct. 2276, established that the district court erred in applying the modified categorical approach in this case.  However, because the Fourth Circuit can “affirm the district court on any ground in the record, including those rejected by the district judge,” United States v. Moore, 7098 F.3d 287, the Government argued for affirmation of the judgment under the categorical approach.

The Fourth Circuit noted that, under the Supreme Court’s analogous reasoning in Johnson v. United States, 130 S. Ct. 1265, the term physical force means “violent force—that is, force capable of causing physical pain or injury to another person.”  On the other hand—per the Maryland Court of Appeals case Nichols v. State, 44 A.3d 396—the force necessary for conviction under Maryland’s resisting arrest statute is the de minimis force constituting offensive touching.  The Fourth Circuit also found the Government’s reliance on Rich v. State, 44 A.3d 1063, unavailing; found the cases United States v. Wardrick, 350 F.3d 446, and United States v. Jenkins, 631 F.3d 680, irrelevant to the case at hand; and rejected the Government’s focus on the “realistic probability” of a resisting arrest conviction based on something other than violent force, as the focus in the categorical analysis is on the “elements, not facts.”

Full Opinion

– Stephen Sutherland