Decided: July 5, 2013
Finding that the Maryland offense of resisting arrest constitutes a crime of violence under U.S.S.G. § 2L1.2, the Fourth Circuit affirmed the District Court for the District of Maryland’s application of the “crime of violence enhancement” in the sentencing of Marcel Aparicio-Soria (“Aparicio-Soria”).
In April 2012, Aparicio-Soria pleaded guilty to illegally reentering the U.S. after having been previously deported following a conviction for aggravated felony. With respect to the sentencing determination, the main issue before the district court concerned another prior state conviction for resisting arrest. The question before the district court was whether Maryland’s resisting arrest offense qualifies as a “crime of violence,” under U.S.S.G. § 2L1.2(b)(1)(A)(ii), for the purposes of applying a significant sentencing enhancement for any defendant convicted of illegally reentering or staying in the country after previously being convicted for a felony that is a crime of violence. There was no dispute that resisting arrest did not fall under any of the enumerated offenses, however, the issue was whether resisting arrest fell under the residual “force clause.” The district court first employed the so-called “categorical approach” for determining the applicability of the sentencing enhancement. However, the court found that the type of force required to sustain a conviction for resisting arrest under Maryland law was insufficient to trigger the enhancement as a general matter. The court then turned to the “modified categorical approach,” examining the factual statement incorporated into the charging document to determine whether the underling charge involved a sufficient element of force and concluded that the type of force involved was sufficient to render his resisting arrest conviction a crime of violence. This resulted in raising the advisory guidelines range from between 24 and 30 months to between 54 and 71 months. Ultimately, after granting a downward variance based on the factors in 18 U.S.C. § 3553(a), Aparicio-Soria was sentenced to 36 months of incarceration. Aparicio-Soria appealed, challenging the district court’s application of the crime of violence enhancement.
In appealing his sentence, Aparicio-Soria argued that the district court erred in applying the crime of violence enhancement to his sentence by (1) proceeding beyond the categorical approach and purporting to apply the modified categorical approach; (2) by incorrectly focusing on concrete facts underlying his crime rather than elements required for conviction in its application of the modified categorical approach; and (3) by incorrectly concluding that the conduct described in the charging document was sufficient to demonstrate the necessary level of force.
Noting its authority to affirm the district court’s judgment based on any ground supported by the record, the Fourth Circuit affirmed the judgment on the basis of a categorical analysis without reaching the other issues presented. As a preliminary matter, in addressing Aparicio-Soria’s sentencing enhancement under the categorical approach, the court observed that the approach requires a comparison of (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. After finding that force was an element of the Maryland crime of resisting arrest at the time of Aparicio-Soria’s conviction, the court then analyzed whether such force satisfied the standards of the crime of violence enhancement. Noting that the categorical approach requires an elements-based rather than a conduct-based methodology, the court found overwhelming evidence that Maryland law requires violent force against the person of another in order to justify a charge of resisting arrest, and therefore held that Aparicio-Soria’s conviction fell within the force clause of the crime of violence enhancement.
-W. Ryan Nichols