1

PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 12-4603

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

MARCEL APARICIO-SORIA,

Defendant - Appellant.

Appeal from the United States District Court for the District of 

Maryland, at Greenbelt. Deborah K. Chasanow, Chief District 

Judge. (8:11-cr-00616-DKC-1)

Argued: March 22, 2013 Decided: July 5, 2013

Before WILKINSON and DAVIS, Circuit Judges, and Jackson L. 

KISER, Senior United States District Judge for the Western 

District of Virginia, sitting by designation.

Affirmed by published opinion. Judge Wilkinson wrote the 

opinion, in which Judge Kiser joined. Judge Davis wrote an 

opinion, concurring in part and dissenting in part.

ARGUED: Sapna Mirchandani, OFFICE OF THE FEDERAL PUBLIC 

DEFENDER, Greenbelt, Maryland, for Appellant. Paul Nitze, 

OFFICE OF THE UNITED STATES ATTORNEY, Baltimore, Maryland, for 

Appellee. ON BRIEF: James Wyda, Federal Public Defender, 

Baltimore, Maryland for Appellant. Rod J. Rosenstein, United 

States Attorney, Baltimore, Maryland, for Appellee.
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WILKINSON, Circuit Judge:

In sentencing defendant Marcel Aparicio-Soria for illegally 

reentering the United States, the district court applied the 

“crime-of-violence enhancement” in U.S.S.G. § 2L1.2(b)(1)(A)(ii) 

on the basis of a previous Maryland conviction for resisting 

arrest. Aparicio-Soria challenges that decision here. Adopting 

the categorical approach, we find that the Maryland offense of 

resisting arrest constitutes a crime of violence under § 2L1.2.

We therefore affirm the judgment of the district court. 

I.

In April 2012, Aparicio-Soria pleaded guilty in the U.S. 

District Court for the District of Maryland to illegally 

reentering the United States after having been previously 

convicted of an aggravated felony and deported, see 8 U.S.C. 

§ 1326(a) and (b)(2). While the conviction that had prompted 

his removal was for theft, the main issue before the district 

court concerned another prior state conviction -- for resisting 

arrest under Md. Code, Crim. Law § 9-408(b)(1).

The question was whether Maryland’s resisting arrest 

offense qualifies as a “crime of violence” under U.S.S.G. 

§ 2L1.2(b)(1)(A)(ii). That provision calls for the application 

of a twelve- or sixteen-level sentencing enhancement (depending 
3

on criminal history) for any defendant convicted of illegally 

reentering or staying in the country who was “previously . . . 

deported, or unlawfully remained in the United States, after . . 

. a conviction for a felony that is . . . a crime of violence.” 

The pertinent commentary, in turn, defines “crime of violence” 

to include several enumerated offenses and “any other 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). 

Only the latter part of this definition, which is known as the 

“force clause,” is at issue here, as there is no dispute that 

defendant’s conviction is not an enumerated offense.

The district court held that defendant’s resisting arrest 

conviction satisfies the force clause and thus constitutes a 

crime of violence. The court first employed the so-called

“categorical approach” for determining the applicability of 

sentencing enhancements, which stems from Taylor v. United 

States, 495 U.S. 575 (1990). The court found, however, that the 

type of force required to sustain a conviction for resisting 

arrest under Maryland law is insufficient, as a general matter, 

to trigger the enhancement. The court then turned to the 

“modified categorical approach,” examining the factual statement 

incorporated into the charging document to determine whether the 

underlying charge involved a sufficient element of force. 
4

In that declaration, titled “Application for Statement of 

Charges,” a law enforcement officer attested to the following 

facts. On May 3, 2006, shortly before midnight, another officer 

witnessed a pick-up truck driven by the defendant “swerv[ing] 

over the road” and “cross[ing] the painted lane markings several 

times.” The officer “attempted to stop the vehicle by 

activating the emergency lights and siren in his agency marked 

police cruiser,” but the defendant took flight --

“accelerat[ing] at a high rate of speed,” “ma[king] two u-turns 

in the median,” “swerv[ing] towards and tr[ying] to strike” an

officer, and colliding with a vehicle belonging to a civilian. 

Officers were eventually “able to deploy stop sticks which 

deflated both [of the truck’s] passenger side tires,” and 

shortly thereafter, Aparicio-Soria stopped the truck in a 

hotel’s parking lot and fled on foot into the lobby, where a 

struggle ensued. He first “fail[ed] to place his hands behind 

his back and actively resist[ed]” the officers. The officers 

released a K-9 dog and shocked the defendant with a Taser three 

times, but he continued “resisting and assaulting” them “for 

approximately two minutes.” Finally, he “bit the right hand” of 

one of the officers. Aparicio-Soria was ultimately subdued and 

transported to a local hospital. An officer smelled alcohol on 

his breath and administered a field sobriety test at the 

hospital, which the defendant failed.
5

The district court concluded that because Aparicio-Soria 

had assaulted the officers during the hotel confrontation (and 

bitten one of them, in particular), the type of force involved 

was sufficient to render his resisting arrest conviction a crime 

of violence. As a result, the court recalculated his Guidelines 

range to include the sixteen-level crime-of-violence enhancement 

pursuant to § 2L1.2(b)(1)(A)(ii) in place of the eight-level 

“aggravated-felony enhancement” pursuant to § 2L1.2(b)(1)(C) 

that the pre-sentence report had recommended. This resulted in 

raising the advisory Guidelines range from between twenty-four 

and thirty months to between fifty-seven and seventy-one months. 

The court then granted a downward variance based on the factors 

in 18 U.S.C. § 3553(a) and ultimately sentenced the defendant to 

thirty-six months of incarceration.

II.

In appealing his sentence, Aparicio-Soria presses several

arguments for why the district court should not have applied the 

U.S.S.G. § 2L1.2(b)(1)(A)(ii) crime-of-violence enhancement to

his Maryland resisting arrest conviction. First, he contends, 

the district court erred in proceeding beyond the categorical 

approach and purporting to apply the modified categorical 

approach. Second, he asserts that even if the modified 

categorical approach is applicable, the district court employed 
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it incorrectly by focusing on the concrete facts underlying his 

crime rather than the elements required for the conviction. 

Finally, the defendant argues that, in any event, the conduct

described in the charging document was insufficient to 

demonstrate the necessary level of force. This is so, he 

explains, because that document contains multiple theories of 

how he may have committed the offense, and it is impossible to 

know to which theory or theories he ultimately pleaded guilty.

The government counters each of these points. 

Additionally, because this court can affirm the judgment below 

on any ground supported by the record, United States v. McHan, 

386 F.3d 620, 623 (4th Cir. 2004), the government contends that 

the district court was mistaken, as an initial matter, in 

concluding under the categorical approach that Maryland 

resisting arrest law does not require a type of force sufficient 

to satisfy the force clause of § 2L1.2 cmt. n.1(B)(iii). For 

the following reasons, we find this argument persuasive, and we 

therefore affirm the judgment on the basis of a categorical 

analysis without reaching the other questions discussed above.

III.

The categorical approach constitutes the proper vehicle for 

resolving the issues presented by this appeal. The modified 

categorical approach “serves a limited function: It helps 
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effectuate the categorical analysis when a divisible statute, 

listing potential offense elements in the alternative, renders 

opaque which element played a part in the defendant’s 

conviction.” Descamps v. United States, No. 11-9540, slip op. 

at 5 (U.S. June 20, 2013). In this case, Aparicio-Soria’s prior 

conviction is predicated on a nondivisible statute; 

consequently, the modified approach “has no role to play.” Id. 

at 9. As a result, there is no need for this Court to attempt 

to parse the record associated with Aparicio-Soria’s prior 

conviction or to rely on attenuated factual inferences with 

respect to the conduct underlying that conviction. See id. at 

13-15. Instead, the categorical approach merely requires that 

we compare (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. See id. at 1, 5; Taylor v. United States, 495 U.S. 575, 

598-602 (1990). We proceed to consider these matters in turn.

A.

When interpreting a sentencing enhancement under the 

categorical approach, a court must first establish the “generic, 

contemporary meaning” of the predicate offense in question, 

which generally corresponds to the “sense in which the term is 

now used in the criminal codes of most States.” Taylor, 495 

U.S. at 598. This method makes good sense with respect to 
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specifically enumerated offenses -- such as “[m]urder, 

manslaughter, kidnapping, [and] aggravated assault,” to name a 

few from the enhancement at issue here, U.S.S.G. § 2L1.2 cmt. 

n.1(B)(iii). The method, however, must be adapted slightly 

where the offense in question is stated more broadly in a force 

clause, a “residual clause,” or the like. This is because there 

is little to no “sense in which the term is now used in the 

criminal codes of most States” where the “term” in question is, 

for instance, the force clause at issue here (which, to repeat, 

encompasses “any other offense . . . that has as an element the 

use, attempted use, or threatened use of physical force against 

the person of another,” id.). See United States v. TorresMiguel, 701 F.3d 165, 167-68, 170 (4th Cir. 2012).

Nevertheless, Taylor still proves instructive, and this 

court has thus employed the categorical approach in various 

force and residual clause contexts. See, e.g., id. at 167-68

(applying Taylor to force clause at issue here); United States 

v. Seay, 553 F.3d 732, 736-37 (4th Cir. 2009) (applying Taylor

to force and residual clauses in U.S.S.G. § 4B1.2(a)). At 

bottom, Taylor established the principle that enhancement 

predicates “must have some uniform definition independent of the 

labels employed by the various States’ criminal codes.” 495 

U.S. at 592. We respect that principle by first determining 

what the force clause of the crime-of-violence enhancement means 
9

as a general matter, apart from how any individual jurisdiction 

defines any given offense or enhancement, and then asking 

whether the elements of the conviction at issue align with that 

uniform definition. See Johnson v. United States, 130 S. Ct. 

1265, 1269 (2010) (“The meaning of ‘physical force’ in [18 

U.S.C.] § 924(e)(2)(B)(i) is a question of federal law, not 

state law. And in answering that question we are not bound by a 

state court’s interpretation of a similar -- or even identical -

- state statute.”). 

Because the two provisions employ identical language, the 

parties agree that precedent interpreting the force clause in

the definition of the “violent felony” portion of the Armed 

Career Criminal Act (ACCA), 18 U.S.C. § 924(e)(2)(B)(i), is 

pertinent to our analysis of the force clause in the crime-ofviolence enhancement. Compare id. (encompassing any offense 

that, inter alia, “has as an element the use, attempted use, or 

threatened use of physical force against the person of 

another”), with U.S.S.G. § 2L1.2 cmt. n.1(B)(iii) (same). 

Indeed, this court has recently reiterated that “[w]e rely on 

precedents evaluating whether an offense constitutes a ‘crime of 

violence’ under the Guidelines interchangeably with precedents 

evaluating whether an offense constitutes a ‘violent felony’ 

under the ACCA, because the two terms have been defined in a 

manner that is substantively identical.” United States v. 
10

Gomez, 690 F.3d 194, 197 (4th Cir. 2012) (internal quotation 

marks omitted).

We thus recognize, in particular, the Supreme Court’s 

exposition of the ACCA’s force clause in Johnson. There, the 

Court held that because the ACCA “does not define ‘physical 

force,’ . . . [we] give the phrase its ordinary meaning.” 130 

S. Ct. at 1270. Following examination of several dictionary 

entries and exploration of the pertinent statutory landscape, 

Johnson concluded: “We think it clear that in the context of a 

statutory definition of ‘violent felony,’ the phrase ‘physical 

force’ means violent force -- that is, force capable of causing 

physical pain or injury to another person.” Id. at 1271. The 

Court accordingly held that “the slightest offensive touching” -

- which could fulfill the “force element” of the common-law 

crime of battery -- was insufficient. Id. at 1270. Thus, the 

enhancement was deemed inapplicable, as the defendant had been 

convicted of a battery offense requiring only the “most ‘nominal 

contact,’ such as a ‘ta[p] . . . on the shoulder without 

consent.’” Id. at 1269-70, 1274 (alterations in original).

In light of this ruling, the question we must answer is 

whether Maryland’s resisting arrest offense “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), where “physical force” means “violent force -- that 
11

is, force capable of causing physical pain or injury to another 

person,” Johnson, 130 S. Ct. at 1271. As the ensuing analysis 

demonstrates, we conclude that it does.

B.

Aparicio-Soria was convicted of resisting arrest pursuant 

to Md. Code, Crim. Law § 9-408(b)(1), which provides that “[a] 

person may not intentionally . . . resist a lawful arrest.” In 

determining the applicability of sentencing enhancements based 

on state convictions, federal courts are bound by the relevant 

state courts’ interpretations of the predicate crime. Johnson, 

130 S. Ct. at 1269 (citing Johnson v. Fankell, 520 U.S. 911, 916 

(1997)). In Rich v. State, the Maryland Court of Special 

Appeals made clear that the statutory offense of resisting 

arrest includes three elements harkening back to the common law: 

(1) “that a law enforcement officer arrested or attempted to 

arrest the defendant”; (2) “that the officer had probable cause 

to believe that the defendant had committed a crime, i.e., that 

the arrest was lawful”; and (3) that the defendant both 

“refus[ed] to submit” to the arrest “and resist[ed] by force or 

threat of force.” 44 A.3d 1063, 1071, 1077 (Md. Ct. Spec. App. 

2012). The meaning of the third requirement, called the 

“resistance element,” is at issue here.

1.
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As an initial matter, the defendant contends that Rich, 

which was issued in 2012, demonstrates that at the time he was 

convicted in 2006, Maryland law did not necessarily require 

force as part of the resistance element. This argument fails. 

To be sure, Rich explained that some previous opinions, 

“while not focusing specifically on whether force is a required 

element of resisting arrest, have sent mixed signals as to 

whether force is necessary or whether simple failure to submit 

to an arrest is sufficient to constitute the crime.” 44 A.3d at 

1071. The court, however, called the first of those cases 

“aberrant” and ultimately concluded -- based on treatises, the 

“original formulation” of the common-law elements, “the 

consistently forceful character of the conduct at issue in 

Maryland’s resisting arrest case law,” and certain individual 

opinions -- that “both a refusal to submit to lawful arrest and

resistance by force or threat of force are necessary to commit 

the offense of resisting arrest in Maryland.” Id. at 1077. 

Rich in no way characterized this holding as breaking new 

ground, instead making clear that it merely clarified what the 

law had always been. Indeed, the court stated that the 

underlying “wrongful conduct reported in the Maryland case law, 

in which convictions for resisting lawful arrests have been 

upheld, has never consisted simply of . . . actions that did not 

amount to ‘resistance by force.’” Id. at 1082 (emphasis added).
13

Having thus established that force was as much an element 

of the Maryland crime of resisting arrest at the time of 

defendant’s conviction as it is now, we must determine what type

of force suffices -- and whether such force satisfies the 

standards of the crime-of-violence enhancement. 

2.

Aparicio-Soria maintains that the force capable of 

sustaining a Maryland resisting arrest conviction falls short of 

the force required for application of the crime-of-violence 

enhancement in two interconnected ways. First, he asserts that 

even de minimis force is adequate, thus rendering the offense 

overbroad in relation to Johnson’s interpretation requiring 

“violent force -- that is, force capable of causing physical 

pain or injury to another person.” 130 S. Ct. at 1271. Second, 

he claims that force applied to mere objects is enough, thus 

rendering the offense overbroad under the enhancement’s plain 

text requiring “physical force against the person of another.” 

U.S.S.G. § 2L1.2 cmt. n.1(B)(iii) (emphasis added). These 

contentions rest on a misguided attempt to parse the pertinent 

precedent far too finely. An abundance of evidence makes 

manifest that state law demands violent force directed against 

the person of another. 

Rich’s comprehensive canvassing of relevant authority 

provides several particularly instructive data points. First, 
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the court expressly described the offense of resisting arrest as 

“undergird[ed]” by conduct having a “forceful and violent

character.” 44 A.3d at 1072 (emphasis added). Second, the 

court interpreted a decision from Maryland’s highest court as 

stating that “[t]he specific conduct punishable [as the broader 

offense of obstructing a law enforcement officer], in contrast 

to conduct punishable as resisting arrest, did not need to rise 

to the level of violence or resistance and could be verbal in 

nature,” thus implying that “violence” and “resistance” may be

interchangeable in this context. Id. at 1073 (emphasis added) 

(citing Busch v. State, 426 A.2d 954 (Md. 1981)). Likewise, in 

further distinguishing the offense of obstruction from that of 

resisting arrest, the court quoted precedent stating that to 

constitute obstruction, “it is not necessary that there be an 

actual or technical assault upon the officer,” plainly 

indicating that force directed against the person of another is 

required for the offense of resistance. Id. at 1078 (emphasis 

added) (quoting Titus v. State, 32 A.3d 44, 53 (Md. 2011)).

Third, in concluding that mere flight fails the force 

requirement, Rich held that “[t]he purpose of criminalizing 

resistance to a lawful arrest is to protect police officers from 

the substantial risk of physical injury.” Id. at 1080. Rich

cited the Model Penal Code’s resisting arrest offense, which 

requires the creation of “a substantial risk of bodily injury to 
15

the public servant or anyone else, or employ[ment of] means 

justifying or requiring substantial force to overcome the 

resistance.” Id. (quoting Model Penal Code § 242.2). The

commentary, the court emphasized, states that “[t]he effect of 

this language is to exempt from criminal liability non-violent 

refusal to submit to arrest and such minor forms of resistance 

as running from a policeman or trying to shake free from his 

grasp.” Id. (quoting Model Penal Code § 242.2 cmt. 2). 

Accordingly, the central point of Rich’s extended 

explication of resisting arrest was to make clear that the 

offense is tailored to safeguarding individuals, especially law 

enforcement officers, from bodily harm. The court explicitly 

noted “[t]he dangers of proscribing conduct too broadly for 

purposes of resisting arrest” and stated that 

the charge of resisting arrest is amenable to “grave 

abuse” by police officers and prosecutors: “Minor 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 enforcement.” 

Id. (quoting Model Penal Code § 242.2 cmt. 2). Rich further 

confirmed that this police-protective policy limits resisting 

arrest to conduct that is both violent and directed against the 

person of another by endorsing an opinion from a different

jurisdiction holding that actions “not . . . directed against 

the officers” and lacking “any immediate potential for violence” 
16

failed to qualify as a similar crime. Id. at 1079 (quoting 

Coghill v. United States, 982 A.2d 802, 807 (D.C. 2009)). 

Finally, Rich cited the facts from a number of Maryland 

decisions as exemplifying “resistance by force,” id. at 1082 --

describing the defendant’s conduct in Nicolas v. State, 44 A.3d 

396 (Md. 2012), as “pushing, hitting, and struggling with 

police”; in Purnell v. State, 827 A.2d 68 (Md. 2003), as 

“pushing back against officers attempting to handcuff him”; in 

Barnhard v. State, 602 A.2d 701 (Md. 1992), as “‘scuffling’ with 

and swinging at police”; in Cooper v. State, 737 A.2d 613 (Md. 

Ct. Spec. App. 1999), as “pulling from officer’s grasp and 

punching him repeatedly in the head”; and in Washington v. 

State, 589 A.2d 493 (Md. Ct. Spec. App. 1991), as “striking

officer, knocking him off balance, and running away.” Likewise, 

Rich repeatedly invoked the conduct underlying the classic 

English case of Regina v. Bentley, 4 Cox C.C. 406, 406-08 

(1850), to illustrate the offense, retelling how the defendant 

“violently assaulted and seriously injured” an officer and was 

subsequently indicted for “cutting and wounding with intent to 

resist his lawful apprehension.” 44 A.3d at 1072-74. The court 

thus relied exclusively on conduct that was indubitably both 

violent in character and directed against the person of another

in characterizing the essential nature of resisting arrest. In 
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doing so, it demonstrated that lesser or differently aimed force 

cannot suffice.

3.

It should be clear from the comprehensive discussion in the 

Rich decision that a conviction for resisting arrest requires 

the use, attempted use, or threatened use of violent force 

against another person. As Descamps makes clear, the 

categorical approach requires an elements-based rather than a 

conduct-based methodology. Slip op. at 5. The conduct 

underlying prior state court decisions, however, may provide 

probative evidence of how the law defines the elements of the 

offense in question. See Moncrieffe v. Holder, 133 S. Ct. 1678, 

1686-87 (2013) (looking to underlying conduct in state court 

decisions to construe the elements of a state drug offense); 

United States v. Diaz-Ibarra, 522 F.3d 343, 352-53 (4th Cir. 

2008) (discussing the facts underlying a number of state cases 

at length and relying on those decisions as “typical of the kind 

of conduct to which [the statute in question] is applied” in 

order to find the existence of an element of the offense). In 

this case, that evidence is overwhelming.

Since 1950, the Maryland appellate courts have issued 

opinions describing the facts underlying convictions for 

resisting arrest (including juvenile delinquency determinations) 

in numerous cases. Every case, save one, demonstrates that the 
18

defendant acted in a manner involving violent force directed 

against the person of another -- indeed, against a law 

enforcement officer. The single outlier, of course, is Rich, in 

which the defendant’s conviction was overturned on account of 

the fact that he simply attempted to flee and stiffened his arms 

as officers tried to handcuff him. Id. at 1066, 1070. 

The cases demonstrate a singular recognition on the part of 

Maryland appellate courts that the offense of resisting arrest 

must not be allowed to leap its proper bounds. A broad array of 

precedent from the Maryland Court of Appeals illuminates the 

application of violent force against the person of another 

needed for a resisting arrest conviction: Nicolas, 44 A.3d at 

399-401 (defendant “pushed” officer, “hit [another] in the 

face,” fought with one for “two to three minutes” including 

“grabb[ing] each other and . . . pushing each other against the 

walls and hitting each other,” continued “fighting” and 

“struggl[ing]” “the whole way” to police car); Arthur v. State, 

24 A.3d 667, 670 (Md. 2011) (“struggle[d] as three officers 

attempted to arrest him,” “continued kicking and pulling,” 

caused officer to sprain ankle); Wilson v. State, 975 A.2d 877, 

881-82 (Md. 2009) (“struggle[d]” as officer attempted to place 

handcuffs); Polk v. State, 835 A.2d 575, 577 (Md. 2003) (“bit 

[officer’s] arm, breaking the skin on his wrist”); Purnell, 827 

A.2d at 71 (“pushed [o]fficer . . . into a wall, “went to the 
19

ground” with another officer); Johnson v. State, 749 A.2d 769, 

769 (Md. 2000) (“kicked and flailed” when officers attempted to 

effect arrest); In re Tariq A-R-Y, 701 A.2d 691, 692 (Md. 1997) 

(“punched and kicked” officers); Clark v. State, 629 A.2d 1239, 

1241 (Md. 1993) (“scuffle[d]” with officer); Barnhard, 602 A.2d 

at 703 (threatened that officers would “have a shooting,” 

threatened to kill one, “balled his fists,” “started swinging 

[a] loose handcuff” at them, “scuffle[d]” with them); Shifflett 

v. State, 572 A.2d 167, 168 (Md. 1990) (“fight ensued” when bail 

bondsmen attempted to effect arrest); Trusty v. State, 521 A.2d 

749, 752 (Md. 1987) (“struggle[d]” with officers); Diehl v. 

State, 451 A.2d 115, 117 (Md. 1982) (“kick[ed] and 

struggle[ed],” “again began kicking,” caused injury to one 

officer’s finger and bruises to another’s legs); Rodgers v. 

State, 373 A.2d 944, 945 (Md. 1977) (“grabbed [o]fficer . . . 

around the waist,” “wielded a straight edged razor and slashed 

[o]fficer . . . across the arm”); Downs v. State, 366 A.2d 41, 

43 (Md. 1976) (“scuffle ensued” when officer attempted to effect 

arrest); Palacorolle v. State, 211 A.2d 828, 829 (Md. 1965) 

(“while enroute to the police station the appellant lunged at 

[o]fficer . . . [,] attempting to strike and kick him”).

Numerous decisions from Maryland’s intermediate appellate 

court underscore the very same point: Britton v. State, 30 A.3d 

236, 239 (Md. Ct. Spec. App. 2011) (“violently resisted,” 
20

“punch[ed] and kick[ed] the officers,” “continued to struggle” 

despite being “tasered two more times”); Jones v. State, 924 

A.2d 336, 339-40 (Md. Ct. Spec. App. 2007) (“swerved” in vehicle 

“directly toward an officer, causing him to dive out of the way 

to avoid being struck”); Lamb v. State, 786 A.2d 783, 786 (Md. 

Ct. Spec. App. 2001) (“punched [officer] three or four times”); 

Grant v. State, 786 A.2d 34, 38 (Md. Ct. Spec. App. 2001) 

(engaged in “a wrestling match and a fight” with officers, 

“kicked” and “struck [one] several times [with his] arms and 

legs”); Cooper, 737 A.2d at 615-16 (“punched [officer] 

repeatedly in the head,” “struck [another] in the face”); In re 

Jason Allen D., 733 A.2d 351, 355 (Md. Ct. Spec. App. 1999) 

(discussed below), overruled on other grounds by In re Antoine 

M., 907 A.2d 158 (Md. 2006); In re Albert S., 664 A.2d 476, 479 

(Md. Ct. Spec. App. 1995) (“made a ‘fake motion’ as if he was 

going to hit the officer,” “pushed up against the officer,” 

“attempted to kick the officers”); Briggs v. State, 599 A.2d 

1221, 1223 (Md. Ct. Spec. App. 1992) (“threw his arms up, 

striking [officer] and knocking [officer’s] watch off his 

wrist,” “was fighting violently,” “kicked [another officer] 

close to the groin”); Washington, 589 A.2d at 495 (“struck 

[o]fficer . . . in the shoulder and knocked him off balance”); 

Thomas v. State, 582 A.2d 586, 586 (Md. Ct. Spec. App. 1990) 

(“During the struggle, a deputy was stabbed with a ballpoint pen 
21

and a police officer was struck.”); Johnson v. State, 542 A.2d 

429, 432 (Md. Ct. Spec. App. 1988) (“struck the detective in the 

stomach and again in the chest”); Curtin v. State, 483 A.2d 81, 

84 (Md. Ct. Spec. App. 1984) (“In the course of this melee, [one 

officer] was struck and kicked and [another] was bitten by the 

appellant.”); Hoes v. State, 368 A.2d 1080, 1082 (Md. Ct. Spec. 

App. 1977) (discussed below); Kraft v. State, 305 A.2d 489, 491 

(Md. Ct. Spec. App. 1973) (discussed below), overruled on other 

grounds by Goode v. State, 398 A.2d 801 (Md. Ct. Spec. App. 

1979); Jordan v. State, 300 A.2d 701, 702 (Md. Ct. Spec. App. 

1973) (“pushed [officer] out of the way,” “struggle then 

ensued”); Tillery v. State, 280 A.2d 302, 303 (Md. Ct. Spec. 

App. 1971) (attempted to punch one officer and kick another, 

“tore the badge of a [third officer’s] uniform and clenched it 

in his right hand with the pin . . . in an outward position, 

swinging . . . in a violent manner at each of the three 

[o]fficers”); Lyles v. State, 269 A.2d 178, 180 (Md. Ct. Spec. 

App. 1970) (“tussl[ed] on the floor and wrestl[ed]” with 

security guard, “bumped [guard] on the side of the head [with] 

nightstick”); Streeter v. State, 248 A.2d 119, 120 (Md. Ct. 

Spec. App. 1968) (“continuously struggl[ed] to break away” from 

officer); Williams v. State, 244 A.2d 619, 621 (Md. Ct. Spec. 

App. 1968) (“When the officer attempted to place handcuffs on 

the appellant, a scuffle arose, with both the officer and the 
22

appellant falling to the floor, during which the appellant 

kicked [the officer].”); Carwell v. State, 232 A.2d 903, 905 

(Md. Ct. Spec. App. 1967) (“became very violent,” “struggled for 

four or five minutes,” “bit” one officer and otherwise “injured” 

another); McIntyre v. State, 232 A.2d 279, 280 (Md. Ct. Spec. 

App. 1967) (one defendant “struggl[ed]” with officer; other 

defendant got “on top of” officer, “hit[]” him “in the jaw,” 

“took another swing at [him] under arrest”); McGee v. State, 229 

A.2d 432, 433 (Md. Ct. Spec. App. 1967) (“struggled” with 

officers, “flail[ed] his arms and push[ed officers] away,” 

“pull[ed], push[ed] and la[id] hold of . . . officer”).

We find in this lengthy and unbroken line of cases yet 

further evidence that Maryland law requires violent force 

against the person of another in order to justify a charge of

resisting arrest. It is, moreover, evidence that Aparicio-Soria 

is unable to counter.1

 Indeed, he challenges just three of those 

 1 The Maryland Court of Appeals’ decision in Nicolas, 44 

A.3d 396, upon which Aparicio-Soria relies, does not persuade us 

otherwise. Nicolas neither affirmed nor even referenced any 

actual resisting arrest conviction for conduct that was not both 

violent and directed against the person of another. The 

correctness of the defendant’s conviction for resisting arrest 

was not even in question; rather, as relevant here, the court 

limited its grant of certiorari to the pure sentencing question 

whether the defendant’s “convictions for second degree 

assault . . . merge into his conviction for resisting arrest.” 

Id. at 398. And, in any event, the actions supporting the 

resisting arrest charge included pushing, punching, and 

generally brawling with police officers. Id. at 399-401. 

(Continued)
23

three-dozen-plus decisions, arguing that “there is no indication 

that the defendant[s] used violent force at all.” Appellant’s 

Reply Br. 4. Examination of this small handful of opinions, 

however, reveals that although they may be less explicit than 

the government suggests, the defendants’ actions were in fact 

portrayed as violent and confrontational. In any event, the 

conduct described in these cases was at most ambiguous -- and, 

therefore, clearly insufficient to outweigh the mass of case law 

addressed above. 

First, In re Jason Allen D. described how the defendant 

“pulled his arms into his stomach very tightly” to avoid being 

handcuffed. 733 A.2d at 355. After officers “took him to the 

ground,” he “continued to resist and pull away.” Id. “[I]t 

took approximately one-and-one-half minutes to subdue him,” id., 

which indicates that he actively struggled against the officers. 

 

Indeed, Rich specifically emphasized the vicious nature of the 

Nicolas defendant’s conduct in coming to its conclusion on 

resisting arrest described above. 44 A.3d at 1076, 1082. 

Hypotheticals (such as an individual holding a door closed 

in order to prevent an officer from arresting him, a scenario to 

which Nicolas adverted, 44 A.3d at 408 n.5) are just that: 

hypotheticals. As demonstrated, a mass of Maryland precedent 

makes clear that resisting arrest involves violent conduct 

directed against the person of another. We cannot disrespect 

decades of actual state court decisions by broadening the 

elements of an offense that the Maryland courts have taken such 

pains to narrow.
24

Second, although Hoes stated that the difficulty arresting the 

defendant was attributable at least in part to his size and 

disability, the court also made clear that officers were able to 

“satisfactorily consummate[]” the arrest only after engaging in 

a “fracas” with the defendant, plainly suggestive of a violent 

confrontation. 368 A.2d at 1082. Finally, Kraft stated that 

“[a] struggle ensued” when officers attempted to arrest the 

defendant, describing him as “extremely hostile and foul” and 

“just wild and fighting, belligerent and screaming.” 305 A.2d

at 491. The defendant also “threatened” the officers. Id. To 

be sure, many of the details disclosed by the court involved the 

defendant verbally berating the officers, id., but the court 

plainly indicated that he also acted physically aggressive 

toward them.

In sum, Rich crystallized the foundational concept of 

Maryland criminal law -- as confirmed by case after case -- that 

the offense of resisting arrest is narrowly focused and designed 

to capture only conduct that is both violent and directed 

against the person of another. By urging an untenably broad 

reading of the pertinent precedent, the defendant seeks to have 

this court declare that state law actually runs in the opposite 

direction, widening the basis of the offense. The dissent 

likewise is unable to identify even a single outlier where a 

Maryland appellate court sustained or even described an actual
25

resisting arrest conviction in the absence of violent force. 

The dissent surprisingly resists the commendable efforts of the 

Maryland courts to make certain that this particular offense 

does not metastasize and apply casually to conduct less serious

than the direction of violent force aimed at another, almost 

always the officer attempting to make the arrest.2 We decline to 

depart from the clearly defined center of gravity of state law 

 2 First, the dissent asserts that Williams v. State, 57 A.3d 

508 (Md. Ct. Spec. App. 2012), cert. granted, 62 A.3d 730 (Md. 

2013), affirmed a resisting arrest conviction “based on acts not 

constituting violent force.” Post at 40, 41 n.10. That 

decision, however, explicitly stated that the defendant 

“struggl[ed] to escape,” “thus necessitating the use of a taser 

by the deputy to effectuate the arrest.” Williams, 57 A.3d at 

520. The question before the court was not whether the 

defendant’s conduct was sufficiently forceful but, rather, 

whether force directed against a bystander assisting with the 

arrest (instead of against a law enforcement officer himself) 

could suffice. Id. at 519-20. Second, the dissent points to 

Olson v. State, 56 A.3d 576 (Md. Ct. Spec. App. 2012), as 

purportedly involving “non-violent force.” Post at 41 n.10. 

The Olson court, however, made clear that the defendant 

“charg[ed] at the officers” -- that is, that he approached them 

“with his hands raised and appeared to be in an aggressive 

manner as if he was going to punch them or wrestle with them.” 

56 A.3d at 584 (internal quotation marks and brackets omitted). 

The court also made clear that the defendant had “conced[ed] 

that the . . . element [requiring] resistance ‘by force or 

threat of force,’ was satisfied.” Id. at 589 n.5. Finally, the 

dissent clings to McNeal v. State, 28 A.3d 88 (Md. Ct. Spec. 

App. 2011), aff’d on other grounds, 44 A.3d 982 (Md. 2012). 

Post at 41 n.10. But the only pertinent description of the 

defendant’s conduct in McNeal simply states that “[w]hen a[n] 

officer attempted to handcuff [him], [he] resisted, got free, 

and fled.” 28 A.3d at 90. This bare recitation is far too 

opaque to determine whether the defendant’s actions were violent 

or not.
26

and, consequently, find that defendant’s conviction falls within 

the force clause of the crime-of-violence enhancement.

4.

One last point warrants discussion. In Descamps, the 

Supreme Court reserved the question of “whether, in determining 

a crime’s elements, a sentencing court should take account not 

only of the relevant statute’s text, but of judicial rulings 

interpreting it.” Slip op. at 20. For several reasons, we do 

not think the reservation in Descamps should be interpreted to 

prohibit our or, for that matter, the dissent’s reference to 

state case law in construing the elements of the state crime at 

issue here. For one thing, an unqualified demand that federal 

courts must decide the reach and meaning of state statutory 

crimes without the benefit of state court decisions would 

constitute an affront to our federal system, in effect 

substituting the judgment of federal judges for that of state 

judges whose familiarity with the elements of predicate offenses 

under state law surpasses our own. See Descamps, slip op. at 2 

(Kennedy, J., concurring) (expressing federalism concerns in a 

related context). 

Moreover, the Supreme Court itself has on prior occasions 

repeatedly looked to state judicial rulings when interpreting 

the meaning of a state statute for purposes of the categorical 

approach. In Johnson, for example, the Court held not just that 
27

it could look to state court decisions in applying the 

categorical approach, but that it was in fact “bound by the 

Florida Supreme Court’s interpretation of state law, including 

its determination of the elements of” the state crime of 

conviction at issue in that case. 130 S. Ct. at 1269; see also, 

e.g., Sykes v. United States, 131 S. Ct. 2267, 2271, 2275 (2011) 

(relying on state court case law interpreting the elements of a 

state crime in applying the categorical approach); James v. 

United States, 550 U.S. 192, 202-03 (2007) (same); Gonzales v. 

Duenas-Alvarez, 549 U.S. 183, 190-194 (2007) (same). And where, 

for example, a state court has applied its burglary statute to 

conduct well outside the generic definition of burglary, the 

Supreme Court has been willing to treat that decision as 

evidence that the state crime was not categorically a violent 

felony. See Descamps, slip op. at 3 (referring to shoplifting 

conduct to show coverage of state statute is broader than the 

generic burglary offense); see also Moncrieffe, 133 S. Ct. at 

1687.3 

 3 In light of this fact, perhaps what the Court was 

reserving in Descamps was a decidedly narrower question -– not 

whether state case law may ever be consulted in the course of 

applying the categorical approach, but rather whether judicial 

rulings may turn an indivisible state statute into a divisible 

one such as would permit the application of the modified

categorical approach. But of course that question is not 

implicated in this case, where the panel is in agreement that 

(Continued)
28

C.

Finally, our conclusion that defendant’s Maryland resisting 

arrest conviction categorically qualifies under the crime-ofviolence enhancement draws support from this court’s treatment 

of the same crime in closely analogous contexts. United States 

v. Wardrick held that a Maryland common-law resisting arrest 

conviction categorically qualified as a “violent felony” within 

the meaning of the ACCA. 350 F.3d 446, 455 (4th Cir. 2003). 

And Wardrick’s reasoning was confirmed by United States v. 

Jenkins, which held that the same common-law forerunner to the 

present statutory offense categorically constituted a “crime of 

violence” under the “career-offender enhancement” defined at 

U.S.S.G. § 4B1.2. 631 F.3d 680, 682-83, 685 (4th Cir. 2011). 

Of particular significance here, Jenkins expressly framed the 

question before the court as “whether the Resisting Arrest 

Offense . . . ‘involve[s] purposeful, violent, and aggressive 

conduct,’” id. at 684 (brackets in original) (quoting Begay v.

United States, 553 U.S. 137, 144-45 (2008)) -- ultimately 

answering in the affirmative, id. at 684-85.

 

the modified categorical approach does not apply to AparicioSoria’s prior conviction.
29

To be sure, the specific textual hooks on which Wardrick

and Jenkins hung their holdings were the residual clauses of the 

respective provisions, both of which encompass offenses that, 

inter alia, “involve[] conduct that presents a serious potential 

risk of physical injury to another.” Wardrick, 350 F.3d at 454-

55 (quoting 18 U.S.C. § 924(e)(2)(B)(ii)); Jenkins, 631 F.3d at 

682 (quoting U.S.S.G. § 4B1.2(a)(2)). From this foundation, the 

defendant attempts to argue that the Fourth Circuit implicitly 

denied that the force clauses of those provisions, which are 

identical to the Guidelines language in question here, also 

reach Maryland’s resisting arrest offense. Compare U.S.S.G. 

§ 2L1.2 cmt. n.1(B)(iii) (encompassing any offense that, inter 

alia, “has as an element the use, attempted use, or threatened 

use of physical force against the person of another”), with 18 

U.S.C. § 924(e)(2)(B)(i) (same), and U.S.S.G. § 4B1.2(a)(1)

(same). 

This simply does not follow. Nothing in either opinion 

indicates that the court rejected the proposition that -- or 

even specifically considered whether -- the offense qualified 

under the pertinent force clause. To be sure, the fact that a

crime falls within a clause referencing a serious risk of injury

does not necessarily mean that the risk of injury arises from 

the application of violent force. Nonetheless, the two are 

related, the serious risk of “physical injury to another” rising 
30

-- as it often does -- with the use of “physical force against 

the person of another.” It would thus strain credulity to treat 

a Maryland resisting arrest conviction differently here than in 

Wardrick and Jenkins absent some particular and persuasive 

justification for doing so. Based on the above analysis, we 

find no such justification. To cut the circuit’s jurisprudence 

so fine would only further complicate an area of law in need of

less confusion, not more.4

 4 The dissent attempts to gain support from this court’s 

opinion in United States v. Torres-Miguel, 701 F.3d 165 (4th 

Cir. 2012), which held that a California threat offense did not 

categorically qualify under the crime-of-violence enhancement. 

Torres-Miguel, however, does not control the present case for a 

number of reasons. First, the panel in Torres-Miguel was not 

compelled to accommodate two previous opinions from this court 

squarely holding that the precise crime at issue here

constituted both a “violent felony” and a “crime of violence” 

under federal sentencing enhancements. In this case, by 

contrast, we are required to consider and honor the forceful 

holdings in both Wardrick and Jenkins doing exactly that. 

Second, the panel in Torres-Miguel did not have before it a 

circumstance in which the state courts had made a concerted 

effort to keep the offense at issue from spreading to the nonviolent conduct covered by other offenses. Here, as the long 

line of state precedent discussed above makes clear, Maryland 

appellate courts have endeavored to ensure that the offense of

resisting arrest is tailored to safeguarding individuals, 

especially law enforcement officers, from bodily harm. That the 

offense thus requires violent force against the person of 

another is not only logical. To say otherwise puts us at odds 

with a vast body of Maryland law.

It has become a matter of much discussion whether a 

particular statement made by the Supreme Court in Gonzales v. 

Duenas-Alvarez -- that “to find that a state statute creates a 

crime outside the generic definition of a listed crime in a 

federal statute . . . requires a realistic probability, not a 

theoretical possibility, that the State would apply its statute 

(Continued)
31

IV.

While the parties have presented us with a copious helping 

of doctrine and precedent, much of it is far afield from the 

narrow question of the characterization of the particular 

Maryland offense at issue. It is important that courts not 

casually label prior offenses “crimes of violence,” lest 

defendants face inflated sentences without the establishment of 

all of the elements required by an enhancement. At the same 

time, ignoring the plainly violent character of a predicate 

crime would evince a stark disregard of legislative intent. 

Although the categorical approach cautions courts not to delve 

into the factual particulars of a defendant’s predicate 

conviction, it does not require judges to dispense sentences 

blindly. Imaginative hypotheticals and theoretical propositions 

must yield to the commanding consensus of state precedent and to 

sound federal sentencing principles. Given the efforts of 

Maryland courts to ensure that resisting arrest not apply to 

 

to conduct that falls outside the generic definition of a 

crime,” 549 U.S. 183, 193 (2007) -- applies to the analysis of 

“unlisted” crimes in force and residual clauses. See James v. 

United States, 550 U.S. 192, 208-09 (2007); Torres-Miguel, 701 

F.3d at 170-71; Seay, 553 F.3d at 736-37. We believe that the 

reasons stated previously in this opinion are sufficient to 

support the panel’s conclusion as to this offense without 

entering that complex thicket in this case.
32

varieties of passive behavior and the concrete realities with 

which Maryland cases have dealt year after year, we conclude 

that resisting arrest constitutes a “crime of violence” within 

the meaning of U.S.S.G. § 2L1.2(b)(1)(A)(ii). To hold otherwise 

would place us at odds with reality and practicality, not a 

propitious place for the sober enterprise of federal sentencing 

to be.5

For the foregoing reasons, we affirm the judgment of the 

district court.

AFFIRMED

 5 Our friend in dissent seems determined to find 

disagreement where little exists. We agree that the categorical 

approach must be applied here. Ante at 6; post at 31. We agree 

that the force clause found in the enhancement at issue requires 

violent force. Ante at 9-10; post at 32-33. We agree that the 

categorical approach is an elements-bound rather than a conductbased methodology. Ante at 16-17; post at 36-38. And we 

apparently agree that the federal sentencing process suffers 

from some measure of confusion that should not be compounded. 

Ante at 28-29; post at 35, 45. The disagreement lies in the 

dissent’s refusal to contemplate conduct discussed in prior case 

law even as illumination of the elements established by a 

powerful consensus of state appellate decisions. The 

categorical approach necessarily proscribes review of the facts 

underlying a particular predicate offense. There is a point, 

however, at which the cumulative restrictions on inquiry will 

send federal sentencing further into the ether, leaving it 

theoretically interesting, perhaps, but progressively illinformed.
33

DAVIS, Circuit Judge, concurring in part and dissenting in part:

I agree with the majority’s conclusion that the categorical 

approach applies here. See United States v. Gomez, 690 F.3d 194, 

199 (4th Cir. 2012).1 I disagree, however, with the majority’s 

determination, based on its freewheeling analysis of underlying 

conduct in a smattering of reported cases involving the Maryland 

offense of resisting arrest, that Maryland’s resisting arrest 

statute includes as an element the perpetrator’s use of “violent 

force” and thus categorically qualifies as a crime of violence 

under U.S.S.G. § 2L1.2(b)(1)(A)(ii), the applicable guideline.2

I

Under the categorical approach, we are restricted to 

looking “only to the statutory definition of the state crime and 

the fact of conviction to determine whether the conduct 

criminalized by the statute, including the most innocent 

conduct, qualifies as a ‘crime of violence.’” United States v. 

 1 We delayed release of our opinions in this case pending 

the Supreme Court’s decision in Descamps v. United States, No. 

11-9540 (U.S. June 20, 2013). As the majority notes, ante, at 7 

& 17, the reasoning and holding in Descamps strongly affirm the 

correctness of Judge Floyd’s trenchant analysis of “indivisible 

statutes” for our Court in Gomez. 

2 The above statement of the majority’s holding clears away 

the underbrush from the majority’s more oblique locution: “[W]e 

conclude that resisting arrest constitutes a ‘crime of violence’

within the meaning of U.S.S.G. § 2L1.2(b)(1)(A)(ii).” Ante, at 

31-32.
34

Diaz-Ibarra, 522 F.3d 343, 348 (4th Cir. 2008) (citing Taylor v. 

United States, 495 U.S. 575, 599-601 (1990)) (emphasis added). 

Application note 1.B.iii to U.S.S.G. § 2L1.2(b)(1)(A)(ii)

defines “crime of violence” as “any of the following offenses 

under federal, state, or local law: Murder, manslaughter, 

kidnapping, aggravated assault, forcible sex offenses . . .

statutory rape, sexual abuse of a minor, robbery, arson, 

extortion, extortionate extension of credit, burglary of a 

dwelling, or any other 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.” (emphasis 

added). As the majority notes, the latter part of the definition 

is referred to as the “force” clause and, alternatively, the 

“elements” clause.

In Johnson v. United States, the Supreme Court explained 

that “in the context of a statutory definition of ‘violent

felony,’ the phrase ‘physical force’ means violent force--that 

is, force capable of causing physical pain or injury to another 

person.” 130 S. Ct. 1265, 1271 (2010) (emphasis in original).3

Under the “force” clause of application note 1.B.iii’s 

 3 Recognizing the similarity in the language used in the 

Armed Career Criminal Act (the “ACCA”) defining “violent 

felony,” and the “force” clause of the Sentencing Guidelines, we 

have interchangeably relied on cases in the two contexts to 

interpret the terms within them. Gomez, 690 F.3d at 197. 
35

definition of “crime of violence,” and the Supreme Court’s 

decision in Johnson, to qualify as a “crime of violence,” 

Maryland’s resisting arrest offense must have as an element the 

use, attempted use, or threatened use of physical force (meaning 

violent force--that is, force capable of causing physical pain 

or injury to another person) against the person of another. Id.

The district court correctly concluded that it does not.4

In so concluding, the district court correctly relied on 

the Maryland Court of Appeals’ decision in Nicolas v. State, 44 

A.3d 396, 409 (Md. 2012), which analyzed whether second degree 

assault and resisting arrest convictions merge under Maryland’s 

required evidence test. In its analysis, which of course homed 

in on the elements of the two offenses, the Nicolas court held 

that a conviction for second degree assault merges into the 

conviction for resisting arrest because 

[a]ll of the elements of second degree assault are 

included within the offense of resisting arrest. The 

‘force’ that is required to find a defendant guilty of 

resisting arrest is the same as the ‘offensive 

 4 The distinguished judge who imposed the sentence in this 

case has been a federal judge in the District of Maryland for 

over 25 years: more than seven years as a magistrate judge and 

nearly twenty years as a district judge. Before taking the 

bench, she was for eight years the Chief of the Criminal Appeals 

Division in the Office of the Attorney General of Maryland. All 

of which is to say that the judge knows something about Maryland 

criminal law and practice, including both the historical and 

contemporary elements of common law and statutory criminal 

offenses prosecuted in Maryland courts.
36

physical contact’ that is required to find a defendant 

guilty of the battery variety of second degree 

assault. 

Nicolas, 44 A.3d at 409 (emphasis added). It is firmly 

established that Maryland second degree assault covers “any 

attempt to apply the least force to the person of another,” Lamb 

v. State, 786 A.2d 783, 798 (Md. Ct. Spec. App. 2001) (quoting 

Ott v. State, 273 A.2d 630, 633 (Md. Ct. Spec. App. 1971)). It 

is therefore not categorically a crime of violence under federal 

sentencing enhancement provisions, as members of this Court, 

including the author of today’s majority opinion, have long 

acknowledged. See United States v. Taylor, 659 F.3d 339, 345–46

(4th Cir. 2011).5 Thus, the district court correctly concluded 

 5 Judge Wilkinson reasoned as follows in Taylor:

The Maryland statute prohibiting second-degree 

assault provides that “[a] person may not commit an 

assault,” which in turn is defined as “the crimes of 

assault, battery, and assault and battery, which 

retain their judicially determined meanings.” Md. Code 

Ann., Crim. Law §§ 3–201(b),[3]–203(a). Because this 

definition is so broad, we have frequently recognized 

our inability to discern from a conviction and the 

statute's elements alone whether a defendant actually 

committed a violent felony. See United States v. 

Alston, 611 F.3d 219, 222–23 (4th Cir. 2010) (using 

modified categorical approach to determine whether 

Maryland second-degree assault qualifies as a violent 

felony); United States v. Harcum, 587 F.3d 219, 224 

(4th Cir. 2009) (same).

659 F.3d at 345-46. Of course, after Descamps v. United States, 

No. 11-9540 (U.S. June 20, 2013), convictions under the Maryland 

second degree assault statute can no longer be analyzed for 

(Continued)
37

that resisting arrest in Maryland is not categorically a crime 

of violence because the Maryland courts have “not said that the 

amount of force necessary to constitute resisting arrest is 

greater than that required for second degree assault [i.e., de 

minimis].” J.A. 109 (emphasis added). 

Under Johnson, because the force necessary to support a 

conviction for resisting arrest in Maryland--the most innocent 

conduct that can qualify for the offense--includes a mere 

offensive touching, the Maryland statute does not have as an 

element the use, attempted use, or threatened use of violent 

force, and thus is not categorically a “crime of violence.” See

Johnson, 130 S. Ct. at 1271. This being so, we should vacate the 

judgment and remand for resentencing, which most likely will 

yield the same 36-month period of incarceration actually 

imposed. See infra p. 49 n.16.

II

The syllogism pointing to the correct outcome in this case 

is embarrassingly simple. How, then, does the majority get such 

an easy case so wrong? The answer no doubt lies in my good 

colleague’s continued frustration with the major mess that 

federal sentencing enhancement law has become, cf. United States 

 

federal sentencing enhancement purposes pursuant to the modified 

categorical approach. 
38

v. Vann, 660 F.3d 771, 801-07 (4th Cir. 2011) (en banc)

(Wilkinson, J., concurring in the judgment),6 coupled with a

strong desire to expand the use of the modified categorical 

approach to broad statutory offenses such as Maryland’s 

resisting arrest offense.7

A

 6 The profusion of opinions here, however, 

illustrates the obvious difficulties that courts are 

experiencing in applying the residual clause of 18 

U.S.C. § 924(e)(2)(B)(ii). Whether this is due to the 

fondness of Congress for vague formulations or the 

propensity of judges to weave intricate webs of 

doctrine, I do not know. Whatever the reason, when an 

inquiry becomes overly complex, the best course is to 

repair to simplicity . . . .

Vann, 660 F.3d at 801 (Wilkinson, J., concurring in the 

judgment); cf. United States v. Rodriguez, 711 F.3d 541, 545 n.2

(5th Cir. 2013) (en banc) (complaining that judicial “confusion 

and gymnastics . . . result from the categorical and modifiedcategorical approaches in their current form”).

7 See Vann, 660 F.3d at 802 (Wilkinson, J., concurring in 

the judgment) (“I believe the court has no choice but to adopt 

in this case a modified categorical approach.”); id. at 804 

(“[W]hen a statute is too broad to categorically serve as an 

ACCA predicate, the proper approach is not to throw up our hands 

and abandon the purpose of the statute, but rather to proceed 

with the modified categorical approach.”). My friend is not 

alone in his views. Cf. Moncrieffe v. Holder, 133 S. Ct. 1678, 

1686-87 (2013) (Alito, J., dissenting) (“I would hold that the 

categorical approach is not controlling where the state 

conviction at issue was based on a state statute that [is overly 

broad] . . . . In such situations, it is appropriate to look 

beyond the elements of the state offense and to rely as well on 

facts that were admitted in state court or that, taking a 

realistic view, were clearly proved.”). Nevertheless, to date, 

those views belong solely in dissenting opinions, not majority 

opinions. Cf. id.
39

The majority first relies on its harvest of cases from the 

government’s brief to reason that “[s]ince 1950, the Maryland 

appellate courts have issued opinions describing the facts 

underlying convictions for resisting arrest,” and “[e]very case, 

save one, demonstrates that the defendant acted in a manner 

involving violent force directed against . . . a law enforcement 

officer.” Ante, at 17-18. Even if true (and it’s not), so what?

The majority’s attempt to support its desired outcome by 

recounting the actual conduct underlying some of the scores of 

resisting arrest cases in Maryland appellate courts entirely 

disregards this Court’s consistent adherence to the rule that, 

under the categorical approach, we look only to the statutory 

definition of the state crime and the fact of conviction. The 

majority gives mere lip service to the principle that we are to 

engage in an elements-based inquiry, not a conduct-based one.8

 8 Even judged by its own dubious metric of counting opinions 

and divining the import of ambiguous language, the majority’s 

tack is deeply flawed. Like the intermediate appellate courts of 

any state of more than 5 million residents, many living in 

abject poverty and suffering the scourge of substance abuse, the 

Maryland Court of Special Appeals publishes a small percentage 

of its annual output of opinions, particularly opinions in 

criminal cases. The majority cannot count, and thus refuses to 

contemplate, the many unknown unpublished (and indeed, 

effectively unreviewable) opinions in the relevant genre, which 

has grown over the years.

In fact, in the just-concluded legislative session, the 

Maryland General Assembly authorized two additional judgeships 

(rather than the four sought) for the 13-member court on the 

(Continued)
40

See Descamps, slip op. at 5 (“The key, we emphasized, is 

elements, not facts.”); United States v. Romo–Villalobos, 674 

F.3d 1246, 1249 (11th Cir. 2012) (“While Johnson proscribes us 

from relying on state case law to determine whether a crime 

requires ‘violent force,’ it expressly directs us to look to 

state cases to determine the elements of the state offense.”), 

cert. denied, 133 S. Ct. 248 (2012) (emphasis added).9

 

basis of a need summarized by the fiscal note accompanying the 

bill’s passage. See Dep’t of Legislative Servs., Md. Gen. 

Assembly, Fiscal & Policy Note for S.B. 239, 2013 Sess. at 3:

Court of Special Appeals

The judicial workload standards indicate a need 

for four additional judgeships. The Court of Special 

Appeals has not received additional judgeships since 

the bench was increased to 13 judges in 1977. Over 

that 35-year period, filings have increased by 41.9% 

and dispositions have increased by 37.8%. In addition, 

the number of opinions increased by 38.4% and the 

length of opinions by 137%. The caseload per judge has 

increased by 41.9%. 

Available at 

http://167.102.242.144/search?client=mgaleg_default&proxystylesh

eet=mgaleg_default&output=xml_no_dtd&getfields=author.title.keyw

ords&filter=0&entqr=3&ie=latin1&oe=UTF8&num=100&q=239&site=2013rs (visited May 4, 2013). And see infra

n.11.

9 Romo–Villalobos is particularly instructive here because 

the Eleventh Circuit was assessing a Florida resisting arrest 

statute that provided as follows, in pertinent part: “Whoever 

knowingly and willfully resists, obstructs, or opposes any 

officer . . . in the lawful execution of any legal duty, by 

offering or doing violence to the person of such officer . . .

is guilty of a felony of the third degree . . . .” Florida 

Statute § 843.01. See 674 F.3d at 1249 (emphasis in original). 

(Continued)
41

The majority also relies, heavily but inexplicably, on the 

Maryland Court of Special Appeals’ decision in Rich v. State, 44 

A.3d 1063, 1077 (Md. Ct. Spec. App. 2012). But Rich simply held 

that Maryland appellate courts had sometimes used “or” when they 

should have used “and” to describe the resisting arrest offense 

because “both a refusal to submit to lawful arrest and

resistance by force or threat of force are necessary to commit 

the offense of resisting arrest in Maryland.” Id. (emphasis in 

original). The Rich court did not state, let alone hold, that 

resisting arrest required violent force. In fact, it is more 

accurate to say that it did the opposite by citing the Maryland 

Court of Appeals’ holding in Nicolas that “[t]he ‘force’ that is 

required to find a defendant guilty of resisting arrest is the 

same as the ‘offensive physical contact’ that is required to 

find a defendant guilty of the battery variety of second degree 

assault” (i.e., de minimis contact). Id. (quoting Nicolas, 44 

A.3d at 409) (emphasis added).10

 

The differences between the elements in the Florida resisting 

arrest statute and those in the Maryland resisting arrest 

statute are as obvious as is the majority’s misguided attempt to 

ignore those differences in its interpretation of the latter.

10 The Attorney General of Maryland, in an appeal to this 

Court challenging the district court’s denial of qualified 

immunity to a county sheriff as to claims brought by a 

terminated deputy sheriff pursuant to 42 U.S.C. § 1983, recently 

cited and interpreted Rich as follows in his appellate brief:

(Continued)
42

By my count (assuming arguendo that counting is an accepted 

methodology in this appeal), in various ways the Rich court used 

the phrase “by force” sixteen times; it never used the phrase 

“by violent force.” Indeed, in Rich, the Court of Special 

Appeals reversed a conviction for resisting arrest even where 

the defendant conceded (clearly on the basis of the bench and 

bar’s then understanding of the elements of the Maryland offense 

of resisting arrest, i.e., that running away was sufficient) 

that he had indeed resisted arrest. See id. at 1070 n.2. The 

defendant’s unavailing concession was entirely consistent with 

the view of the trial judge and the arguments of the state 

prosecutor. See id. at 1066. Contrary to the majority’s repeated 

suggestions, the reversal in Rich was not based on a lack of 

“violent force”; it was based on the absence of any showing of 

force whatsoever. How the majority can now claim that Rich’s 

clarification that force (or threat of force) is a necessary 

 

The elements of resisting arrest are (1) refusal to 

submit to lawful arrest and (2) resistance by force or 

threat of force. Rich, 205 Md. App. at 250. Force 

includes conduct such as . . .: scuffling with an 

officer, pulling away, struggling to get away, or

going limp. Id. at 253 n.8, 258.

Appellant’s Reply Br., Durham v. Jones, No. 12-2303, 2013 WL 

1904669, at *13 (4th Cir. May 7, 2013). One would suppose that 

the Attorney General of Maryland knows something about Maryland 

criminal law, including Maryland case law interpreting Maryland 

criminal statutes. 
43

element of the offense (in combination with a refusal to submit) 

somehow equates to a holding that violent force is what the 

court meant to say, is utterly beyond my comprehension.11

The majority further argues that “conduct underlying past 

convictions . . . may provide probative evidence of how the law 

defines the elements of the offense in question,” ante, at 17, 

but such an inquiry into previous convictions under the statute 

is entirely unnecessary and inappropriate when a state’s highest 

court has--as Maryland’s has--clearly stated how it defines the 

element of force, and what it encompasses. Here, that definition 

undoubtedly covers de minimis physical contact. See Nicolas, 44 

A.3d at 409; see also Williams v. State, 57 A.3d 508 (Md. Ct. 

Spec. App. 2012) (resisting arrest conviction based on acts not 

constituting violent force affirmed; citing with approval 

Maryland Pattern Jury Instruction, requiring jury finding merely 

of “force” for resisting arrest conviction), cert. granted, 62 

A.3d 730 (Md. 2013). We do not need “evidence” of what the law 

is or “data points,” see ante, at 13, to decide this case. The 

highest court of Maryland has told us what the law is, as the 

experienced district judge concluded. All we need is the ability 

 11 Counting again, my computer tells me that the Rich

opinion contains slightly in excess of 11,000 words. It would be 

more than passing strange, therefore, if the majority were 

unable to find a few snippets of dicta which, taken out of 

context, might marginally support the majority’s thesis. 
44

to read the Court of Appeals’ opinion and follow its teaching. 

Obviously, the majority can do the former but is, curiously, 

disabled from doing the latter.12

Manifestly, the majority misapprehends our task in this 

case as a search for some “generic” version of resisting arrest, 

 12 As with the majority’s apparent interpretation of words 

such as “struggle” and “push” as synonyms for “violent force,” 

see ante, at 18-22, there is a distinctly Orwellian cast to the 

majority’s disclaimer that it must not “disrespect decades of 

actual state court decisions,” ante, at 23 n. 1, inasmuch as the 

majority proceeds to do exactly that by “disrespecting” the 

Maryland Court of Appeals’ holding that “[t]he ‘force’ that is 

required to find a defendant guilty of resisting arrest is the 

same as the ‘offensive physical contact’ that is required to 

find a defendant guilty of the battery variety of second degree 

assault.” Nicolas, 44 A.3d at 409. Equally Orwellian is the 

majority’s insincere hat-tip to federalism, see ante, at 26. 

In any event, as I have already explained, see n.8 supra, 

even on the majority’s flawed “numerosity” thesis, the majority 

has overlooked additional Maryland precedents that wholly 

undermine the majority’s arithmetic. See Williams, 57 A.3d 508

(resisting arrest conviction based on acts not constituting 

violent force affirmed; citing with approval Maryland Pattern 

Jury Instruction for resisting arrest), cert. granted, 62 A.3d 

730 (Md. 2013); Olson v. State, 56 A.3d 576 (Md. Ct. Spec. App.

2012), cert. denied, 62 A.3d 731 (Md. 2013) (resisting arrest 

conviction affirmed but resentencing ordered; non-violent force 

described); McNeal v. State, 28 A.3d 88 (Md. Ct. Sp. App. 2011)

(same), aff’d on other grounds, 44 A.3d 982 (Md. 2012). I leave 

to the reader’s judgment whether the majority’s attempts to 

distinguish these cases pass muster, including whether the 

majority’s studied failure to mention jury instructions matters. 

See Descamps, slip op. at 20 n.5 (noting that “California’s 

pattern jury instructions do not require the jury to find 

invasion of a possessory right before convicting a defendant of 

burglary” as part of the reason for rejecting the government’s 

attempt to recast the broad California burglary statute into 

“generic burglary”). 
45

as if resisting arrest were one of the enumerated offenses in 

the applicable guideline. See ante, at 17 (declaring majority’s 

need “to find the existence of an element of [resisting arrest]” 

and citing for support United States v. Diaz-Ibarra, 522 F.3d 

343 (4th Cir. 2008), in which this Court had observed, 522 F.3d 

at 348, “Before we can determine whether Diaz-Ibarra’s crimes

constituted ‘sexual abuse of a minor,’ however, we must know 

what ‘sexual abuse of a minor’ means.”). For a recent example of 

this Court’s performance of that task, see Judge Wilkinson’s 

excellent opinion in United States v. Rangel–Castaneda, 709 F.3d 

373 (4th Cir. 2013) (identifying elements of “generic” crime of 

statutory rape).13 But as I have explained, that is not our task 

here; we need only accept, as we must, the state courts’ 

 13 To be sure, the opinion in Rangel–Castaneda has not met 

with universal acclaim: 

This recent opinion is puzzling in that it recognizes 

that the simple strategy of “counting noses” will not 

work in all cases, acknowledges that states retain 

discretion to define the offense of statutory rape how 

they see fit, yet still relies on a state-by-state 

survey to define the “generic, contemporary meaning” 

of “statutory rape” in § 2L1.2. [Rangel–Castaneda, 709 

F.3d at 379]. In our view, this inconsistent rationale 

makes our court’s harmonizing approach all the more 

important.

United States v. Rodriguez, 711 F.3d 541, 550 n.13 (5th Cir. 

2013) (en banc); but see id. at 574-78 (Dennis, J., dissenting) 

(expressing strong approval of Rangel–Castaneda).
46

statement of the elements of the Maryland offense of resisting 

arrest. Johnson, 130 S. Ct. at 1269.

Indeed, our recent opinion in United States v. TorresMiguel, 701 F.3d 165 (4th Cir. 2012), makes this point with 

unmistakable clarity. There, we held that a California threat 

“to commit a crime that will result in death or great bodily

injury” is not categorically a crime of violence, under the same 

provision of the Sentencing Guidelines that is at issue in this 

case. Id. at 168-71. We so held even though the defendant 

pointed to no case in which the California courts had actually 

applied the statute to conduct that did not involve a threat of 

violence. Id. at 170.

Properly viewed, therefore, analysis of the unlisted 

resisting arrest crime at issue here and the threat crime at 

issue in Torres-Miguel is materially different from that 

applicable to the listed offenses at issue in Diaz-Ibarra, 

Rangel–Castaneda, and similar cases. Neither resisting arrest 

nor the California threat crime outlaws a listed crime and 

neither has a recognizable generic definition, much less one 

involving “violent force.” Thus, in the case at hand, as in 

Torres-Miguel, it is inappropriate to search for a “generic” 

crime as does the majority. In sum, as already mentioned, we 

have no better “evidence” of the elements of resisting arrest 

than what the Maryland Court of Appeals has declared, a 
47

declaration which shows that resisting arrest does not 

categorically require violent force.

B

Tellingly, the majority also attempts to support its 

reasoning by noting that this Court has held that a Maryland 

resisting arrest conviction qualifies as a “violent felony” for 

purposes of the ACCA and the U.S.S.G. § 4B1.2 enhancements under 

their respective “residual clauses.” This is a very inconvenient 

truth for the majority, however, as the majority only 

acknowledges, in the blink of an eye, the vastly different 

language used in the “force” (or “elements”) clause and the 

“residual” clause, and it entirely overlooks the significantly 

different analysis14 applied to each. 

The “residual” clause under the ACCA covers offenses that 

“involve[] conduct that presents a serious potential risk of 

physical injury to another.” United States v. Wardrick, 350 F.3d 

446, 454 (4th Cir. 2003) (quoting 18 U.S.C. § 924 

(e)(2)(B)(ii)). The “force” clause at issue here, however, 

encompasses any offense that “has as an element the use, 

 14 The Supreme Court has clarified that in considering 

whether a prior offense falls categorically within the ACCA’s 

residual clause, “the proper inquiry is whether the conduct 

encompassed by the elements of the offense, in the ordinary 

case, presents a serious potential risk of injury to another.” 

James v. United States, 550 U.S. 192, 197 (2007) (emphasis 

added).
48

attempted use, or threatened use of physical force against the 

person of another.” U.S.S.G. § 2L1.2(b)(1) cmt. n.1(B)(iii) 

(emphasis added). The clauses are readily, one might say even 

painfully obviously, distinguishable, and the Supreme Court has 

given clear guidance that, unlike the “residual clause,” the 

“force clause” is read to require “violent force.” Johnson, 130 

S. Ct. at 1271. The clauses are distinct for a reason. That a 

Maryland conviction for resisting arrest qualifies as a crime of 

violence under one, is in no way dispositive of whether it 

qualifies under the other.15

III

In a case arising from a dispute over fruits and 

vegetables, a federal judge can call an apple an orange and a 

carrot a tomato if he chooses to do so. But even if he can 

persuade a second federal judge to agree with him, through 

linguistic jiu jitsu or otherwise, that apple remains an apple, 

and that carrot is still a carrot. Similarly, a federal judge 

might wish fervently that federal sentencing jurisprudence was 

 15 In fact, as the Supreme Court itself has acknowledged, 

here in the immigration context, not even all residual clauses 

yield the same result. See Leocal v. Ashcroft, 543 U.S. 1, 10 n. 

7 (2004) (distinguishing residual clause in 18 U.S.C. § 16(b), 

which encompasses conduct “that, by its nature, involves a 

substantial risk that physical force against the person or 

property of another may be used,” from a Guidelines’ residual 

clause that does not mention physical force).
49

unfailingly coherent, always consistent with his view of 

“legislative intent,” wholly symmetrical and enduringly cogent. 

Accordingly, he might wish that, in particular, the “elements 

clause” and the “force clause” and the “residual clause” in such 

laws always yield the identical outcome when they apply 

separately to the same underlying criminal offense. But federal 

sentencing jurisprudence does not meet those criteria, and those 

clauses do not operate with the harmony that judge might desire. 

And merely saying they do does not make it so. It appears that 

the majority’s holding is the first of its kind; that innovation 

is not helpful.

The damage done here is not so much to Aparicio-Soria, who 

is well past the mid-point of his 36-month sentence and who is 

likely to be returned to his country of origin even before his 

sentence expires.16 The damage done here is to the rule of law in 

this circuit, a much more lasting wound.

 16 It is worth noting, as well, that even if the district 

court had adopted the 24-to-30 month advisory guidelines range 

recommended in the Pre-Sentence Investigation Report and refused 

to apply the 16-level enhancement, judging by the district 

court’s significant downward variance (from a 51-to-71 month 

range) Aparicio-Soria would likely have received the same 

sentence. Thus, even if we vacated the judgment and remanded for 

resentencing, as we should, reimposition of a 36-month sentence 

is the most likely result. On this record, and in view of the 

district court’s unchallenged explanation for its sentence, a 

36-month sentence would be entirely reasonable, either way.