Rehearing en banc granted, September 25, 2013



                             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.
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

on criminal history) for any defendant convicted of illegally

                                              2
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, 

(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.



                                            3
      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.

                                         4
     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

                                          5
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,

, 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

                                              6
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.”                                 

   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 

    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 

5; Taylor v. United States, 

,

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.”                               

.          This method makes good sense with respect to

                                             7
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. Torres-

Miguel, 

, 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., 

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

v. Seay, 

, 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 

.          We respect that principle by first determining

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

                                           8
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, 

,    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-of-

violence   enhancement.             Compare          

  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.

                                                 9
Gomez, 

, 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 

.             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.”                           

        The

Court accordingly held that “the slightest offensive touching” -

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

crime of battery -- was insufficient.                      

           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.’”      

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

                                             10
is, force capable of causing physical pain or injury to another

person,” 

.                     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.                              

(citing Johnson v. Fankell, 

, 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.”          

, 1071, 1077 (Md. Ct. Spec. App.

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

“resistance element,” is at issue here.

                                            1.



                                            11
       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 

.        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.”                                 

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.’”                  

(emphasis added).

                                              12
       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 

.               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,

                                            13
the court expressly described the offense of resisting arrest as

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

(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.              

(emphasis added)

(citing Busch v. State, 

(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.                   

(emphasis

added) (quoting Titus v. State, 

, 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.”                     

       Rich

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

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

                                        14
the   public    servant       or    anyone    else,       or    employ[ment        of]   means

justifying      or     requiring         substantial        force       to    overcome     the

resistance.”           

   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.”    

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.”

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”

                                             15
failed to qualify as a similar crime.                         

(quoting

Coghill v. United States, 

, 807 (D.C. 2009)).

       Finally, Rich cited the facts from a number of Maryland

decisions as exemplifying “resistance by force,” 

--

describing the defendant’s conduct in Nicolas v. State, 

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

police”;       in   Purnell    v.    State,      

   (Md.    2003),    as

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

Barnhard v. State, 

(Md. 1992), as “‘scuffling’ with

and swinging at police”; in Cooper v. State, 

(Md.

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

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

State, 

(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 

.          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



                                            16
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, 

,

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, 

, 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

                                        17
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.                    

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: 

    (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,

,       670    (Md.    2011)    (“struggle[d]        as    three       officers

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

caused officer to sprain ankle); Wilson v. State, 

,

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

handcuffs); Polk v. State, 

, 577 (Md. 2003) (“bit

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

(“pushed [o]fficer . . . into a wall, “went to the

                                              18
ground” with another officer); Johnson v. State, 

,

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

effect arrest); In re Tariq A-R-Y, 

, 692 (Md. 1997)

(“punched and kicked” officers); Clark v. State, 

,

1241 (Md. 1993) (“scuffle[d]” with officer); 

    (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, 

, 168 (Md. 1990) (“fight ensued” when bail

bondsmen attempted to effect arrest); Trusty v. State, 

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

State,       

,     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, 

, 945 (Md. 1977) (“grabbed [o]fficer . . .

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

[o]fficer . . . across the arm”); Downs v. State, 

,

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

arrest); Palacorolle           v.    State,       

,   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, 

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

                                             19
“punch[ed] and kick[ed] the officers,” “continued to struggle”

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

, 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 (Md.

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

Grant   v.    State,       

,       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”);      

   (“punched          [officer]

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

Jason Allen D., 

, 355 (Md. Ct. Spec. App. 1999)

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

M., 

(Md. 2006); In re Albert S., 

, 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, 

,   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”);          

   (“struck

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

Thomas v. State, 

, 586 (Md. Ct. Spec. App. 1990)

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

                                               20
and a police officer was struck.”); Johnson v. State, 

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

stomach and again in the chest”); Curtin v. State, 

,

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, 

, 1082 (Md. Ct. Spec.

App. 1977) (discussed below); Kraft v. State, 

, 491

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

grounds by Goode v. State, 

(Md. Ct. Spec. App.

1979); Jordan v. State, 

, 702 (Md. Ct. Spec. App.

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

ensued”); Tillery v. State, 

, 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, 

, 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,       

,   120    (Md.    Ct.

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

officer); Williams v. State, 

, 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

                                               21
appellant          falling    to    the    floor,    during    which    the   appellant

kicked [the officer].”); Carwell v. State, 

, 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, 

, 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, 

,    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, 

, 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.”

     And, in any event, the actions supporting the
resisting    arrest   charge  included   pushing,   punching,   and
generally brawling with police officers.          

(Continued)
                                              22
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

.    After officers “took him to the

ground,” he “continued to resist and pull away.”       

approximately one-and-one-half minutes to subdue him,” 

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 

, 1082.

     Hypotheticals (such as an individual holding a door closed
in order to prevent an officer from arresting him, a scenario to
which Nicolas 

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.



                                  23
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

.           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 

.     The defendant also “threatened” the officers.                      

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

defendant verbally berating the officers, 

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

                                           24
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, 

(Md. Ct. Spec. App. 2012), cert. granted, 

(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.”     

.    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.   

   Second, the dissent points to
Olson v. State, 

(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 

(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.” 

n.5. Finally, the
dissent clings to McNeal v. State, 

(Md. Ct. Spec.
App. 2011), aff’d on other grounds, 

(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 

.    This bare recitation is far too
opaque to determine whether the defendant’s actions were violent
or not.



                                25
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

                                           26
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 

; see also,

e.g., Sykes v. United States, 

, 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, 

, 202-03 (2007) (same); Gonzales v.

Duenas-Alvarez, 

, 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 

. 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)
                                            27
                                           C.

      Finally, our conclusion that defendant’s Maryland resisting

arrest   conviction    categorically            qualifies    under    the   crime-of-

violence 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.             

, 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.          

, 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,’” 

(brackets in original) (quoting Begay v.

United   States,     

,       144-45    (2008))    --     ultimately

answering in the affirmative, 

-85.




the modified categorical approach does not apply to Aparicio-
Soria’s prior conviction.



                                           28
      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.”            

-

55 (quoting 18 U.S.C. § 924(e)(2)(B)(ii)); 

(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

                                       29
-- 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, 

(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 non-
violent 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)
                                     30
                                            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,” 

, 193 (2007) -- applies to the analysis of
“unlisted” crimes in force and residual clauses.   See James v.
United States, 

, 208-09 (2007); 

; 

.   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.


                                            31
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 conduct-
based 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 ill-
informed.



                                32
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, 

,

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.
Diaz-Ibarra, 

, 348 (4th Cir. 2008) (citing Taylor v.

United States, 

, 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.” 

, 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. 

.



                                                  34
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. 

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, 

, 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.



                                        35
     physical contact’ that is required to find a defendant
     guilty of the battery variety of second degree
     assault.

   (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, 

, 798 (Md. Ct. Spec. App. 2001) (quoting

Ott v. State, 

, 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, 

, 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, 

, 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, 

, 224
     (4th Cir. 2009) 

. 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)
                                         36
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

. 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.



                                           37
v.   Vann,   

,    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 . . . .

(Wilkinson, J., concurring in the
judgment); cf. United States v. Rodriguez, 

, 545 n.2
(5th Cir. 2013) (en banc) (complaining that judicial “confusion
and gymnastics . . . result from the categorical and modified-
categorical approaches in their current form”).
     7
       See 

(Wilkinson, J., concurring in
the judgment) (“I believe the court has no choice but to adopt
in this case a modified categorical approach.”); 

(“[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, 

,
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. 

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)
                                    39
See   Descamps,   slip   op.   at   5    (“The   key,   we   emphasized,   is

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

, 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, 

(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=UTF-
8&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. 

(emphasis in original).
(Continued)
                                        40
     The majority also relies, heavily but inexplicably, on the

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

, 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.” 

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 

) (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)
                                     41
      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 

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 

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. 

. Force
      includes conduct such as . . .: scuffling with an
      officer, pulling away, struggling to get away, or
      going limp. 

n.8, 258.

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

, 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.



                                    42
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 

; see also Williams v. State, 

(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, 

(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.



                                 43
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.” 

. Equally Orwellian is the
majority’s insincere hat-tip to federalism, see ante, at 26.

     In any event, as I have already explained, see 

,
even on the majority’s flawed “numerosity” thesis, the majority
has overlooked additional Maryland precedents that wholly
undermine the majority’s arithmetic. See Williams, 

(resisting arrest conviction based on acts not constituting
violent force affirmed; citing with approval Maryland Pattern
Jury Instruction for resisting arrest), cert. granted, 

(Md. 2013); Olson v. State, 

(Md. Ct. Spec. App.
2012), cert. denied,   

(Md. 2013) (resisting arrest
conviction affirmed but resentencing ordered; non-violent force
described); McNeal v. State, 

(Md. Ct. Sp. App. 2011)
(same), aff’d on other grounds, 

(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”).



                                    44
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, 

(4th Cir. 2008), in which this Court had 

, “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, 

(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. 

]. In our view, this inconsistent rationale
    makes our court’s harmonizing approach all the more
    important.

United States v. Rodriguez, 

, 550 n.13 (5th Cir.
2013) (en banc); but see 

(Dennis, J., dissenting)
(expressing strong approval of Rangel–Castaneda).



                                      45
statement of the elements of the Maryland offense of resisting

arrest. 

.

       Indeed,       our    recent     opinion      in    United      States        v.    Torres-

Miguel, 

(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.    

   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. 

       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

                                              46
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 analysis 14 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, 

,        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, 

, 197 (2007) (emphasis
added).



                                               47
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.” 

. 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, 

, 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).



                                           48
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.


                                      49