US v. Aparicio-Soria: Aparicio-Soria was convicted of illegal reentry. At sentencing, the main issue was whether a prior Maryland conviction for resisting arrest was a "crime of violence" so as to support a 16-level Guideline enhancement. Applying the categorical approach, the district court concluded that it was unclear whether the level of force necessary to commit the generic offense was sufficient to trigger the enhancement. Turning to a modified categorical approach, the district court concluded that the actual force involved (Aparicio-Soria fled, drunk, from officers, first in a car and then on foot, finally being subdued during a struggle in which he bit one officer in the hand) did trigger the enhancement.
Aparicio-Soria appealed his sentence, which the Fourth Circuit affirmed, 2-1. The court held that there was no need to go beyond the basic categorical approach, as the statute as issue was nondivisible. Thus, the proper focus was only on the elements of the offense, not the particular facts underlying Aparicio-Soria's prior conviction. "Force," the court explained (drawing from ACCA cases) means "violent force . . . capable of causing physical pain and injury to another person." Maryland state courts define the elements of Aparicio-Soria's prior offense as including resistance "by force or threat of force." The court also held that there was an "abundance of evidence" that state courts require that force to be "violent" and directed against another person. As a result, a Maryland conviction for resisting arrest is a "crime of violence" that triggers the Guideline enhancement.
Judge Davis concurred in part and dissented in part. Agreeing with the majority that the categorical approach applied, he nonetheless concluded that resisting arrest does not necessarily involve "violent force." In doing so, he criticized the majority's "freewheeling analysis of underlying conduct in a smattering of reported cases" and "linguistic jiu jitsu," concluding that while the end result won't matter much to Aparicio-Soria, the "damage done here is to the rule of law in this circuit, a much more lasting wound."
NOTE: The court has granted Apraicio-Soria's petition to rehear this case en banc.