MD resisting arrest not crime of violence

*Reversal on Rehearing En Banc*

US v. Aparicio-Soria:  Mr. Aparicio-Soria received a conviction for illegal reentry.  He appealed his conviction, and he had a prior Maryland conviction for resisting arrest.  The Fourth Circuit panel determined Mr. Aparicio-Soria’s prior offense contained the requisite element of physical force to qualify as a crime of violence for sentencing enhancement purposes (decided here, blogged here).  The Fourth Circuit then granted Mr. Aparicio-Soria’s petition to rehear the case, and the Fourth Circuit reversed on rehearing en banc.

In the original appeal, the parties agreed that the district court’s application of the modified categorical approach was incorrect, but disagreement developed over the result reached with respect to the categorical approach.   The split panel ultimately determined that the Maryland conviction for resisting arrest triggered the sentencing enhancement, because force meant “violent force,” and state courts required that force be “violent” and directed against another.

On rehearing, the Fourth Circuit found contrary precedent from Maryland’s highest court, through "simple legal research", that the degree of force required as an element of resisting arrest is “offensive physical contact,” and “crimes requiring offensive physical contact are not crimes of violence containing an element of violent force, as required under federal enhanced sentencing regimes.”  Finally, the Fourth Circuit quoted the Supreme Court in Descamps, that “key” to the resolution here are “elements, not facts,” and violent force was “simply not an element of resisting arrest in Maryland.”