United States v. Marcel Aparicio-Soria

ON REHEARING EN BANC

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: December 12, 2013 Decided: January 14, 2014

Before TRAXLER, Chief Judge, and WILKINSON, NIEMEYER, MOTZ,
KING, GREGORY, SHEDD, DUNCAN, AGEE, DAVIS, KEENAN, WYNN, DIAZ,
FLOYD, and THACKER, Circuit Judges.

Vacated and remanded by published opinion. Judge Davis wrote the
opinion, in which Chief Judge Traxler, and Judges Motz, King,
Gregory, Shedd, Duncan, Agee, Keenan, Wynn, Diaz, Floyd, and
Thacker joined. Judge Wilkinson wrote a dissenting opinion, in
which Judge Niemeyer joined.

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, OFFICE
OF THE FEDERAL PUBLIC DEFENDER, Baltimore, Maryland, for
Appellant. Rod J. Rosenstein, United States Attorney, OFFICE OF
THE UNITED STATES ATTORNEY, Baltimore, Maryland, for Appellee.

2
DAVIS, Circuit Judge:

The issue before us is whether the Maryland crime of

resisting arrest, Md. Code, Crim. Law § 9-408(b)(1), “has as an

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

force against the person of another,” and therefore qualifies

categorically as a “crime of violence” within the meaning of

U.S. Sentencing Guideline § 2L1.2, the reentry Guideline. We

hold that it does not.

The reentry Guideline advises federal district judges to

increase by twelve or sixteen the offense level of a defendant

convicted of unlawfully entering or remaining in the United

States if that defendant has a prior felony conviction for “a

crime of violence.” U.S.S.G. § 2L1.2(b)(1)(A). “Crime of

violence” is defined in the Commentary to the reentry Guideline

as including two groups of offenses: the first group is certain

listed offenses, such as murder, kidnapping, or arson; the

second is “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). This latter provision is referred to as

“the force clause.”

Having pleaded guilty to one count of unlawful reentry of a

deported alien after sustaining an aggravated felony conviction,

8 U.S.C. §§ 1326(a) and (b)(2), Marcel Aparicio-Soria was

3
sentenced in the District of Maryland to a thirty-six month term

of imprisonment and a three-year term of supervised release. The

Government had argued at sentencing that Aparicio-Soria’s

sentence should be enhanced according to the force clause of the

reentry Guideline because he has a prior 2006 Maryland

conviction for resisting arrest. The district court agreed,

imposing the sentence based on two rulings: first, it ruled that

Aparicio-Soria’s prior conviction for resisting arrest did not

qualify categorically as a crime of violence because “the degree

of force” required for a conviction pursuant to the Maryland

resisting arrest statute is less than that contemplated by the

force clause, J.A. 109; and second, it applied the modified

categorical approach to evaluate the relevant documentation

surrounding Aparicio-Soria’s resisting arrest conviction, and it

concluded that his particular conviction qualified as a crime of

violence. The documentation indicated that Aparicio-Soria had

bitten a law enforcement officer attempting to arrest him.

On appeal, the parties agree, in light of intervening

precedent, Descamps v. United States, 133 S. Ct. 2276, 2282

(2013), that the district court’s application of the modified

categorical approach was error, but they disagree about the

result reached with respect to the categorical approach. In

Descamps, the Supreme Court held that federal sentencing courts

are prohibited from applying the modified categorical approach

4
when the state crime in question “has a single, indivisible set

of elements.” 133 S. Ct. at 2282. Because the Maryland crime of

resisting arrest has a single and indivisible set of elements,

infra at 7, Descamps makes clear that the district court’s

application of the modified categorical approach was improper.

We may, however, affirm the district court on any ground in

the record, including those rejected by the district judge.

United States v. Moore, 709 F.3d 287, 293 (4th Cir. 2013).

Accordingly, the Government maintains that we should affirm the

judgment because the Maryland crime of resisting arrest

qualifies categorically as a crime of violence under the force

clause of the reentry Guideline. Aparicio-Soria defends the

district court’s ruling on this point, arguing that his prior

Maryland conviction for resisting arrest does not qualify

categorically as a crime of violence. We review the district

court’s ruling de novo. United States v. Gomez, 690 F.3d 194,

197 (4th Cir. 2012).

This case requires application of the framework outlined by

the Supreme Court in Johnson v. United States, 130 S. Ct. 1265,

1269-70 (2010), in which the Court compared the Florida offense

of felony battery to the force clause in the Armed Career

Criminal Act to assess whether the former qualifies

categorically as a “violent felony.” Although Johnson involved

construction of the term “violent felony” in the Armed Career

5
Criminal Act and not the reentry Guideline, 1 we nevertheless

consider its interpretation controlling in this case because the

language of the force clause in the Armed Career Criminal Act

and the reentry Guideline is identical, and we have previously

relied on case law construing one provision as helpful in

construing the other. United States v. Montes-Flores, 736 F.3d

357, 363 (4th Cir. 2013).

To determine whether a state crime qualifies categorically

as a crime of violence pursuant to the force clause of the

reentry Guideline, we compare the force clause with the elements

of the state crime at issue and assess whether the latter

contains 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). As required by the categorical approach,

our analysis is restricted to “the fact of conviction and the

1
The relevant provision of the Armed Career Criminal Act
provides that a defendant convicted of being a felon in
possession of a firearm, 18 U.S.C. § 922(g), is subject to a
fifteen-year mandatory minimum sentence if he has three previous
“violent felony” convictions. 18 U.S.C. § 924(e)(1). “Violent
felony” is defined in the statute as any crime “punishable by
imprisonment for a term exceeding one year” that either “has as
an element the use, attempted use, or threatened use of physical
force against the person of another” (the force clause), or “is
burglary, arson, or extortion, involves use of explosives, or
otherwise involves conduct that presents a serious potential
risk of physical injury to another.” Id. § 924(e)(2)(B). The
second category involving physical injury is referred to as “the
residual clause.”

6
statutory definition of the prior offense.” Taylor v. United

States, 495 U.S. 575, 603 (1990) (construing the Armed Career

Criminal Act). To the extent that the statutory definition of

the prior offense has been interpreted by the state’s highest

court, that interpretation constrains our analysis of the

elements of state law. Johnson, 130 S. Ct. at 1269.

We begin with the force clause. The Supreme Court has given

the term “physical force” as used in an identical force clause a

particular meaning: “violent force – that is, force capable of

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

This construction of violent force specifically excludes from

consideration “the slightest offensive touching,” id. at 1270,

and it does so in large part because of the context in which the

term appears – in a definition of the term “violent felony.” See

id. at 1271.

We next analyze the prior state crime. The Maryland statute

criminalizing resisting arrest provides in pertinent part that

“[a] person may not intentionally . . . resist a lawful arrest.”

Md. Code, Crim. Law § 9-408(b)(1). Although resisting arrest was

previously a common law crime, the Maryland General Assembly’s

codification of it did not change the elements of resisting

7
arrest, 2 Williams v. State, 79 A.3d 931, 944 (Md. 2013), which

are:

(1) that a law enforcement officer attempted to
arrest the defendant;
(2) that the defendant knew that a law enforcement
officer was attempting to arrest [him] [her]; and
(3) that the defendant refused to submit to the
arrest and resisted the arrest by force.

Maryland Pattern Jury Instructions - Criminal 4:27 (1995).

The third element of a Maryland resisting arrest offense

requires resistance “by force.” Precedent from the state’s

highest court indicates that the force required for conviction

of resisting arrest is no more than the type of de minimis force

constituting an offensive touching. In Nicolas v. State, 44 A.3d

396, 409 (Md. 2012), the Maryland Court of Appeals held that

convictions for resisting arrest and second degree assault merge

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

included within the offense of resisting arrest.” And in this

context, the court stated that the force required for sustaining

a resisting arrest conviction “is the same as the ‘offensive

physical contact’ that is required to find a defendant guilty of

2
The Supreme Court has not yet addressed whether – and if
so, how - the categorical approach applies to common law crimes.
See Descamps, 133 S. Ct. at 2291. Discerning no compelling
reason to reach a contrary conclusion, however, we have held
that the categorical/modified categorical typologies apply
equally to statutory and common law crimes. Montes-Flores, 736
F.3d at 367.

8
the battery variety of second degree assault.” Id. 3 (citation

omitted). The salient point is that the force requirement of the

Maryland crime of resisting arrest requires only offensive

physical contact.

The last step in the analysis is comparing the force clause

with the elements of Maryland resisting arrest. The precise

issue before us is whether a Maryland conviction for resisting

arrest contains as an element the use, attempted use, or

threatened use of violent force capable of causing physical pain

or injury against another person. U.S.S.G. § 2L1.2 cmt.

n.1(B)(iii); Johnson, 130 S. Ct. at 1271. It does not. According

to the Court of Appeals of Maryland, the force required for

conviction pursuant to the Maryland resisting arrest statute is

merely “offensive physical contact,” Nicolas, 44 A.3d at 409, a

threshold far lower than violent force capable of causing pain

or injury to another. We have recently emphasized this point,

applying Descamps to hold that the Maryland offense of second

degree assault (1) contains indivisible elements and therefore

is not amenable to the modified categorical approach, and (2)

categorically is not a crime of violence, United States v.

Royal, 731 F.3d 333, 341-42 (4th Cir. 2013), Karimi v. Holder,

3
At the sentencing hearing in this case, the district court
expressly relied on Nicolas, 44 A.3d at 409, in concluding that
resisting arrest under Maryland law does not categorically
require violent force.

9
715 F.3d 561, 568 (4th Cir. 2013), thereby abrogating several of

our pre-Descamps precedents that had applied the modified

categorical approach to Maryland assault convictions. See United

States v. Harcum, 587 F.3d 219, 224 (4th Cir. 2009); United

States v. Simms, 441 F.3d 313, 315 (4th Cir. 2006); United

States v. Coleman, 158 F.3d 199, 202 (4th Cir. 1998); United

States v. Kirksey, 138 F.3d 120, 125 (4th Cir. 1998).

The Government makes several arguments in response, none of

which we find persuasive. It cites Rich v. State, 44 A.3d 1063

(Md. Ct. Spec. App. 2012), an opinion from Maryland’s

intermediate appellate court, for the proposition that the

Maryland resisting arrest statute criminalizes “conduct that by

its very nature is violent and physically aggressive.” Govt. Br.

12. This is true as a matter of simple logic, because resisting

arrest could certainly be committed in that fashion. But here we

deal with elements, not conduct. Descamps, 133 S. Ct. at 2283.

The Government’s argument also fails because, to the extent that

Rich can even be read in the way the Government reads it, it

would be inconsistent with the law as articulated by Maryland’s

highest court in Nicolas – and that is the law that binds us,

not an opinion from Maryland’s intermediate appellate court. 4

4
The Government argues that the discussion in Nicolas, 44
A.3d at 409, of the force required for a resisting arrest
conviction is dicta irrelevant to whether resisting arrest and
(Continued)

10
Johnson, 130 S. Ct. at 1269. Rich has never been cited by the

Maryland Court of Appeals and its reasoning has never been

adopted. Indeed, the Court of Appeals’ most recent recitation of

the elements of the crime of resisting arrest in Maryland

altogether omits the force element and replaces it with a

“refus[al] to submit” element. Williams, 79 A.3d at 944 (“(1)

[T]he defendant was arrested; (2) the arrest was lawful; and (3)

the defendant refused to submit to the arrest.”) (citations and

quotations omitted). There is no plausible argument that violent

force of the type contemplated by the force clause of the

reentry Guideline is a required element of the Maryland crime of

resisting arrest. Cf. United States v. Romo-Villalobos, 674 F.3d

1246, 1249 (11th Cir. 2012) (holding that the Florida crime of

resisting arrest “by offering or doing violence to the person of

such officer” is a “crime of violence” pursuant to the force

clause of the reentry Guideline) (citation omitted) (emphasis

added).

The Government persists, citing two of our prior cases -

United States v. Wardrick, 350 F.3d 446, 454-55 (4th Cir. 2003),

and United States v. Jenkins, 631 F.3d 680, 683-85 (4th Cir.

second degree assault convictions merge. Although the reasoning
might be slightly overbroad for the holding, that does not
undermine the basic point in Nicolas that there is no daylight
between the force elements in the Maryland crimes of second
degree assault and resisting arrest.

11
2011) – to buttress its argument that Maryland resisting arrest

is an “inherently violent” crime that “poses a substantial risk

of physical injury to officers.” Govt. Br. 13. This argument

also fails, and for a simple reason: Wardrick and Jenkins

involved different clauses of different sentencing provisions.

Both cases involved “the residual clause,” which categorizes

prior state offenses as federal sentencing predicates if they

criminalize “conduct that presents a serious potential risk of

physical injury to another.” This language appears in the Armed

Career Criminal Act, 18 U.S.C. § 924(e)(2)(B), and the career

offender Guideline, U.S.S.G. § 4B1.2(a)(2).

But it is not in the reentry Guideline. That is why

Wardrick and Jenkins are irrelevant to this case. In Wardrick,

350 F.3d at 454, we held that Maryland resisting arrest was a

“violent felony” pursuant to the Armed Career Criminal Act, 18

U.S.C. § 924(e)(2)(B), but there we asked whether the crime fell

under the residual clause, and thus criminalized “conduct that

present[ed] a serious potential risk of physical injury to

another”; similarly, in Jenkins, 631 F.3d at 682-85, we held

that Maryland resisting arrest was a “crime of violence” within

the meaning of the residual clause of the career offender

Guideline, U.S.S.G. § 4B1.2(a)(2), but again we were asking

whether resisting arrest “involve[d] conduct that presents a

serious potential risk of physical injury to another.”

12
 The Government pushes on. After all, it contends, offenses

that criminalize conduct that presents a serious risk of

physical injury cannot be far removed from those that contain as

an element the use of violent force. It is perhaps instinctively

alluring to conflate the risk of physical injury with the use of

violent force, but we refuse to do so because it is directly

contrary to Supreme Court and sound Fourth Circuit precedent:

Sykes v. United States, 131 S. Ct. 2267, 2273 (2011), in which

the Supreme Court held that the Indiana offense of resisting law

enforcement through felonious vehicle flight qualified as a

violent felony under the residual clause of the Armed Career

Criminal Act, but not under the force clause of the same

statute; and United States v. Jarmon, 596 F.3d 228, 230 (4th

Cir. 2010), in which we held that the North Carolina crime of

“larceny from the person” was a crime of violence under the

residual clause of the career offender Guideline, but not under

the force clause of the same Guideline. The basic point is that

the Government’s reliance on Wardrick and Jenkins is misplaced

because a crime involving conduct that presents a serious

potential risk of physical injury to another, the residual

clause inquiry, is not the same for federal sentencing purposes

as a crime that has as an element the use or attempted use of

violent force, the force clause inquiry.

13
 The Government’s last argument is that there is no way to

be convicted of resisting arrest in Maryland without the use of

violent force - and it cites thirty-eight published opinions by

the Maryland appellate courts to support its claim, all of which

arguably involved the defendant’s use of violent force. Armed

with this mountain of cases, the Government urges us to avoid

exercising our “legal imagination” when analyzing the resisting

arrest offense, and instead asks us to examine whether there is

“a realistic probability, not a theoretical possibility, that

[Maryland] would apply its statute to conduct that falls

outside” the realm of violent force. Govt. Br. 19-21 (quoting

Gonzales v. Duenas-Alvarez, 549 U.S. 183, 193 (2007)).

But this case does not require an exercise of imagination,

merely mundane legal research skills: we have precedent from

Maryland’s highest court stating that the degree of force

required as an element of Maryland resisting arrest is

“offensive physical contact,” Nicolas, 44 A.3d at 409, and

crimes requiring offensive physical contact are not crimes of

violence containing an element of violent force, as required

under federal enhanced sentencing regimes. Royal, 731 F.3d at

341-42; Karimi, 715 F.3d at 568.

Even with its raft of cases, the Government’s argument

misses the point of the categorical approach and “wrenches the

Supreme Court’s language in Duenas-Alvarez from its context.”

14
United States v. Torres-Miguel, 701 F.3d 165, 170 (4th Cir.

2012). We do not need to hypothesize about whether there is a

“realistic probability” that Maryland prosecutors will charge

defendants engaged in non-violent offensive physical contact

with resisting arrest; we know that they can because the state’s

highest court has said so. It may be that Maryland prosecutors

tend to charge too many offenders with resisting arrest when

they could charge far more serious crimes, or it may be that we

have a skewed universe of cases from the hundreds of resisting

arrest convictions sustained each year. Either way, it does not

really matter because the “key” is “elements, not facts,”

Descamps, 133 S. Ct. at 2283, and violent force is simply not an

element of resisting arrest in Maryland. And that ends the

inquiry.

The judgment of the district court is vacated and the case

is remanded for resentencing in accordance with this opinion.

VACATED AND REMANDED

15
WILKINSON, Circuit Judge, with whom NIEMEYER, Circuit Judge,
joins, dissenting:

The majority is right that the categorical approach governs

here. It is wrong to apply that approach in a manner that is

heedless of the pertinent Supreme Court decisions and wholly

untethered from reality itself. Decade upon decade of Maryland

resisting arrest law paints a clear picture of violent force

unleashed against arresting officers. Case after case recounts

violent outbursts by defendants: fighting, pushing, and hitting

an officer; biting an officer with sufficient force to break the

skin; dragging an officer to the ground; swinging handcuffs at

an officer; wielding a straight-edged razor against an officer

and slashing his arm; driving a vehicle in an attempt to run an

officer over; punching an officer repeatedly in the head;

stabbing an officer with a ballpoint pen; tearing the badge off

an officer’s uniform and swinging at the officers with the

badge’s pin; kicking an officer in the groin; striking an

officer in the stomach and chest. See Appendices I & II.

This is the offense that the majority claims is not a crime

of violence. And the above is but a sampler.

Whether described as a fracas or a physical struggle, the

force underlying the Maryland resisting arrest offense is, and

has been, consistently violent. The list of violent acts

committed by defendants in this context is both lengthy and

16
uniform. By contrast, any incident involving mere “offensive

touching” is wholly absent. Johnson v. United States, 559 U.S.

133, 139-40 (2010). The conviction of the limp arrestee is a

myth. For the Maryland courts insist upon the application of

force as a condition of conviction, see Williams v. State, 79

A.3d 931, 946 (Md. 2013), and passive resisters do not employ

force.

A chief aim of the resisting arrest offense is to protect

the physical safety of the arresting officer. In holding this

not a crime of violence, the majority denies this purpose its

rightful effect. Even for judges as capable as my good

colleagues, there is a danger in ruling at a far and cosseted

remove. It is always sad to say what should never need to be

said: these street encounters are not tea and crumpets. It is

silly to pretend the force directed at police officers is

nothing more than a mere touch. It is one thing to recognize

that police officers are, like the rest of us, deeply fallible.

It is fair to note that their failings carry greater consequence

because they wear the badge of state. It is right that law

punish officers for their excesses and correct their mistakes.

And yet, law must also respect their own need for personal

safety and give them some small due. For law without law

enforcement is impossible.

17
 I do not know whether to refer to my friends in the

majority as the simple majority, the super-majority, the ultra-

majority, or the uber-majority, but this decision, even if it

were unanimous, would still be very wrong. To deny, as the

majority does, obvious effect to the term “crime of violence,”

is thus more than a negation of congressional intent. To deny

that the unbroken litany of violent acts against police officers

is even violent evinces more than an averted eye from its

recipients. It breeds, in the end, a disrespect for law itself.

****

The question in this case may be simply posed: do the

Supreme Court decisions in Gonzales v. Duenas-Alvarez, 549 U.S.

183 (2007), and James v. United States, 550 U.S. 192 (2007),

apply to force clauses?

The force clause here is typical. It provides a sentencing

enhancement for defendants previously convicted of any “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). Force

clauses such as this one are familiar features of our law. They

appear both in statutes and in the Sentencing Guidelines. See 18

U.S.C. § 16(a); id. § 924(e)(2)(B)(i); U.S.S.G. § 4B1.2(a)(1).

They represent Congress’s attempt to ensure that those who

engage (often repeatedly) in violent acts towards others receive

18
a commensurate punishment. How these clauses are applied and

interpreted is important.

The contribution of Duenas-Alvarez and James is to make the

sentencing of violent offenders a practical exercise. If those

cases apply to force clauses, as I believe they do, it is

certain that under the categorical approach, approved by the

Supreme Court in Descamps v. United States, 133 S. Ct. 2276

(2013), the Maryland offense of resisting arrest is a crime of

violence. Yet the majority refuses to apply these cases to the

instant dispute, or indeed to apply them to any unlisted

offense, with the consequence that large numbers of force and

residual clause offenses are deemed, despite all evidence to the

contrary, nonviolent.

In the face of the grounded and practical approach of

Duenas-Alvarez and James, the majority takes abstract flight. It

ignores James altogether and finds that resort to Duenas-Alvarez

“misses the point of the categorical approach.” Maj. op. at 14.

In short, it gives James the silent treatment and Duenas-Alvarez

the back of its hand insofar as they apply to force clauses.

Contrary to the majority’s logic, the proper application of

Duenas-Alvarez and James mandates a single conclusion: that in

“the ordinary case,” James, 550 U.S. at 208, and in terms of a

“realistic probability,” Duenas-Alvarez, 549 U.S. at 193,

resisting arrest convictions are limited to violent force

19
unleashed at another person, most often the officer making the

arrest.

It remains the law of this circuit that Duenas-Alvarez and

its successor James do not, as a matter of law, apply to

unlisted offenses. United States v. Torres-Miguel, 701 F.3d 165,

170-71 (2012). Today’s opinion not only references Torres-

Miguel, but builds upon it. Maj. op. at 14-15. These two

decisions directly contradict James, which explicitly applied

both Duenas-Alvarez and its underlying rationale to unlisted

offenses. James, 550 U.S. at 208 (applying Duenas-Alvarez to the

unlisted offense of attempted burglary). Again, the majority

does not so much as mention James. It makes no effort to resolve

the glaring contradiction between its approach and that of the

Supreme Court. The higher court applies Duenas-Alvarez and James

to unlisted offenses. The lower court does not. I cannot fathom

why.

The result of all this is the dramatic curtailment of the

legitimate scope of force clauses. Despite the clear pattern of

“the ordinary case,” see James, 550 U.S. at 208, the

overwhelming incidents of violent resistance to arrest in the

Maryland precedents, and the nonexistent likelihood that

Maryland would sustain a conviction in the absence of violent

force, see Duenas-Alvarez, 549 U.S. at 193, the majority calls

this offense, and by extension, the patently violent behavior

20
underlying it, nonviolent. This is precisely what Duenas-Alvarez

and James said courts were not permitted to do.

The consequences stretch beyond the majority’s refusal to

apply established Supreme Court precedent. The majority

introduces disuniformity in federal sentencing. It creates

conflict among the circuits. It undermines congressional intent

by carving out an exception to force clauses nowhere in their

language. It declares that violent acts against those attempting

to do nothing more than effect a lawful arrest do not register

in the judicial consciousness and that, as a statutory matter,

violence directed at law enforcement officers is not really

violence after all.

I.

The Supreme Court’s decisions on sentencing provisions for

violent acts make good sense, especially if they are taken as a

whole. Much of the early debate concerned whether a categorical

or modified categorical approach to predicate offenses would

apply. The categorical approach, in all but the specialized

instance of a divisible statute, has prevailed. See Descamps,

133 S. Ct. at 2281-82. The categorical approach looks to the

elements of a state crime to determine whether it qualifies as a

federal sentencing predicate, while the modified categorical

approach supplements this inquiry by permitting recourse to

conclusive judicial documents, such as the plea colloquy

21
transcript or indictment. See Shepard v. United States, 544 U.S.

13, 26 (2005). One group of cases -- Taylor v. United States,

495 U.S. 575 (1990), and, more directly, Descamps -- addresses

the question of what approach (the categorical or modified

categorical) applies. A second set of cases -- Duenas-Alvarez

and James -- addresses the question of how the categorical

approach applies. These questions are distinct but

complementary: the second set of cases is a bookend to the

first. To apply one set of cases without the other leads to a

badly distorted sentencing function. The majority here adopts a

one-bookend approach.

A.

The categorical approach has significant benefits, namely,

sparing district courts the need to explore the underlying facts

of predicate convictions, and giving defendants the benefits of

earlier plea bargains to lesser offenses. See Descamps, 133 S.

Ct. at 2289. But the categorical approach also carries costs,

namely that the actual facts of the particular predicate offense

are ignored. In this case, for example, the defendant’s

predicate conviction was for the Maryland offense of resisting

arrest. In the course of investigating the facts underlying this

prior conviction, the district court cited the “Application for

Statement of Charges.” J.A. 110-11. According to that document,

after an officer attempted to pull him over for illegally

22
crossing the painted lane markers, defendant accelerated to a

high speed, struck a civilian’s vehicle, and intentionally

swerved towards an officer. Officers managed to deflate his

tires, at which point defendant exited his vehicle and fled on

foot into a hotel. Police eventually seized defendant and were

compelled to taser him three times in order to subdue him.

During the course of the struggle, defendant bit one of the

officers. J.A. 56-57.

Under the categorical approach, these facts, although

clearly violent, are excluded from consideration for the sake of

promoting what are plainly significant systemic benefits. See

Descamps, 133 S. Ct. at 2287. To offset the costs of factual

exclusion, Duenas-Alvarez and James require an inquiry into what

conduct actually underlies the customary or typical conviction

for the predicate offense. Duenas-Alvarez, which addressed the

listed offense of theft, held that:

[T]o find that a state statute creates a crime outside
the generic definition of a listed crime in a federal
statute requires more than the application of legal
imagination to a state statute's language. It requires
a realistic probability, not a theoretical
possibility, that the State would apply its statute to
conduct that falls outside the generic definition of a
crime.

549 U.S. at 193 (emphasis added). In order to satisfy this test,

a defendant “must at least point to his own case or other cases

23
in which the state courts in fact did apply the statute in the

special (nongeneric) manner for which he argues.” Id.

The James Court cited this language from Duenas-Alvarez and

applied it to the unlisted offense of attempted burglary in the

residual clause at issue in that case, which covered crimes that

present a “serious potential risk of physical injury to

another.” 18 U.S.C. § 924(e)(2)(B)(ii). James observed that the

categorical approach does not require “every conceivable factual

offense covered by a statute [to] necessarily present a serious

potential risk of injury before the offense can be deemed a

violent felony.” 550 U.S. at 208. Instead, “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.” Id. (emphasis added). In short, “[a]s

long as an offense is of a type that, by its nature, presents a

serious potential risk of injury to another, it satisfies the

requirements” of the residual clause. Id. at 209.

B.

Nothing in the logic of Duenas-Alvarez or James renders the

“realistic probability” test inapplicable to force clause

predicates. But in refusing to discuss James or to give more

than dismissive lip service to Duenas-Alvarez, the majority

accepts the benefits of the categorical approach and wholly

ignores the Supreme Court’s effort to offset its costs. By

24
basing its inquiry purely on elements, the majority uses the

most abstract approach to sentencing possible -- an approach

divorced from the context and grounding that actual cases

provide. The majority discards reality in favor of a formalism

that is mandated neither by logic nor law.

The majority’s refusal to consider case conduct as an

interpretive guide to the elements of a crime is wanting on

multiple counts. To begin with, matching state law elements with

statutory or Guidelines provisions cannot be the whole inquiry

for the obvious reason that most state offenses were not

designed with federal sentencing enhancements in mind. There is

no single catechism -- such as “violent force” -- that will

resolve the disjunction. These predicates are simply not

drafted, obligingly, along the lines of the majority’s verbal

litmus test. If the majority is going to insist on the

invariable use of its particular phraseology as an element, then

large numbers of the most violent offenses that plainly involve

“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), would manifestly fail to qualify. Prescribed

iterations simply cannot be dispositive.

But the damage to federal sentencing wrought by the

majority’s approach is more serious than these mere practical

problems would suggest. By putting such emphasis upon elements

25
alone, divorced from the practical inquiry mandated by Duenas-

Alvarez and James, the majority has placed federal sentencing at

a double remove from reality. Not only do we refrain for good

and sufficient reason from investigating the facts underlying

defendant’s specific predicate conviction, but we are now also

barred from examining the actual conduct involved in the mine

run of state cases. The Supreme Court, of course, looks to state

cases to identify the elements of a predicate offense, see,

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

(2011); Johnson v. United States, 559 U.S. 133, 137-38 (2010),

but has also consulted, illustratively, the actual conduct (as

reflected in state decisions) to which the state statute or its

common-law antecedent has been applied, see, e.g., Moncrieffe v.

Holder, 133 S. Ct. 1678, 1686-87 (2013).

To effectively prohibit this inquiry into conduct is to

pursue an exercise in abstraction for the very inquiry in the

criminal justice system that is supposed to be the most grounded

and individualized. See 18 U.S.C. § 3661 (“No limitation shall

be placed on the information concerning the background,

character, and conduct of a person convicted of an offense which

a court of the United States may receive and consider for the

purpose of imposing an appropriate sentence.”). The majority’s

willingness to place limitations of every sort and variety upon

the sentencing inquiry prizes formalism over reality, thus

26
upsetting the careful balance drawn by the federal sentencing

regime. See Setser v. United States, 132 S. Ct. 1463, 1475

(2012) (Breyer, J., dissenting) (noting the Guidelines’

compromise between real offense and charge offense sentencing).

It matters not that this latest limitation is one that does

not pertain to the particular defendant’s circumstances, because

it definitely does pertain to the all-important question of

whether his predicate offense was, “in the ordinary case,” see

James, 550 U.S. at 208, a violent crime. Supreme Court precedent

cannot justify the majority’s ruling. Descamps and Moncrieffe,

for example, each examined underlying conduct in concluding that

a state offense had been applied by state courts beyond its

usual contours and thus failed to qualify as a predicate offense

for federal sentencing purposes. 133 S. Ct. at 2282; 133 S. Ct.

at 1686-87. By contrast, in artificially limiting the

categorical approach, the majority is sending federal sentencing

further into the ether. Under its decision, federal sentences

will become progressively more blind.

II.

The damage wrought by the majority’s general approach to

sentencing is compounded by its handling of the particular

Maryland offense of resisting arrest. It has introduced not only

an unwarranted amount of abstraction into the process, but

disuniformity and conflict among the circuits to boot.

27
 A.

The historic purposes of resisting arrest offenses are two-

fold. The first is to safeguard the arresting officer from

violent force at the hands of the arrestee. It can be dangerous

to make an arrest, and the resisting arrest crime was designed

to lessen the potential for serious harm. See, e.g., United

States v. Jenkins, 631 F.3d 680, 685 (4th Cir. 2011); United

States v. Wardrick, 350 F.3d 446, 455 (4th Cir. 2003); Rich v.

State, 44 A.3d 1063, 1080 (Md. Ct. Spec. App. 2012). The second

purpose is to protect the defendant arrestee from conviction for

passive or nonviolent conduct which, if criminal at all, was

traditionally covered by a lesser offense like obstruction of an

officer in the performance of his duties. See Rich, 44 A.3d at

1071-73, 1080.

To serve these dual purposes, the offense has been limited

to violent force directed, in most instances, at the arresting

officer. In the classic case of Regina v. Bentley, 4 Cox C.C.

408, 408 (1850), for example, the defendant was convicted of

resisting arrest after he “violently assaulted and seriously

injured” the arresting officer. The facts recounted in Bentley

continue to represent the paradigmatic offense conduct.

Consistent with this common law understanding, Section 242.2 of

the Model Penal Code cabins the offense to defendants who

“create[] a substantial risk of bodily injury to the public

28
servant or anyone else, or employ[] means justifying or

requiring substantial force to overcome the resistance.”

Maryland adheres to this conception of the offense: the

underlying conduct described in the reported cases is, in the

words of a state court, “consistently forceful.” Rich, 44 A.3d

at 1077. The pervasive focus on violent force serves to deter

conduct that poses a serious threat to arresting officers.

Including violent force as an element of the offense also

limits the discretion of discriminatory or overreaching

prosecutors. As Rich notes, “[m]inor 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. at 1080 (internal quotation

marks omitted). The Model Penal Code similarly concludes that

“authorizing criminal punishment for every trivial act of

resistance would invite abusive prosecution.” § 242.1,

explanatory notes. The two central purposes of the offense --

protecting officers from serious harm and protecting defendants

from prosecutorial overreach -- thus dovetail in the requirement

that a non-violent act will not suffice for conviction.

B.

It is essential to comprehend the common understanding or

nature of a state offense, even in crimes not specifically

29
listed or enumerated, when applying federal sentencing

enhancements. Although the search for a generic definition is

formally limited to the context of listed crimes, many state

offenses retain traditional definitions shared by a host of

jurisdictions and the common law. See Williams v. State, 79 A.3d

931, 944 (Md. 2013) (holding that the Maryland resisting arrest

statute retains the offense’s common law elements). Sentencing

determinations will be all over the map unless courts inquire

into the traditional understanding of predicate offenses with

deep common law roots. A refusal to undertake this inquiry, and

the resulting loss of uniformity in sentencing outcomes, would

produce inequity on a large scale.

Here, there is no indication that Maryland has chosen to

depart from the common understanding of resisting arrest as

involving the violent application of force against the arresting

individual. The Maryland Court of Appeals only recently

reiterated the need to find force in resisting arrest

adjudications. See Williams, 79 A.3d at 946. It defies belief to

contend that the force employed in committing such a crime would

be other than violent. To try to construct an argument on some

supposed distinction between “force” and “violent force” in the

context of these confrontations is semantics at its worst. Even

convictions predicated on arguably lesser conduct -- such as a

threat to kill the arresting officer, Barnhard v. State, 602

30
A.2d 701, 703 (1992) -- qualify under the “threatened use of

physical force” proviso of the force clause. U.S.S.G. § 2L1.2

cmt. n. 1(B)(iii). Our own precedent has recognized the

potential for serious injury stemming from this offense. See

Jenkins, 631 F.3d at 685; Wardrick, 350 F.3d at 455. Serious

injury does not arise from subtle force. The word “resisting”

itself means the application of active force, not mere passive

noncompliance.

In Rich, as noted, the court stressed that violent force

was essential to a resisting arrest conviction, and that the

Maryland courts quite rightly and properly had sought to prevent

the offense from metastasizing to cover nonviolent conduct. In

the absence of violent force, Rich reversed the conviction. 44

A.3d at 1083. Whereas the majority pooh-poohs that decision as

the mere utterance of an intermediate state appellate court,

Rich remains the most comprehensive discussion of the Maryland

offense available. The Maryland Court of Appeals has neither

reversed nor disowned it, even when opportunities existed to do

so. See Williams, 79 A.3d at 944. In fact, that distinguished

court’s handling of resisting arrest through the decades

reflects Rich’s own canvass of the case law and its own

understanding.

The majority rests its whole analysis on the holding in

Nicolas v. State that the Maryland crime of second-degree

31
assault merges with the Maryland crime of resisting arrest for

sentencing purposes. 44 A.3d 396, 409 (Md. 2012). Although the

issue presented in that case was whether the former qualified as

a lesser-included offense of the latter, id. at 398, 409, the

court nevertheless noted that the force required to sustain a

conviction for resisting arrest was the same as the “offensive

physical contact” required to sustain a conviction for the

battery version of second-degree assault, id. at 409 (internal

quotation marks omitted). The court’s observation that identical

levels of force are required was unnecessary to its holding,

since second-degree assault would have qualified as an included

offense as long as resisting arrest required any degree of

force. The court’s decision would not have changed, for example,

had it concluded that resisting arrest required violent force.

Indeed, the majority assiduously avoids characterizing the

statement on which it relies as some sort of actual holding.

In basing its entire conclusion on this bit of dicta, the

majority ignores Duenas-Alvarez’s admonition that a defendant,

in order to escape the application of a federal sentencing

enhancement, must be able to identify concrete cases in which

the predicate offense was actually applied in the manner he

proposes. 549 U.S. at 193. This the defendant has never done. To

be sure, Nicolas cited a hypothetical in which an individual

holds a door closed in order to bar the officer’s entry and

32
thereby prevent arrest. 44 A.3d at 408 n.5. But resort to

“hypothesize[d] unusual cases” is exactly what James intended to

prevent. 550 U.S. at 208.

Quite apart from the hypothetical world, defendant’s

conduct in Nicolas plainly included the use of violent force: he

“pushed” one officer, “hit [another] in the face,” and fought

with one for “two to three minutes.” The fight included

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

walls and hitting each other.” Finally, he continued “fighting”

and “struggl[ing]” “the whole way” to the police cruiser. 44

A.3d at 399-401. In view of the obvious violence involved, there

was no need for the court to comment on the precise level of

force required. By relying on an abstract pronouncement in a

case addressing an altogether different issue and involving

violent force of the most potent sort, the majority embraces

precisely the type of unmoored analysis rejected by Duenas-

Alvarez and James.

Defendant’s burden is not an obscure one. All he has to do

is show actual instances in which Maryland courts are sustaining

convictions for resistance to arrest in the absence of violent

force. He and the majority have succeeded in showing only the

opposite. In conducting this whole inquiry, it is essential that

courts look closely at state law, because the predicate

conviction is most often, though not always, a state offense.

33
But this is also a federal sentencing proceeding, and in

insisting that the inquiry involve a “realistic probability, not

a theoretical possibility, that the State would apply its

statute to conduct that falls outside the” federal enhancement,

Duenas-Alvarez, 549 U.S. at 193, Duenas-Alvarez and James sought

to head off the possibility that dicta and hypotheticals in

state court decisions would drive federal sentencing practice.

In refusing to apply these two Supreme Court decisions, the

majority has opened federal sentencing to every stray state

court pronouncement and seriously impaired the federal/state

sentencing balance.

The majority’s errant conclusion that Maryland has departed

from the common understanding of the resisting arrest offense

also introduces disuniformity into federal sentencing and

exacerbates a conflict within the circuits. As a result of this

decision, there is now a dramatic difference in how the circuits

approach the use of force against arresting officers. For

example, in United States v. Carthorne, 726 F.3d 503, 512, 514,

515 (4th Cir. 2013), a closer case, frankly, than this one is,

the court properly canvassed Virginia cases and held that

assault and battery of a police officer (ABPO) did not qualify

as a crime of violence. In doing so, the court acknowledged an

open conflict with the First, Tenth, and Eleventh Circuits. Id.

at 516. But that split, while perhaps narrow and tolerable, is

34
now blasted wide. By rejecting the Supreme Court’s approach in

Duenas-Alvarez and James, the majority not only has ensured that

the categorical approach is no longer a neutral legal principle

(but instead a code word for categorical nonviolence). It has

also effectively guaranteed that violent force leveled at police

officers in the course of resisting an arrest will never be

treated by the court under force clauses as a violent crime.

Quite apart from the fact that officers on the receiving

end of violent attacks upon their person will wonder what in the

world we are doing, the departure from the sound approach shared

by the Supreme Court, the Maryland judiciary and our sister

circuits is, to understate the matter, a prescription for

problems down the road.

III.

An arrest, by its nature, is a tense and volatile event.

The aim of law should be, so far as possible, to preserve

dignity and humanity on both sides of the encounter, even where

the respective principals have failed to do so.

Arrestees are entitled to be treated with dignity and

respect. They are not objects to be gratuitously brutalized, no

matter what their respective offenses may prove to be. Where

officers use unwarranted force, courts have historically held

them to account. Excessive force claims are an established and

important part of our law. See Graham v. Connor, 490 U.S. 386,

35
395 (1989). In the arrest context, it is the Fourth Amendment

that shields citizens from “physically abusive governmental

conduct.” Id. at 394. Notably, the Maryland cases cited in the

appendices contain no suggestion of excessive force applied by

officers that in turn provoked the violent responses on the part

of those they arrested.

Law enforcement officers, too, are deserving of dignity,

not to mention physical safety. Officers may not be popular

figures (except perhaps when one needs them), but they do play

their necessary part in permitting law to function as law. Here

they were doing what they had every right to do: make a lawful

arrest. I do not believe appellant thinks officers are blocks of

wood or slabs of stone, but the shrug of indifference which he

invites as our response to violent acts committed against them

suggests to the contrary. The one who dons a uniform is not

thereby dehumanized. No occupation need numb us to the fact that

all persons, officers and arrestees alike, feel the sting of

violent and aggressive acts. It is sad, really, that courts

would strip protection from those whom Congress wished to

protect, and in so doing, sever law so dramatically from the law

enforcement function.

It is sad too that my friends in the majority had the

chance to invest with equal dignity both sides of this fraught

encounter, but now that chance has been lost. It is altogether

36
good and right that excessive force on the part of police is

actionable under federal law, but it is profoundly wrong that

violence against those very same persons is without the proper

federal statutory effect. There is no question that resisting

arrest must involve violent force directed at the person of

arresting officers. It is a crime of violence. More than that,

it is an affront to law. I have gathered Maryland cases in two

appendices to make my point. From them, the reader can readily

discern that the crime involves violence directed at arresting

officers “in the ordinary case,” James, 550 U.S. at 208, and

that there is no “realistic probability,” Duenas-Alvarez, 549

U.S. at 193, that the offense would be sustained in the absence

of the same. I do recognize that reading appendices can be a

mighty boring exercise, and yet there are occasions when the

silent roll of cases sounds a fitting end.

37
 Appendices

I.

Resisting Arrest Decisions of the Maryland Court of Appeals

• Nicolas v. State, 426 Md. 385, 44 A.3d 396, 399–401 (2012)

(defendant “pushed” one 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, 420 Md. 512, 24 A.3d 667, 670 (2011)

(defendant “struggle[d] as three officers attempted to

arrest him,” “continued kicking and pulling,” caused

officer to sprain ankle).

• Wilson v. State, 409 Md. 415, 975 A.2d 877, 881–82 (2009)

(defendant “struggle[d]” as officer attempted to place

handcuffs on him).

• Polk v. State, 378 Md. 1, 835 A.2d 575, 577 (2003)

(defendant engaged in a “scuffle” with the arresting

officer, and “bit his arm, breaking the skin on his

wrist”).

• Purnell v. State, 375 Md. 678, 827 A.2d 68, 71-72 (2003)

(defendant “resisted [the officers’] attempts to handcuff

him, by attempt[ing] to push up, which then required the

38
 officers to push him back down to actually get him

handcuffed.”).

• Johnson v. State, 358 Md. 384, 749 A.2d 769, 769 (2000)

(defendant “kicked and flailed” when officers attempted to

effect arrest).

• In re Tariq A–R–Y, 347 Md. 484, 701 A.2d 691, 692 (1997)

(defendant “punched and kicked” officers).

• Barnhard v. State, 325 Md. 602, 602 A.2d 701, 703, 708

(1992) (defendant “started swinging [a] loose handcuff” at

officers, punched them, and “scuffle[d]” with them).

• Att’y Grievance Comm’n of Md. v. Hamby, 322 Md. 606, 589

A.2d 53, 54 (1991) (defendant “resisted the officer's

efforts to arrest him; those efforts included attacking the

officer with [a] syringe, after which a wrestling match

ensued until the officer received assistance from three

other officers”).

• Trusty v. State, 308 Md. 658, 521 A.2d 749, 752, 754 (1987)

(defendant “struggle[d]” with first officer, which

necessitated the intervention of other officers to

ultimately subdue him).

• Rodgers v. State, 280 Md. 406, 373 A.2d 944, 945 (1977)

(defendant “grabbed [one] [o]fficer . . . around the

waist,” causing them both to fall to the ground, and

39
 “wielded a straight edged razor and slashed [the] [o]fficer

. . . across the arm, inflicting three wounds”).

• Downs v. State, 278 Md. 610, 366 A.2d 41, 43 (1976)

(“scuffle ensued” when officer attempted to effect arrest

of defendant).

• Palacorolle v. State, 239 Md. 416, 211 A.2d 828, 829 (1965)

(“while enroute to the police station the appellant lunged

at [the] [o]fficer . . . [,] attempting to strike and kick

him”).

II.

Resisting Arrest Decisions of the Maryland Court of Special
Appeals

• Gutloff v. State, 207 Md. App. 176, 51 A.3d 775, 777 (2012)

(during a traffic stop, defendant “refused to get out of

the car and proceeded to repeatedly strike [officer’s] arm

with the car door”).

• Britton v. State, 201 Md. App. 589, 30 A.3d 236, 239 (2011)

(defendant “violently resisted,” “punch[ed] and kick[ed]

the officers,” injuring three of them, and “continued to

struggle” despite being “tasered two more times”).

• Jones v. State, 175 Md. App. 58, 924 A.2d 336, 339–40

(2007) (defendant “swerved” in vehicle “directly toward an

officer, causing him to dive out of the way to avoid being

struck”).

40
• Lamb v. State, 141 Md. App. 610, 786 A.2d 783, 786 (2001)

(defendant “struggle[d]” with officer and “punched him

three or four times”).

• Grant v. State, 141 Md. App. 517, 786 A.2d 34, 38 (2001)

(defendant “struggle[d]” against the officers, engaged in

“a wrestling match and a fight” with them, and “kicked” and

“struck [one] several times [with his] arms and legs”).

• Cooper v. State, 128 Md. App. 257, 737 A.2d 613, 615–16

(1999) (defendant “punched [officer] repeatedly in the

head,” “struck [another] in the face”).

• Himple v. State, 101 Md. App. 579, 647 A.2d 1240, 1241

(1994) (defendant “punched and kicked the officer, injuring

him”).

• Briggs v. State, 90 Md. App. 60, 599 A.2d 1221, 1223 (1992)

(defendant threatened officers, “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 v. State, 87 Md. App. 132, 589 A.2d 493, 495

(1991) (defendant “struck [o]fficer . . . in the shoulder

and knocked him off balance”).

41
• Thomas v. State, 85 Md. App. 201, 582 A.2d 586, 586 (1990)

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

ballpoint pen and a police officer was struck.”).

• Johnson v. State, 75 Md. App. 621, 542 A.2d 429, 432 (1988)

(defendant “struck the detective in the stomach and again

in the chest”).

• Curtin v. State, 60 Md. App. 338, 483 A.2d 81, 84 (1984)

(defendant “struggle[d]” for several minutes and broke free

before being detained again; he continued to struggle and,

“[i]n the course of this [second] melee, [one officer] was

struck and kicked and [another] was bitten by the

appellant”).

• Kraft v. State, 18 Md. App. 169, 305 A.2d 489, 491 (1973)

(defendant was “wild and fighting,” threatened officers,

and was overpowered only after a struggle in which officer

was forced to employ mace to gain compliance), overruled on

other grounds by Goode v. State, 41 Md.App. 623, 398 A.2d

801 (1979).

• Tillery v. State, 12 Md. App. 624, 280 A.2d 302, 303 (1971)

(defendant kicked one officer, attempted to punch two

officers, “tore the badge [off a third officer’s] uniform

and clenched it in his right hand with the pin . . . in an

42
 outward position, swinging . . . in a violent manner at

each of the three [o]fficers”).

• Lyles v. State, 10 Md. App. 265, 269 A.2d 178, 180 (1970)

(defendant “tussl[ed] on the floor and wrestl[ed]” with

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

[with] nightstick,” was charged with “pulling, beating, and

laying hold of” officer).

• Williams v. State, 4 Md. App. 643, 244 A.2d 619, 621 (1968)

(“When the officer attempted to place handcuffs on the

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

appellant falling to the floor, during which the appellant

kicked [the officer].”).

• Carwell v. State, 2 Md. App. 45, 232 A.2d 903, 905 (1967)

(defendant “became very violent,” “struggled for four or

five minutes,” “bit” one officer, necessitating medical

treatment, “injured” another, and was only subdued when

several additional officers intervened).

• McIntyre v. State, 1 Md. App. 586, 232 A.2d 279, 280 (1967)

(one defendant “struggl[ed]” with officer; other defendant

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

another swing at [him once] under arrest”).

• McGee v. State, 1 Md. App. 239, 229 A.2d 432, 433 (1967)

(defendant “struggled” with officers, “flail[ed] his arms

43
and push[ed officers] away,” “pull[ed], push[ed] and la[id]

hold of . . . officer”).

44