PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
RODNEY JENKINS, a/k/a Hot Rod, No. 09-4400
a/k/a JR, a/k/a Clifton Howard,
a/k/a RJ, a/k/a Robney Jenkins,
Defendant-Appellant.
Appeal from the United States District Court
for the District of Maryland, at Baltimore.
Benson Everett Legg, Chief District Judge.
(1:07-cr-00091-BEL-1)
Argued: October 29, 2010
Decided: January 31, 2011
Before WILKINSON, KING, and AGEE, Circuit Judges.
Affirmed by published opinion. Judge King wrote the opin-
ion, in which Judge Wilkinson and Judge Agee joined.
COUNSEL
ARGUED: Joseph Murtha, MILLER, MURTHA &
PSORAS, LLC, Lutherville, Maryland, for Appellant. Chris-
topher John Romano, OFFICE OF THE UNITED STATES
2 UNITED STATES v. JENKINS
ATTORNEY, Baltimore, Maryland, for Appellee. ON
BRIEF: Rod J. Rosenstein, United States Attorney, Balti-
more, Maryland, for Appellee.
OPINION
KING, Circuit Judge:
Appellant Rodney Jenkins pleaded guilty in the District of
Maryland to distribution of crack cocaine, in contravention of
21 U.S.C. § 841(a), and being a felon in possession of a fire-
arm, in contravention of 18 U.S.C. § 922(g)(1). The district
court enhanced Jenkins’s sentence by finding him to be a "ca-
reer offender" under section 4B1.1 of the Sentencing Guide-
lines (the "Career Offender Enhancement"), imposing a 188-
month term of imprisonment.1 Jenkins’s sole contention on
appeal is that one of his two prior felony offenses of convic-
tion — the common law offense of resisting arrest in Mary-
land — is not a "crime of violence" for purposes of the Career
Offender Enhancement. As explained below, we affirm.
1
The Career Offender Enhancement defines a "career offender," and
provides that a defendant is such an offender if
(1) [he] was at least eighteen years old at the time [he] committed
the instant offense of conviction; (2) the instant offense of con-
viction is a felony that is either a crime of violence or a con-
trolled substance offense; and (3) [he] has at least two prior
felony convictions of either a crime of violence or a controlled
substance offense.
USSG § 4B1.1(a) (2008). For purposes of the Career Offender Enhance-
ment, a "prior felony conviction" includes "a prior . . . state conviction for
an offense punishable by . . . imprisonment for a term exceeding one year,
regardless of whether such offense is specifically designated as a felony."
Id. § 4B1.2 cmt. n.1.
UNITED STATES v. JENKINS 3
I.
On January 30, 2009, Jenkins was convicted in the district
court for distribution of crack cocaine and being a felon in
possession of a firearm. On April 2, 2009, the probation offi-
cer filed the presentence report (the "PSR") with the court,
recommending that Jenkins be deemed a career offender
under the Career Offender Enhancement of the Guidelines.
One of the two felony convictions underlying the PSR’s
career offender recommendation was Jenkins’s 1998 convic-
tion of the Maryland common law offense of resisting arrest
(the "Resisting Arrest Offense").2 According to the PSR, the
applicable advisory Guidelines range was 188 to 235 months
of imprisonment.
On April 20, 2009, Jenkins submitted a sentencing memo-
randum to the district court and objected to the Resisting
Arrest Offense being used to designate him as a career
offender. On April 22, 2009, the court conducted a sentencing
hearing in which it rejected Jenkins’s contention, relying on
our unpublished decision in United States v. Mullen, 311 F.
App’x 621, 623-24 (4th Cir. 2009) (concluding that Resisting
Arrest Offense was "crime of violence" for purposes of
2
In Purnell v. State, the Court of Appeals of Maryland specified the ele-
ments of the Resisting Arrest Offense as follows: "(1) the defendant was
arrested; (2) the arrest was lawful; and (3) the defendant resisted or
refused to submit to that arrest." 827 A.2d 68, 78 (Md. 2003) (citing Barn-
hard v. State, 602 A.2d 701, 705 (Md. 1992)). At the time of Jenkins’s
1998 conviction, the Resisting Arrest Offense was a common law crime
punishable by imprisonment for a term exceeding one year; therefore, Jen-
kins’s conviction constitutes a prior felony conviction for purposes of the
Career Offender Enhancement. See State v. Huebner, 505 A.2d 1331,
1335 (Md. 1986) (citing Preston v. Warden of Md. House of Corr., 169
A.2d 407, 408 (Md. 1961)). In 2004, resisting arrest was codified in Mary-
land as a statutory misdemeanor offense punishable by up to three years
of imprisonment. See Md. Code Ann., Crim. Law § 9-408. Although not
directly pertinent here, a conviction for the Maryland statutory offense
appears to qualify as a prior felony conviction under the Career Offender
Enhancement.
4 UNITED STATES v. JENKINS
Career Offender Enhancement). In so ruling, the court
explained: "Unless I missed something about [Mullen], it
establishes at least within the boundaries of the Fourth Circuit
that the crime of resisting arrest is a crime of violence for
guideline purposes." J.A. 44.3 The court then adopted the PSR
and sentenced Jenkins to 188 months in prison.4
Jenkins has filed a timely notice of appeal, and we possess
jurisdiction pursuant to 18 U.S.C. § 3742(a) and 28 U.S.C.
§ 1291.
II.
Jenkins’s sole appellate contention is that the Resisting
Arrest Offense is not a "crime of violence" for purposes of the
Career Offender Enhancement of the Guidelines. This conten-
tion presents a legal issue that we review de novo. See United
States v. Allen, 446 F.3d 522, 527 (4th Cir. 2006).
A.
Our resolution of this appeal turns on whether our decision
in United States v. Wardrick, 350 F.3d 446 (4th Cir. 2003),
has been undercut by the Supreme Court’s subsequent deci-
sions in Begay v. United States, 553 U.S. 137 (2008), and
Chambers v. United States, 129 S. Ct. 687 (2009). Before
assessing Jenkins’s contention that the Resisting Arrest
Offense is not a crime of violence, we briefly review the prin-
ciples and requirements of the Guidelines with respect to
crimes of violence and career offender status.
3
Citations herein to "J.A. __" refer to the contents of the Joint Appendix
filed by the parties in this appeal.
4
If the Resisting Arrest Offense had not been deemed a "crime of vio-
lence" for purposes of the Career Offender Enhancement, Jenkins would
have received a base offense level of 27, instead of the level of 31 that was
applied. A base offense level of 27 and Jenkins’s criminal history category
of VI would have resulted in an advisory Guidelines range of 130 to 162
months, rather than the range of 188 to 235 months that was utilized.
UNITED STATES v. JENKINS 5
1.
For purposes of the Career Offender Enhancement, the
Guidelines define a "crime of violence," in pertinent part, as
any offense under federal or state law, punishable by
imprisonment for a term exceeding one year, that —
....
(2) is burglary of a dwelling, arson, or
extortion, involves use of explosives,
or otherwise involves conduct that
presents a serious potential risk of
physical injury to another.
USSG § 4B1.2(a)(2) (2008). Because "resisting arrest" is not
one of the offenses specifically enumerated in section
4B1.2(a)(2) of the Guidelines, the Resisting Arrest Offense
can be a "crime of violence" only if it falls within the "other-
wise involves" clause of that subsection.5 In our Wardrick
decision in 2003, we explained that the Resisting Arrest
Offense "poses a threat of direct confrontation between a
police officer and the subject of the arrest, creating the poten-
tial for serious physical injury to the officer and others." 350
F.3d at 455. In this appeal, Jenkins acknowledges the unam-
biguous nature of the Wardrick decision, but contends that it
has been undercut by the Supreme Court’s subsequent deci-
sions in Begay and Chambers.
Each of those three decisions — Wardrick, Begay, and
Chambers — assessed whether a particular offense qualified
as a "violent felony" under the Armed Career Criminal Act
(the "ACCA"), and none of them directly addressed the defi-
nition of a "crime of violence" for purposes of the Career
5
The "otherwise involves" clause of section 4B1.2(a)(2) has been
referred to as the "residual" clause or the "otherwise" clause.
6 UNITED STATES v. JENKINS
Offender Enhancement of the Guidelines.6 Nonetheless, we
are guided by the "nearly identical" and "materially indistin-
guishable" language in the respective provisions. United
States v. Rivers, 595 F.3d 558, 560 n.1 (4th Cir. 2010).
Indeed, we recently recognized that "precedents evaluating
the ACCA apply with equal force to [Guidelines section]
4B1.2." Jarmon, 596 F.3d at 231 n.*. And, in assessing the
"substantially similar" language that defines a violent felony
under the ACCA and a crime of violence under the Guide-
lines, our good friend Judge Niemeyer has specified that
"Begay’s analysis is applicable to [section] 4B1.2(a)(2)." See
United States v. Seay, 553 F.3d 732, 739 (4th Cir. 2009).
2.
In Begay, the Supreme Court ruled in 2008 that New Mexi-
co’s offense of driving under the influence of alcohol ("DUI")
was not a violent felony under the ACCA. See 553 U.S. at
141-42. The Court explained that the "otherwise involves"
provision of the ACCA encompasses only those offenses "that
are roughly similar, in kind as well as in degree of risk
posed," to those offenses enumerated therein. Id. at 143. The
Court elaborated that — in addition to a comparable degree
of risk — the conduct underlying the offense in question must
also be comparable to the conduct required by the ACCA enu-
merated offenses, all of which "typically involve purposeful,
violent, and aggressive conduct." Id. at 144-45 (internal quo-
tation marks omitted). "[B]y way of contrast," offenses that
6
Under the ACCA, the term "violent felony" is defined, in pertinent
part, as
any crime punishable by imprisonment for a term exceeding one
year . . . that . . . (ii) is burglary, arson, or extortion, involves the
use of explosives, or otherwise involves conduct that presents a
serious potential risk of physical injury to another.
18 U.S.C. § 924(e)(2)(B)(ii). The "otherwise involves" portion of the
ACCA definition of a violent felony, like its counterpart in the Guidelines,
is sometimes referred to as the "residual" or "otherwise" clause.
UNITED STATES v. JENKINS 7
"typically do not insist on purposeful, violent, and aggressive
conduct" are not roughly similar in kind to the ACCA enu-
merated offenses. Id. at 145. And, more specifically, the Court
pointed out that "crimes involving intentional or purposeful
conduct are different than a DUI." Id. at 146 (emphasis
added). As a result, the Begay Court concluded that New
Mexico’s DUI offense was "simply too unlike the [enumer-
ated] examples" to constitute a violent felony. Id. at 142.
In Chambers, the Supreme Court further refined its analysis
of the ACCA "otherwise involves" provision, assessing
whether the Illinois offense of knowingly failing to report to
a penal institution was a violent felony under the ACCA. See
129 S. Ct. at 690-91. The Court’s 2009 ruling that the Illinois
failure to report offense is not a violent felony was predicated
on three factors. First, the Court explained that the offense of
failing to report "would seem less likely to involve a risk of
physical harm than the less passive, more aggressive behavior
underlying an escape from custody," an offense contained in
the same statutory subsection of the Illinois statute. Id. at 691.
Second, the Court observed that the Illinois offense of failing
to report does not involve "a serious potential risk of physical
injury" to another person because a failure to report is more
of an offense of "inaction." Id. at 692. As the Court further
explained, it is unlikely that a person who unlawfully fails to
report would also call attention to himself by engaging in vio-
lent or unlawful conduct. Id. Third, in rejecting the prosecu-
tor’s contention that a failure to report demonstrates an
especially strong aversion to being in custody, the Court rec-
ognized that the proper "question is whether such an offender
is significantly more likely than others to attack, or physically
to resist, an apprehender, thereby producing a serious poten-
tial risk of physical injury." Id. (internal quotation marks
omitted). The proper answer to that question, according to the
Court, was no. These observations reemphasized Begay’s ear-
lier recognition that a court making a "violent felony" assess-
ment (or, as here, a "crime of violence" assessment) should
focus on whether the specific offense indicates that the
8 UNITED STATES v. JENKINS
offender is more likely to engage in such violence intention-
ally or purposefully.
Pursuant to these decisions, we must decide whether the
Resisting Arrest Offense — the Maryland common law
offense of resisting arrest — "involve[s] purposeful, violent,
and aggressive conduct." Begay, 553 U.S. at 144-45. In mak-
ing this assessment, we utilize the familiar "categorical
approach," looking only to the elements of the offense. Seay,
553 F.3d at 737. Thus, "we consider the [Resisting Arrest
Offense] generically, that is to say, we examine it in terms of
how the law defines [it] and not in terms of how an individual
offender might have committed it on a particular occasion."
Begay, 553 U.S. at 141.
3.
In our Wardrick decision, rendered prior to Begay and
Chambers, we concluded that the Resisting Arrest Offense
constitutes a "violent felony" under the ACCA. See 350 F.3d
at 455. Wardrick had been convicted of two firearms offenses
and was thereafter sentenced to 300 months in prison. On
appeal, he contended that the district court had erroneously
deemed him to be an armed career criminal under the ACCA.
Id. at 448. One of the prior convictions that Wardrick chal-
lenged was for the Resisting Arrest Offense. Id. at 451. We
concluded that "the district court accurately characterized
Wardrick’s 1988 conviction for resisting arrest as a violent
felony," emphasizing that "[t]he act of resisting arrest poses
a threat of direct confrontation between a police officer and
the subject of the arrest, creating the potential for serious
physical injury to the officer and others." Id. at 455.
In ruling against Jenkins at the sentencing hearing in this
case, the district court relied primarily on our unpublished
decision in Mullen, rendered after Begay and Chambers, for
the proposition that Wardrick yet controls the question of
whether the Resisting Arrest Offense is a "crime of violence"
UNITED STATES v. JENKINS 9
for purposes of the Career Offender Enhancement. See United
States v. Mullen, 311 F. App’x 621, 623-24 (4th Cir. 2009).
The Mullen defendant, who had been convicted of bank rob-
bery and sentenced as a career offender, contended on appeal
that his prior 2001 conviction for resisting arrest in Maryland
was not a "crime of violence." Id. Mullen acknowledged that
we had ruled to the contrary in Wardrick, but contended that
Wardrick was no longer good law in light of Begay. Id. Our
Mullen panel disagreed with that contention, however,
explaining that "[o]ur review leads us to conclude that the
offense of driving while intoxicated, considered by the court
in Begay, is sufficiently different from the offense of resisting
arrest that Begay does not overrule Wardrick." Id. at 624. In
this appeal, Jenkins maintains that Mullen was erroneously
decided, that Wardrick is no longer good law, and that the dis-
trict court erred in ruling against him on his status as a career
offender.
B.
In our Wardrick decision, we did not equivocate: "The act
of resisting arrest poses a threat of direct confrontation
between a police officer and the subject of the arrest, creating
the potential for serious physical injury to the officer and oth-
ers." 350 F.3d at 455. Our reasoning in Wardrick recognized
that — unlike the offenders in Begay (New Mexico DUI) and
Chambers (Illinois failure to report) — an offender convicted
of resisting arrest "is significantly more likely than others to
attack, or physically to resist, an apprehender, thereby produc-
ing a serious potential risk of physical injury." Chambers, 129
S. Ct. at 692 (internal quotation marks omitted). Thus, under
Begay and Chambers, the Resisting Arrest Offense is not a
"crime of violence" for purposes of the Career Offender
Enhancement only if it can be committed either negligently or
recklessly — as opposed to intentionally or purposefully.
The third element of the Resisting Arrest Offense — which
requires that "the defendant resist[ ] or refuse[ ] to submit to
10 UNITED STATES v. JENKINS
[a lawful] arrest," Purnell v. State, 827 A.2d 68, 78 (Md.
2003) — confirms our conclusion that a person must either
intentionally or purposefully commit the Resisting Arrest
Offense. In Purnell, the Court of Appeals of Maryland char-
acterized the third element of the Resisting Arrest Offense as
involving the "‘intent to resist . . . lawful apprehension.’" 827
A.2d at 74 (emphasis added) (quoting Busch v. State, 426
A.2d 954, 956 (Md. 1981)); see also Cooper v. State, 737
A.2d 613, 617 (Md. Ct. Spec. App. 1999) (recognizing that
Resisting Arrest Offense "requires proof that [defendant]
intentionally" resisted (emphasis added)). Therefore, because
the Resisting Arrest Offense cannot be committed negligently
or recklessly, but must be committed intentionally, it qualifies
as a "crime of violence" for purposes of the Career Offender
Enhancement. In these circumstances, Jenkins’s claim of sen-
tencing error must be rejected.
III.
Pursuant to the foregoing, the judgment of the district court
is affirmed.
AFFIRMED