                         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”).




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