January 14, 2014 4th Circuit published opinion

 

United States v Aparicio-Soria

Aparcio-Soria received an enhanced guideline sentence based on a Maryland resisting arrest conviction. His sentence was affirmed 2-1. Rehearing en banc was granted and the en banc court, 13-2, vacated and remanded. The majority held that under the categorical approach, Maryland’s resisting arrest statute is not a “violent crime” as the force required to commit the crime includes minimal offensive touching. Thus, the enhancement was improperly applied. The dissent argued that in the normal resisting arrest scenario in Maryland, actual violence is used. It therefore argued that even under the categorical approach, resisting arrest is a violent crime and the sentence should be affirmed. It lamented that the majority decision removed criminal sentencing even further from reality, failed to follow analogous Supreme Court authority, failed to protect police officers who make arrests, creates a circuit split and undermines individualized sentencing.

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