United States v. John Proctor ( 2022 )

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 19-7071
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
JOHN RICHARD PROCTOR,
Defendant - Appellant.
Appeal from the United States District Court for the District of Maryland, at Greenbelt.
Deborah K. Chasanow, Senior District Judge. (8:04−cr−00160−DKC−1)
Argued: January 27, 2022 Decided: March 16, 2022
Before GREGORY, Chief Judge, and MOTZ and WYNN, Circuit Judges.
Reversed and remanded by published opinion. Judge Wynn wrote the opinion, in which
Chief Judge Gregory and Judge Motz joined.
ARGUED: Jason Edward Neal, HARRIS, WILTSHIRE & GRANNIS LLP, Washington,
D.C., for Appellant. Jonathan Scott Tsuei, OFFICE OF THE UNITED STATES
ATTORNEY, Greenbelt, Maryland, for Appellee. ON BRIEF: James Wyda, Federal
Public Defender, Baltimore, Maryland, Paresh Patel, Assistant Federal Public Defender,
OFFICE OF THE FEDERAL PUBLIC DEFENDER, Greenbelt, Maryland; Christopher J.
Wright, HARRIS, WILTSHIRE & GRANNIS LLP, Washington, D.C., for Appellant.
Erek L. Barron, United States Attorney, Baltimore, Maryland, David I. Salem, Assistant
United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Greenbelt,
Maryland, for Appellee.
WYNN, Circuit Judge:
John Proctor was sentenced as an armed career criminal under the Armed Career
Criminal Act, 18 U.S.C. § 924(e). After the Supreme Court struck down a provision of that
Act as unconstitutional, Proctor filed a 28 U.S.C. § 2255 motion to correct his sentence.
The district court denied his motion, however, because it found that Proctor still qualified
as an armed career criminal under the statute’s “force” clause. Proctor appealed, arguing
that this clause is inapplicable because one of his predicate convictions—Maryland assault
with intent to prevent lawful apprehension or detainer—is not a categorically “violent
felony” for Armed Career Criminal Act purposes. We agree, and therefore reverse the
district court’s decision and remand with instructions to correct Proctor’s sentence.
I.
On December 8, 2004, a grand jury issued a four-count Superseding Indictment
charging Proctor with various drug and firearms offenses. In exchange for dismissing two
of these charges, Proctor pleaded guilty to one count of possession with intent to distribute
cocaine base in violation of 21 U.S.C. § 841(a)(1) (“Count 2”), and one count of unlawful
possession of a firearm as a previously convicted felon in violation of 18 U.S.C. § 922(g)
(“Count 4”).
In general, a violation of § 922(g) subjects a defendant to a maximum sentence of
ten years’ imprisonment. See 18 U.S.C. § 924(a)(2). However, the Armed Career Criminal
Act provides that a person who violates § 922(g) and who “has three previous
convictions . . . for a violent felony or a serious drug offense, or both, . . . shall
be . . . imprisoned not less than fifteen years.” Id. § 924(e)(1) (emphasis added).
2
At sentencing, the district court found that Proctor was subject to the fifteen-year
mandatory minimum sentence as an armed career criminal based on two serious drug
offenses and one violent felony. The “violent felony” in question was a 1986 conviction
for assault with intent to prevent lawful apprehension, in violation of the since-repealed
Md. Code Ann. art. 27, § 386 (repealed 1996) [hereinafter “§ 386”]. Ultimately, the district
court sentenced Proctor to concurrent sentences of 324 months’ imprisonment on Counts
2 and 4.
Proctor has made several attempts to reduce his sentence, with some success: in
2011, the district court reduced Proctor’s concurrent sentences to 292 months due to
retroactive changes to the Sentencing Guidelines; and in 2020, the court further reduced
his concurrent sentences to 240 months each pursuant to § 404 of the First Step Act.
However, Proctor’s initial attempt to vacate his sentence did not fare as well. In 2007, he
filed a 28 U.S.C. § 2255 motion that raised claims of ineffective assistance of counsel, but
the district court denied his motion and we declined to issue a certificate of appealability.
See United States v. Proctor, 329 F. App’x 502, 503 (4th Cir. 2009) (per curiam).
But in 2016, this Court granted Proctor authorization to file a second or successive
motion under § 2255 after concluding he had made a “prima facie showing” that the new
rule of constitutional law announced in Johnson v. United States (Johnson II), 576 U.S.
591 (2015), 1 and held to apply retroactively to cases on collateral review by Welch v.
We refer to this case as Johnson II because it followed an earlier decision by the
1
same name that interpreted the meaning of the force clause. See Johnson v. United States
(Johnson I), 559 U.S. 133, 140 (2010).
3
United States, 578 U.S. 120, 130 (2016), “may apply to his case,” specifically his enhanced
§ 922(g) sentence. 2 J.A. 30. 3
Before Johnson II, the Armed Career Criminal Act defined a “violent felony” as
“any crime punishable by imprisonment for a term exceeding one year” that (1) “has as an
element the use, attempted use, or threatened use of physical force against the person of
2
Johnson II does not directly impact Proctor’s concurrent drug sentence for
Count 2. But in his instant § 2255 motion, Proctor argues that he should be resentenced on
both counts under the sentencing-package doctrine. In its response below, the Government
invoked the concurrent-sentence doctrine, arguing that the court need not decide the merits
of Proctor’s challenge to his sentence for Count 4 because his concurrent drug sentence
remains valid. The district court chose not to exercise its discretion under the concurrent-
sentence doctrine; instead, it reached the merits and found the Armed Career Criminal Act
still applied to Proctor’s sentence for the gun conviction, Count 4. Proctor v. United States,
No. RWT-16-1671, 2019 WL 141370, at *4 n.2 (D. Md. Jan. 9, 2019). Because the court
denied relief on the merits, it also found it unnecessary to examine whether the sentencing-
package doctrine applied. Id.On remand, the district court should consider in the first instance whether the
sentencing-package doctrine does apply. We express no opinion on what action the district
court should take regarding Proctor’s drug sentence, but observe that § 2255 “confers a
‘broad and flexible’ power to the district courts ‘to fashion an appropriate remedy,’”
including the power to resentence Proctor on Count 2 if the court finds it appropriate. See
United States v. Smith, 115 F.3d 241, 245 (4th Cir. 1997) (quoting United States v. Hillary,
106 F.3d 1170, 1171 (4th Cir. 1997)) (holding that since the term “sentence” in § 2255
“must be viewed in the aggregate,” a district court has jurisdiction to conduct a
resentencing on all surviving counts in a multi-count indictment when only one of the
counts had been successfully challenged in a collateral proceeding); United States v. Said,
__ F.4th __, 2022 WL 535197, at *10 & n.19 (4th Cir. Feb. 23, 2022) (reversing the district
court’s grant of § 2255 relief on two counts while affirming it on one, and noting that on
remand, the district court could consider in the first instance whether to resentence the
petitioner “on any other count under the sentencing-package doctrine”); see also United
States v. Chaney, 911 F.3d 222, 226 (4th Cir. 2018) (“[W]e have recognized[ that the
sentencing-package theory] provides that in appropriate circumstances resentencing on all
counts is a proper remedy under § 2255 for a single unlawful conviction.”).
3
Citations to the “J.A.” refer to the Joint Appendix filed by the parties in this appeal.
4
another” (the force clause); (2) “is burglary, arson, or extortion, [or] involves use of
explosives” (the enumerated clause); or (3) “otherwise involves conduct that presents a
serious potential risk of physical injury to another” (the residual clause). 18 U.S.C.
§ 924(e)(2)(B) (2012).
But Johnson II held that the Act’s residual clause is “unconstitutionally vague”
because it leaves “grave uncertainty about how to estimate the risk posed by a crime” and
“how much risk it takes for a crime to qualify as a violent felony.” 576 U.S. at 597–98.
Thus, because Johnson II abrogated the Act’s residual clause, § 386 can only qualify as a
predicate if it falls under either the enumerated clause or the force clause. Because there is
no question that assault with intent to prevent lawful apprehension is not burglary, arson,
extortion, or a use-of-explosives offense, Proctor’s § 386 conviction must satisfy the Act’s
force clause to remain a valid predicate. And since the U.S. Probation Office only identified
three qualifying prior convictions in Proctor’s Presentence Report, Proctor’s § 386
conviction must qualify as a predicate for his armed-career-criminal designation to stand.
In his present § 2255 motion, Proctor argues that he no longer qualifies for such a
designation because assault with intent to prevent lawful apprehension under § 386 does
not satisfy the force clause and therefore cannot serve as one of his three predicate
convictions for application of the Armed Career Criminal Act. Specifically, Proctor
contends that since assault with intent to prevent lawful apprehension can be accomplished
with “no more than de minimis touching of someone in order to prevent arrest,” Pet’r’s
Mot. to Correct Sentence at 8, United States v. Proctor, No. RWT-16-1671, 2019 WL
141370 (D. Md. Jan. 9, 2019), it cannot be classified as a “violent felony” under the
5
categorical test for the force clause described in Descamps v. United States, 570 U.S. 254,
261 (2013).
The district court rejected this argument, finding that assault with intent to prevent
lawful apprehension is indeed a “violent felony” under the Armed Career Criminal Act’s
“force” clause. Proctor, 2019 WL 141370, at *3. As support, the court looked to Maryland
case law and found that acts supporting a conviction under § 386 had consistently involved
the exercise of more than de minimis force, such as “striking a store employee with a
vehicle, firing shots at officers, striking an officer with a vehicle, and striking a homeowner
with a bar from a weightlifting set.” Id. In addition, the district court noted that several
state courts had found that assault with intent to prevent lawful apprehension was a “crime
of violence” that could support a further state-law conviction for “use of a handgun in the
commission of a crime of violence.” Id. at *4 (quoting Sangster v. State, 521 A.2d 811,
821 (Md. Ct. Spec. App. 1987), aff’d, 541 A.2d 637 (Md. 1988)). The court also declined
to issue a certificate of appealability. Id.Proctor next filed a motion to alter the court’s judgment pursuant to Fed. R. Civ. P.
59(e). In his motion, he contended that our en banc decision in United States v. Aparicio-
Soria, 740 F.3d 152 (4th Cir. 2014) (en banc), had held that an equivalent offense—the
Maryland crime of resisting arrest—categorically failed to qualify as a violent felony. He
also pointed out that our recent decision in United States v. Jones, 914 F.3d 893 (4th Cir.
2019), had concluded that a similar South Carolina offense, assaulting an officer while
resisting arrest, was not a “violent felony” because it could be accomplished by de minimis
conduct such as offensive touching. Proctor’s case was reassigned to a different district
6
court judge, who rejected his arguments after applying Rule 59(e)’s stringent standard of
review. Specifically, the court found that since no Maryland cases had sustained the
application of § 386 to such de minimis conduct, there was no “realistic probability that
Maryland would apply the offense to conduct that does not involve the use, attempted use,
or threatened use of violent physical force against another.” J.A. 45.
Proctor timely appealed and requested a certificate of appealability. We granted a
certificate of appealability “on the issue of whether Maryland’s now-repealed crime of
assault with intent to prevent lawful apprehension [under § 386] . . . qualifies as a
categorical violent felony for purposes of [the Armed Career Criminal Act].” J.A. 47.
II.
“We review de novo a district court’s legal conclusions concerning a denial of
§ 2255 relief.” Jones, 914 F.3d at 899. This “encompasses the question of whether a prior
conviction qualifies as a ‘violent felony’ under the [Armed Career Criminal Act].” Id.
We begin this inquiry by describing our well-settled test for assessing whether a
state offense qualifies as a violent felony under the Armed Career Criminal Act’s force
clause. Then, we apply this test to the now-repealed Maryland statute at issue.
A.
The Armed Career Criminal Act’s force clause defines a “violent felony” as “any
crime punishable by imprisonment for a term exceeding one year” that “has as an element
the use, attempted use, or threatened use of physical force against the person of another.”
18 U.S.C. § 924(e)(2)(B)(i) (emphasis added). Though Congress did not further define
“physical force,” the Supreme Court has held that “[e]ven by itself, the word ‘violent’ in
7
§ 924(e)(2)(B) connotes a substantial degree of force.” Johnson v. United States (Johnson
I), 559 U.S. 133, 140 (2010).
Thus, “in the context of a statutory definition of ‘violent felony,’ the phrase
‘physical force’ means violent force.” Id. Violent force is “force capable of causing
physical pain or injury to another person.” Id. For that reason, de minimis physical force,
“such as mere offensive touching, is insufficient to trigger the [Armed Career Criminal
Act]’s force clause because it is not violent.” United States v. Middleton, 883 F.3d 485,
489 (4th Cir. 2018); see also United States v. Allred, 942 F.3d 641, 652 (4th Cir. 2019) (“A
mere ‘offensive touching,’ of the sort sufficient to sustain a prosecution for battery at
common law, does not amount to ‘violent force’ under the force clause.” (quoting Johnson
I, 559 U.S. at 140)).
“To determine whether a state crime qualifies as a violent felony under the [Act]’s
force clause, we apply the categorical approach[.]” 4 United States v. Burns-Johnson, 864
4
Sometimes, however, we start by applying the so-called modified categorical
approach. If a statute is “divisible”—meaning it lists “potential offense elements in the
alternative”—the “modified categorical approach allows us to look to certain documents
like the indictment and jury instructions . . . solely to determine ‘which of the statute’s
alternative elements formed the basis’ of the defendant’s conviction.” United States v.
Simmons, 11 F.4th 239, 254 (4th Cir. 2021) (emphasis added) (citations omitted). Once we
do so, “we apply the categorical approach analysis to that offense to determine whether it
is a crime of violence.” Id.We need not assess whether the modified categorical approach would apply in this
case because the result would be the same. If § 386 is divisible, the modified categorical
approach would require us to focus on the statute’s assault-with-intent-to-prevent-lawful-
apprehension prong, because the parties agree (and the Presentence Report indicates) that
Proctor was convicted under this prong. Conversely, if § 386 is indivisible, then a strictly
categorical approach would require us to look at the least culpable conduct encompassed
by the statute, which also would be the assault-with-intent-to-prevent-lawful-apprehension
8
F.3d 313, 316 (4th Cir. 2017). Under this approach, we “examine only the elements of the
state offense and the fact of conviction, not the defendant’s conduct.” United States v.
Doctor, 842 F.3d 306, 308 (4th Cir. 2016); Descamps, 570 U.S. at 261 (“Sentencing courts
may ‘look only to the statutory definitions’—i.e., the elements—of a defendant’s prior
offenses, and not ‘to the particular facts underlying those convictions.’” (quoting Taylor v.
United States, 495 U.S. 575, 600 (1990))).
Once the elements of the offense are identified, we rely on state-court decisions to
“determine the minimum conduct needed to commit [the] offense.” Doctor, 842 F.3d at 309
(emphasis added). In other words, we look for the “‘most innocent conduct’ that the law
criminalizes.” Middleton, 883 F.3d at 488–89. If there is a “‘realistic probability, not [just]
a theoretical possibility,’ that a state would actually punish that conduct,” we then compare
that minimum conduct with “the definition of violent felony in the force clause.” Doctor,
842 F.3d at 308–09 (quoting United States v. Gardner, 823 F.3d 793, 803 (4th Cir. 2016)).
Importantly, while state law determines the minimum conduct needed to commit a
state offense and whether a “realistic probability” of prosecuting that conduct exists, the
separate issue of whether said conduct satisfies the Armed Career Criminal Act’s force
clause “is a question of federal law, not state law.” Johnson I, 559 U.S. at 138. And if that
minimum conduct “does not involve the use, attempted use, or threatened use of violent
physical force against another, then the offense is not categorically a ‘violent felony’ under
the [Act]’s force clause, and it is thus not an [Armed Career Criminal Act] predicate under
prong. Either way, we must “apply the categorical approach analysis to [assault with intent
to prevent lawful apprehension] to determine whether it is a crime of violence.” Id.9
that clause.” Jones, 914 F.3d at 901; see also Middleton, 883 F.3d at 488 (“If the offense
‘sweeps more broadly’ than the [Act]’s definition of a violent felony, the offense does not
qualify as an [Armed Career Criminal Act] predicate.” (quoting Descamps, 570 U.S. at
261)).
B.
With this framework in mind, we now turn to the Maryland statute at issue. At the
time of Proctor’s conviction, 5 § 386 provided, in relevant part: 6 “If any person . . . shall
assault . . . any person . . . with intent to prevent the lawful apprehension or detainer of any
party for any offense for which the said party may be legally apprehended or detained,
every such offender . . . shall be guilty of a felony.” Md. Code Ann. art. 27, § 386 (1982
Repl.) (repealed 1996).
Our analysis in this case proceeds in three steps. First, “we look for the least culpable
conduct” encompassed by § 386’s assault element under state law. Middleton, 883 F.3d at
489. Second, we ask whether § 386’s added mens rea element—that the assault be
committed with intent to prevent lawful apprehension—circumscribes the reach of the
When analyzing whether a state conviction can serve as an Armed Career Criminal
5
Act predicate, we look to the state law at the time of the conviction. See McNeill v. United
States, 563 U.S. 816, 820 (2011) (holding that a sentencing court applying the Armed
Career Criminal Act must conduct a “backward-looking” inquiry into prior convictions,
meaning the court must “consult the law that applied at the time of th[ose] conviction[s]”).
Thus, it makes no difference that § 386 was later repealed.
Section 386 includes other language that may encompass violent felonies for
6
Armed Career Criminal Act purposes, assuming the statute is divisible. See supra note 4
(discussing the question of divisibility); infra note 9 (quoting the full text of the statute).
Our analysis of § 386 here, however, only applies to the pertinent assault-with-intent-to-
prevent-lawful-apprehension language.
10
statute such that it only punishes physically violent conduct. Third, and finally, we assess
whether there is a “realistic probability” that Maryland would have punished the minimally
culpable conduct that can satisfy both the assault and intent elements.
1.
We begin with the minimum conduct necessary to satisfy § 386’s assault element.
Because the statute did not define “assault,” state courts 7 looked to the common law to
interpret this element. See Hall v. State, 516 A.2d 204, 207 (Md. Ct. Spec. App. 1986)
(applying the common-law elements of assault to the crime of assault with intent to prevent
lawful apprehension under § 386); Claggett v. State, 670 A.2d 1002, 1010 (Md. Ct. Spec.
App. 1996) (holding the Maryland Legislature “clearly embraced” the common-law
definitions of assault and battery in § 386); Barrios v. State, 702 A.2d 961, 970 (Md. Ct.
Spec. App. 1997) (applying the common-law definition of assault to § 386). At common
law, the crime of “assault” could “connote any of three distinct ideas”: (1) a battery; (2) an
“attempted battery”; or (3) the “placing of a victim in reasonable apprehension of an
imminent battery.” Lamb v. State, 613 A.2d 402, 404 (Md. Ct. Spec. App. 1992).
A battery, in turn, is “any unlawful force used against the person of another, no
matter how slight.” Kellum v. State, 162 A.2d 473, 476 (Md. 1960) (emphasis added). For
example, a “person may commit battery by kissing another without consent, touching or
7
When no decisions of the state’s highest court have directly addressed a matter,
“decisions of the state’s intermediate appellate court ‘constitute the next best indicia of
what state law is.’” United States v. Simmons, 917 F.3d 312, 320 (4th Cir. 2019) (quoting
Gardner, 823 F.3d at 803). In Maryland, the intermediate appellate court is the Court of
Special Appeals. The highest court is the Court of Appeals.
11
tapping another, jostling another out of the way, throwing water upon another, rudely
seizing a person’s clothes, cutting off a person’s hair, throwing food at another, or
participating in an unlawful fight.” State v. Duckett, 510 A.2d 253, 257 (Md. 1986)
(cleaned up); see also Epps v. State, 634 A.2d 20, 23 (Md. 1993) (“Projecting a relatively
small amount of water onto the person of another at waist level or below, and with no great
force, . . . qualif[ies] as criminal [battery] if intentionally done[.]”). Battery in Maryland
may thus be committed with de minimis physical contact.
Unsurprisingly, because in Maryland assault by definition involves battery,
attempted battery, or creating the reasonable apprehension of imminent battery, Maryland
courts have likewise held that assaults may involve innocuous conduct. See Dixon v. State,
488 A.2d 962, 967 (Md. 1985) (holding that attempted-battery or reasonable-apprehension
assaults may be satisfied by “any attempt to apply the least force to the person of another”
(emphasis added) (quoting Lyles v. State, 269 A.2d 178, 179 (Md. Ct. Spec. App. 1970)));
Nicolas v. State, 44 A.3d 396, 406–07 (Md. 2012) (“Under Maryland common law, an
assault of the battery variety is committed by causing offensive physical contact with
another person.” (emphasis added)).
For that reason, we have repeatedly held that simple assault 8 in Maryland is not a
“violent felony” for Armed Career Criminal Act purposes. See United States v. Royal, 731
8
In 1996, Maryland “abrogat[ed] the common law offenses of assault and battery”
and replaced them with statutory first- and second-degree assault. Snyder v. State, 63 A.3d
128, 135 (Md. Ct. Spec. App. 2013). However, Maryland “specifically provid[ed] that the
crimes retain their judicially determined meanings.” Id.; see Md. Code Ann., Crim. Law
§ 3-201(b) (“‘Assault’ means the crimes of assault, battery, and assault and battery, which
retain their judicially determined meanings.”). Thus, “the substantive law of ‘simple’
12
F.3d 333, 342 (4th Cir. 2013) (“[B]ecause . . . Maryland’s second-degree assault statute
reaches any unlawful touching, whether violent or nonviolent and no matter how
slight, . . . [a] second-degree assault conviction does not constitute a predicate ‘violent
felony’ supporting a sentencing enhancement under [the Armed Career Criminal Act].”);
see also Karimi v. Holder, 715 F.3d 561, 568 (4th Cir. 2013) (“[A]s we have repeatedly
observed, Maryland’s second-degree assault statute reaches violent and nonviolent
touching alike[,] . . . [so] convictions under the statute . . . cannot categorically be crimes
of violence.”). And again, Maryland courts have directed us to the elements of common-
law assault to understand the meaning of “assault” in § 386. E.g., Hall, 516 A.2d at 207. It
necessarily follows that the common-law assault element in § 386, standing alone, is not a
violent felony.
The Government resists this straightforward application of our precedent, arguing
that the legislature did not intend to incorporate the common-law meaning of assault into
§ 386. As support, it notes that under the noscitur a sociis canon of construction, “a word
is known by the company it keeps.” Response Br. at 21 (quoting McDonnell v. United
States, 136 S. Ct. 2355, 2368 (2016)). And here, the word “assault” in § 386 keeps company
criminal assault remains, more or less, the same as it was before the 1996 revisions,” and
statutory second-degree assault—the most innocent form of assault—still “encompasses
three types of common law assault and battery: (1) the ‘intent to frighten’ assault, (2)
attempted battery[,] and (3) battery.” Snyder, 63 A.3d at 134–35; see also Nicolas, 44 A.3d
at 406 (“As indicated by the statutory language, the offense of second[-]degree assault
retains its common law meaning.”). Therefore, cases interpreting Maryland’s second-
degree assault statute are directly applicable to the common-law assault element in § 386.
13
with some “aggravated and violent” conduct. 9 Id. at 22. Specifically, the statute also
punishes individuals who “unlawfully shoot at any person,” “maliciously stab, cut or
wound any person,” or “beat any person.” Md. Code Ann. art. 27, § 386. However, the
Government fails to identify any state cases suggesting that these other terms implicitly
give “assault” an “‘elevated’ meaning.” Jones, 914 F.3d at 904 (criticizing the Government
for the same failure in a case involving a South Carolina statute). And if the Maryland
“legislature intended for an ‘assault’ to carry a unique meaning within the context of
[§ 386], it knew how to specify that meaning.” 10 Id.
9
The full statutory section in effect when Proctor was convicted reads as follows:
If any person shall unlawfully shoot at any person, or shall in any manner
unlawfully and maliciously attempt to discharge any kind of loaded arms at
any person, or shall unlawfully and maliciously stab, cut or wound any
person, or shall assault or beat any person, with intent to maim, disfigure or
disable such person, or with intent to prevent the lawful apprehension or
detainer of any party for any offense for which the said party may be legally
apprehended or detained, every such offender, and every person counseling,
aiding or abetting such offender shall be guilty of a felony and, upon
conviction thereof, be punished by confinement in the penitentiary for a
period not less than eighteen months nor more than ten years.
Md. Code Ann. art. 27, § 386 (1982 Repl.) (repealed 1996).
10
The Government makes two further arguments in favor of its “elevated” reading,
but neither is persuasive. First, it notes that Maryland courts have consistently recognized
assault with intent to prevent lawful apprehension as an “aggravated assault.” Response
Br. at 19 (emphasis added) (citing Sangster, 521 A.2d at 821). To the extent that the
Government is suggesting that § 386’s aggravating element—intent to prevent lawful
apprehension—“elevate[s an] otherwise nonviolent assault crime[]” to the level of a violent
felony, it is incorrect, for reasons explained below. Id. at 20; see infra Section II.B.2.
Second, the Government argues that if assault with intent to prevent lawful
apprehension “was meant to encompass the same conduct as common law ‘assault’ and
nothing more, the Maryland legislature would not have created a separate offense.”
Response Br. at 22. But state legislatures craft enhanced punishments for the same actus
14
More importantly, the Government’s argument overlooks the fact that Maryland
state courts have already held that the word “assault” in § 386 incorporated that term’s
common-law definition. See Hall, 516 A.2d at 207; Claggett, 670 A.2d at 1010; Barrios,
702 A.2d at 970. Because we “must rely on the interpretation of the offense rendered by
the courts of the state in question,” Burns-Johnson, 864 F.3d at 316, we have little trouble
concluding that § 386’s assault element encompassed de minimis conduct, and was
therefore not, on its own, a categorically violent felony.
2.
But that does not end our inquiry. After all, “[t]he categorical approach doesn’t
require that each element of an offense involve use of force; it requires that the offense
overall include use of violent force.” United States v. Harris, 853 F.3d 318, 321–22 (6th
Cir. 2017). So, we must assess if § 386’s relevant additional element—that the assault be
committed with the intent to prevent the lawful apprehension or detainer of oneself or
someone else—circumscribes the broad universe of conduct captured by common-law
assault to exclude truly de minimis conduct from the statute’s ambit. We conclude that it
does not.
reus committed with more culpable mentes reae all of the time. We can think of many
reasons why the Maryland legislature may have wanted to supplement the common law by
prescribing an enhanced punishment for those who commit assault to prevent the lawful
apprehension or detention of suspected criminals, as opposed to those who commit assault
for other reasons. The mere fact that this offense may share an actus reus with another does
not make them redundant.
15
i.
To be sure, at times we have held that an intent element can do just that. For
example, in United States v. Battle, we held that a Maryland conviction for assault with
intent to murder “satisfies the [Armed Career Criminal Act’s] force clause because the
offense contemplates an intentional causation of bodily injury,” and “it is impossible to
intend to cause injury or death without physical force as contemplated under the [Act].”
927 F.3d 160, 166–67 (4th Cir. 2019) (emphasis added); see also United States v. Dinkins,
714 F. App’x 240, 243 (4th Cir. 2017) (per curiam) (unpublished but orally argued)
(holding the South Carolina offense of assault and battery with intent to kill was
“categorically violent” because a defendant has to have “intentionally performed an act
capable of causing death” to be convicted under the statute); United States v. Redd, 372 F.
App’x 413, 415 (4th Cir. 2010) (per curiam) (concluding Maryland first-degree assault was
a violent felony because the statute requires an intent “to cause serious physical injury to
another,” so a conviction necessarily “encompass[ed] the use or attempted use of physical
force”).
But the same is not true here. Section 386 “does not have as an element the
intentional causation of death or injury,” Battle, 927 F.3d at 166; it only requires an intent
to prevent one person from lawfully apprehending or detaining another. The Government
baldly asserts that this intent is “incompatible” with “the many varieties of de minimis
assault” because any “assault committed with the purpose of stopping an individual from
effecting a lawful apprehension . . . invariably requires violent force.” Response Br. at 16–
17, 21. However, it does not cite a single Maryland case as support for its conclusory
16
statement. As far as we can tell, the Maryland courts have never identified such an
incompatibility.
On the contrary, the state courts have repeatedly explained that an “offensive
touching” or the “unlawful application of force to another, however slight,” could serve as
the basis for a § 386 conviction, without suggesting that the statute’s specific-intent
element circumscribes the range of qualifying assaults in any way. Claggett, 670 A.2d at
1009. Nor, in the absence of Maryland case law supporting its argument, has the
Government pointed to any commonsense reason why innocuous conduct such as
“touching or tapping another,” Duckett, 510 A.2d at 257, would “invariably require[]
violent force,” Response Br. at 17, when undertaken with the intent to, for example, distract
or misdirect a would-be apprehender.
If any doubt remains regarding § 386’s categorically nonviolent nature, it is erased
by a comparison to the related crime of resisting arrest. Maryland courts have noted that
“preventing lawful apprehension, as described in § 386, is [generally] equivalent [to]
resisting arrest,” Hall, 516 A.2d at 210, save for the fact that the latter requires an assault
“be committed against a police officer” by the arrestee, while the former applies more
broadly to assaults by anyone against “any person” who attempts to “lawfully apprehend
or detain an individual,” Claggett, 670 A.2d at 1006. And we have held that Maryland’s
crime of resisting arrest is not a categorically violent crime because Maryland courts have
consistently concluded that this offense “requires only offensive physical contact.” 11
11
Aparicio-Soria examined whether the Maryland crime of resisting arrest was a
“crime of violence” for federal Sentencing Guidelines purposes. 740 F.3d at 153. But as
17
Aparicio-Soria, 740 F.3d at 155. Given this parallel, it would be odd to find that resisting
arrest—which can be accomplished by an offensive touching—is not a violent felony,
while the related crime of assault with intent to prevent lawful apprehension—which state
courts also say can be accomplished with an offensive touching—is a categorically violent
felony.
ii.
The Government makes two overarching counterarguments, but neither is
persuasive. First, it argues that the logic of the U.S. Supreme Court’s decision in Stokeling
v. United States, 139 S. Ct. 544 (2019), compels us to find that assault with intent to prevent
lawful apprehension is a violent felony. In Stokeling, the Court considered whether the
Florida offense of robbery was a “violent felony” under the Armed Career Criminal Act’s
force clause. Id. at 550. Florida defined robbery as “the taking of money or other
property . . . from the person or custody of another, . . . when in the course of the taking
there is the use of force, violence, assault, or putting in fear.” Id. at 554 (quoting Fla. Stat.
§ 812.13(1) (1995)). The Supreme Court of Florida had interpreted this provision to require
“resistance by the victim that is overcome by the physical force of the offender”—mere
“snatching of property from another” did not suffice. Id. at 555 (emphases added) (quoting
Robinson v. State, 692 So.2d 883, 886 (Fla. 1997)). Because it follows that “the force
necessary to overcome a victim’s physical resistance is inherently ‘violent,’” the Court held
we noted there, “because the language of the force clause in the Armed Career Criminal
Act and the [definition of a crime of violence in the] Guideline is identical,” cases
construing each term are “helpful in construing the other,” if not “controlling.” Id. at 154.
18
that Florida robbery qualifies as a “violent felony” under the Act’s force clause. Id. at 553,
555.
The Government urges us to adopt the same logic in the present case. Specifically,
it contends that “[i]t is not possible to assault a person with the intent to prevent lawful
apprehension without also employing enough force to overcome that person’s effort to
apprehend.” Response Br. at 16. Because the force capable of overcoming such an effort
and “overpower[ing] [the other individual’s] will” inherently involves a “physical
confrontation and struggle,” the Government argues, a conviction for assault with intent to
prevent lawful apprehension “invariably requires violent force.” Id. at 16–17 (quoting
Stokeling, 139 S. Ct. at 553).
This analogy is fatally flawed, for a few reasons. To start, the Government’s
argument makes several unjustified logical leaps. Though it assumes that a person
assaulting another with the intent to prevent lawful apprehension must be “employing
enough force to overcome that person’s effort to apprehend,” id. at 16, it provides no cases
or authority to support that proposition. While it follows that a robber taking property from
another by force must overcome the resistance of the victim—after all, a forceful taking is
an element of the offense—§ 386 does not contemplate or require a defendant to overcome
a pursuer’s efforts to lawfully apprehend someone. On its face, the statute only requires (1)
an assault (2) with intent to prevent lawful apprehension. To the extent the Government is
arguing that § 386 implicitly requires that a defendant also employ sufficient force to
“overpower a victim’s will,” Stokeling, 139 S. Ct. at 553, it is erroneously grafting an
additional element onto the statute.
19
The Government also cites no cases that suggest that an assault made with intent to
prevent lawful apprehension must inherently involve a “physical confrontation and
struggle” between the victim and defendant that is “invariably” violent. Response Br. at
16–17. In fact, as explained above, Maryland courts have consistently signaled the opposite
by holding that common-law assault—including de minimis, offensive assaults—can form
the basis of a § 386 conviction. See Hall, 516 A.2d at 207; Claggett, 670 A.2d at 1010;
Barrios, 702 A.2d at 970.
Illogical leaps aside, the Government’s argument is also directly foreclosed by our
decision in United States v. Jones. In Jones, we entertained a similar Stokeling argument
that a conviction for South Carolina assault and battery while resisting arrest inherently
involved violent force necessary to overcome an officer’s efforts to arrest the defendant.
914 F.3d at 905. But as we explained there, assault and battery while resisting arrest “and
similar assault crimes do not share the same statutory history or textual connection to the
[Armed Career Criminal Act] as robbery offenses.” Id. (emphasis added). The Stokeling
Court had heavily relied on this history, observing that a “prior version of the [Act]
specified ‘robbery’ as a predicate offense,” and that while the Act presently contained no
reference to robbery, other textual clues “made clear that the ‘force’ required for common-
law robbery would be sufficient to justify an enhanced sentence under the new [force]
clause.” Id. (quoting Stokeling, 139 S. Ct. at 550–51).
In Jones, we held that no such historical or textual clues supported extending
Stokeling to South Carolina assault and battery while resisting arrest. We indicated that this
conclusion seemed especially appropriate given that the Stokeling Court had expressly
20
“reaffirmed Johnson I’s definition of physical force,” which the Court acknowledged did
not extend to offenses that could be committed with de minimis offensive touching, like
common-law battery. Id. (citing Stokeling, 139 S. Ct. at 552–53). In the present case, the
Government offers no reason why we can or should come to a different conclusion than
we did in Jones when it comes to the “similar assault crime[]” of assault with intent to
prevent lawful apprehension under § 386. Id.
In its second counterargument, the Government contends—consistent with the
district court’s opinion—that § 386 is a “violent felony” for Armed Career Criminal Act
purposes because Maryland courts have categorized assault with intent to prevent lawful
apprehension as a “crime of violence” for state-law purposes. Though the Government’s
state-law premise is technically true, see Hall, 516 A.2d at 210, this argument is a
nonstarter. In the mid-1980s—when Proctor was convicted under § 386 and when Hall was
decided—Maryland law enumerated certain offenses that qualified as crimes of violence
under state law, including the catch-all category of “assault with intent to commit any other
offense punishable by imprisonment for more than one year.” Sangster, 521 A.2d at 821(quoting Md. Code Ann. art. 27, § 441(e) (1982 and 1986 Cum. Supp.)). Thus, under state
law, a crime of violence was (1) any enumerated crime; or (2) any assault committed with
intent to commit another offense punishable by a certain prison term.
But whether the Maryland legislature chose to list a crime as a crime of violence or
whether the punishment for an intended offense exceeded a specified cutoff tells us nothing
conclusive about the level of force inherent in the offense. After all, the “meaning of
‘physical force’ in [the Armed Career Criminal Act] is a question of federal law, not state
21
law.” Johnson I, 559 U.S. at 138 (emphasis added). And as the Supreme Court has
instructed us, “in answering that question we are not bound by a state court’s interpretation
of a similar—or even identical—state statute.” Id. That seems particularly prudent here,
where the Maryland Court of Special Appeals categorized assault with intent to prevent
lawful apprehension as a “crime of violence” under option (2) listed above due solely to
the length of punishment involved. See Hall, 516 A.2d at 210. Because the term of
imprisonment for an offense has no inherent bearing on the minimum physical force
required to commit that offense, the district court erred by relying on this factor.
In conclusion, § 386’s specific-intent element does not exclude de minimis assaults
from the statute’s ambit.
3.
Which brings us to our last question: whether there is a “realistic probability, not a
theoretical possibility,’ that [Maryland] would actually [have] punish[ed]” similarly de
minimis conduct under § 386 before its repeal. Doctor, 842 F.3d at 308.
The district court found there was no “realistic probability” of such an outcome. J.A.
45. Critically, it noted that Proctor had failed to identify any cases prosecuted under § 386
that clearly punished de minimis conduct. Rather, assault-with-intent-to-prevent-lawful-
apprehension convictions generally involved more serious conduct, such as “striking a
store employee with a vehicle, firing shots at officers, striking an officer with a vehicle,
and striking a homeowner with a bar from a weightlifting set.” Proctor, 2019 WL 141370,
at *3. The Government echoes these findings, arguing that “[a]ll of the hypothetical
conduct that Proctor proposes would, could or should satisfy the statute has not occurred
22
in reality and are purely figments of Proctor’s ‘legal imagination.’” Response Br. at 26
(quoting Moncrieffe v. Holder, 569 U.S. 184, 191 (2013)).
But “this case does not require an exercise of imagination, merely mundane legal
research skills.” Aparicio-Soria, 740 F.3d at 157. To wit, “we have precedent from
Maryland’s highest court stating that the degree of force required as an element of
[common-law assault] is ‘offensive physical contact.’” Id.; see Dixon, 488 A.2d at 967
(holding that attempted-battery or reasonable-apprehension assaults may be satisfied by
“any attempt to apply the least force to the person of another” (emphasis added)); Nicolas,
44 A.3d at 407 (“[A]n assault of the battery variety is committed by causing offensive
physical contact with another person.” (emphasis added)).
We also have precedent from Maryland appellate courts stating that an assault with
intent to prevent lawful apprehension “clearly” “may be accomplished” by such conduct.
Claggett, 670 A.2d at 1010; see also Hall, 516 A.2d at 208 (agreeing that § 386’s assault
element could be satisfied by “[a]ny attempt to apply the least force to the person of
another” (quoting Lyles, 269 A.2d at 179)); Barrios, 702 A.2d at 970 (applying the
common-law definition of assault to § 386). Therefore, “[w]e do not need to hypothesize
about whether there is a ‘realistic probability’ that Maryland prosecutors w[ould have]
charge[d] defendants engaged in non-violent offensive physical contact with [assault with
intent to prevent lawful apprehension]”—we know that they could have because the state’s
appellate courts “ha[ve] said so.” Aparicio-Soria, 740 F.3d at 158.
To be sure, at times we have faulted defendants for failing to identify a case in which
the state successfully prosecuted the de minimis or overbroad conduct alleged. See, e.g.,
23
Burns-Johnson, 864 F.3d at 319 (rejecting the defendant’s argument that North Carolina
statutory armed robbery was not a violent felony because it could be committed
unintentionally, when the defendant failed to produce “any North Carolina case in which a
defendant was convicted of statutory armed robbery through the reckless, negligent, or
accidental use of a dangerous weapon”); Doctor, 842 F.3d at 312 (faulting a defendant
convicted of South Carolina robbery for failing to produce, among other things, any
“examples of South Carolina cases that find de minimis actual force sufficient to sustain a
conviction for robbery by violence”). But this failure is by no means dispositive, as our en
banc decision in Aparicio-Soria makes clear. 740 F.3d at 157–58 (identifying no on-point
examples of Maryland resisting-arrest convictions involving de minimis conduct but
nonetheless concluding that resisting arrest was not a categorically violent felony).
In fact, we have readily found a reasonable probability of prosecution for nonviolent
conduct where (1) a state statute plainly covers such conduct, see United States v. Salmons,
873 F.3d 446, 451 (4th Cir. 2017) (holding that a defendant could simply “point to the
statutory text . . . to demonstrate that a conviction for a seemingly violent state crime could
in fact be sustained for nonviolent conduct”); accord United States v. Titties, 852 F.3d
1257, 1274–75 & 1275 n.23 (10th Cir. 2017) (collecting cases and explaining that a
defendant is not required to seek out “instances of actual prosecutions for the means that
did not satisfy” the Armed Career Criminal Act when the state statute at issue “specifically
says” that it reaches such nonviolent conduct); or (2) state courts have clearly greenlit such
an application, see Aparicio-Soria, 740 F.3d at 157–58 (dismissing a “mountain of cases”
that collectively suggested the Maryland crime of resisting arrest involved the use of
24
violent force because state-court precedent stated that “non-violent offensive physical
contact” could satisfy the offense).
Our recent decision in United States v. White, 24 F.4th 378 (4th Cir. 2022), is an
instructive example of the latter situation. In that case, the defendant argued that Virginia
common-law robbery was not a categorically violent felony because it could be committed
by “threatening to accuse the victim of having committed sodomy.” Id. at 379. However,
the Supreme Court of Virginia “only had referenced this theory of robbery in dicta in
decisions issued before 1939, and never had applied such a theory of robbery to a particular
defendant.” Id. at 380 (emphases added). Nevertheless, because we were “uncertain”
whether the state courts would endorse such a theory of robbery, we certified that question
to the Supreme Court of Virginia. United States v. White, 987 F.3d 340, 345 (4th Cir.),
certified question answered, 863 S.E.2d 483 (Va. 2021). After the state court responded
that this theory was indeed viable, we were “compel[led]” by “principles of federalism” to
hold that Virginia common-law robbery was not a violent felony under the Act’s force
clause because it could be committed without violent force. White, 24 F.4th at 380–81.
Here, as explained above, the Maryland courts have clearly held that an assault with
intent to prevent lawful apprehension can be accomplished with de minimis conduct such
as an offensive touching. And because such conduct “does not involve the use, attempted
use, or threatened use of violent physical force against another, the [§ 386 assault-with-
intent-to-prevent-lawful-apprehension] offense is not categorically a ‘violent felony’ under
the [Armed Career Criminal Act]’s force clause.” Jones, 914 F.3d at 903.
25
III.
For the foregoing reasons, we reverse the district court’s denial of Proctor’s § 2255
motion and remand with instructions to grant the § 2255 motion, “vacate and set the
judgment aside,” and, at minimum, correct Proctor’s § 922(g) sentence (Count 4). 28
U.S.C. § 2255. On remand, the district court should also consider the applicability of the
sentencing-package doctrine to Proctor’s § 841(a)(1) sentence (Count 2). See supra note 2.
REVERSED AND REMANDED
26