IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
September 26, 2008
No. 07-40977 Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA
Plaintiff - Appellee
v.
DAVID SANDOVAL-RUIZ
Defendant - Appellant
Appeal from the United States District Court for the Southern District of
Texas
Before HIGGINBOTHAM and STEWART, Circuit Judges.*
PATRICK E. HIGGINBOTHAM, Circuit Judge:
David Sandoval-Ruiz was deported in 2005 and caught in 2007 attempting
to reenter by taxi in Laredo, Texas. He later pled guilty to attempted illegal
reentry. The Presentence Report recommended that Sandoval-Ruiz’s base
offense level of 8 be increased by 16 levels because of a prior drug-trafficking
conviction in accordance with the United States Sentencing Guidelines.1
Defendant’s prior conviction was for one count of delivery and one count of
possession with intent to deliver more than 5,000 grams of marijuana in
*
This case is being decided by a quorum. 28 U.S.C. § 46(d).
1
U.S.S.G. § 2L1.2(b)(1)(A)(i).
No. 07-40977
violation of the Illinois Cannabis Control Act.2 Over Sandoval-Ruiz’s objection,
the district court adopted the Presentence Report that provided for a Guideline
sentence range of 46 to 57 months imprisonment. The court sentenced him to
46 months imprisonment. Sandoval-Ruiz appeals his sentence.
I
Sandoval-Ruiz argues that the district court erred by applying the 16-level
enhancement because an Illinois conviction for delivery of marijuana is not a
drug-trafficking offense under the Guidelines. More specifically, he argues that
by pleading guilty to the substantive delivery offense it is possible that his
conviction may have been based, not on any delivery by him, but one attributed
to him under Illinois’ law of parties.3 He argues that the Illinois accountability
statute is broader than the federal aider and abetter statute, making it
theoretically possible that his actual conduct falls outside the scope of a drug-
trafficking offense in the federal statute.
Sandoval-Ruiz preserved the sentence-enhancement issue by objecting at
the sentencing hearing. This Court reviews a preserved application and
interpretation of the Guidelines de novo.4
2
720 ILL. COMP. STAT. 550/5(g) (West 1999).
3
This Court could not independently determine whether Sandoval-Ruiz’s offense was
based on principal liability or law-of-parties liability because Shepard-approved documents,
such as the terms of the plea agreement or a transcript of the plea colloquy between judge and
defendant, were not made part of the record. See Shepard v. U.S., 544 U.S. 13, 26 (2005). The
record included the indictment, which did not, and was not required to, include accountability
as an element. See U.S. v. Creech, 408 F.3d 264, 273 (5th Cir. 2005). Regardless, as we
explain supra, it is of no moment for purposes of enhancement in this case whether Sandoval-
Ruiz’s conviction under Illinois law was based on principal liability or accountability liability.
4
U.S. v. Charon, 442 F.3d 881, 887 (5th Cir. 2006).
2
No. 07-40977
II
Under Taylor v. United States,5 when determining whether a predicate
state conviction qualifies as a conviction for purposes of sentence enhancement
under federal law, courts apply a strict categorical approach and “look[] only to
the statutory definitions of the prior offenses, and not to the particular facts
underlying those convictions.” When an indictment is silent as to the offender’s
actual conduct, as is the case here, we must ensure that the “least culpable act
constituting a violation of that statute constitutes” a drug trafficking offense
under the Guidelines.6 Looking at the Illinois statute in this case, we agree with
the government that the statute has “the basic elements” of and does not
encompass activity broader than the federal definition of a drug-trafficking
offense.7 The statutory definition of manufacture or delivery of cannabis in
Illinois makes it a felony for:
any person knowingly to manufacture, deliver, or possess with
intent to deliver or manufacture cannabis in an amount exceeding
5,000 grams.8
The Guidelines define a drug-trafficking offense as:
[a]n offense under federal, state, or local law that prohibits the
manufacture, import, export, distribution, or dispensing of a
controlled substance (or a counterfeit substance) or the possession
of a controlled substance (or counterfeit substance) with the
intent to manufacture, import, export, distribute, or dispense.9
5
495 U.S. 575, 600 (1990).
6
U.S. v. Gonzalez-Ramirez, 477 F.3d 310, 316 (5th Cir. 2007).
7
Taylor, 495 U.S. at 599.
8
720 ILL. COMP. STAT. 550/5.
9
U.S.S.G. § 2L1.2(b)(1)(A)(i).
3
No. 07-40977
By a side-by-side reading of the Illinois offense’s statutory definition, we find its
elements fit comfortably within the federal definition of a drug-trafficking
offense.
Before Gonzales v. Duenas-Alvarez,10 as we read Taylor we needed to look
no further than the Illinois statute. Once we determined the state statute was
within the federal offense, our only concern was whether the defendant had a
“previous conviction” violating the state statute, not how the defendant
“committed” the offense.11
III
The Supreme Court recently expanded on Taylor by indulging a challenge
to a sentence enhancement for a prior state crime based on the scope of the
state’s aider and abetter law. In Duenas-Alvarez,12 the defendant, a resident
alien, was found removable from the United States based on a prior California
conviction that qualified as a “theft offense” under immigration law. The
defendant challenged the removal, arguing that the breadth of California’s aider
and abetter law results in the California theft statute reaching “beyond generic
theft.”13 The Court reviewed California caselaw and determined that the State’s
accountability law does not result in California criminalizing “conduct that most
other States would not consider ‘theft.’”14
After Duenas-Alvarez, we are obligated to review whether Illinois
accountability law exposes a defendant to liability as a principal for conduct
broader than that encompassed by the federal drug-trafficking offense. Any
10
549 U.S. 183 (2007).
11
Taylor, 495 U.S. at 600.
12
549 U.S. at 185.
13
Id. at 190.
14
Id. at 191.
4
No. 07-40977
difference between the state statute and federal law15 must rise to the level of
creating a “realistic possibility, not a theoretical possibility, that the State would
apply its statute to conduct that falls outside the [federal] definition of a crime.”16
We are not persuaded that the Illinois accountability law is broader than federal
law.
Sandoval-Ruiz concedes that the federal definition of drug-trafficking
offense includes aiding and abetting. The Guideline Comments specify that prior
drug-trafficking offenses based on “aiding, abetting, conspiring, and attempting
to commit such offenses” count as offenses for purposes of sentence
enhancement.17 The Comments are in keeping with the modern trend that “the
law treats aiders and abettors during and before the crime the same way it treats
principals.”18
Sandoval-Ruiz urges instead that Illinois’ accountability law is broader
than federal aiding and abetting law because it subjects a person to liability who
“solicits” the offense.19 The Illinois accountability statute provides that a person
is legally accountable for the conduct of another when:
Either before or during the commission of an offense, and with
the intent to promote or facilitate such commission, he solicits,
15
Duenas-Alavarez compared California’s theft law, including the effect of its aider and
abetter law, to the reach of what most other states consider theft. Id. at 190-94. The Court
was concerned in that case with “generic theft” because the federal statute did not define a
“theft offense.” See 8 U.S.C. § 1101(a)(43)(G). Here, we compare Illinois law to federal law,
not “generic” state law, because “drug trafficking offense” is specifically defined in the federal
statute. See U.S. v. Gonzales, 484 F.3d 712, 716 (5th Cir. 2007).
16
Duenas-Alvarez, 549 U.S. at 193.
17
U.S.S.G. § 2L1.2, cmt. 5.
18
Duenas-Alvarez, 549 U.S. at 190.
19
720 ILL. COMP. STAT. § 5/5-2.
5
No. 07-40977
aids, abets, agrees or attempts to aid, such other person in the
planning or commission of the offense.20
The federal aiding and abetting statute provides:
Whoever commits an offense against the United States or aids,
abets, counsels, commands, induces or procures its commission is
punishable as a principal.21
We agree with the district court judge that there is no realistic probability
that Illinois would apply the statute to conduct outside the scope of the federal
statute. The face of the statute itself supports this point. As in the federal
statute, the Illinois statute requires the commission of the substantive offense,
the intent to promote the offense, and some form of participation in the offense.
Unlike the federal statute, participation may be in the form of solicitation.
Solicitation is further defined as “to command, authorize, urge, incite, request,
or advise another to commit an offense.”22 The practical meaning of this list of
verbs does not differ from the practical meaning of the federal list in such a way
as to make the Illinois statute more broad. For instance, a defendant under
federal law found to have factually “requested” or “advised” a crime could
reasonably be found guilty of having “induced” or “counseled” the crime.
A rule that defendants may escape federal sentence enhancement by
pleading guilty to substantive crimes in states with accountability statutes that
do not perfectly map the federal statute would exaggerate the protections of
Taylor and Duenas-Alvarez, which require a “realistic possibility” the defendant
was convicted for conduct less culpable than required by the Guidelines.
Our review of Illinois caselaw confirms that the State’s accountability
statute only includes conduct well within the ambit of federal accountability law.
20
Id.
21
18 U.S.C. § 2(a).
22
720 ILL. COMP. STAT. § 5/2-20.
6
No. 07-40977
In People v. Stanciel,23 the Illinois Supreme Court held that two mothers who
repeatedly arranged for their children to be in the custody of physically abusive
men who ultimately killed the children were guilty of the murder of their children
on the basis of accountability. But, the Court required proof of both participation
and intent of the mothers. Regarding intent, the Court held the defendant must
possess the same intent as required in the substantive crime, explaining that
“[a]ccountability, tied as it is to the crime charged, must comport with the
requirements of that crime.”24
Sandoval-Ruiz also claims that Illinois caselaw does not require
participation, but mere approving presence, to be held liable under an
accountability theory, pointing to People v. Martinez.25 We disagree. The court
there held that “mere presence at the scene of a crime and knowledge that a
crime is being committed are not alone sufficient to establish guilt on an
accountability theory.”26 While Illinois does allow an “inference of accountability”
from approving presence, the facts must additionally contain “evidence of conduct
showing a design on defendant’s part to aid in the offence.”27 Martinez had
significantly participated. She transferred paper and phone messages between
drug suppliers, entered the car of a drug supplier, and transferred the drugs from
the supplier in the car to one on the street.28 The Illinois’ accountability law is
not meaningfully broader than federal law.
IV
23
606 N.E.2d 1201, 1210 (Ill. 1992).
24
Id.
25
662 N.E.2d 473 (Ill. App. 1st Dist. 1996).
26
Id. at 476.
27
Id. (emphasis added).
28
Id. at 476-77.
7
No. 07-40977
United States v. Gonzalez29 is not to the contrary. Gonzalez’s sentence was
enhanced due to a prior drug-trafficking offense for violating Texas’ delivery of
a controlled substance law.30 We vacated the sentence, holding that because the
Texas statutory definition of delivery of a controlled substance includes offering
to sell, it encompasses activity that does not fall within the Guideline’s definition
of a drug-trafficking offense.31 Unlike the Texas statute, the Illinois statute in
this case does not allow conviction based on a mere solicitation or offer to sell
without commission of the delivery offense. The word “solicit” in the
accountability law of Illinois does not create a separate offense based on a
solicitation or an offer to sell. As used, solicit refers to conduct that subjects a
defendant to liability for the substantive delivery offense if the other elements of
accountability, including intent and commission of the offense, are satisfied.32 In
contrast, statutes criminalizing an offer or solicitation create separate crimes
from the substantive delivery offense that are complete upon the solicitation, do
not require commission of the delivery offense, and do not rest upon imputation
of the acts of the principal to the solicitor. Whether a separate offense of criminal
solicitation would support enhancement under the Guidelines is not presented
and we do not reach that question.33 AFFIRMED.
29
484 F.3d 712 (5th Cir. 2007).
30
Id. at 714.
31
Id. at 714-15.
32
See People v. Hairston, 263 N.E.2d 840, 847-48 (Ill. 1970) (“[P]roof that defendant had
commanded or requested the principal crimes with the requisite intent was all that was
necessary to establish his guilt of the crimes of solicitation; to establish his guilt of the
principal crimes [under accountability] it was necessary to prove the additional fact that the
principal crimes had in fact been committed.”).
33
Our sister circuits have addressed this distinct issue, see, e.g., U.S. v. Aguilar-Ortiz,
450 F.3d 1271 (11th Cir. 2006); U.S. v. Cornelio-Pena, 435 F.3d 1279 (10th Cir. 2006); U.S. v.
Shumate, 329 F.3d 1026 (9th Cir. 2003); U.S. v. Dolt, 27 F.3d 235 (6th Cir. 1994).
8