* 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).

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 07-40977

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 caughtin 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

United States Court of Appeals

Fifth Circuit

F I L E D

September 26, 2008

Charles R. Fulbruge III

Clerk
No. 07-40977

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 SandovalRuiz’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

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 drugtrafficking 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
No. 07-40977

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

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
No. 07-40977

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

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
No. 07-40977

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

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 thatthe 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 ittreats

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,
No. 07-40977

20 Id.

21 18 U.S.C. § 2(a).

22 720 ILL. COMP. STAT. § 5/2-20.

6

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.
No. 07-40977

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

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 ofthe murder oftheir 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
No. 07-40977

29 484 F.3d 712 (5th Cir. 2007).

30 Id. at 714.

31 Id. at 714-15.

32 SeePeople v. Hairston, 263 N.E.2d 840, 847-48 (Ill. 1970) (“[P]roofthat 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

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 notfall 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 ofthe 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 principalto 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.