F I L E D

United States Court of Appeals

Tenth Circuit

January 30, 2006

Elisabeth A. Shumaker

Clerk of Court

PUBLISH

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee, 

v.

RAUL CORNELIO-PENA, also known

as Raul Puente-Cuevas,

Defendant-Appellant. 

No. 04-3478

Appeal from the United States District Court

for the District of Kansas

(D.C. No. 04-CR-40090-SAC)

Ronald E. Wurtz, Assistant Federal Public Defender (David J. Phillips, Federal

Public Defender, with him on the brief), Topeka, Kansas, for DefendantAppellant.

James A. Brown, Assistant United States Attorney (Eric F. Melgren, United States

Attorney, with him on the brief), Topeka, Kansas, for Plaintiff-Appellee.

Before KELLY, BALDOCK, and MURPHY, Circuit Judges.

MURPHY, Circuit Judge.
1Under Arizona law, a person commits solicitation “if, with the intent to

promote or facilitate the commission of a felony or misdemeanor, such person

commands, encourages, requests or solicits another person to engage in specific

-2-

I. Introduction

Defendant-Appellant Raul Cornelio-Pena was convicted in the United

States District Court for the District of Kansas of illegal reentry following

deportation. The district court sentenced him to fifty-seven months’ custody,

based in part on a sixteen-level enhancement for prior deportation after a

conviction for a felony crime of violence. The district court reasoned that

solicitation to commit burglary of a dwelling is a crime of violence under U.S.

Sentencing Guidelines Manual § 2L1.2(b)(1)(A)(ii) (2003) (“USSG” or

“Guidelines”). The district court also imposed an identical alternative sentence of

fifty-seven months in the event the Guidelines were declared unconstitutional. 

Cornelio-Pena appealed his sentence. We have jurisdiction pursuant to 28 U.S.C.

§ 1291 and 18 U.S.C. § 3742(a). Because solicitation to commit burglary of a

dwelling is a crime of violence under USSG § 2L1.2, and the district court’s

imposition of an alternative sentence rendered its non-constitutional Booker error

harmless, we affirm. 

II. Background

In 1992, Cornelio-Pena, a citizen of Mexico, was convicted in Arizona of

solicitation to commit burglary in the second degree.1

 He received three years’
conduct which would constitute the felony or misdemeanor or which would

establish the other’s complicity in its commission.” Ariz. Rev. Stat. § 13-1002. 

A person commits burglary in the second degree if he “enter[s] or remain[s]

unlawfully in or on a residential structure with the intent to commit any theft or

any felony therein.” Id. § 13-1507.

-3-

probation and was deported. Subsequently, Cornelio-Pena returned to the United

States and was charged with, and pleaded guilty to, illegal reentry following

deportation in violation of 8 U.S.C. § 1326(a). At sentencing, the district court

applied § 2L1.2 of the November 5, 2003 version of the Guidelines. CornelioPena’s base offense level was eight. The district court applied a sixteen-level

enhancement pursuant to USSG § 2L1.2(b)(1)(A)(ii), reasoning that solicitation of

burglary is a crime of violence. The district court also applied a three-level

downward adjustment for acceptance of responsibility and entry of a guilty plea,

bringing Cornelio-Pena’s adjusted offense level to twenty-one. Cornelio-Pena’s

criminal history category was determined to be IV, resulting in a Guidelines range

of fifty-seven to seventy-one months. The district court sentenced Cornelio-Pena

to fifty-seven months’ custody. Recognizing the uncertainty surrounding the

constitutionality of the Guidelines at the time of Cornelio-Pena’s sentencing, the

district court also announced an alternative sentence of fifty-seven months. 

III. Discussion

A. Crime of Violence
-4-

Cornelio-Pena first argues the district court erred in concluding solicitation

of burglary is a crime of violence under USSG § 2L1.2(b)(1)(A)(ii). We review a

district court’s interpretation of the Guidelines de novo. United States v. TorresRuiz, 387 F.3d 1179, 1180–81 (10th Cir. 2004). “Generally speaking, we

interpret the Sentencing Guidelines according to accepted rules of statutory

construction. In interpreting a guideline, we look at the language in the guideline

itself, as well as at the interpretative and explanatory commentary to the guideline

provided by the Sentencing Commission. Commentary in the Guidelines Manual

that interprets or explains a guideline is authoritative unless it violates the

Constitution or a federal statute, or is inconsistent with, or a plainly erroneous

reading of, that guideline.” Id. at 1181 (citations, quotations, and alteration

omitted).

It is uncontested that burglary of a dwelling is a crime of violence under

USSG § 2L1.2(b)(1)(A)(ii). We must decide whether solicitation to commit

burglary of a dwelling is also a crime of violence under this provision. This issue

is one of first impression in the Courts of Appeals. 

Section 2L1.2(b)(1)(A)(ii) of the Guidelines provides for a sixteen-level

enhancement if the defendant was previously deported, or unlawfully remained in

the United States, after a conviction for a felony crime of violence. “Crime of

violence” is defined in the section’s commentary as
-5-

any of the following: murder, manslaughter, kidnapping, aggravated

assault, forcible sex offenses, statutory rape, sexual abuse of a minor,

robbery, arson, extortion, extortionate extension of credit, burglary of

a dwelling, or 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.

USSG § 2L1.2 cmt. application n.1(B)(iii). Application Note 5 further provides

that “[p]rior convictions of offenses counted under subsection (b)(1) include the

offenses of aiding and abetting, conspiring, and attempting, to commit such

offenses.” Id. § 2L1.2 cmt. application n.5. 

Cornelio-Pena argues that because solicitation is not expressly mentioned in

the application note, solicitation of a crime that otherwise meets the definition of

“crime of violence” is not itself a crime of violence under the canon of statutory

construction expressio unius est exclusio alterius (the expression of one thing is

the exclusion of another). Cornelio-Pena cites United States v. Cardenas, in

which this court held that 18 U.S.C. § 924(c) does not prohibit transportation of

firearms. 864 F.2d 1528, 1534 (10th Cir. 1989). In Cardenas, we noted that the

statute at issue expressly prohibited only using or carrying a firearm during a drug

trafficking offense. Id. Moreover, we found it persuasive that another provision

of the same statute used the term “transport” in criminalizing the transportation of

firearms in interstate commerce. Id. Thus, we concluded Congress knew how to

use the term “transport,” and Congress’ failure to include the term in the relevant
2The term “solicitation” is used in the Guidelines in three ways. First,

solicitation is included in the section of the Guidelines relating to “Other

Offenses,” along with conspiracy and attempt. USSG § 2X1.1. This provision

requires the application of the base offense level for the underlying offense, plus

any adjustments for specific offense characteristics relating to the fact that the

crime was inchoate. Id. The provision is only to be applied when the crime of

solicitation is not expressly covered by another offense guideline section. Id. §

2X1.1(c)(1); see also, e.g., id. § 2A4.1 cmt. application n.4 (referencing

adjustments in USSG § 2X1.1 with respect to conspiracy, attempt, or solicitation

to kidnap). Second, the Guidelines specifically include solicitation of certain

offenses as offense conduct. E.g., id. § 2C1.1 (Soliciting a Bribe); id. § 2A1.5

(Solicitation to Commit Murder). Finally, solicitation appears in the commentary

to several Guidelines’ provisions. Although none of these provisions are identical

to the application note at issue here, they are similar in that they require

solicitation to be treated like the underlying offense in certain circumstances. Id.

§ 1B1.3 cmt. application n.6 (“Unless otherwise specified, an express direction to

apply a particular factor only if the defendant was convicted of a particular statute

includes the determination of the offense level where the defendant was convicted

of conspiracy, attempt, solicitation, aiding or abetting, accessory after the fact, or

misprision of felony in respect to that particular statute”); id. § 1B1.3 cmt.

application n.10 (“In the case of solicitation, misprision, or accessory after the

fact, the conduct for which the defendant is accountable includes all conduct

relevant to determining the offense level for the underlying offense that was

known, or reasonably should have been known, by the defendant.”); id. § 2C1.1

cmt. background (“solicitations and attempts [to commit bribery] are treated as

equivalent to the underlying offense”).

-6-

statutory provision indicated its intent not to prohibit the transportation of

firearms during a drug trafficking offense. Id. at 1534.

The term “solicitation” is used throughout the Guidelines,2 and thus it is

clear the Sentencing Commission knew how to use the term. The Commission’s

failure to include solicitation in the application note in § 2L1.2, however, is not
-7-

dispositive of the Commission’s intent in this case. Unlike the statute in

Cardenas, which expressly criminalized only using or carrying a firearm, the

application note at issue here uses the term “include” before listing aiding and

abetting, conspiracy, and attempt. USSG § 2L1.2 cmt. application n.5. We must

give effect to the term “include.” See Chickasaw Nation v. United States, 534

U.S. 84, 94 (2001). 

“Include” can be interpreted both as a word of illustrative application and

as a word of limitation. Black’s Law Dictionary 763 (6th ed. 1990). The

commentary to the Guidelines’ general application principles, however, expressly

states that “[t]he term ‘includes’ is not exhaustive.” USSG § 1B1.1 cmt.

application n.2. Thus, by using the term “include” in the application note, the

Commission clearly expressed its intent that the offenses listed in the note were

not exhaustive, and we do not apply expressio unius est exclusio alterius. 

Instead, based on the Commission’s articulation, offenses similar to aiding and

abetting, conspiring, and attempting to commit offenses that otherwise meet the

definition of “crime of violence” are included in § 2L1.2(b)(1)(A)(ii). 

Although no circuit has addressed the crime of solicitation under USSG §

2L1.2, several circuits have addressed solicitation under § 4B1.1, a similarly

constructed provision of the Guidelines. Section 4B1.1 provides for sentencing

enhancements for career offenders. A career offender is defined as a person who,
-8-

inter alia, “has at least two prior felony convictions of either a crime of violence

or a controlled substance offense.” Id. § 4B1.1(a). Similar to the application

note at issue in this case, the career offender provision contains an application

note which states, “‘[c]rime of violence’ and ‘controlled substance offense’

include the offenses of aiding and abetting, conspiring, and attempting to commit

such offenses.” Id. § 4B1.2 cmt. application n.1. In United States v. Shumate,

the Ninth Circuit examined whether solicitation of delivery of marijuana qualifies

as a controlled substance offense under the career offender provision. 329 F.3d

1026, 1028 (9th Cir. 2003). The court reasoned that the omission of solicitation

from the offenses listed in the application note was not legally significant

because, under the Guidelines, the term “includes” is not exhaustive. Id. at

1030–31. Thus, the court concluded solicitation of delivery of marijuana is a

controlled substance offense. Id. 

The Sixth Circuit reached the opposite result in United States v. Dolt when

it concluded that solicitation to traffic in cocaine is not a controlled substance

offense under the career offender provision. 27 F.3d 235, 240 (6th Cir. 1994). 

The court noted that “the fact that the Sentencing Commission did not include

solicitation in its list of predicate crimes in [the application note] is evidence that

it did not intend to include solicitation as a predicate offense for career offender

status.” Id. at 239. The court, however, did not address the use of the term
3Two circuits have held that solicitation is a crime of violence under the

career offender provision. United States v. Cox, 74 F.3d 189, 190 (9th Cir. 1996)

(solicitation of murder); United States v. Walker, 181 F.3d 774, 780–81 (6th Cir.

1999) (solicitation to commit aggravated robbery). These decisions are not

persuasive in this case, however, because the definition of “crime of violence” in

the career offender provision is substantially different than that contained in

USSG § 2L1.2. Under the career offender provision, a crime of violence

includes, inter alia, “any offense . . . that . . . involves conduct that presents a

serious potential risk of physical injury to another.” USSG § 4B1.2(a). The

holdings in Cox and Walker are based, at least in part, on this definitional

wording. Cox, 74 F.3d 190 (observing that “ask[ing] someone to murder your

wife . . . involves a high degree of threat of physical force against one’s wife”);

Walker, 181 F.3d at 781 (“solicitation to commit aggravated robbery [in

Tennessee] inherently involves conduct that presents a serious potential risk of

injury to another”). But see United States v. Shumate, 329 F.3d 1026, 1030 (9th

-9-

“include” or the definition of that term provided in the Guidelines’ general

application principles. See Shumate, 329 F.3d at 1031. 

Finally, the Second Circuit has implicitly concluded that because of the

term “include,” the list of offenses in the application note to the career offender

provision is merely illustrative. United States v. Liranzo, 944 F.2d 73, 79 (2d Cir.

1991). In Liranzo, the Second Circuit examined whether criminal facilitation of

the sale of cocaine is a controlled substance offense. Id. at 78–79. Although the

court ultimately concluded criminal facilitation is not sufficiently similar to

aiding and abetting, conspiracy, and attempt to be encompassed by the application

note, it observed that the application note “may not be an exhaustive list” and

proceeded to decide “whether . . . criminal facilitation should be included in that

list.”3

 Id. at 79.
Cir. 2003) (arguing that Cox relied on the use of “include” in the application note

to conclude solicitation was a crime of violence).

Additionally, Cornelio-Pena argues our decision should be informed by

Coronado-Durazo v. INS, 123 F.3d 1322 (9th Cir. 1997), and Leyva-Licea v. INS,

187 F.3d 1147 (9th Cir. 1999). In these cases, the Ninth Circuit concluded that

Arizona’s solicitation statute is not a law relating to a controlled substance or an

aggravated felony under § 241(a)(2) of the Immigration and Nationality Act when

the underlying offense solicited is a narcotics violation. Coronado-Durazo, 123

F.3d at 1326; Leyva-Licea, 187 F.3d at 1150. These cases are inapposite,

however, because the statutory definition at issue did not contain expansive

language similar to the term “include” used in the Guidelines. Leyva-Licea, 187

F.3d at 1150 (“the Controlled Substances Act neither mentions solicitation nor

contains any broad catch-all provision that could even arguably be read to cover

solicitations”). 

4This court’s determination of whether solicitation of burglary is a crime of

violence under the Guidelines is not dictated by Arizona state law regarding

whether solicitation is a crime of communication or a crime of violence. In

Taylor v. United States, the Supreme Court rejected the contention that the term

“burglary” in the Armed Career Criminal Act “means ‘burglary’ however a state

chooses to define it.” 495 U.S. 575, 579, 592 (1990) (quotation omitted). 

Instead, the Court concluded Congress intended burglary to mean generic burglary

-10-

In any event, because the Guidelines expressly provide that the term

“include” is not exhaustive, crimes of violence under USSG § 2L1.2 are not

limited to aiding and abetting, conspiring, and attempting to commit offenses that

otherwise meet the definition of “crime of violence.” Instead, crimes of violence

include offenses that are sufficiently similar to aiding and abetting, conspiracy,

and attempt when the underlying offense is a crime of violence. Thus, we must

now decide whether solicitation is sufficiently similar to aiding and abetting,

conspiracy, and attempt, such that solicitation to commit burglary of a dwelling is

a crime of violence.4
as currently defined in the criminal codes of most states. Id. at 598. The Court

reasoned: “[i]t seems to us to be implausible that Congress intended the meaning

of ‘burglary’ . . . to depend on the definition adopted by the State of conviction”;

such a conclusion would lead to “the unfairness of having enhancement [under

Federal law] depend upon the label employed by the State of conviction.” Id. at

589–90; cf. Dickerson v. New Banner Inst., Inc., 460 U.S. 103, 119–20 (1983)

(noting that state law that expunged conviction after completion of probation did

not erase conviction for purposes of Gun Control Act because “federal program

would be impaired if state law were to control”); United States v. Nardello, 393

U.S. 286, 293–95 (1969) (prohibition of extortion in violation of state law in the

Travel Act is not limited to only those extortionate activities that a particular state

defines as extortion). Similarly, state law characterizations of solicitation are

irrelevant to our analysis of whether generic solicitation is a crime of violence

under the Guidelines. The purpose of the Sentencing Commission is to provide

“certainty and fairness” in sentencing and to avoid “unwarranted sentencing

disparities.” 28 U.S.C. § 991(b)(1)(B). Dependence on state law

characterizations of what constitutes a crime of violence would inhibit these

objectives.

-11-

A person commits solicitation if he commands, encourages, requests, or

solicits another person to commit a crime with the intent to promote the

commission of that crime. E.g., Ariz. Rev. Stat. § 13-1002; Model Penal Code §

5.02. As with most crimes, solicitation requires both mens rea and actus reus. 

Because the mens rea and actus reus required for solicitation are similar to those

required for aiding and abetting, conspiracy, and attempt, we conclude that

solicitation is sufficiently similar to the offenses listed in the application note to

be encompassed by the note. 

Conspiracy involves an agreement between two or more people for the

purpose of promoting or committing a crime. E.g., United States v. Small, 423
-12-

F.3d 1164, 1182 (10th Cir. 2005); Model Penal Code § 5.03. Additionally, in

some jurisdictions, conspiracy requires an overt act in furtherance of the

conspiracy. Compare United States v. Taylor, 413 F.3d 1146, 1155 (10th Cir.

2005) (providing that conspiracy requires intent to commit crime and overt act in

furtherance of that intent) and Neb. Rev. Stat. § 28-202 (stating that overt act is

element of conspiracy) with Nev. Rev. Stat. § 199.490 (providing that overt act is 

not required for conspiracy to commit, inter alia, murder, robbery, and sexual

assault) and Model Penal Code § 5.03(5) (stating no overt act requirement for

felony of the first or second degree). We need not decide whether generic

conspiracy under the Guidelines requires an overt act, however, to decide this

case. Even where an overt act is required, the overt act can be that of any

member of the conspiracy. E.g., Neb. Rev. Stat. § 28-202(b); Model Penal Code

§ 5.03(5). A defendant need not perform an act beyond mere agreement in order

to be guilty of conspiracy, so long as one conspirator performs an overt act. 

Thus, both conspiracy and solicitation require only intent that the underlying

offense be committed and a minimal act such as agreeing or soliciting. Moreover,

in some instances, conspiracy may be regarded as less severe than solicitation. A

conspiracy is frequently formed between individuals who have already formed the

intent to commit the underlying crime. People v. Kauten, 755 N.E.2d 1016, 1019

(Ill. App. Ct. 2001). Solicitation, on the other hand, may involve the recruitment
-13-

of one who has not yet formed criminal intent. Id. at 1020. Because conspiracy

and solicitation have similar mens rea and actus reus requirements and are of

similar severity, they are sufficiently similar to be included together in the

application note. 

A defendant is guilty of attempt if he intends to commit a crime and takes a

substantial step toward the commission of that crime. E.g., United States v.

Haynes, 372 F.3d 1164, 1167 (10th Cir. 2004); Model Penal Code § 5.01. Thus,

to be guilty of attempt a defendant must intend to commit the crime himself,

while for solicitation a defendant need only intend that another person commit the

crime. This difference, however, carries little practical distinction because in

both instances, the defendant intends that the underlying crime be accomplished. 

Additionally, although the actus reus requirement for an attempt must go beyond

mere preparation, it need not be a greater act than that required for solicitation. 

In many jurisdictions, soliciting another person to engage in criminal conduct can

satisfy the substantial step requirement for an attempt. Model Penal Code §

5.01(2)(g); United States v. Am. Airlines, Inc., 743 F.2d 1114, 1120 n.10 (listing

states where solicitation can constitute an attempt). Thus, attempt and solicitation

also have similar mens rea and actus reus requirements. 

Aiding and abetting requires an intent to facilitate the commission of a

crime, affirmative conduct furthering the commission of that crime, and proof that
5The notion that attempt, conspiracy, and solicitation are of similar severity,

while aiding and abetting is more serious, is implicit in the Guidelines. Section

2X1.1 of the Guidelines provides for a three-level decrease in the offense level of

a defendant convicted of attempt, conspiracy, or solicitation of a crime so long as

the crime was not completed or was incomplete as a result of apprehension. 

USSG § 2X1.1(b). The portion of the provision relating to solicitation was

amended in 1989 to be identical to the portions regarding attempt and conspiracy

“to clarify the treatment of [solicitation] in a manner consistent with the treatment

of attempts and conspiracies.” U.S. Sentencing Guidelines Manual app. C amend.

238. The treatment of aiding and abetting in the Guidelines, however, is more

harsh. Instead of decreasing the offense level, the offense level for aiding and

-14-

the underlying crime was in fact committed. United States v. Sarracino, 131 F.3d

943, 946 (10th Cir. 1997). While the mens rea and actus reus requirements for

aiding and abetting and solicitation are similar, aiding and abetting requires an

additional element not present in solicitation. Aiding and abetting requires the

actual commission of the underlying offense. As an inchoate crime, however,

solicitation does not. Instead, if a person who is solicited to commit a crime

actually engages in criminal conduct, the solicitor becomes culpable as an

accomplice for the underlying crime. Model Penal Code § 2.06(1)–(3). Because

aiding and abetting requires commission of the underlying offense, aiding and

abetting and solicitation have important distinctions. Aiding and abetting in the

application note, however, is only one offense in the illustrative list including the

inchoate crimes of conspiracy and attempt. Because solicitation is at least as

similar to conspiracy as aiding and abetting is to conspiracy, solicitation should

be included in the list.5
abetting is the same as that for the underlying offense. Id. § 2X2.1.

-15-

In Liranzo, the Second Circuit held that criminal facilitation is not

sufficiently similar to aiding and abetting, conspiracy, and attempt to qualify as a

controlled substance offense under the Guidelines’ career offender provision. 944

F.2d at 79. Although we do not express any opinion as to the correctness of the

Second Circuit’s decision in Liranzo, the case is elucidative because the

differences the court identifies between facilitation and the offenses listed in the

application note do not similarly distinguish solicitation from those offenses. The

court in Liranzo reasoned that, unlike aiding and abetting, conspiracy, and

attempt, facilitation does not involve an intent to commit the underlying offense;

rather, it requires only that the defendant know his conduct is aiding in the

commission of a crime. Id. Solicitation, on the other hand, requires that the

defendant intend that the underlying crime be committed. Moreover, in Liranzo,

the court reasoned that a “facilitator’s conduct . . . is . . . so attenuated from the

final stages [of commission of the crime] that the role of the facilitator is only

remotely related as a cause or contributor to the ultimate crime.” Id. This

attenuation is not present with solicitation. Solicitation seeks to induce the

commission of a crime, and thus is the original, direct cause of the crime if it is

subsequently committed. 
-16-

Because the offenses listed in Application Note 5 to USSG § 2L1.2 are

merely illustrative, and solicitation is sufficiently similar to the listed offenses to

be encompassed by the application note, we conclude that solicitation of an

offense that otherwise meets the definition of “crime of violence” is also a crime

of violence. Therefore, the district court did not err in applying a sixteen-level

enhancement to Cornelio-Pena’s sentence.

B. Constitutional Booker Error

Cornelio-Pena next argues the district court committed constitutional

Booker error when it found facts not admitted by the defendant or proved to a jury

beyond a reasonable doubt in determining that Cornelio-Pena’s prior conviction

for solicitation of burglary was a crime of violence. This argument, however, is

foreclosed by our recent decision in United States v. Moore. 401 F.3d 1220 (10th

Cir. 2005). In Moore, we held that “scrutinizing the statutory definition of a prior

offense to ascertain if it [is a “violent felony” under the Armed Career Criminal

Act] involves a question of law for a court to decide, and not a question of fact

for a jury.” 401 F.3d at 1224. As a question of law, a district court’s

determination that a prior conviction is a “violent felony” does not implicate the

Sixth Amendment concerns addressed in Booker. Id. at 1225; see United States v.

Booker, 125 S. Ct. 738 (2005). Moreover, we recognized that because

determining whether a prior conviction is a “violent felony” involves an inquiry
6

In a Rule 28(j) letter, Cornelio-Pena argues that the Fourth Circuit’s

decision in United States v. Washington should inform our analysis. 404 F.3d 834

(4th Cir. 2005). Washington dealt with the applicability of the Sixth Amendment

when a district court relies on information beyond the documents permitted by

Shepard v. United States in determining that a prior conviction is a crime of

violence. Washington, 404 F.3d at 841–42; Shepard, 125 S.Ct. 1254, 1263

(2005). Washington is inapplicable to the present case, however, because here the

district court relied only on the fact of conviction and the statutory definition of

solicitation to commit second degree burglary in determining Cornelio-Pena’s

prior conviction was for a crime of violence. See United States v. Moore, 401

F.3d 1220, 1225 n.2 (10th Cir. 2005); United States v. Collins, 412 F.3d 515,

522–523 (4th Cir. 2005). 

-17-

intimately related to whether a prior conviction exists, Apprendi’s exception for

prior convictions applies to the inquiry of whether a prior conviction constitutes a

“violent felony” as well. Id.; Apprendi v. New Jersey, 530 U.S. 466 (2000). The

same principles apply to enhancements under the Guidelines. Therefore, the

district court did not commit constitutional Booker error in determining that

Cornelio-Pena’s prior conviction for solicitation of burglary was a crime of

violence.6

C. Non-Constitutional Booker Error

Cornelio-Pena also challenges his sentence under Booker because the

district court viewed the Guidelines as mandatory. Under Booker, the district

court’s mandatory application of the Guidelines was erroneous. 125 S.Ct. at 764. 

Although Cornelio-Pena was sentenced before the Supreme Court’s decision in

Booker, he objected to the application of the Guidelines under Blakely v.
-18-

Washington at his sentencing hearing. 542 U.S. 296 (2004). Thus, our review is

for harmless error. United States v. Labastida-Segura, 396 F.3d 1140, 1142–43

(10th Cir. 2005). Under the harmless error analysis, we must remand for

resentencing unless we determine, “without undue speculation, that the district

court would have imposed the same sentence on remand.” United States v.

Corchado, 427 F.3d 815, 821 (10th Cir. 2005). 

After announcing Cornelio-Pena’s sentence under a mandatory application

of the Guidelines, the district court announced an alternative sentence. The

district court stated, 

In the event that the Federal Sentencing Guidelines are found to be

unconstitutional and incapable of being constitutionally applied in

this sentencing, then the Court will impose the following alternative

sentence pursuant to 18 U.S.C. Section 3553(a), treating the

guideline [sic] as advisory only: It is the judgment and order of the

Court that the defendant is sentenced to the term of 57 months, and

all other conditions that the Court has indicated are appropriate and

shall be applied.

In United States v. Serrano-Dominguez, we held non-constitutional Booker

error was harmless when the district court imposed an alternative sentence. 406

F.3d 1221, 1223–24 (10th Cir. 2005). Although the district court in SerranoDominguez explicitly applied the factors in 18 U.S.C. § 3553(a) as suggested by

the Court in Booker, we have subsequently held that a district court need not

explicitly examine each of the § 3553(a) factors so long as the court consults the

Guidelines and the Presentence Investigation Report (“PSR”), which analyzes
-19-

several of the § 3553(a) factors. Corchado, 427 F.3d at 821. The district court

did not specifically discuss the § 3553(a) factors in this case. It did, however,

consult the Guidelines and the PSR and consider Cornelio-Pena’s motion for a

downward departure. Thus, the district court examined several of the § 3553(a)

factors in imposing its alternative sentence. Because we are confident CornelioPena would receive the same sentence on remand, the district court’s error was

harmless.

IV. Conclusion

For the foregoing reasons, Cornelio-Pena’s sentence is AFFIRMED.