* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not

be published and is not precedent except under the limited circumstances set forth in 5TH CIR.

R. 47.5.4.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 07-40893

UNITED STATES OF AMERICA

Plaintiff-Appellee

v.

MIGUEL CORDOBA-POSOS,

also known as Miguel Angel Collazo-Barba

Defendant-Appellant

Appeal from the United States District Court

for the Southern District of Texas

No. 5:07-CR-511-1

Before KING, DEMOSS, and PRADO, Circuit Judges.

PER CURIAM:*

Defendant-appellant Miguel Cordoba-Posos pleaded guilty to reentering

the United States after being removed subsequent to a conviction of an

aggravated felony in violation of 8 U.S.C. § 1326. The district court sentenced

him to forty-six months of imprisonment, including an enhancement pursuant

to section 2L1.2(b)(1)(A)(ii) of the United States Sentencing Guidelines Manual

for a previous conviction of a felony crime of violence. Cordoba-Posos appeals his

United States Court of Appeals

Fifth Circuit

F I L E D

October 7, 2008

Charles R. Fulbruge III

Clerk
No. 07-40893

1 This statute was later amended and is now codified at 720 ILL. COMP. STAT. 5/19-3

(2008).

2

sentence, asserting that the district court erred by concluding that his previous

felony conviction of residential burglary under chapter 38, section 19-3 of the

Illinois Criminal Code was a conviction of a crime of violence. For the following

reasons, we AFFIRM.

I. BACKGROUND

In 1986, Miguel Cordoba-Posos, then known as Miguel Angel CollazoBarba, was convicted of residential burglary under chapter 38, section 19-3 of

the Illinois Criminal Code (“section 19-3” or the “Illinois residential burglary

statute”), ILL. REV.STAT., ch. 38, ¶ 19-3 (1983).1 The indictment charged that he

“knowingly and without authority enter[ed] the dwelling place of Daniel

Andrade with the intent to commit therein a theft.” A certified copy of this

indictment and a “Statement of Conviction / Disposition,” showing that CordobaPosos was found guilty and sentenced on August 28, 1986, are the only record

evidence of his state court conviction.

Cordoba-Posos was subsequently removed from the United States on

August 9, 1989. After Cordoba-Posos reentered the United States, he was

apprehended on March 25, 2007, and charged by indictment with one count of

being found in the United States without lawful consent after being removed

following a conviction of an aggravated felony in violation of 8 U.S.C. §

1326(b)(2). Cordoba-Posos pleaded guilty.

The presentence report (the “PSR”) assessed a base offense level of eight.

Because of Cordoba-Posos’s previous felony conviction under the Illinois

residential burglary statute, the PSR recommended a sixteen-level, “crime-of-
No. 07-40893

3

violence” enhancement under § 2L1.2(b)(1)(A)(ii) of the 2006 version of United

States Sentencing Guidelines Manual (the “Sentencing Guidelines” or

“U.S.S.G.”). Crediting Cordoba-Posos three levels for acceptance of

responsibility,thePSR calculated a total offense level oftwenty-one. Combining

that offense level with his criminal history category of III, the PSR calculated a

guideline range of forty-six to fifty-seven months of imprisonment.

Cordoba-Posos objected to the PSR. He argued that the court should not

apply the sixteen-level enhancement because his conviction under the Illinois

residential burglary statute did not qualify as a “burglary of a dwelling,” the

relevant crime of violence listed in the commentary to § 2L1.2. See U.S.S.G. §

2L1.2 cmt. n.1(B)(iii). The district court overruled Cordoba-Posos’s objection,

applied the enhancement, and sentenced him to forty-six months of

imprisonment and three years of supervised release.

Cordoba-Posos filed a timely notice of appeal on September 12, 2007. We

exercise jurisdiction over his appeal from the district court’s final judgment of

conviction and sentence pursuant to 28 U.S.C. § 1291.

II. DISCUSSION

On appeal, Cordoba-Posos asserts thatthe sixteen-level enhancement was

improper because his previous felony conviction of residential burglary did not

qualify as a crime of violence under § 2L1.2(b)(1)(A)(ii). First, he argues that the

Illinois residential burglary statute in effect at the time of his conviction was

applied to burglary of uninhabited structures that do not qualify as “dwellings”

within the generic, contemporary meaning of burglary of a dwelling. Second, he

argues that chapter 38, section 5-2 of the Illinois Criminal Code (“section 5-2” or
No. 07-40893

2 This statute is now codified at 720 ILL. COMP. STAT. 5/5-2 (2008).

3

Itis of no moment whether Cordoba-Posos was deported because of his conviction. See

U.S.S.G. § 2L1.2 cmt. n.1(A)(ii) (“A defendant shall be considered to be deported after a

conviction if the deportation was subsequent to the conviction, regardless of whether the

deportation was in response to the conviction.”).

4 The government does not argue that Cordoba-Posos’s conviction under section 19-3

qualifies under the catch-all category of “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.” See U.S.S.G. § 2L1.2 cmt. n.1(B)(iii).

4

the “Illinois accountability statute”), ILL. REV. STAT., ch. 38, ¶ 5-2 (1983),2 held

defendants accountable for the principal offense for soliciting, agreeing to aid

another person in the planning of, or mere approving presence during the

principal offense, which is more inclusive than the generic, contemporary

meaning of criminal liability, as construed according to the federal law.

Where, as here, the defendant objects at sentencing to the district court’s

interpretation or application of the Sentencing Guidelines, thus preserving the

issue for appeal, we review de novo. See United States v. Cisneros-Gutierrez, 517

F.3d 751, 764 (5th Cir. 2008); United States v. Juarez-Duarte, 513 F.3d 204, 211

(5th Cir. 2008) (per curiam); United States v. Santiesteban-Hernandez, 469 F.3d

376, 378 (5th Cir. 2006).

Section 2L1.2(b)(1)(A)(ii) provides a sixteen-level enhancement to a

defendant’s base offense level when that defendant was previously removed

subsequent to a conviction of a crime of violence.3 Application note one of the

commentary to § 2L1.2 defines “burglary of a dwelling” as a qualifying crime of

violence.4 U.S.S.G. § 2L1.2 cmt. n.1(B)(iii). Moreover, application note five

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

include the offenses of aiding and abetting, conspiring, and attempting, to
No. 07-40893

5

commit such offenses.” U.S.S.G. § 2L1.2 cmt. n.5. Thus, the Sentencing

Guidelines are consistent with the modern trend that“treats aiders and abettors

during and before the crime the same way it treats principals.” United States

v. Duenas-Alvarez, 549 U.S. 183, 190 (2007); see also 18 U.S.C. § 2(a) (creating

liability as a principal for whoever “aids, abets, counsels, commands, induces or

procures” commission of an offense (the “federal aider and abettor law”)).

To determine whether a conviction under the Illinois residential burglary

statute constitutes a conviction of burglary of a dwelling, we employ the

categorical approach developed by the Supreme CourtinTaylor v. UnitedStates,

495 U.S. 575 (1990). See United States v. Carbajal-Diaz, 508 F.3d 804, 807 (5th

Cir. 2007). For crimes of violence enumerated in the commentary to § 2L1.2,

such as burglary of a dwelling, we define the potentially equivalent crime of

conviction by reference to its statutory definition. See, e.g., United States v.

Lopez-Deleon, 513 F.3d 472, 474–75 (5th Cir. 2008). We then compare that crime

of conviction to the generic, contemporary and uniform meaning of the

enumerated crime of violence using a common sense approach to ensure thatthe

defendant was found guilty of, at minimum, the elements of that generic crime.

See Taylor, 495 U.S. at 598 (interpreting “burglary” by reference to its “generic,

contemporary meaning”); United States v. Murillo-Lopez, 444 F.3d 337, 339–40
No. 07-40893

5 Where the prior crime of conviction encompasses a range of different criminal

behaviors, some of which are crimes of violence and some of which are not, we narrow the prior

crime’s definition by reference to the charging documents,the plea or verdict,the plea colloquy,

the plea agreement, and any express factual findings by the state court that the defendant

admitted. See Carbajal-Diaz, 508 F.3d at 809 n.7; Murillo-Lopez, 444 F.3d at 339–40. We do

not, however, rely on the “PSR’s characterization of a defendant’s prior offense.” United States

v. Garza-Lopez, 410 F.3d 268, 274 (5th Cir. 2005) (citing Shepard v. United States, 544 U.S.

13, 16 (2005)).

6

(5th Cir. 2006) (same for “burglary of a dwelling”).5 The Supreme Court in

Duenas-Alvarez recently clarified that:

[T]o find that a state statute creates a crime outside the generic

definition of a listed crime in a federal statute requires more than

the application of legal imagination to a state statute’s language. It

requires a realistic probability, not a theoretical possibility,thatthe

State would apply its statute to conduct that falls outside the

generic definition of a crime. To show that realistic possibility, an

offender, of course, may show that the statute was so applied in his

own case. But he must at least point to his own case or other cases

in which the state courts in fact did apply the statute in the special

(nongeneric) manner for which he argues.

549 U.S. at 193.

With this framework in mind, we compare residential burglary under

section 19-3 to the generic, contemporary meaning of burglary of a dwelling. The

generic meaning is well-settled in this court. In Murillo-Lopez, this court held

that burglary of a dwelling “includes the elements of generic burglary as stated

in Taylor,” 444 F.3d at 345, which are “an unlawful or unprivileged entry into,

or remaining in, a building or other structure, with intent to commit a crime,”

Taylor, 495 U.S. at 598. In addition, the Murillo-Lopez court added that “a

building or other structure” includes “at a minimum, tents or vessels used for

human habitation.” 444 F.3d at 344–45. Thus, burglary of a dwelling for

purposes of a sentencing enhancement under § 2L1.2(b)(1)(A)(ii) is the unlawful
No. 07-40893

7

or unprivileged entry into, or remaining in, a building, structure, tent, or vessel

used for human habitation, with intentto commit a crime. See id.; United States

v. Castillo-Morales, 507 F.3d 873, 875 (5th Cir. 2007) (defining term dwelling in

phrase burglary of a dwelling as “a structure, tent, or vessel where someone

lives”); see also United States v. Ortega-Gonzaga, 490 F.3d 393, 395 (5th Cir.

2007) (recognizing that Murillo-Lopez resolved definition of burglary of a

dwelling).

Having defined the generic, contemporary crime of burglary of a dwelling,

we next turn to Cordoba-Posos’s assertions that the Illinois residential burglary

and accountability statutes criminalize conduct outside ofthis generic meaning.

A. The meaning of “dwelling place of another” under the Illinois

residential burglary statute.

Cordoba-Posos claims thatthe district court erred in applying the crime-ofviolence enhancement pursuant to § 2L1.2(b)(1)(A)(ii) because the Illinois

residential burglary statute criminalized burglary of uninhabited structures that

do not qualify as dwellings within the generic, contemporary meaning of

burglary of a dwelling. At the time of Cordoba-Posos’s conviction, section 19-3

defined residential burglary as follows: “A person commits residential burglary

who knowingly and without authority enters the dwelling place of another with

the intent to commit therein a felony or theft.” ILL. REV. STAT., ch. 38, ¶ 19-3

(1983) (emphasis added); see People v. Bales, 483 N.E.2d 517, 519 (Ill. 1985);

People v. Sexton, 455 N.E.2d 884, 886 (Ill. App. Ct. 1983). A year before

Cordoba-Posos was convicted,the Illinois Supreme Courtinterpreted section 19-

3’s phrase “dwelling place of another” to require “that the structure be one used

by another as a residence or living quarters in which the owners or occupants
No. 07-40893

8

actually reside or, if absent, intend within a reasonable period of time to reside.”

Bales, 483 N.E.2d at 521. Incorporating the definition of “dwelling” found in

chapter 38, section 2-6 of the Illinois Criminal Code (“section 2-6”), ILL. REV.

STAT., ch. 38, ¶ 2-6 (1983), the court in Bales determined that the term dwelling

within the phrase dwelling place of another meant“a building or portion thereof,

a tent, a vehicle, or other enclosed space which is used or intended for use as a

human habitation, home or residence.” 483 N.E.2d at 519; see Sexton, 455

N.E.2d at 886 (same). Noting, however, that the phrase dwelling place of

another requires a narrower definition than the term dwelling, the court

concluded that “whether a structure is a dwelling place of another depends on

the purpose for which it is used, rather than the nature of the structure.” Bales,

483 N.E.2d at 520–21. As such, it held that section 19-3 applied only when the

structure was actually used for human residence or would be within a

reasonable period of time. Id. at 521. Thus, residential burglary under section

19-3 requires all of the elements of the generic, contemporary definition of

burglary of a dwelling—in particular, a person’s present or intended residency

in the dwelling. Compare Murillo-Lopez, 444 F.3d at 344–45, with Bales, 483

N.E.2d at 521.

Cordoba-Posos argues that notwithstanding the Illinois Supreme Court’s

interpretation, lower Illinois courts were allowing the prosecution and conviction

of defendants under section 19-3 for burglarizing uninhabited structures—i.e.,

garages and other buildings unoccupied or abandoned at the time of the

breaking and not intended for human residence within a reasonable period of

time. Thus, Cordoba-Posos contends section 19-3 was applied to nongeneric

crimes.
No. 07-40893

9

Cordoba-Posos bears the burden of showing that there is a “realistic

probability” that section 19-3 was applied to convict a defendant of residential

burglary of an uninhabited structure. See Duenas-Alvarez, 549 U.S. at 193. To

meet this burden, Cordoba-Posos points this court to three Illinois intermediate

appellate court cases, section 2-6’s text, the 1987 amendments to that section,

and the statements of an Illinois state senator related to those amendments.

We conclude that Cordoba-Posos’s submissions fall short of the necessary

showing of a realistic probability that section 19-3 was applied to conduct falling

outside of the generic meaning of burglary of a dwelling. The three Illinois

intermediate appellate court cases cited by Cordoba-Posos fail to meet his

burden. See People v. Silva, 628 N.E.2d 948, 952 (Ill. App. Ct. 1993) (burglary

of “unoccupied first-floor and garden apartments undergoing renovation”); People

v. Benge, 552 N.E.2d 1264, 1265 (Ill. App. Ct. 1990) (burglary of cabin used “once

a week every week”); People v. Pearson, 538 N.E.2d 1202, 1202–03 (Ill. App. Ct.

1989) (burglary of “residential rental property” one day after eviction of prior

tenant and three days before new tenants were scheduled to move in). As

Cordoba-Posos admits in his brief and conceded during oral argument, none of

these cases involved a defendant convicted of residential burglary of an

uninhabited structure. Without citing an actual example of a nongeneric

conviction,these three cases do nothing more than suggestthe application ofthe

Illinois residential burglary statute to uninhabited structures by referencing the

statements of the Illinois state senator related to the 1987 amendments to

section 2-6.

The language of section 2-6 in 1986, its subsequent amendments, and the

state senator’s statements, however, fail to raise a realistic probability that the
No. 07-40893

6 We do not decide this issue.

7 The 1987 amendment changed section 2-6 to read: 

“Dwelling”. (a) Except as otherwise provided in subsection (b) of this

Section, “dwelling” means a building or portion thereof, a tent, a vehicle, or

other enclosed space which is used or intended for use as a human habitation,

home or residence.

(b) For the purposes of Section 19-3 of this Code, “dwelling” means a

house, apartment, mobile home, trailer, or other living quarters in which at the

time of the alleged offense the owners or occupants actually reside or in their

absence intend within a reasonable period of time to reside.

ILL. REV. STAT., ch. 38, ¶ 2-6 (1987). As noted in the text, Bales defined dwelling place of

another in section 19-3 to mean that “the structure be one used by another as a residence or

living quarters in which the owners or occupants actually reside or, if absent, intend within

a reasonable period of time to reside.” 483 N.E.2d at 521.

10

Illinois residential burglary statute was applied to uninhabited structures.

Although the definition of dwelling contained in the 1986 version of section 2-6

arguably encompassed uninhabited structures,6 prior to Cordoba-Posos’s

conviction, the Illinois Supreme Court in Bales expressly narrowed that

definition when construing the meaning of the phrase dwelling place of another

in section 19-3. That narrower definition was codified as a new subsection of

section 2-6 by the 1987 amendments. The text of post-amendment subsection

2-6(b)7 mirrors the definition announced in Bales, and later Illinois case law

confirms that the amendments codified Bales’s holding. See People v. Taylor,

802 N.E.2d 402, 404–05 (Ill. App. Ct. 2003) (holding that the Bales court’s

definition of dwelling was codified as subsection 2-6(b)).

As evidence that the amendments were intended to correct actual cases

wherein defendants were prosecuted under section 19-3 for residential burglary

of uninhabited structures, Cordoba-Posos directs this court to Illinois State

Senator Sangmeister’s statements during the debate of the 1987 amendments
No. 07-40893

8 During a legislative debate, Senator Sangmeister explained the 1987 amendments as

follows:

Yes, it was even brought to our attention by the Illinois Supreme Court

in a number of cases that . . . there should be a better definition to the dwelling

house. We are having people prosecuted for residential burglary for breaking

into . . . unoccupied buildings such as garages. Therefore, very simply, we have

redefined dwelling to mean a house, apartment, mobile home, trailer or other

living quarters in which at the time of the alleged offense the owners or

occupants actually reside in or . . . in their absence intend within a reasonable

period of time to reside. So that still covers, in my opinion, the vacation home;

you intend to reside in that and if you burglarize that, you would still be

committing residential burglary, but it tightens up some of these cases where

we got old abandoned buildings around our garages and stuff that . . . would not

be residential burglary.

84th Ill. Gen. Assem., Senate Proceedings, June 18, 1986, at 66–67 (statements of Senator

Sangmeister), as quoted in Silva, 628 N.E.2d at 951.

11

to section 2-6. Without referencing specific examples, Senator Sangmeister

lamented that Illinois was prosecuting people for residential burglary for

breaking into uninhabited structures such as garages.8 The Supreme Court’s

holding in Duenas-Alvarez requires more to show a realistic probability of a

nongeneric application. See 549 U.S. at 193 (holding that defendant “must at

least point to his own case or other cases in which the state courts in fact did

apply the statute in the special (nongeneric) manner for which he argues”). The

nonspecific concerns of a single state senator are insufficient to show a realistic

probability that Illinois applied section 19-3 to conduct that falls outside the

generic definition of burglary of a dwelling where Cordoba-Posos has been

unable to produce a single case in which a defendant was convicted of a

nongeneric burglary of a dwelling. See United States v. Balderas-Rubio, 499

F.3d 470, 473–74 (5th Cir. 2007) (concluding that an example of prosecution
No. 07-40893

12

under defendant’s proposed meaning is necessary to meet burden under DuenasAlvarez).

Overall, the meaning of burglary of the dwelling place of another under

the Illinois residential burglary statute is consistent with the generic,

contemporary meaning of burglary of a dwelling;thus, a conviction of residential

burglary qualifies for the crime-of-violence enhancement pursuant to §

2L1.2(b)(1)(A)(ii). Moreover, Cordoba-Posos has failed to show that there is a

realistic probability that any defendant was prosecuted under section 19-3 for

a nongeneric residential burglary of an uninhabited structure. We, therefore,

conclude that the district court did not err when it denied Cordoba-Posos’s

objection on this basis.

B. The extent of criminal liability under the Illinois accountability

statute.

Cordoba-Posos contends that the district court erred by enhancing his

sentence because the Illinois accountability statute results in liability as a

principal for residential burglary in situations that are beyond the generic,

contemporary understanding of burglary of a dwelling or of criminal liability for

another person’s conduct. Comparing the Illinois accountability statute and

Illinois case law interpreting it to the Sentencing Guidelines and the federal

aider and abettor law, he bases his contention on two grounds: (1) that the

Illinois accountability statute creates liability for residential burglary without

requiring the defendant’s entry into a dwelling place of another and (2) that it
No. 07-40893

9 Defendant does not argue that, nor do we decide whether, the appropriate analysis in

this case would be to compare Illinois’s accountability statute to, inter alia,the similar criminal

liability statutes of the other states to determine the generic, contemporary meaning of

principal liability for residential burglary. Cf. Duenas-Alvarez, 549 U.S. at 190–94 (comparing

liability under California’s theft statute to other states’ liability statutes). Because CordobaPosos baseshis argument solely on a comparison ofthe Illinois accountability statute to federal

law, we address only this argument.

13

creates liability based on solicitation of, agreeing to aid in the planning of, or

mere approving presence during the commission of a residential burglary.9

In Duenas-Alvarez, the Supreme Court reviewed an order of removal

pursuant to 8 U.S.C. § 1227(a)(2)(A) based on a prior conviction of a theft offense

under California law. 549 U.S. at 189. The defendant claimed that California’s

theft statute criminalized a wider variety of conduct than is included in the

generic, contemporary definition of theft because that statute creates liability

beyond generic aiding and abetting liability. Id. at 190. Applying the categorical

approach established in Taylor, the Court concluded that aider and abettor

liability under the theft statute does not resultin liability for “conduct that most

other States would not consider ‘theft.’” Duenas-Alvarez, 549 U.S. at 186, 191.

Thus, after Duenas-Alvarez, this court must consider whether the Illinois

accountability statute renders Cordoba-Posos liable as a principal for “conduct

that falls outside the generic definition of [burglary of a dwelling]”; however, as

discussed earlier, to succeed in his challenge, Cordoba-Posos must show a

realistic probability that Illinois would apply its accountability statute in that

way. Id. at 193.

We begin our analysis by examining the Illinois accountability statute in

order to determine “the least culpable act” that would constitute a violation of
No. 07-40893

10 This statute is now codified at 720 ILL. COMP. STAT. 5/2-20 (2008).

14

the Illinois residential burglary statute. See United States v. Gonzalez-Ramirez,

477 F.3d 310, 316 (5th Cir. 2007).

Under the Illinois accountability statute, 

A person is legally accountable for the conduct of another

when . . . [e]ither before or during the commission of an offense, and

with the intent to promote or facilitate such commission, he solicits,

aids, abets, agrees or attempts to aid, such other person in the

planning or commission of the offense.

ILL. REV. STAT., ch. 38, ¶ 5-2. Illinois defines to “solicit” as “to command,

authorize, urge, incite, request, or advise another to commit an offense.” ILL.

REV. STAT., ch. 38, ¶ 2-20.10 The government does not dispute that Illinois has

used the theory of accountability to hold defendants liable as principals for

burglary. See, e.g., People v. Johnson, 530 N.E.2d 627, 631–32 (Ill. App. Ct.

1988); People v. Pleshko, 458 N.E.2d 975, 983–84 (Ill. App. Ct. 1983). Thus, a

defendant could be charged with residential burglary as a principal, if, either

before or during the commission of the offense and with the intent to promote it,

the defendant advised another person to knowingly and without authority enter

the dwelling place of another with the intent to commit therein a felony or theft

or agreed to aid the other person in planning that offense.

Here, the indictment evidences that Cordoba-Posos was charged with and

convicted of residential burglary; however, it does not reveal whether the

government’s theory of liability was Cordoba-Posos’s commission of the

residential burglary or was based on his accountability for another person’s
No. 07-40893

11 Relevant state court documents that might clarify this issue, if any exist, were not

made part of the record.

12 The facts of this case do not raise the issue of a conviction of an inchoate solicitation

offense, so we need not and do not address the question of whether the crime of solicitation

would satisfy the requirements of § 2L1.2. Numerous cases cited by the parties reveal that

other courts of appeals have split on this issue. Compare United States v. Aguilar-Ortiz, 450

F.3d 1271 (11th Cir. 2006), and United States v. Dolt, 27 F.3d 235 (6th Cir. 1994) (analyzing

U.S.S.G. §§ 4B1.1, 4B1.2(b)), with United States v. Cornelio-Pena, 435 F.3d 1279 (10th Cir.

2006).

15

commission ofthat offense.11 Under Illinois law, the defendant is indicted for the

principal crime even if the charges are brought under a theory of liability based

on the Illinois accountability statute. See People v. Stanciel, 606 N.E.2d 1201,

1209 (Ill. App. Ct. 1992) (holding that “[i]ndividuals are not charged with the

offense of accountability[;] [i]nstead, they may be charged [with the principal

crime at issue], with their guilt established through the behavior which makes

them accountable for the crimes of another”). The indictment, however, cannot

charge the defendant with accountability for the principal crime unless the

government intends to prove all of the elements of the principal crime. If, to the

contrary, the government intends to prove solicitation of an inchoate principal

offense, it must allege solicitation under Illinois’s separate solicitation statute.

See People v. Hairston. 263 N.E.2d 840, 847–48 (Ill. 1970) (holding that

accountability under section 5-2 is distinct from separate offense of solicitation

because government is required to prove that principal crime had been

committed); see also United States v. Creech, 408 F.3d 264, 273 (5th Cir. 2005).12

With this legal foundation, we easily dispose of Cordoba-Posos’s first

argument—that the Illinois accountability statute does not conform to the

generic meaning of burglary of a dwelling because it allows a defendant to be

convicted as a principal under the Illinois residential burglary statute without
No. 07-40893

16

entering the dwelling place of another. See People v. McKinney, 631 N.E.2d

1281, 1289–90, 1292 (Ill. App. Ct. 1994) (upholding burglary conviction under

accountability theory where defendant did not enter property). This argument

ignores the basic idea of accountability—that the defendant is liable for another

person’s entry. Because Cordoba-Posos was indicted with and convicted of the

principal offense, either he or a person for whom he was legally accountable

under Illinois law entered into the dwelling place of Daniel Andrade. CordobaPosos cites no Illinois case in which a defendant was convicted as a principal

based on an accountability theory without evidence that another person for

whom the defendant was legally accountable committed all of the elements of

residential burglary, including entry. Moreover, he presents no other reason to

conclude that such liability is inconsistent with the generic meaning of criminal

liability for a burglary of a dwelling. See 18 U.S.C. § 2(a); U.S.S.G. § 2L1.2 cmt.

n.5.

We next reject Cordoba-Posos’s argument that the Illinois accountability

statute is broader than the federal aider and abettor law. In the recent case

United States v. Sandoval-Ruiz, No. 07-40977, 2008 WL 4368912 (5th Cir. Sept.

26, 2008), this court considered the Illinois accountability statute and held that

it “is not meaningfully broader than federal law.” Id. at *3. Rejecting the same

challenges to an enhancementthat Cordoba-Posos raises here—that the Illinois

accountability statute criminalizes solicitation or mere approving presence—this

court concluded that “[a]s 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.” Id. at *2–3 (citing Stanciel, 606

N.E.2d at 1211–12 (requiring specific intent and proof of participation for
No. 07-40893

13 To the extent that defendant’s counsel during oral argument contended that People

v. Taylor, 646 N.E.2d at 572, was an example of the Illinois accountability statute applied, at

least in part, to conduct that occurred after the commission of the offense, we disagree.

Moreover, the Illinois accountability statute does not create liability as a principal for after17

liability to attach based on the Illinois accountability statute)); see also People

v. Walker, 358 N.E.2d 672, 675 (Ill. App. Ct. 1976) (holding that “[t]o convict a

person as an aider and abetter [under section 19-3], the State must establish

beyond a reasonable doubt that (1) the defendant solicited, aided, abetted,

agreed or attempted to aid another person in the planning or commission of the

offense; (2) the defendant’s participation took place before or during the offense;

and (3) the defendant’s participation was accompanied by the concurrent,

specific intent to promote or facilitate the commission of the offense”).

Regarding the defendant’s argument that a “mere approving presence” was

sufficient to establish liability under the Illinois accountability statute, this court

in Sandoval-Ruiz held that Illinois law requires both approving presence and

“‘evidence of conduct showing a design on defendant’s part to aid in the offense.’”

2008 WL 4368912, at *3 (quoting People v. Martinez, 662 N.E.2d 473, 476 (Ill

App. Ct. 1996) (holding that“a factfinder may infer a defendant’s accountability

from her approving presence at the scene of the crime and from evidence of

conduct showing a design on defendant’s part to aid in the offense” (internal

citation omitted))); see also People v. Taylor, 646 N.E.2d 567, 572 (Ill. 1995)

(upholding murder conviction where defendant traveled with primary actor to

find victim, knowing primary actor was armed with gun and intended to kill

victim, stayed with primary actor after the crime when primary actor retrieved

larger weapon, returned to scene of killing, and fled from police upon their

arrival).13 Overall, in Sandoval-Ruiz, this court concluded that “there is no
No. 07-40893

the-fact participation. See ILL. REV. STAT., ch. 38, ¶ 5-2 (limiting liability to acts undertaken

“[e]ither before or during the commission of the offense”); see also Duenas-Alvarez, 549 U.S. at

189–90 (citing section 5-2 for proposition that every state has abrogated distinction between

principals, aiders and abettors, and accessories before the fact, but not accessories after the

fact).

18

realistic probability that Illinois would apply the statute to conduct outside the

scope of the federal statute.” 2008 WL 4368912, at *3.

Sandoval-Ruiz thus controls our disposition of Cordoba-Posos’s argument

and disposes of his contention that the Illinois accountability statute includes

conduct that is broader than the generic meaning of aider and abettor liability

as defined by reference to federal law. In addition, Cordoba-Posos fails to

produce any Illinois case in which a defendant was charged with agreeing to aid

in planning an offense or mere approving presence during an offense without

additional participatory conduct and criminal intent that would also give rise to

liability under federal law.

In all, the district court did not err by applying the sixteen-level

enhancement for burglary of a dwelling under § 2L1.2(b)(1)(A)(ii) for CordobaPosos’s conviction of residential burglary under section 19-3 on the basis thatthe

Illinois accountability statute renders him liable for less culpable conduct than

would the federal aiding and abetting laws.

III. CONCLUSION

For the above reasons, we AFFIRM the sentence imposed by the district

court.