U.S. v. Sandoval-Ruiz (5th Cir. 9/26/08) 

HIGGINBOTHAM, Stewart (only two judges)

The Government sought a sentence enhancement in illegal reentry case, arguing that Defendant's prior conviction for Illinois delivery of drugs was an aggravated felony. He argued that IL accomplice liability was broader than the federal scheme, because it included "solicitation" of the crime, so not an AggFel. The 5th Cir held that under Gonzales v. Duenas-Alvarez, 549 U.S. 183 (2007), there was no substantial difference between IL law and the federal law.

[Illinois] Solicitation is further defined as “to command, authorize, urge, incite, request, or advise another to commit an offense.” 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. * * * *

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. 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.

US v. Gonzalez, 484 F.3d 712 (5th Cir. 2007), distinguished.

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