UNITED STATES OF AMERICA v. ANTHONY CARR
No. 22-1245
United States Court of Appeals for the Seventh Circuit
ARGUED APRIL 20, 2023 — DECIDED JULY 8, 2024
Before EASTERBROOK, ROVNER, and ST. EVE, Circuit Judges.
Carr’s contention that he was not convicted of a crime of violence hinges on the theoretical possibility that he could have been convicted as an aider and abettor to robbery rather than a principal. Although Carr was not charged as an accomplice in any of the three Illinois robberies, accomplice liability is implicit in every Illinois criminal charge and a defendant can thus be convicted as an aider and abettor even if he is not expressly charged as such.
Illinois has a form of aiding and abetting liability known as common design, which holds an accomplice liable for any criminal act committed in furtherance of the target offense the accomplice intended to aid and abet, even if that secondary criminal act was one that the accomplice did not foresee or agree to. See Monroe v. Davis, 712 F.3d 1106, 1120 (7th Cir. 2013) (describing the Illinois rule and collecting cases). So, for example, if the accused aids and abets the burglary of a home while the owners are out, and during the burglary the owners arrive home unexpectedly, at which point one of the accused’s cohorts points a gun at the owners and demands that they hand over their money, smartphones, and jewelry, the accused will be held liable for armed robbery (in addition to burglary) even if he did not anticipate or intend to aid a robbery and did not know that his cohort was armed.
We reject the argument. Each of Carr’s Illinois convictions is for armed robbery, and the pertinent elements of that offense are a match for generic robbery. The abstract possibility that Carr could have been convicted as an aider and abettor rather than a principal is neither here nor there: Illinois, like every other state, does not recognize a distinction between principals and accomplices. Although it is true that Illinois articulates its “common-design” iteration of accomplice liability in broad terms, we are not convinced that Illinois is an outlier in the way that it applies common-design liability. Duenas-Alvarez requires Carr to establish a “realistic probability” that Illinois would hold a defendant liable for a crime as an accomplice when most other states would not, 549 U.S. at 193, and in this respect, what Illinois courts do is more important than what they say. As we shall see, the results of Illinois common-design cases are consistent with those in jurisdictions that nominally apply narrower accomplice liability principles.
Further, however broad Illinois common-design liability may
Carr makes two other challenges to his sentence. One of them requires a remand to the district court; the other fails on plain-error review.
I.
On July 8, 2020, Carr was at a block party in Chicago when police officers arrived and began patting down guests for contraband. Carr attempted to flee from the officers but was unsuccessful: he was discovered to be in possession of a loaded semi-automatic pistol with an extended magazine with the capacity to hold 34 rounds of ammunition. Carr had previously been convicted of a felony, which made it unlawful for him to possess a firearm as a matter of both federal and state law. See
On September 3, 2020, a federal grand jury returned an indictment charging Carr with the unlawful possession of a firearm by a felon, in violation of
Carr pleaded guilty to the felon-in-possession offense in June 2021. The record before the court at sentencing, which includes both the federal pre-sentence investigation report prepared by the probation officer and the plea colloquy underlying the three armed robbery convictions in state court, details the facts underlying the armed robbery convictions.
On May 20, 2007, Carr and two of his friends, with the aim of obtaining gas money, perpetrated an armed robbery on two individuals sitting in a pickup truck: the victims were ordered out of the truck at gunpoint and relieved of their cash, a cell phone, and other personal items. Carr played a central role in the crime: he and one of his accomplices had obtained the guns used in the attempted robbery from a friend, Carr
On May 6, 2008, Carr committed two armed robberies without accomplices. In the first, he robbed a victim at gunpoint of $4 and a cellphone. In the second, he robbed a different victim, again at gunpoint, of a coin purse. R. 61 at 10–11 ¶¶ 33–34.
In April 2010, Carr was sentenced in state court for all three robberies, to which he had pleaded guilty. He was ordered to serve a 12-year prison term for the 2007 robbery and two 12-year terms for the 2008 robberies, with the latter terms running concurrently with one another but consecutively to the term imposed for the 2007 robbery, for an aggregate prison term of 24 years. Carr was out on parole from that prison term in 2020 when he was arrested with the loaded semi-automatic pistol underlying the federal charge in this case.
For federal sentencing purposes, the pre-sentence report treated each of these three Illinois convictions for armed robbery as a “crime of violence” pursuant to
Carr objected to the treatment of his prior armed robbery convictions, arguing that they were not “crimes of violence.” R. 45, 56. Carr’s argument, as we discussed at the outset of this opinion, was premised on the breadth of accomplice liability in Illinois. Although each of Carr’s Illinois convictions was for armed robbery, and there was no indication that Carr had been charged or convicted as anything but a principal for any of the robberies, Carr postulated that one charged with armed robbery in Illinois could be convicted of that offense as an accomplice not because he agreed to commit robbery–or the use of a firearm or other dangerous weapon to commit the robbery–but rather because the armed robbery was committed in furtherance of a separate crime to which he had agreed (in our prior example, residential burglary), however unexpected the robbery may have been to him. The breadth of Illinois accomplice liability, in Carr’s view, places it outside of the mainstream of secondary criminal liability in the United States, such that a conviction for an Illinois offense–in this case, armed robbery–cannot be treated as a categorical match for its generic counterpart. See Duenas-Alvarez, 549 U.S. 183. So, although the Sentencing Guidelines treat robbery as a crime of violence, Carr argued that his Illinois convictions for (armed) robbery are a categorical mismatch for generic robbery and thus could not be treated as crimes of violence for purposes of enhancing his offense level.
The Seventh Circuit has dealt directly with the issue. And to the extent that there is any undecided aspect of the challenge, this Court overrules the defendant’s objections and finds that he has been convicted of constitutionally supportable crimes of violence.
R. 70 at 11. The court adopted the PSR as relevant here and imposed a prison term at the bottom of the advisory sentencing range—84 months—to be followed by a three-year term of supervised release.
Carr also asked the court to reduce the sentence imposed by 15 months to reflect the time he had spent in pretrial and pre-sentencing detention from the date of his arrest by local authorities on July 8, 2020, until the expiration of his state parole term on October 19, 2021. Although Carr had nominally been in federal custody for most of that time period, he noted that the Bureau of Prisons would not credit that time against his sentence because, as a matter of law, he was still in the primary custody of Illinois as he served out the remainder of his revoked state parole term. Carr nonetheless proposed that a reduction in his sentence was warranted to reflect the fact that his initial arrest and detention by local authorities, and the revocation of his state parole, were based on the same conduct (his unlawful possession of a firearm) as his federal felon-in-possession conviction. The district court would not entertain that argument, emphasizing that the question of sentence credits was one exclusively for the Bureau of Prisons and that Carr would be credited for any time spent in federal custody. R. 70 at 23, 28. The court apparently did not
II.
The Sentencing Guideline applicable to the unlawful possession of a firearm specifies a base offense level of 26 if “the defendant committed any part of the instant offense subsequent to sustaining at least two felony convictions of … a crime of violence” as defined in
Courts apply the categorical approach first delineated by the Supreme Court in Taylor, 495 U.S. at 602, to ascertain whether a given offense qualifies as a crime of violence for purposes of the Guidelines. E.g., United States v. Dixon, 27 F.4th 568, 570 (7th Cir 2022). When applying the enumerated offense clause of
Carr was convicted of armed robbery in violation of section 18-2 of the Illinois criminal code.
There is no dispute that Illinois robbery on its face is a categorical match for generic robbery, and thus constitutes a “crime of violence” under the enumerated offense clause of
A. Mental State of Recklessness
Carr suggests first that we revisit the foregoing holdings deeming Illinois robbery to be a crime of violence in light of Borden v. United States, 593 U.S. 420 (2021). Borden holds that a criminal offense with a mens rea of recklessness does not qualify as a “violent felony” under the elements clause of the Armed Career Criminal Act,
Prior to 2013, the Illinois robbery statute did not specify a mens rea necessary to commit the offense,3 and in the absence of a specified mental state the default rule in Illinois was that such offenses could be completed with either purpose, knowledge, or recklessness. See generally
However, Carr did not make this particular argument below, notwithstanding the fact that Borden was decided in June 2021, nearly eight months prior to his February 2022 sentencing. Carr therefore forfeited the argument, limiting our review to plain error. E.g., United States v. Acox, 595 F.3d 729, 730 (7th Cir. 2010). Among other elements, a showing of plain
As we concluded in Love, it is not obvious that the crime of Illinois armed robbery prior to 2013 encompassed the reckless use of force. Although it is possible that the default minimum mental state of recklessness applied to both the taking element of robbery as well as the force element of the offense, it is also possible that the default minimum mental state of recklessness applied only to the former and not to the force element. 2023 WL 2546507, at *3–*4. The Illinois pattern instruction on robbery at that time was consistent with this possibility. Id. at *3 (citing ILLINOIS PATTERN JURY INSTRUCTIONS–CRIMINAL § 14.02). See also United States v. Brown, 74 F.4th 527, 532–33 (7th Cir. 2023) (finding that similar language in Illinois carjacking statute suggests that use or threat of force must be knowing or intentional), cert. denied, 144 S. Ct. 1019 (2024).
Given the possibility that Illinois required the use of force to be knowing or intentional at the time Carr was convicted, he cannot show that the district court plainly erred in treating his armed robbery convictions as crimes of violence in establishing his offense level for sentencing purposes. Id. at *4.
B. Illinois common-design accomplice liability
1. Duenas-Alvarez and conviction as an accomplice rather than a principal
The final judgments for each of Carr’s three armed robbery convictions cite armed robbery in violation of
However, based on Duenas-Alvarez, Carr wants us to consider the possibility that he might have been convicted of robbery on an aiding and abetting theory. As discussed, his argument is based on the breadth of Illinois’ common-design rule of accomplice liability as it is described by Illinois courts, which he believes places Illinois law outside of the norm for accomplice liability vis-à-vis the federal government and other states. So, to the extent that Carr theoretically might have been convicted as an aider and abettor rather than as a principal, he believes his convictions for robbery are not a match for generic robbery. Before we reach the merits of that argument, we must first review what the Court in Duenas-Alvarez did and did not hold and how we have applied Duenas-Alvarez to cases in which accomplice liability was at issue.
An individual’s prior conviction for certain types of felony offenses, including crimes of violence, can subject him to various criminal and civil penalties, including increased
The principal question presented in Duenas-Alvarez was whether it makes a difference that the individual may have been convicted as an aider and abettor of the felony offense at issue—and thus may not have personally committed each element of the offense—rather than as a principal. The government was seeking to remove Duenas-Alvarez from the United States on the ground that he had committed a “theft offense,” which is among the list of aggravated felonies in the INA which subject an immigrant to removal. See
Consistent with Duenas-Alvarez, we concluded in United States v. Worthen, 60 F.4th 1066 (7th Cir.), cert. denied, 144 S. Ct. 91 (2023), that an individual convicted of aiding and abetting a Hobbs Act robbery is guilty of committing a crime of violence, even if he did not personally use force or threaten to use force against the person or property of another—the element of Hobbs Act robbery that makes it a crime of violence.
Once these showings are made, the aider and abettor is culpable for the offense on the same terms as the principal. Aiding and abetting an offense, we emphasized, is not a separate crime from the underlying offense itself:
[It] is instead an alternative theory of liability for the commission of the principal offense. Put more directly, “an aider and abettor of a Hobbs Act robbery necessarily commits all the elements of a principal Hobbs Act robbery,” In re Colon, 826 F.3d 1301, 1305 (11th Cir. 2016). And because the principal offense of Hobbs Act robbery satisfies the force clause of § 924(c), aiding and abetting a Hobbs Act robbery qualifies as a crime of violence too. See id.
60 F.4th at 1069–70; see also Mwendapeke v. Garland, 87 F.4th 860, 866 (7th Cir. 2023) (complicity to Kentucky first-degree robbery is an aggravated felony crime of violence subjecting immigrant to removal); Gamez, 77 F.4th at 599 (aiding and abetting Indiana arson is a crime of violence for purposes of the Armed Career Criminal Act); United States v. Groce, 999 F.2d 1189, 1191–92 (7th Cir. 1993) (Wisconsin conviction for burglary as a party to a crime rather than as a principal
What Carr argues here, however—invoking a second aspect of Duenas-Alvarez—is that Illinois has embraced a form of aiding and abetting liability that is well outside of the mainstream of accomplice liability. At this point, we should pause to say a few words about the different ways in which federal and state jurisdictions formulate aiding and abetting liability.
2. Accomplice liability in the United States: from narrow to broad
In the classic articulation of federal accessory liability under
A much broader formulation of accomplice liability is found in the natural and probable consequences doctrine, which has been adopted in a minority of states. Under this formulation, if a principal commits a secondary crime in the course of carrying out the target crime, an aider and abettor is liable for the secondary crime so long as it is a natural and probable consequence of the target crime, even if the aider and abettor did not anticipate that the secondary crime would occur and had no intent that such a crime occur. John F. Decker, The Mental State Requirement for Accomplice Liability in American Criminal Law, 60 S. C. L. REV. 237, 242 (2008). One way to describe “a natural and probable consequence” is a result that, in light of ordinary experience, is one to be expected, rather than an extraordinary or surprising result. See WISCONSIN JURY INSTRUCTIONS – CRIMINAL, No. 411 (2005). On this understanding, a natural and probable consequence is one that is reasonably foreseeable to the defendant at the time he aids and abets the principal in committing the target crime. See id. & comment. (n.11) (citing William L. Prosser, THE LAW OF TORTS, at 252 (West 4th ed. 1971)). Consistent with that understanding, many of the jurisdictions that either expressly embrace the natural and probable consequences doctrine or
3. Duenas-Alvarez and the prospect of “special,” overbroad accomplice liability
With that bit of background, we can return to Duenas-Alvarez and Carr’s argument as to the breadth of Illinois’ accomplice liability. Recall that the primary question presented in Duenas-Alvarez—the one on which the Supreme Court had granted certiorari—was whether the Immigration and
But the Supreme Court was not convinced that California did in fact define aiding and abetting liability so broadly as to place it outside the national mainstream of accomplice
The Court’s analysis ended there; it had no occasion to consider how a finding that a state’s aiding and abetting liability is “somehow special” enough to place it outside the mainstream would affect the categorical analysis of a state offense under Taylor. Duenas-Alvarez does make clear that it is a defendant’s burden to show that a given state’s accomplice liability rules are so broad as to render them “special”: the Court speaks solely in terms of what the defendant, not the government, must show. And the decision helpfully adds that the defendant must demonstrate “a realistic probability, not a
4. Common design accomplice liability in Illinois
Carr contends that Illinois law is “special” in the way that the Court in Duenas-Alvarez envisioned. Illinois, like California, has adopted the natural and probable consequences doctrine. 2 Wayne R. LaFave, SUBSTANTIVE CRIMINAL LAW § 13.3(b) n.29 (3d ed. 2017 & supp. Oct. 2023); Decker, 60 S. C. L.Rev. at 334–36; Brennan v. People, 15 Ill. 511, 516 (1854); People v. Morgan, 364 N.E.2d 56, 59–60 (Ill. 1977); People v. Green, 535 N.E.2d 413, 421–22 (Ill. App. Ct. 1988). But what sets Illinois apart from other such jurisdictions, Carr argues, is that Illinois does not require that a secondary crime committed by a principal in connection with the target crime have been reasonably foreseeable to his accomplice.
Carr’s argument begins with Illinois’ accountability statute and its provision for common design culpability. The statute opens with the proposition that “[a] person is responsible for conduct which is an element of an offense if the conduct is either that of the person himself, or that of another and he is legally accountable for such conduct as provided in Section 5-2, or both.”
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 that commission, he or she solicits, aids, abets, agrees, or attempts to aid
that other person in the planning or commission of the offense.
When 2 or more persons engage in a common design or agreement, any acts in furtherance of that common design committed by one party are considered to be the acts of all parties to the common design or agreement and all are equally responsible for the consequence of those further acts. …
Notes
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.” 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
(continued)
The doctrine dates at least as far back as the Illinois Supreme Court’s 1854 decision in Brennan v. People. Albert Story, a contractor for the Illinois Central Railroad, had been murdered in LaSalle, Illinois in December 1853. When laborers angered by a reduction in their daily wage confronted Story at his office, Story fatally wounded one of them with a gun. An enraged mob then chased Story out of his office and tracked him down at a stable near his home, where he was beaten and killed. See Dreadful Riot and Loss of Life on the Illinois Central Railroad, N.Y. DAILY TIMES, Dec. 19, 1853, at 1; Riot at LaSalle—Full Particulars, ALTON TELEGRAPH, Dec. 21, 1853 (transcribed by Nancy Piper), available at
to have factually “requested” or “advised” a crime could reasonably be found guilty of having “induced” or “counseled” the crime.
Id. at 736-37. The court also rejected the defendant’s contention that one can be held liable as an accomplice in Illinois courts based on nothing more than his approving presence at the scene of the crime. Id. at 737. The Fifth Circuit did not address the argument that Carr makes here, however, that common-design liability places Illinois out of the mainstream with accomplice liability in other jurisdictions.
These instructions required the jury to acquit the prisoners, unless they actually participated in the killing of Story, or unless the killing happened in pursuance of a common design on the part of prisoners and those doing the act to take his life. Such is not the law. The prisoners may be guilty of murder, although they neither took part in the killing, nor assented to any arrangement having for its object the death of Story. It is sufficient that they combined with those committing the deed to do an unlawful act, such as to beat or rob Story; and that he was killed in the attempt to execute the common purpose. If several persons conspire to do an unlawful act, and death happens in the prosecution of the common object, all alike are guilty of the homicide. The act of one of them done in furtherance of the original design is, in consideration of law, the act of all. And he who advises or encourages another to do an illegal act is responsible for all the natural and probable consequences that may arise from its perpetration.
15 Ill. at 516 (citations omitted).
People v. Kessler, 315 N.E.2d 29 (Ill. 1974), decided 120 years after Brennan, is considered a “textbook application of the common-design rule” in Illinois. See People v. Fernandez, 6 N.E.3d 145, 150 (Ill. 2014).
[T]he burglary was the offense which [Kessler and the principals] had jointly planned and were jointly committing, and each was legally accountable for the conduct of the other in connection therewith. The result was the offense of attempted murder of … the tap owner, and of
[the] State Trooper … who answered a report of the incident and who tried to apprehend the fleeing parties.
315 N.E.2d at 33.
As in Kessler, the court in Fernandez imposed liability on an individual who aided and abetted a burglary for a shooting committed by the principal in furtherance of the burglary. Fernandez agreed to drive his friend Gonzales to burgle parked cars near Chicago’s Maxwell Street market. Finding no such cars, as the market was closed, they drove to a church parking lot, where Gonzalez decided to steal a car radio from a car parked in the lot. Unbeknownst to Fernandez, Gonzalez had brought a firearm with him. An off-duty police officer planning to attend services at the church was parking his car in the lot when he heard the sound of breaking glass as Gonzalez was smashing the window of the car he intended to burgle. When the police officer walked up to Gonzalez, announced himself, and showed his badge, Gonzalez attempted to flee the scene with Fernandez and fired at the officer. Fernandez was found guilty by accountability of both the burglary of the car and two counts of aggravated discharge of a firearm in the direction of a police officer. Fernandez argued that he could not be held liable for the firearm discharge when he did not know that his friend was armed, let alone that Gonzales would fire the gun at the police officer, and thus could not have intended that the shots be fired. The Illinois Supreme Court disagreed. The court noted that the statute imposes liability for any criminal act done in furtherance of the planned and intended act:
In its brief before this court, the State begins by arguing that, “by conceding his guilt for the
burglary, under the facts of this case, defendant has effectively conceded his guilt for aggravated discharge of a firearm.” This is exactly right. As Kessler clearly establishes, section 5-2(c) means that where one aids another in the planning or commission of an offense, that person is legally accountable for the conduct of the person he aids; and that the word “conduct” encompasses any criminal act done in furtherance of the planned and intended act. Here, defendant concedes that he aided Gonzalez in the planning and commission of the burglary. That being the case, defendant is legally accountable for any criminal act that Gonzalez committed in furtherance of the burglary, which in this case was the aggravated discharge of a firearm in the direction of a peace officer. Under well-settled accountability principles, the evidence in this case more than supports defendant’s conviction.
6 N.E.3d at 151 (emphasis in original).
These cases by their terms certainly make clear that a person who aids and abets another in committing one offense need not know about other acts committed by the principal in connection with that offense, let alone share the principal’s intent as to those acts; once he has agreed to help commit the target offense, he becomes liable for any and all secondary criminal acts committed by the principal in furtherance of that target offense, even if the additional acts were unexpected and even if the defendant would not have agreed to participate in those acts. See also Morgan, 364 N.E.2d at 60 (where plan formed among multiple individuals to rob victim, who
More than that, the broad, unqualified language of the Illinois cases signals that an accomplice might be liable for additional criminal acts committed by the principal in furtherance of a common criminal design even when such acts were not reasonably foreseeable to him. Indeed, Illinois courts have gone so far as to say that “the concept of reasonable foreseeability (i.e. proximate cause) … has no place in accountability analysis.” People v. Cooper, 743 N.E.2d 32, 38 (Ill. 2000) (quoting the appellate court’s unpublished order in the case); see also People v. Watson, 201 N.E.3d 63, 74 (Ill. App. Ct. 2021) (“Foreseeability is not an element of the common-design theory of accountability.”); People v. Ivy, 37 N.E.3d 945, 953 (Ill. App. Ct. 2015); United States ex rel. Lovett v. Schomig, 2001 WL 558052, at *2–*3 (N.D. Ill. May 21, 2001). Reasonable foreseeability does come into play with felony murder—a theory of liability that exposes a defendant to liability for deaths caused not only by his accomplices but by other actors, including criminal rivals, victims, and police officers—but not with accountability, see Cooper, 743 N.E.2d at 38; the two doctrines have different theoretical underpinnings, as the Illinois Supreme Court explained in People v. Dennis, 692 N.E.2d 325 (Ill. 1998):
Felony murder seeks to deter persons from committing forcible felonies by holding them responsible for murder if a death results. Because of the extremely violent nature of felony
murder, we seek the broadest possible bounds for the attachment of criminal liability. For that reason, in felony murder, a defendant’s liability is not limited to his culpability for commission of the underlying felony. A defendant may be found guilty of felony murder regardless of a lack either of intent to commit murder or even connivance with a codefendant. Our continued adherence to a proximate cause approach is further exemplary of how broadly we seek to extend the reaches of criminal liability in the case of felony murder.
Id. at 335 (citations omitted). By contrast, “accountability focuses on the degree of culpability of the offender and seeks to deter persons from intentionally aiding or encouraging the commission of offenses.” Id. Illinois accountability doctrine is broad to the extent it deems the acts of one party to a common criminal design to be the acts of all, but it also has limits that felony murder does not: the secondary criminal acts must have been committed by one’s accomplice, and the acts must have been committed in furtherance of the common design. Compare Cooper, 743 N.E.2d at 38 (defendants who engaged in shoot-out with opposing gang members could not be held liable under accountability theory for death resulting from return fire by opposing gang members, however foreseeable such a death might have been to defendants), with People v. Lowery, 687 N.E.2d 973 (Ill. 1997) (defendant properly held liable for felony murder where, in course of attempting to rob victim at gunpoint, defendant dropped the gun in struggle with victim, victim seized the gun, and when defendant fled
Carr thus makes a decent case for the notion that the breadth of the common-design rule as articulated in Illinois places it out of the mainstream of other natural and probable acts jurisdictions, which typically require that the secondary criminal acts for which an accomplice is being held to account be reasonably foreseeable. Time and again, Illinois courts have emphasized that once an individual has embraced and acted to support the target offense as something he wishes to succeed, he is criminally liable for any secondary offense that his cohort may commit in furtherance of the target offense. Fernandez, 6 N.E.3d at 151. Indeed, Illinois’ common-design rule is sometimes referred to colloquially as a “misdemeanor murder rule,” in that a defendant may even be held to account for a murder committed in furtherance of a misdemeanor target offense. See People v. Terry, 460 N.E.2d 746, 749 (Ill. 1984)
Defendants in Illinois frequently argue that they agreed only to the target offense, that they neither knew of nor intended for any secondary crimes to take place, that they did not know their cohorts were armed, and that they participated in the target offense on the assurance that no dangerous weapon would be used. These types of arguments consistently fail. See, e.g., People v. Nelson, 89 N.E.3d 725, 735 (Ill. 2017) (where defendant and three other women had engaged in common design to batter male victim, Wilson, and during the beating one of the women, Hall, fatally stabbed victim, defendant was liable for murder notwithstanding her statement to police that she told Hall that they should only beat the victim up, that she did not know that Hall intended to kill Wilson, that during the beating Hall “suddenly and without explanation” stabbed Wilson, and that she tried to stop Hall once the stabbing began (although defendant did not remove herself from the attack): “If the four codefendants’ common design was to commit a criminal assault on Wilson, then it would not matter under Illinois law whether Hall ‘suddenly’ stabbed Wilson during the attack or whether, at some point, defendant told Hall to stop and attempted to grab the knife.”); People v. Tarver, 45 N.E.2d 630, 632 (Ill. 1942) (where “Tarver group” of young people, including defendant Mack, confronted “Walker group” of youths in order to avenge a beating suffered by a member of Tarver group, and during confrontation, a Tarver group member took gun from Mack and fatally shot a member of the Walker group, defendant Mack was accountable notwithstanding fact that Mack had agreed to join confrontation on condition there would be no shooting: “A shot fired by one of the defendants, under the
Even so, although Illinois courts may articulate the Illinois common-design rule in a way that appears uniquely broad, we are not convinced that application of the common-design rule in Illinois is truly out of step with the application of the
5. Comparing the application and results of Illinois common-design cases with cases from other jurisdictions that require foreseeability
The Illinois Supreme Court’s own decision in Hamilton v. People, 113 Ill. 34 (1885), which involved an attempted murder committed in the course of a botched watermelon heist, nicely illustrates why the results of Illinois common-design cases are consistent with the holdings of other jurisdictions that require secondary crimes to be reasonably foreseeable to an accomplice. Hamilton was among three men who climbed over a fence into a farmer’s watermelon patch one night, intending to steal some of the melons. One of the men had a pistol with him. As it happened, the farmer and his son (armed with a shotgun) were keeping watch over the patch, having noticed thefts over the course of the prior two evenings. A verbal confrontation between the intruders and the farmer escalated into a physical scuffle. The farmer’s wife, armed with a hoe, joined the fray. One of the men seized the hoe from her and struck the farmer in the head with it, knocking him out. The court sustained the conviction of Hamilton as well as the
The fact is undisputed that the three defendants, one of whom was armed with a pistol, invaded the premises of the prosecuting witness [the farmer] with a criminal purpose. The business upon which the parties had deliberately entered was a hazardous one. They had a right to expect that in the event they were detected in stealing the melons, it would result in violence endangering life or limb[ ]—as it actually turned out afterwards. That they were all coconspirators in a dangerous criminal enterprise, is an undisputed fact. Such being the case, whatever was done by one, in contemplation of law was done by all, and all are therefore equally responsible.
Id. at 37–38. Note that the court appears to have actually considered whether attempted murder was a foreseeable consequence of watermelon theft, and answered that question in the affirmative, emphasizing that having deliberately embarked on a hazardous criminal scheme, the defendants “had a right to expect” that violence might erupt in the event they were caught stealing the melons. Id. (emphasis added); see also Morgan, 364 N.E.2d at 60 (“Where one attaches himself to a group bent on illegal acts which are dangerous or homicidal in character, or which will probably or necessarily require the use of force and violence that could result in the taking of life unlawfully, he becomes accountable for any wrongdoings committed by other members of the group in furtherance of the common purpose, or as a natural or probable consequence thereof even though he did not actively participate in the
Cases from other natural and probable consequence jurisdictions have reached similar conclusions. To take a prominent example, the California Appellate Court’s decision in People v. Nguyen, 26 Cal. Rptr. 2d 323 (1993), was one of the cases that the U.S. Supreme Court considered in Duenas-Alvarez in assessing (and rejecting) the contention that California’s natural-and-probable-consequence jurisprudence was an outlier. In that case, the defendants, who had aided and abetted robberies of tanning and relaxation spas—which evidently were really operating as illicit massage parlors—were held liable for a sexual assault that the principal committed on the owner of the tanning spa as a way of frightening the owner into cooperation. The California court rejected the defendants’ argument that they had not intended for the assault to occur and that a sexual assault was not a foreseeable consequence of robbery:
Robbery is a crime that can be committed in widely varying circumstances. It can be committed in a public place, such as on a street or in a market, or it can be committed in a place of isolation, such as in the victim‘s home. It can be committed in an instant, such as in a forcible purse snatching, or it can be committed over a prolonged period of time in which the victim is held hostage. During hostage-type robberies in isolated locations, sexual abuse of victims is all too common. As Presiding Justice Gardner observed (with respect to residential robbery) in his concurring opinion in People v. Lopez (1981)
In turning to the facts of this case we find ample evidence to support a theory that the sexual offenses were a reasonably foreseeable result of the defendants’ participation in the group criminal endeavor. The defendants and their cohorts chose to commit robberies in businesses with a sexual aura, both from the types of services they held themselves out as providing and from the strong suspicion, repeatedly expressed by the
Id. at 332–33 (additional citations omitted).11 Cf. People v. James, 93 N.E.3d 626, 636–38 (Ill. App. Ct. 2017) (concluding that sexual assault was not in furtherance of original common design to invade a residence and rob the occupants, but going on to find evidence was sufficient to permit jury to find that that defendant became part of a secondary design with co-defendant to commit sexual assault on victim).
Cases from still other jurisdictions apply the natural and probable consequences doctrine in a comparable way, deeming secondary offenses committed by a principal in
6. Illinois: not so “special” after all
The application of the natural and probable consequences doctrine in these cases strikes us as entirely consistent with the application of Illinois’ common-design rule. In other words, although Illinois courts may frame the common-design rule of accomplice liability in very broad terms, the results of the Illinois cases are wholly consistent with the cases from other jurisdictions which require that a secondary offense have been foreseeable to the accomplice. In practice, then, Illinois courts are not “apply[ing] its [accomplice liability] statute to conduct that falls outside the generic definition of a crime.” Duenas-Alvarez, 549 U.S. at 193.
For example, returning to Kessler—the “textbook” Illinois common-design case—where the accomplice was convicted of attempted murder based on the actions of his cohorts in the course of an after-hours tavern burglary, it is not difficult to construct an argument that it would have been reasonably foreseeable to Kessler, having agreed to a plan in which the two principals would break into a tavern and raid the till, that someone, be it the tavern owner or a police officer, might catch them in the act and attempt to forcibly stop the burglary, that such an individual might be armed, and that there might be a gun kept on the premises. Even if Kessler’s accomplices had not found a gun in the tavern, it is not at all hard to imagine them picking up some other dangerous implement—a baseball bat or a knife, for example—or snatching a gun away from an officer or other intervenor—and using that weapon to complete the burglary and make a getaway.
In short, although Carr has arguably established that Illinois’ formulation of common-design doctrine is unusually broad to the extent it does not require that a secondary criminal act committed in furtherance of the agreed-upon target offense have been reasonably foreseeable to the defendant, he has not shown that Illinois courts have applied the doctrine in a way that is at odds with the natural and probable consequences jurisprudence in other states; in practice, Illinois courts do not hold accomplices liable for secondary offenses that were not reasonably foreseeable to them. There is thus nothing “special” about the results of the common-design cases in Illinois—as we have seen, the same results could just as easily have been reached in other natural and probable consequences jurisdictions. To be sure, one can find cases in other jurisdictions where a defendant was held not to be culpable for a secondary criminal act committed by the principal in connection with the target offense on the ground that the secondary crime was not reasonably foreseeable to the defendant. See, e.g., State v. Davis, 604 P.2d 68, 72–73 (Kan. Ct. App. 1979) (defendant who stood as lookout while principal
for murder on an accountability theory, Stinde would later contend that at most, the plan was to commit theft by fraud by selling the boyfriend substandard marijuana, and that violence was wholly outside the scope of that common design. But the Court of Appeals was plainly unconvinced by the premise of that argument. The court pointed out that the principal who shot the victim was desperate for money, that the principal’s modus operandi was to commit robbery when he needed cash, and that when Stinde’s sister had contacted Stinde about her boyfriend’s wish to buy marijuana, Stinde had remarked to her, “I hope you don’t like him.” Stinde is yet another Illinois case, then, in which it could be said that the prospect of violence was reasonably foreseeable to the accomplice.
As Duenas-Alvarez makes clear, it is Carr’s burden to show that accomplice liability in Illinois is truly special. He has not made that showing. He has identified a different, perhaps unique, formulation of aiding and abetting liability, but he has not shown that the application of the common-design rule in Illinois has actually resulted in convictions that would not be sustained in other jurisdictions. We therefore reject Carr’s contention that Illinois robbery is a categorical mismatch for generic robbery.
7. Assuming that Illinois accomplice liability is “special”—what is next?
Suppose, however, that we are wrong in this conclusion, and that Illinois law is properly treated as the sort of outlier vis-à-vis aiding and abetting liability that the Supreme Court had in mind in Duenas-Alvarez when it referred to state
To Carr, the answer is clear. An Illinois defendant can be convicted on an accountability theory even if he is charged as a principal; as in other jurisdictions, Illinois treats accountability not as a separate offense, but rather as an alternative way of proving the defendant guilty of the substantive offense. People v. Ceja, 789 N.E.2d 1228, 1247 (Ill. 2003). Consequently, conviction as an accomplice pursuant to the common-design rule is a theoretical possibility in every Illinois case, as Carr argues.13 On the assumption that he theoretically might have been convicted of Illinois armed robbery on a common-design theory of aiding and abetting rather than as principal, Carr would have us graft the common-design rule onto the elements of Illinois robbery, plug these grafted elements into the Taylor categorical analysis and—if we accept the premise that Illinois common design is outside the mainstream—deem Illinois robbery to be a categorical mismatch for generic robbery in view of the “special” nature of Illinois accountability theory.
The first problem we have with Carr’s invocation of Taylor is that accountability is simply a theory of liability. But Taylor’s categorical analysis is reserved for the elements of the offense, as Carr himself agrees. See United States v. (Justin) Taylor, 596 U.S. 845, 850 (2022); Descamps, 570 U.S. at 261. Accountability is not an element of robbery or any other substantive offense: not only is accountability a liability theory that need not be charged, but as Carr points out, the jury need not even agree unanimously whether a defendant is guilty as an accomplice or as a principal. People v. Dunbar, 127 N.E.3d 604, 614–15 (Ill. App. Ct. 2018) (“We agree that it is difficult to ascertain whether a particular juror signed the guilty verdict after finding defendant acted as the principal or acted as an accomplice … [but] unanimity is not required concerning alternate ways in which the crime can be committed.”); People v. Jackson, 874 N.E.2d 123, 129 (Ill. App. Ct. 2007) (“Defendant was not entitled to a unanimous verdict on whether he fired the weapon or whether Bascomb fired the weapon. The jury need only be unanimous with respect to the ultimate question of defendant’s guilt or innocence of the crime charged, and unanimity is not required concerning alternate ways in which the crime can be committed.”); People v. Travis, 525 N.E.2d 1137, 1147–48 (Ill. App. Ct. 1988). So, by insisting that we import Illinois accountability principles into the elements of Illinois robbery, Carr would have us input something into the
Second, treating Illinois robbery as a mismatch for generic robbery based on the breadth of Illinois accomplice liability would have the effect of disqualifying all Illinois robbery convictions as predicates for either an increase in the minimum and maximum statutory penalties applicable to a defendant, see, e.g.,
It also bears mentioning that there is nothing about the logic of Carr’s argument that is limited to robbery; because liability as an accomplice is inherent in every Illinois offense, regardless of whether it is charged, each and every Illinois offense could be labeled as a mismatch for its generic counterpart based on the putatively “special” nature of the common-design rule in Illinois. Under Carr’s approach, then, no Illinois offense—even first-degree murder—could qualify as a crime of violence. The Supreme Court has consistently cautioned against a reading of federal recidivism and immigrant-removal statutes in a manner that would defeat the purpose of those statutes. See Pugin v. Garland, 599 U.S. 600, 607 (2023); Quarles v. United States, 139 S. Ct. 1872, 1879 (2019); Stokeling v. United States, 586 U.S. 73, 81–82 (2019); Taylor, 495 U.S. at 593–94. And as we observed in Worthen, “[t]here is no indication that Taylor intended the categorical approach to apply to aiding and abetting liability in th[e] way” that Carr proposes. 60 F.4th at 1071 (citing United States v. Cammorto, 859 F.3d 311, 316 (4th Cir. 2017) (rejecting a similar challenge as “untenable” because it would preclude any categorical match)); see also Gamez, 77 F.4th at 600; Valdivia-Flores, 976 F.3d at 1210–11 (O’Scanlain, J., concurring specially).
As the government suggests, one way to mitigate this problem, while accounting for the concerns that Carr has raised about the breadth of Illinois accomplice liability, would be to employ a modified categorical approach in order to determine whether it is possible that the defendant was actually convicted as an accomplice rather than as a principal. But whatever merit there might be in this notion, the Supreme
Courts traditionally use the modified categorical approach when a defendant has been convicted of violating a divisible statute, that is, a statute which lists one or more offense elements in the alternative, and one of those elements matches the corresponding element of the generic offense and one does not. See Descamps, 570 U.S. at 257.
[T]he modified categorical approach permits sentencing courts to consult a limited class of documents, such as indictments and jury instructions, to determine which alternative formed the basis of the defendant‘s prior conviction. The court can then do what the categorical approach demands: compare the elements of the crime of conviction (including the alternative element used in the case) with the elements of the generic crime.
Id.; see Shepard v. United States, 544 U.S. 13, 26 (2005) (describing the limited class of documents a court may consult when applying this approach); Najera-Rodriguez v. Barr, 926 F.3d 343, 348 (7th Cir. 2019); United States v. Edwards, 836 F.3d 831, 835 (7th Cir. 2016); Abdelqadar v. Gonzales, 413 F.3d 668, 672 (7th Cir. 2005). If an Illinois prosecutor argued to a jury that the defendant was guilty of robbery as an accomplice, then the jury would be instructed on Illinois accountability principles. See
Following that approach here would of course confirm that Carr was not convicted as an aider and abettor, let alone as a party to a common design to commit some lesser crime that evolved into armed robbery. The plea colloquy leading to his convictions on the three Illinois robberies reveal that he was a principal who played a key role in the 2007 armed robbery and was the sole actor in the two 2008 robberies.
But here we run into the third problem with Carr’s approach: As we discussed, above, Taylor’s categorical inquiry is reserved for offense elements, and accountability is not an element of robbery, but rather an alternative theory of liability, which suggests that we cannot employ the modified categorical approach here. Indeed, the Supreme Court’s decision in Mathis resolves any doubt on this score. At issue in Mathis was Iowa burglary, and whether it qualified as a predicate “violent felony” for purposes of triggering enhanced statutory penalties under the Armed Career Criminal Act, 18
The difference between “elements” and “means” can seem slippery, sometimes almost metaphysical, but significant legal consequences flow from that difference. “‘Elements’ are the ‘constituent parts’ of a crime‘s legal definition—the things the ‘prosecution must prove to sustain a conviction.’” Mathis, 136 S. Ct. at 2248, quoting Black‘s Law Dictionary 634 (10th ed. 2014). And just as a prosecutor must prove beyond a reasonable doubt every element of a crime to a jury, a defendant pleading guilty necessarily admits every element of the crime. Id. at 333. By way of contrast, the facts of the offense “are mere real-world things—extraneous to the crime‘s legal requirements,” and “need neither be found by a jury nor admitted by a defendant.” Id. at 333. In addition, the jury cannot convict without agreeing unanimously on each element of the crime, while jurors need not reach any agreement on subsidiary facts or “means” of committing the crime. United States v. Edwards, 836 F.3d 831, 836 (7th Cir. 2016). This distinction is critical under this body of law for collateral consequences, as well as for other purposes. For example, a crime’s elements affect multiplicity challenges because the “Double Jeopardy Clause permits successive punishment or prosecution of multiple offenses arising out of the (continued)
926 F.3d at 348–49. Mathis gives guidance as to how a court can distinguish between means and elements, and our opinions in Edwards, 836 F.3d at 836–37, and Najera-Rodriguez, 926 F.3d at 349–50, address that guidance. Of course, in this case, it is undisputed that the theory of liability on which a state seeks conviction of the defendant—including an aiding and abetting theory of accountability—is not an element of the offense.
So now we are back to Carr’s view, which is that if Illinois accomplice liability is overbroad, then all Illinois robberies are necessarily disqualified as predicates for federal statutory and Guidelines sentence enhancements. His is an all-or-nothing proposition which forecloses any look behind the face of a defendant’s conviction for Illinois robbery even for the limited purpose of determining whether it is possible the defendant was or was not convicted as an accomplice under a common-design theory. (This is not surprising: as we have said, his challenge would fail if we applied anything resembling a modified categorical analysis of his robbery convictions.) The results of Carr’s approach are unacceptable, as we have previously signaled. Gamez, 77 F.4th at 600; Worthen, 60 F.4th at 1070–71. And Duenas-Alvarez does not, in our view, compel that result.
Duenas-Alvarez, as we have discussed, certainly envisions the possibility that a state might define its aiding and abetting in such an expansive way as to render the substantive offense that a defendant aided and abetted a mismatch for the generic offense. The Court rejected Duenas-Alvarez’s contention that California was such a state, but it left the door to the possibility that another defendant might be able to establish “a realistic probability, not a theoretical possibility, that the State would apply its statute to conduct that falls outside the
But the Court did not answer the questions we have raised here: How does the Taylor categorical inquiry address an accomplice theory of liability that has not been charged and indeed need not be charged? To the extent that liability as an aider and abettor is inherent in every substantive offense, if a state’s accomplice liability is so broad as to place it outside of the mainstream, does that disqualify all of the state’s convictions as drug or violent-crime predicates for federal sentencing purposes? To avoid that result, can a court apply some analogue of the modified categorical approach in order to assess whether accomplice liability was even at issue in the case resulting in the defendant’s conviction? See Alfred, 64 F.4th at 1057 (concurrence in part and dissent in part) (“because the Court [in Duenas-Alvarez] rejected th[e] premise [that California’s aiding and abetting doctrine was an outlier], the Court never addressed what would have followed if Duenas-Alvarez had been correct in his analysis of California law”) (emphasis in original).
Until such questions are answered, we do not believe it is appropriate to discard Carr’s prior convictions for robbery as sentencing predicates based solely on the theoretical possibility that Carr might have been convicted as an accomplice. Carr points us to no court that has taken such a step.15
We acknowledge that there are other circuits which have applied the Taylor categorical approach to a state’s accomplice liability rules even when the defendant was not charged as an aider and abettor. See United States v. Coats, 8 F.4th 1228, 1247–61 (11th Cir. 2021); United States v. Capelton, 966 F.3d 1, 6–10 (1st Cir. 2020); Bourtzakis, 940 F.3d at 621–25; United States v. Boleyn, 929 F.3d 932, 936–40 (8th Cir. 2019). In those cases, however, the courts were able to conclude, without too much difficulty, that the accomplice liability of the state in question was not outside of the mainstream, just as the Supreme Court did in Duenas-Alvarez. By contrast, the Ninth Circuit’s fractured opinion in Alfred, 64 F.4th 1025, shows how challenging application of the Taylor framework can be where there is a plausible case to be made that a state’s accomplice liability is somehow broader or different from that typically applied in other jurisdictions. See id. at 1031–48 (lead opinion) (reasoning that Washington’s accomplice liability must be factored into the Taylor categorical analysis of a Washington robbery conviction under Duenas-Alvarez when, as a matter of state law, liability as an accomplice is implicit in every criminal charge, and holding that Washington’s accomplice liability was not out of step with generic accomplice liability, including federal aiding and abetting liability under
C. Sentence reduction for time in federal custody serving state sentence
In his written sentencing memorandum, Carr asked the district judge to reduce his federal sentence so as to effectively give him credit for the time for the roughly 15-month period commencing with his July 8, 2020 arrest by local authorities on state charges, continuing through his September 1, 2020 transfer from the Cook County Correctional Center to the Illinois Department of Corrections on the state parole violation, and through his transfer from state to federal detention on September 28, 2020 pursuant to the writ of habeas corpus ad prosequendum, and concluding on October 19, 2021 with the completion of his state parole term. Prior to his transfer to federal detention on the federal felon-in-possession charge, of course, Carr was exclusively in local and state detention, and that time would not be credited against his federal sentence; but even after his transfer to federal detention pursuant to the writ of habeas corpus ad prosequendum, although Carr was nominally in federal custody at that point, as a matter of law, he remained in the primary custody of state officials pending
Carr’s counsel advocated for the same relief at the sentencing hearing. But the district judge declined to entertain this request. The judge remarked that only the Bureau of Prisons had the authority to credit Carr for his pretrial detention, see id., and that as a matter of course, the Bureau would give Carr credit for the time he had spent in federal custody on the felon-in-possession charge. It appears that the judge did not appreciate that Carr was seeking a form of recognition for a segment of his federal detention that the Bureau would count as time spent in state rather than federal custody. Nor did the judge appear to understand that Carr was asking the court to reduce his sentence as an alternative means of granting him
Although the government rightly argues that the district court was powerless to grant Carr formal sentencing credit for the full length of his pre-sentence detention (a credit is something that only the Bureau of Prisons may grant), it does not dispute that the court had the authority and discretion to recognize the time Carr spent serving out the remainder of his revoked parole for the gun possession as a mitigating factor that might warrant a reduction in whatever prison term the
Because the district court evidently did not appreciate the true nature of Carr’s request, we will vacate his sentence and remand to the district court for the limited purpose of addressing Carr’s request for a sentence reduction. We express no opinion as to whether Carr is entitled to such a reduction. That request is addressed to the district court’s discretion in the first instance.
III.
For the foregoing reasons, we reject Carr’s contentions that his prior convictions for Illinois armed robbery were a categorical mismatch for generic robbery and could not be considered as predicates for an enhanced offense level pursuant to section
AFFIRMED IN PART, VACATED IN PART, and REMANDED.