United States of America v. Anthony Carr

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 22-1245
U NITED STATES OF A MERICA ,
Plaintiff-Appellee,
v.
A NTHONY C ARR ,
Defendant-Appellant.
____________________
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 1:20-cr-00559-1 — Charles R. Norgle, Sr., Judge.
____________________
A RGUED A PRIL 20, 2023 — D ECIDED J ULY 8, 2024
____________________
Before EASTERBROOK , R OVNER , and S T . EVE , Circuit Judges.
R OVNER , Circuit Judge. Anthony Carr’s offense level and
sentencing range for being a felon in possession of a firearm
were increased substantially in view of his three prior convic-
tions in Illinois for armed robbery, which the district court
treated as a crime of violence. See U.S.S.G. §§ 2K2.1(a)(1),
4B1.2(a)(2). Carr contends that this was error. The Sentencing
Guidelines identify robbery as a crime of violence,
§ 4B1.2(a)(2), and Carr does not dispute that the elements of

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2 No. 22-1245
Illinois robbery, including armed robbery, line up with the el-
ements of generic robbery, such that a conviction for Illinois
robbery qualifies as a crime of violence for sentencing pur-
poses under the categorical framework established by Taylor
v. United States, 495 U.S. 575 (1990). Thus, assuming that Carr
was convicted of robbery as a principal, there would be no
doubt that his conviction was one for a crime of violence.
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 accom-
plice 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 ac-
cused’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 rob-
bery and did not know that his cohort was armed.

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No. 22-1245 3
Invoking Gonzales v. Duenas-Alvarez, 549 U.S. 183(2007),
Carr contends that Illinois’ common-design rule of accom-
plice liability is out of step with comparable accomplice-lia-
bility rules in other jurisdictions, in that the rule as articulated
by Illinois courts does not require that a secondary criminal
act be foreseeable to the aider and abettor; other states, by con-
trast, expressly limit an aider and abettor’s liability to second-
ary criminal acts that are reasonably foreseeable to him. Given
the breadth of the Illinois rule, and that accomplice liability is
implicit in every Illinois charged offense, including robbery,
Carr contends that Illinois robbery must be deemed a categor-
ical mismatch for generic robbery, such that federal courts
cannot treat Illinois robbery as a crime of violence for sentenc-
ing purposes.
We reject the argument. Each of Carr’s Illinois convictions
is for armed robbery, and the pertinent elements of that of-
fense 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 ar-
ticulates 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-Al-
varez requires Carr to establish a “realistic probability” that
Illinois would hold a defendant liable for a crime as an accom-
plice 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

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4 No. 22-1245
be, liability as an accomplice is not an element of the offense
of robbery, and as such it is not something that factors into the
Taylor categorical analysis as the Supreme Court has framed
and applied that analysis to date. Duenas-Alvarez hints that a
state’s accomplice liability might be so “special” as to require
different treatment of that state’s convictions in federal court;
but it has yet to give lower courts guidance as to precisely
how we should factor a state’s “special” accomplice liability
into Taylor’s categorical framework. Carr’s position is that a
state’s unusually broad formulation of accomplice liability
will necessarily disqualify any robbery conviction (and quite
probably, any other conviction) from that state as a basis for
an enhanced federal penalty—be it an increase in the Guide-
lines sentencing range, an increased statutory minimum or
maximum prison term, or in the case of an immigrant, re-
moval from the United States. That aberrant outcome cannot
be the result that Congress, the Sentencing Commission, or
the Supreme Court intended.
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 con-
traband. Carr attempted to flee from the officers but was un-
successful: he was discovered to be in possession of a loaded
semi-automatic pistol with an extended magazine with the ca-
pacity 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
18 U.S.C. § 922(g)(1); 720 ILCS 5/24-1.1(a) and 5/24-1.7(a). Carr

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No. 22-1245 5
was initially held in the Cook County Correctional Center on
state charges. He was on parole from his prior Illinois convic-
tions for armed robbery at the time of his arrest, and because
his gun possession was in violation of the terms of his parole,
his parole was revoked and he was transferred to the custody
of the Illinois Department of Corrections on September 1,
2020, for the remainder of his parole term.
On September 3, 2020, a federal grand jury returned an in-
dictment charging Carr with the unlawful possession of a fire-
arm by a felon, in violation of section 922(g)(1). Local author-
ities promptly dismissed the pending state charges against
Carr, and pursuant to a writ of habeas corpus ad prosequen-
dum, Carr was taken into federal custody on September 28,
2020, for purposes of prosecution on the felon-in-possession
charge. However, while Carr was in federal custody, an Illi-
nois Department of Corrections detainer remained in place
until Carr completed his (revoked) term of parole on the
armed robbery convictions on October 19, 2021.
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 un-
derlying 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 or-
dered 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

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6 No. 22-1245
made the initial approach to the victims, he drove the geta-
way car, and he stored the guns at his house after the incident.
R. 61 at 9–10 ¶ 32; R. 58-4 at 7–10.
On May 6, 2008, Carr committed two armed robberies
without accomplices. In the first, he robbed a victim at gun-
point of $4 and a cellphone. In the second, he robbed a differ-
ent 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 or-
dered 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 rob-
bery as a “crime of violence” pursuant to sections 2K2.1(a)(2)
and 4B1.2(a) of the Sentencing Guidelines. R. 61 at 7–8 ¶ 15.
That characterization had the effect of increasing Carr’s base
offense level by two levels, from 24 to 26. Following a two-
level enhancement for reckless endangerment based on Carr’s
effort to flee the police, see § 3C1.2, 1 and a three-level reduc-
tion for acceptance of responsibility, see § 3E1.1, Carr’s total,
adjusted offense level was 25. Coupled with a category IV
1 Carr challenged that enhancement below but does not raise the issue
here.

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No. 22-1245 7
criminal history, the advisory sentencing range was 84 to 105
months in prison. Had the base offense level not been in-
creased based on the robbery convictions, Carr’s total offense
level would have been 23, and the resulting advisory sentenc-
ing range would have been 70 to 87 months.
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 ac-
complice not because he agreed to commit robbery–or the use
of a firearm or other dangerous weapon to commit the rob-
bery–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 accom-
plice liability, in Carr’s view, places it outside of the main-
stream 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, al-
though 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.

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8 No. 22-1245
The district court summarily rejected Carr’s argument.
The court briefly remarked:
The Seventh Circuit has dealt directly with the
issue. And to the extent that there is any unde-
cided aspect of the challenge, this Court over-
rules the defendant’s objections and finds that
he has been convicted of constitutionally sup-
portable 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 sentenc-
ing 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 pa-
role 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 con-
duct (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

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No. 22-1245 9
appreciate Carr’s argument that a substantial portion of his
pre-sentencing detention would be characterized as state ra-
ther than federal custody, and that what Carr was asking for
was a reduction in his sentence rather than a credit.
II.
The Sentencing Guideline applicable to the unlawful pos-
session of a firearm specifies a base offense level of 26 if “the
defendant committed any part of the instant offense subse-
quent to sustaining at least two felony convictions of … a
crime of violence” as defined in section 4B1.2 of the Guide-
lines. U.S.S.G. § 2K2.1(a)(1)(B) & comment. (n.1) (Nov. 2018).
Section 4B1.2(a) in turn identifies two ways in which a prior
offense can qualify as a “crime of violence”: (1) the “elements
clause” deems an offense to be a violent crime if it has as an
element the use, attempted use, or threatened use of physical
force against the person of another, whereas (2) the “enumer-
ated offense clause” lists certain offenses which per se qualify
as violent crimes, and those enumerated offenses include rob-
bery.
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 section 4B1.2(a)(2), this means that we com-
pare the elements of the state statute forming the basis of the
defendant’s conviction with the elements of the generic of-
fense (i.e., the offense as it is commonly understood).
Descamps v. United States, 570 U.S. 254, 257 (2013); Taylor, 495
U.S. at 598, 602. Under this approach, the defendant’s prior
conviction under the state statute will qualify as a crime of

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10 No. 22-1245
violence only if the statute’s elements are the same as, or nar-
rower than, those of the generic offense. Descamps, 570 U.S. at
257; Taylor, 495 U.S. at 599. We do not consider the facts un-
derlying the defendant’s conviction in applying the categori-
cal approach. Id. at 600–02.
Carr was convicted of armed robbery in violation of sec-
tion 18-2 of the Illinois criminal code. 720 ILCS 5/18-2(a). Sec-
tion 18-1 outlines the offense of simple robbery: “A person
commits robbery when he or she knowingly takes property
… from the person or presence of another by the use of force
or by threatening the imminent use of force.” 720 ILCS 5/18-
1(a). Section 18-2 in turn specifies that robbery becomes
armed robbery when, as relevant here, the perpetrator carries
about his person, or is otherwise armed with, a firearm, 720
ILCS 5/18-2(a)(2), or a dangerous weapon other than a fire-
arm, 720 ILCS 5/18-2(a)(1). Armed robbery thus incorporates
the offense of simple robbery and adds an element: carrying
or otherwise arming oneself with a firearm or other danger-
ous weapon. 2
There is no dispute that Illinois robbery on its face is a cat-
egorical match for generic robbery, and thus constitutes a
“crime of violence” under the enumerated offense clause of
section 4B1.2(a)(2). “Robbery as ordinarily understood is the
2 Although the record indicates that Carr used a firearm in each of the
three armed robberies, as part of his plea agreement, the charges were
amended to replace each reference to a firearm with the term “bludgeon.”
R. 58-4 at 2–3. Carr was thus convicted pursuant to section 18-2(a)(1)
(armed robbery committed with a dangerous weapon other than a fire-
arm), and the judgments of conviction each indicate that the offense of
conviction was “ARMED ROBBERY /N O F IREARM.” R. 58-1 at 12; R. 58-2 at 5;
R. 58-3 at 5.

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No. 22-1245 11
taking of property from a person by force or the threat of force
… .” United States v. Bedell, 981 F.2d 915, 915 (7th Cir. 1992).
The elements of simple robbery in Illinois conform to the ele-
ments of generic robbery; the offense of armed robbery
simply adds an element (carrying or otherwise possessing a
firearm or other dangerous weapon during the robbery)
which further narrows the offense. This satisfies the categori-
cal inquiry, which has led us to conclude previously that Illi-
nois armed robbery is a crime of violence under the enumer-
ated offense clause of the guideline, and, for that matter, the
elements clause as well. See United States v. Chagoya-Morales,
859 F.3d 411, 422 (7th Cir. 2017); Bedell, 981 F.2d at 915–16; see
also Klikno v. United States, 928 F.3d 539, 544–47 (7th Cir. 2019)
(Illinois robbery necessarily involves the use of physical
force); United States v. Brown, 916 F.3d 706, 707-08 (8th Cir.
2019) (per curiam) (Illinois robbery) (citing Dembry v. United
States, 914 F.3d 1185, 1187–88 (8th Cir. 2019)). To simplify mat-
ters going forward, we shall refer to “Illinois robbery” as we
address Carr’s contentions that his convictions for Illinois
armed robbery are not a match for generic robbery.
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 qual-
ify as a “violent felony” under the elements clause of the
Armed Career Criminal Act, 18 U.S.C. § 924(e). That act spec-
ifies that an offense qualifies as a violent felony if it “has as an
element the use, attempted use, or threatened use of physical
force against the person of another[.]” § 924(e)(2)(B)(i). The
Court reasoned that the use of force “against another”

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12 No. 22-1245
“demands that the perpetrator direct his action at … another
individual,” 593 U.S. at 429 (emphasis supplied), which be-
speaks purposeful or knowing action and is therefore incon-
sistent with a mens rea of recklessness, id. at 429-34.
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 720 ILCS 5/4-3
through 5/4-6; see also People v. Jones, 595 N.E.2d 1071, 1075 (Ill.
1992) (“[E]ither intent, knowledge or recklessness is an ele-
ment of robbery even though the statutory definition of rob-
bery does not expressly set forth a mental state.”). This pre-
sents the possibility that in 2007 and 2008, when Carr engaged
in multiple armed robberies, it might have been sufficient if
his use of force to accomplish the robberies was merely reck-
less as opposed to knowing or intentional. See United States v.
Love, 2023 WL 2546507, at *3 (7th Cir. Mar. 17, 2023) (non-prec-
edential decision).
However, Carr did not make this particular argument be-
low, notwithstanding the fact that Borden was decided in June
2021, nearly eight months prior to his February 2022 sentenc-
ing. Carr therefore forfeited the argument, limiting our re-
view to plain error. E.g., United States v. Acox, 595 F.3d 729,
730 (7th Cir. 2010). Among other elements, a showing of plain
3 The 2007 version of section 18-1(a) provided: “A person commits
robbery when he or she takes property … from the person or presence of
another by the use of force or by threatening the use of force.” The term
“knowingly” was added to the statute in 2013. See P.A. 97-1108, § 10-5,
effective Jan. 1, 2013.

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No. 22-1245 13
error requires that the error in question be, in retrospect, ob-
vious. Henderson v. United States, 568 U.S. 266 (2013).
As we concluded in Love, it is not obvious that the crime
of Illinois armed robbery prior to 2013 encompassed the reck-
less use of force. Although it is possible that the default mini-
mum 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 in-
struction on robbery at that time was consistent with this pos-
sibility. Id. at *3 (citing I LLINOIS P ATTERN J URY INSTRUCTIONS –
C RIMINAL § 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 estab-
lishing his offense level for sentencing purposes. Id. at *4.
B. Illinois common-design accomplice liability
1. Duenas-Alvarez and conviction as an accomplice ra-
ther than a principal
The final judgments for each of Carr’s three armed rob-
bery convictions cite armed robbery in violation of 720 ILCS
5/18-2(a)(1) as the offense of conviction; no other statute is
cited. See R. 58-1 at 12; R. 58-2 at 5; R. 58-3 at 5. We have said
thus far that the elements of Illinois robbery are a categorical
match for generic robbery, thus making the offense a crime of

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14 No. 22-1245
violence for purposes of Guidelines sections 4B1.2(a)(2) and
2K2.1(a)(1). Arguably, our analysis could end there: Carr was
convicted on two or more occasions of robbery in Illinois, the
Guidelines identify “robbery” as a crime of violence, and the
elements of Illinois armed robbery line up with the elements
of generic robbery. See United States v. Gamez, 77 F.4th 594, 599
(7th Cir. 2023) (“Having concluded that Indiana arson is a
crime of violence under [the Armed Career Criminal Act], we
could end our analysis there.”); see also Alfred v. Garland, 64
F.4th 1025, 1051 (9th Cir. 2023) (en banc) (Collins, J., concur-
ring in judgment in part and dissenting in part); United States
v. Valdivia-Flores, 876 F.3d 1201, 1212 (9th Cir. 2017)
(Rawlinson, J. dissenting), overruled by Alfred, 64 F.4th at 1047–
48.
However, based on Duenas-Alvarez, Carr wants us to con-
sider the possibility that he might have been convicted of rob-
bery on an aiding and abetting theory. As discussed, his ar-
gument 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-Al-
varez 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 var-
ious criminal and civil penalties, including increased

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No. 22-1245 15
statutory maximum and minimum terms of imprisonment, an
increased sentencing level, or removal from the United States.
See, e.g., 18 U.S.C. § 924(e) (Armed Career Criminal Act); 21
U.S.C. §§ 841(b) and 843(d) (penalties for controlled sub-
stances offenses); Guidelines § 2K2.1(a) (robbery guideline);
8 U.S.C. § 1227(a)(2)(A)(iii) (Immigration and Nationality Act)
(subjecting immigrant to removal if he has committed an ag-
gravated felony).
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 el-
ement of the offense—rather than as a principal. The govern-
ment 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 8 U.S.C.
§ 1101(a)(43)(G). Duenas-Alvarez had been convicted of auto-
mobile theft in California pursuant to a statute that expressly
imposed criminal liability on accessories and accomplices to
such a theft as well as principals. Relying entirely on its prior
decision in Penuliar v. Ashcroft, 435 F.3d 961 (9th Cir. 2006), j.
vacated & remanded, 549 U.S. 1178 (2007), the Ninth Circuit an-
swered this question in the negative. Duenas-Alvarez v. Gonza-
les, 176 F. App’x 820 (2006). Penuliar, applying the categorical
inquiry set forth in Taylor, examined the elements of Califor-
nia vehicle theft to see whether they were a match for generic
theft, such that the conviction under the state statute would
qualify as a “theft offense” for purposes of the INA. It con-
cluded that they were not. Generic theft requires, among
other things, that a defendant have taken or controlled an-
other’s property; and although the California vehicle theft

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16 No. 22-1245
statute included that element, by reaching aiders and abet-
tors, it imposed liability on an individual who might have
helped another person take or control someone else’s car but
did not do so himself. Without having personally taken or con-
trolled another’s property, the Ninth Circuit reasoned, a de-
fendant has not committed generic theft, and therefore the
California statute was a categorical mismatch for the type of
“theft offense” referenced by the INA. 435 F.3d at 969–70. The
Supreme Court disagreed. Although historically, the common
law had drawn distinctions among the four categories of par-
ticipants in a felony offense—first-degree principals, second-
degree principals, accessories before the fact, and accessories
after the fact—the Court noted that over time, American juris-
dictions have eliminated any distinctions between the first
three of these categories. “Indeed, every jurisdiction—all
states and the Federal Government—has ‘expressly abro-
gated the distinction’ among principals and aiders and abet-
tors who fall into the second and third categories.” 549 U.S. at
189–90 (quoting 2 W. LaFave, SUBSTANTIVE C RIMINAL LAW
§ 13.1(e), at 333 (2d ed. 2003)). Consequently, it was appropri-
ate to treat aiders and abettors of a theft as having committed
theft for purposes of the federal statute. Id. Duenas-Alvarez’s
conviction for California theft thus rendered him removable
regardless of whether he was convicted as a principal or as an
aider and abettor.
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 vio-
lence, even if he did not personally use force or threaten to
use force against the person or property of another—the ele-
ment of Hobbs Act robbery that makes it a crime of violence.

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No. 22-1245 17
See 18 U.S.C. § 1951(b)(1). We noted that “[i]t is ‘hornbook
law’ that convicting an aider and abettor first requires show-
ing that the underlying crime (here, Hobbs Act robbery) ‘was
actually committed.’” 60 F.4th at 1069 (quoting United States
v. Motley, 940 F.2d 1079, 1081) (7th Cir. 1991)). Moreover, the
government must further show that the aider and abettor
took some affirmative act in furtherance of the offense with
the intent of facilitating the commission of that offense. Id.
Once these showings are made, the aider and abettor is cul-
pable for the offense on the same terms as the principal. Aid-
ing 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 ele-
ments 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 rob-
bery 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

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18 No. 22-1245
qualifies as conviction for a violent felony for purposes of
Armed Career Criminal Act).
What Carr argues here, however—invoking a second as-
pect of Duenas-Alvarez—is that Illinois has embraced a form
of aiding and abetting liability that is well outside of the main-
stream 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 nar-
row to broad
In the classic articulation of federal accessory liability un-
der 18 U.S.C. § 2,4 the Second Circuit in United States v. Peoni,
100 F.2d 401, 402 (1938) (L. Hand, J.), said that an individual
must “in some sort associate himself with the [criminal] ven-
ture, … participate in it as in something that he wishes to
bring about, [and] … seek[ ] by his action to make it succeed.”
This formulation is understood to require a shared intent be-
tween the principal and the accomplice as to the offense, in
the sense that the accomplice is aware of the principal’s crim-
inal purpose and takes action to help the principal, with the
desire that the principal will succeed. See Rosemond v. United
States, 572 U.S. 65, 76–77 (2014); United States v. Wu, 668 F.3d
882, 885 (7th Cir. 2011); United States v. Zafiro, 945 F.2d 881,
887–88 (7th Cir. 1991), j. aff’d on other grounds, 506 U.S. 534
(1993); United States v. Beck, 615 F.2d 441, 448–49 (7th Cir.
1980). This is a relatively narrow formulation of accomplice
liability, in that it holds the accomplice liable only for the
4 Subsection (a) of the statute provides that “[w]hoever commits an
offense against the United States or aids, abets, counsels, commands, in-
duces or procures its commission, is punishable as a principal.”

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No. 22-1245 19
intended or target crime, and not for a secondary offense that
the principal might commit in pursuit of the target crime—to
take our prior example, committing armed robbery in the
course of an agreed-upon residential burglary—without the
accomplice’s knowledge and approval. See Commonwealth v.
Hanright, 994 N.E.2d 363, 369–70 (Mass. 2013), overruled in part
on other grounds by Commonwealth v. Brown, 81 N.E.3d 1173
(Mass. 2017); Wilson-Bey v. United States, 903 A.2d 818, 830–39
(D.C. 2006); State v. Carrasco, 946 P.2d 1075, 1079–80 (N.M.
1997).
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. R EV. 237, 242 (2008). One
way to describe “a natural and probable consequence” is a re-
sult that, in light of ordinary experience, is one to be expected,
rather than an extraordinary or surprising result. See
WISCONSIN J URY INSTRUCTIONS – C RIMINAL , 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 T ORTS, at 252 (West 4th ed. 1971)). Consistent with that un-
derstanding, many of the jurisdictions that either expressly
embrace the natural and probable consequences doctrine or

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20 No. 22-1245
apply some version of that doctrine without invoking it by
name require that a secondary offense committed by the prin-
cipal have been reasonably foreseeable to his accomplice be-
fore the accomplice will be held liable for that offense. See, e.g.,
Beck, 615 F.2d at 453 (“aiding and abetting [the filing of a false
customs export declaration in violation of 18 U.S.C. § 1001] is
proven if a defendant voluntarily gives false information or
participates in a plan such that it is foreseeable that false in-
formation will be used in statements made to a government
agency in order to further the plan”); 5 Ala. Code § 13A-2-23,
cmt. (“Regarding the extent of liability as a consequence of the
principal’s actions, Alabama case law has held that as a gen-
eral rule each person entering upon an unlawful purpose is
responsible for everything which may consequently and prox-
imately flow from the unlawful purpose (whether committed
by defendant or not, and whether specifically intended or
not[.]”)) (collecting cases) (emphasis added), and D.L. v. State,
625 So. 2d 1201, 1204 (Ala. Crim. App. 1993) (juvenile who
participated in burglary of residence and theft was not also
liable for arson committed by cohort in anger, where “it [did]
not appear from the testimony presented that arson was a rea-
sonably foreseeable circumstance of the burglary and theft”
and “there [was] no evidence that the arson was the proxi-
mate, natural, and logical result of the criminal adventure of
burglary and theft upon which the appellant, [cohort] and the
other juveniles were engaged”); People v. Favor, 279 P.3d 1131,
1134 (Cal. 2012) (“A person who knowingly aids and abets
criminal conduct is guilty of not only the intended crime
5 Rosemond acknowledges but takes no position as to the propriety of
holding a defendant liable for the natural and probable consequences of
the crime that he intended to aid and abet. 572 U.S. at 76 n.7.

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No. 22-1245 21
[target offense] but also of any other crime the perpetrator ac-
tually commits [nontarget offense] that is a natural and prob-
able consequence of the intended crime. The latter question is
not whether the aider and abettor actually foresaw the addi-
tional crime, but whether, judged objectively, it was reasonably
foreseeable. Liability under the natural and probable conse-
quences doctrine is measured by whether a reasonable person
in the defendant’s position would have or should have known
that the charged offense was a reasonably foreseeable conse-
quence of the act aided and abetted.”) (cleaned up) (emphasis
and bracketed language in original); Rodriguez v. State, 147 So.
3d 1066, 1068 (Fla. Dist. Ct. App. 2014) (“The independent act
doctrine arises when one cofelon, who previously partici-
pated in a common plan, does not participate in acts commit-
ted by his cofelon, which fall outside of, and are foreign to,
the common design of the original collaboration. An inde-
pendent act instruction is appropriate only when the actions
of the cofelon who allegedly acted outside the scope of the
original plan were not foreseeable based on the actions a de-
fendant set in motion.”) (cleaned up); State v. McFarland, 960
So. 2d 1142, 1148 (La. Ct. App. 2007) (“The defendant also con-
tends the evidence was insufficient to convict him [of aggra-
vated burglary] because he did not know Luther was armed.
However, under general principles of accessorial liability, all
parties to a crime are guilty for the deviations from the com-
mon plan, which are the foreseeable consequences of carrying
out the plan.”); Tex. Penal Code Ann. § 7.02(b) (“If, in the at-
tempt to carry out a conspiracy to commit one felony, another
felony is committed by one of the conspirators, all conspira-
tors are guilty of the felony actually committed, though hav-
ing no intent to commit it, if the offense was committed in fur-
therance of the unlawful purpose and was one that should

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22 No. 22-1245
have been anticipated as a result of the carrying out of the
conspiracy. In this subsection, ‘conspiracy’ means an agree-
ment between two or more persons to commit a felony.”);
Wis. Stat. § 939.05 (“(1) Whoever is concerned in the commis-
sion of a crime may be charged with and convicted of the com-
mission of the crime although the person did not directly
commit it … . (2) A person is concerned in the commission of
the crime if the person: … (c) Is a party to a conspiracy with
another to commit it or advises, hires, counsels or otherwise
procures another to commit it. Such a party is also concerned
in the commission of any other crime which is committed in
pursuance of the intended crime and which under the circum-
stances is a natural and probable consequence of the intended
crime … .”), and State v. Ivy, 350 N.W.2d 622, 627–28 (Wis.
1984) (because robbery is a violent crime involving the taking
of a person’s property against his or her will by the use or
threat of force, there are many situations in which it would be
reasonable to find that an armed robbery was the natural and
probable consequence of robbery; in such situations, even if
defendant did not actually know that principal was armed,
the defendant “would at least be on notice of the likelihood
that the person who directly committed the robbery would be
armed with a dangerous weapon and might use the
weapon”).
3. Duenas-Alvarez and the prospect of “special,” over-
broad accomplice liability
With that bit of background, we can return to Duenas-Al-
varez and Carr’s argument as to the breadth of Illinois’ accom-
plice 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

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No. 22-1245 23
Nationality Act’s reference to a “theft offense” includes not
only those convicted as principals to theft but also aiders and
abettors. 6 By the time the case was briefed on the merits and
argued before the Supreme Court, Duenas-Alvarez conceded
that the answer to this question was “yes.” 549 U.S. at 190. He
argued nonetheless that California stood apart from its sister
states in embracing the natural and probable consequences
doctrine. Thus, although an aider and abettor in California
might have intended and acted to support only one particular
target offense, he could nonetheless be held liable for an en-
tirely separate crime that his cohort committed, so long as that
additional secondary crime was the natural and probable re-
sult of the crime he agreed to aid and abet. E.g., People v. Pret-
tyman, 926 P.2d 1013, 1020 (Cal. 1996). 7 At the time of the Du-
enas-Alvarez decision, California was among a minority of
States to have expressly adopted the doctrine (10 by the count
of the LaFave treatise, which the Court cited in Appendix C
to its decision). 549 U.S. at 196.
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
6 See Gonzales v. Duenas-Alvarez, 2006 WL 1723979, at *1 (June 22, 2006)
(government’s petition for writ of certiorari); Gonzales v. Duenas-Alvarez,
548 U.S. 942 (U.S. Sep. 26, 2006) (granting certiorari).
7 California has since abandoned the natural and probable conse-
quences doctrine in murder cases. See Cal. Penal Code § 188(a)(3) (as
amended effective Jan. 1, 2019) (“[I]n order to be convicted of murder, a
principal in a crime shall act with malice aforethought. Malice shall not be
imputed to a person based solely on his or her participation in a crime.”);
People v. Lopez, 305 Cal. Rptr. 3d 93, 99 (Cal. App. 2023) (noting that
amendment to § 188 “wholly eliminated the natural and probable conse-
quences doctrine for first and second degree murder”).

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24 No. 22-1245
liability. In order to make such a showing, the Court ex-
plained, an offender must be able to identify “a realistic prob-
ability, not a theoretical possibility, that the State would apply
its statute to conduct that falls outside the generic definition
of a crime. … [H]e 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.” Id. at
193. And Duenas-Alvarez had not made that showing. Alt-
hough California was among a minority of jurisdictions to
have affirmatively embraced the natural and probable conse-
quences doctrine, only another 10, by Duenas-Alvarez’s own
count, had gone so far as to expressly reject the doctrine. Id. at
190–91. Most states and the federal government, the Court ex-
plained, apply some version of that doctrine or, in the alter-
native, permit a jury to infer a defendant’s shared intent to
commit a second, non-target offense in circumstances similar
to those in which California has applied the natural and prob-
able consequences doctrine. Id. at 191. Having conducted its
own review of the California cases cited by Duenas-Alvarez,
the Court was satisfied that there was nothing “somehow spe-
cial” about the way in which California courts articulated or
applied accomplice liability. Id.
The Court’s analysis ended there; it had no occasion to
consider how a finding that a state’s aiding and abetting lia-
bility is “somehow special” enough to place it outside the
mainstream would affect the categorical analysis of a state of-
fense 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

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No. 22-1245 25
theoretical possibility,” that the state would find an aider and
abettor liable for an offense under circumstances where most
other jurisdictions would not. But the decision is opaque as to
what a court should do if and when a defendant satisfies that
burden.
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 Califor-
nia, has adopted the natural and probable consequences doc-
trine. 2 Wayne R. LaFave, S UBSTANTIVE C RIMINAL 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 com-
mitted by a principal in connection with the target crime have
been reasonably foreseeable to his accomplice.
Carr’s argument begins with Illinois’ accountability stat-
ute and its provision for common design culpability. The stat-
ute 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.” 720 ILCS 5/5-1. Section 5-2 goes on to provide:
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

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26 No. 22-1245
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. …
720 ILCS 5/5-2(c) (emphasis ours). Note that the first of the
two paragraphs of section 5-2 reflects a standard shared-in-
tent approach to accomplice liability. 8 It is the second
8 The Fifth Circuit in United States v. Sandoval-Ruiz, 543 F.3d 733 (5th
Cir. 2008), addressed an argument that what is now the first paragraph of
section 5/5-2(c) sets Illinois apart from federal accomplice liability because
it renders a defendant liable for soliciting the commission of an offense in
addition to aiding and abetting the offense. The court rejected that argu-
ment:
We agree with the district court judge that there is no re-
alistic 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 fed-
eral statute, participation may be in the form of solicita-
tion. Solicitation is further defined as “to command, au-
thorize, 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)

-- 26 of 66 --

No. 22-1245 27
paragraph, setting forth the common-design rule, that reflects
Illinois’ take on the natural and probable consequences doc-
trine. 9 Although the common-design provision was not
added to the accountability statute until 2009, the addition
simply codified a doctrine that was already well-established
in Illinois common law. See Gov. James R. Thompson, et al.,
The Illinois Criminal Code of 2009: Providing Clarity in the Law,
41 J. MARSHALL L. R EV. 815, 823–24 (2008).
The doctrine dates at least as far back as the Illinois Su-
preme Court’s 1854 decision in Brennan v. People. Albert Story,
a contractor for the Illinois Central Railroad, had been mur-
dered in LaSalle, Illinois in December 1853. When laborers an-
gered 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. D AILY T IMES, Dec. 19, 1853, at 1; Riot at LaSalle—
Full Particulars, A LTON T ELEGRAPH , 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 “coun-
seled” 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.
9 The two are distinct theories of accomplice liability. See People v. Carr-
McKnight, 166 N.E.3d 866, 887 (Ill. App. Ct. 2020).

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28 No. 22-1245
http://genealogytrails.com/ill/lasalle/history/1853Riot.html.
Multiple men were tried and convicted for Story’s murder. In
the course of affirming their convictions, the Illinois Supreme
Court noted an error in certain jury instructions that were
given at the defendants’ request:
These instructions required the jury to acquit
the prisoners, unless they actually participated
in the killing of Story, or unless the killing hap-
pened 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 arrange-
ment having for its object the death of Story. It
is sufficient that they combined with those com-
mitting 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 sev-
eral persons conspire to do an unlawful act, and
death happens in the prosecution of the com-
mon 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 an-
other 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,

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No. 22-1245 29
6 N.E.3d 145, 150 (Ill. 2014). Kessler was convicted as aider
and abettor on two counts of attempted murder committed in
the course of a burglary. Kessler was out drinking with two
other men, one of whom had mentioned earlier in the day that
he needed $1,800; Kessler had told his companions that he
previously worked at a particular tavern and had seen the
cash receipts, although they were not as large as $1,800. From
Kessler’s remark, a plan developed among the three men to
commit an after-hours burglary of that tavern. Kessler re-
mained in a car outside of the tavern while his two compan-
ions, whom we shall refer to as the principals, went inside to
commit the burglary. In the course of the burglary, the two
principals were surprised by one of the tavern’s owners, who
had stopped by to investigate after noticing an unfamiliar car
in the parking lot. One of the principals shot the owner in the
neck with a pistol they had discovered on the premises and
intended to take with them. The principals then left the tavern
in the car with Kessler. Eventually, state police forced the car
off the road into a ditch. The principals fled the car on foot,
leaving Kessler behind. In their attempt to evade capture, one
of the principals fired a shot at a state trooper who was chas-
ing them. The Illinois Supreme Court held that Kessler was
liable for the two attempted murders (of the tavern owner and
police officer) on a straightforward reading of Illinois’ ac-
countability statute, even if he did not participate in or intend
the shootings:
[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 con-
nection therewith. The result was the offense of
attempted murder of … the tap owner, and of

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30 No. 22-1245
[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 Gon-
zalez was smashing the window of the car he intended to bur-
gle. When the police officer walked up to Gonzalez, an-
nounced himself, and showed his badge, Gonzalez attempted
to flee the scene with Fernandez and fired at the officer. Fer-
nandez was found guilty by accountability of both the bur-
glary 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 Gon-
zales 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 lia-
bility 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

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No. 22-1245 31
burglary, under the facts of this case, defendant
has effectively conceded his guilt for aggra-
vated 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 per-
son is legally accountable for the conduct of the
person he aids; and that the word “conduct” en-
compasses any criminal act done in furtherance
of the planned and intended act. Here, defend-
ant concedes that he aided Gonzalez in the plan-
ning and commission of the burglary. That be-
ing the case, defendant is legally accountable for
any criminal act that Gonzalez committed in fur-
therance of the burglary, which in this case was
the aggravated discharge of a firearm in the di-
rection of a peace officer. Under well-settled ac-
countability 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 per-
son 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 in-
tent 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 partici-
pate in those acts. See also Morgan, 364 N.E.2d at 60 (where
plan formed among multiple individuals to rob victim, who

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32 No. 22-1245
was behind on his rent, defendant was present while victim
was beaten and killed, and it could be inferred from defend-
ant’s presence at beating and his receipt of share of robbery
proceeds that he was a participant in robbery, he could also
be held liable for murder of victim on accountability theory,
notwithstanding defendant’s purported remark to cohorts
that he would accompany them to robbery but that “I don’t
want nothing to do with it”); Green, 535 N.E.2d at 422–23
(where defendant was party to plan to commit home invasion
of victim’s apartment in order to force victim to pay money
he owed to a co-defendant, and it was defendant who con-
vinced victim to open burglary gates at entry to apartment on
pretext that defendant wanted to purchase cocaine from vic-
tim, at which point co-defendants rushed into apartment, de-
manded money from victim, and ultimately killed him and
three young girls sleeping in apartment, defendant was liable
for murders on accountability theory: “Defendant’s role in the
home invasion was integral to its success and clearly he in-
tended to promote or facilitate the commission of that offense
by pretending to buy cocaine from Rule [the victim] so that
House and Bobo [the co-defendants] could gain entry into the
apartment they could not otherwise lawfully enter. … In the
absence of any evidence that defendant detached himself
from the criminal enterprise, defendant was accountable for
the conduct of House and Bobo after his initial action in get-
ting Rule to open the burglary gates.”) (citation omitted); Peo-
ple v. Rogers, 461 N.E.2d 511, 516 (Ill. App. Ct. 1984) (defend-
ant held liable for robbery and murder of victim notwith-
standing his contention that he only agreed to participate in
burglary of victim’s house and that he fled premises before
his companions entered home and killed victim: “Whatever is
done in furtherance of the design is the act of all and each is

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No. 22-1245 33
guilty of the crimes that are committed. … Even if defendant
was not present at the time victim was threatened and mur-
dered, his knowledge and planning of the criminal scheme
and subsequent participation and execution are sufficient to
hold him accountable.”).
More than that, the broad, unqualified language of the Il-
linois cases signals that an accomplice might be liable for ad-
ditional criminal acts committed by the principal in further-
ance 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 foreseea-
bility (i.e. proximate cause) … has no place in accountability
analysis.” People v. Cooper, 743 N.E.2d 32, 38 (Ill. 2000) (quot-
ing 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 the-
ory 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 foreseea-
bility 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 ac-
countability, see Cooper, 743 N.E.2d at 38; the two doctrines
have different theoretical underpinnings, as the Illinois Su-
preme 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. Be-
cause of the extremely violent nature of felony

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34 No. 22-1245
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 fur-
ther exemplary of how broadly we seek to ex-
tend the reaches of criminal liability in the case
of felony murder.
Id. at 335 (citations omitted). By contrast, “accountability fo-
cuses 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 li-
able under accountability theory for death resulting from re-
turn 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 li-
able 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

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No. 22-1245 35
the scene, victim shot at defendant but struck and killed by-
stander).10
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 tar-
get offense. See People v. Terry, 460 N.E.2d 746, 749 (Ill. 1984)
10 See also Butler v. People, 18 N.E. 338, 339 (Ill. 1888) (where marshal
attempted to arrest one of two defendants who were breaching peace at
horse show and fight ensued among the defendants, marshal, and others
who attempted to break up fight, and during fight marshal discharged his
revolver, striking and killing bystander, defendants could not be held lia-
ble for murder of bystander on accountability theory: “There was no com-
mon design or purpose existing between the two defendants and [the mar-
shal]. They had not assembled or come together for the commission of any
unlawful act. They were enemies, belonging to opposite factions … . [The
defendants] would be responsible for what they did themselves, and such
consequences as might naturally flow from their acts and conduct; but
they never advised, encouraged, or assented to the acts of [the marshal],
nor did they combine with him to do any unlawful act, nor did they in any
manner assent to anything he did, and hence they could not be responsible
for his conduct toward the deceased.”).

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36 No. 22-1245
(“We agree that the rule does impose liability for murder even
though a misdemeanor was originally intended.”).
Defendants in Illinois frequently argue that they agreed
only to the target offense, that they neither knew of nor in-
tended for any secondary crimes to take place, that they did
not know their cohorts were armed, and that they partici-
pated in the target offense on the assurance that no dangerous
weapon would be used. These types of arguments consist-
ently 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, de-
fendant was liable for murder notwithstanding her statement
to police that she told Hall that they should only beat the vic-
tim up, that she did not know that Hall intended to kill Wil-
son, that during the beating Hall “suddenly and without ex-
planation” 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, con-
fronted “Walker group” of youths in order to avenge a beat-
ing suffered by a member of Tarver group, and during con-
frontation, 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

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No. 22-1245 37
circumstances shown, was a shot fired by all and all of them
must answer for the result.”); People v. Phillips, 14 N.E.3d 1, 56
(Ill. App. Ct. 2014), cert. denied, 574 U.S. 1173 (2015) (where
defendant and his three cohorts, including Grimes, went to
confront and administer a black eye to woman who had
struck defendant’s girlfriend in face with a brick, but discov-
ered that there was a crowd near woman’s house that was too
large to deal with, and they were in the process of leaving
when Grimes said “wait for a minute,” walked out of defend-
ant’s view and then fired a single shot into crowd which
struck and killed a man, defendant was guilty of murder on
accountability theory: “[D]efendant cannot escape liability
merely because his criminal intentions did not rise to the level
of murder. By attaching himself to a group bent on illegal acts,
defendant became accountable for all the crimes of his com-
panions, including the shooting of [the victim].”); People v.
Duncan, 698 N.E.2d 1078, 1083 (Ill. App. Ct. 1998) (where side-
walk scuffle between current and former girlfriends of Or-
lando Potts escalated into plan to “kick [Potts’] ass,” and de-
fendant was part of group that walked to Potts’ apartment
with that aim in mind, and on arrival at apartment defend-
ant’s cohort Lemont took out gun that defendant had given
him and shot up apartment, killing 14 year-old victim Gil-
more inside apartment rather than Potts, defendant was liable
for murder of Gilmore: “The fact that Lemont shot Gilmore
during the execution of the group’s common plan to hurt Or-
lando Potts is sufficient to hold defendant accountable for the
shooting.”).
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

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38 No. 22-1245
natural and probable consequence doctrine in jurisdictions
where foreseeability is required. Foreseeability, of course, en-
tails an objective rather than a subjective assessment; a court
asks not what the individual defendant anticipated, but rather
what a reasonable person in his position reasonably could
have foreseen. See United States v. Yates, 98 F.4th 826, 839 (7th
Cir. 2024); Stanphill v. Ortberg, 129 N.E.3d 1167, 1176–77 (Ill.
2018). With that point in mind, it is worth noting that courts
deem all sorts of grave consequences to be foreseeable once a
defendant has agreed to engage in a forcible target offense
like robbery.
5. Comparing the application and results of Illinois
common-design cases with cases from other jurisdic-
tions 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 accom-
plice. 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 con-
frontation 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

-- 38 of 66 --

No. 22-1245 39
principal who struck the farmer with the hoe for assault with
intent to commit murder:
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 endan-
gering life or limb[ ]—as it actually turned out
afterwards. That they were all coconspirators in
a dangerous criminal enterprise, is an undis-
puted 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 con-
sidered whether attempted murder was a foreseeable conse-
quence of watermelon theft, and answered that question in
the affirmative, emphasizing that having deliberately em-
barked 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

-- 39 of 66 --

40 No. 22-1245
overt act itself.” (quoting the lower court’s decision, 350
N.E.2d 27, 34 (Ill. App. Ct. 1976)).
Cases from other natural and probable consequence juris-
dictions have reached similar conclusions. To take a promi-
nent 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-Alva-
rez in assessing (and rejecting) the contention that California’s
natural-and-probable-consequence jurisprudence was an out-
lier. 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 li-
able 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 defend-
ants’ argument that they had not intended for the assault to
occur and that a sexual assault was not a foreseeable conse-
quence of robbery:
Robbery is a crime that can be committed in
widely varying circumstances. It can be com-
mitted 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 ob-
served (with respect to residential robbery) in
his concurring opinion in People v. Lopez (1981)

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No. 22-1245 41
116 Cal.App.3d 882, at page 891, 172 Cal. Rptr.
374: “When robbers enter the home, the scene is
all too often set for other and more dreadful
crimes such as that committed on Mrs. H. in this
case. In the home, the victims are particularly
weak and vulnerable and the robber is corre-
spondingly secure. The result is all too often the
infliction of other crimes on the helpless victim.
Rapes consummated during the robbery of a
bank or supermarket appear to be a rarity, but
rapes in the course of a residential robbery oc-
cur with depressing frequency.” With respect to
residential robbery and other isolated-victim
and hostage-type robberies, we agree with Pre-
siding Justice Gardner’s observation, both as a
reflection of the reported decisional authorities,
and as a synopsis of our experience with crimi-
nal cases which this court is regularly required
to consider. Robbery victims are sexually as-
saulted far too often for this court to conclude,
as a matter of law, that sexual offenses cannot
be a reasonably foreseeable consequence of a
robbery.
In turning to the facts of this case we find ample
evidence to support a theory that the sexual of-
fenses were a reasonably foreseeable result of
the defendants’ participation in the group crim-
inal 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

-- 41 of 66 --

42 No. 22-1245
participants at the trial, that they were actually
engaged in prostitution. The businesses were
arranged much like a residence, with separate
rooms furnished as bedrooms might be. The
businesses operated behind locked doors,
which both added to their sexual aura and gave
the robbers security against intrusion or discov-
ery by outsiders. The robbers went to the busi-
nesses in sufficient numbers to easily overcome
any potential resistance and to maintain control
over the victims for as long as they desired.
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-de-
fendant to commit sexual assault on victim).
Cases from still other jurisdictions apply the natural and
probable consequences doctrine in a comparable way, deem-
ing secondary offenses committed by a principal in
11 The Nguyen court went on to add that the defendants continued to
participate in the robbery after the sexual assault occurred, a circumstance
the court viewed as confirming their acceptance of and shared responsi-
bility for the assault. Id. at 333. It was this sort of observation that the Su-
preme Court had in mind in Duenas-Alvarez when it noted that Califor-
nia’s application of the natural and probable consequences doctrine in
Nguyen and like cases was consistent with the precedents of jurisdictions
that premise accomplice liability on facts supporting an inference that the
accomplice shared the principal’s intent to commit a secondary crime. 549
U.S. at 191.

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No. 22-1245 43
furtherance of the target crime to have been reasonably fore-
seeable to the aider and abettor even when those secondary
offenses represented a dramatic and unexpected escalation of
force by the principal, and even when the defendant did not
realize the principal was armed. See Howell v. State, 339 So.2d
138, 140 (Ala. Crim. App. 1976) (defendant liable for assault
with intent to murder after he and two others conspired to rob
gas station in early morning hours, and when police officer
arrived to investigate, principal shot him: “[a]ssault with in-
tent to murder would be a foreseeable consequence of the
joint enterprise in which [the defendant and the two others]
were engaged”); Johnson v. State, 687 N.E.2d 345, 349–50 (Ind.
1997) (notwithstanding defendant’s contention that murder
was beyond the scope of a plan with principal to rob defend-
ant’s father-in-law, defendant was liable as accomplice for fel-
ony murder where during robbery at father-in-law’s home,
principal killed both father-in-law and his wife: “The criminal
liability of an accomplice is not negated by the principal’s
commission of an offense greater in severity than the offense
originally planned, if the resulting offense is a probable and
natural consequence of the planned offense. Johnson admit-
ted that he was the instigator of the planned robbery and that
he left the door to the Smiths’ house unlocked with the intent
that [the principal] would enter and rob the Smiths. … Plan-
ning a robbery of a person in that person’s own home is
bound to create a risk that violence may ensue when the
homeowner predictably attempts to protect himself and his
family.”) (citations omitted); State v. Edwards, 498 P.2d 48, 52
(Kan. 1972) (where defendant and three companions had
agreed to rob victim, and defendant upon entry to victim’s
house looked at furniture and remarked, “we could make a
killing here” and personally stole a radio, and all four left

-- 43 of 66 --

44 No. 22-1245
house in defendant’s car after principal stabbed victim, de-
fendant was liable for aggravated battery of victim notwith-
standing his acquittal on burglary charge and his contention
that it was unforeseeable principal would stab victim with
paring knife: “Robbery is a crime of violence committed by
threat or force. There was evidence that defendant partici-
pated in the aggravated robbery by taking a radio from the
premises. From the facts it may be readily inferred that vio-
lence, if necessary, was contemplated when the four entered
the house. … Under these circumstances, the defendant can
hardly be considered an innocent bystander in the whole af-
fair.”); State v. Smith, 748 So. 2d 1139, 1143 (La. 1999) (where
co-defendants set out with principal to burglarize temporar-
ily unoccupied home of their occasional employer, victim and
wife arrived and interrupted burglary suddenly and unex-
pectedly, and co-defendants fled house while principal
stayed behind and fatally shot victim, co-defendants were li-
able for murder notwithstanding their contention (bolstered
by principal’s testimony) that they were unaware principal
was armed: “[U]nder general principles of accessorial liabil-
ity, all parties to a crime are guilty for deviations from the
common plan which are the foreseeable consequence of car-
rying out the plan. The risk that an unauthorized entry of an
inhabited dwelling may escalate into violence and death is a
foreseeable consequence of burglary which every party to the
offense must accept no matter what he or she actually in-
tended.”) (cleaned up); People v. Robinson, 715 N.W.2d 44, 5051
(Mich. 2006) (where defendant and principal went to victim’s
house to “f*** the victim up,” both defendant and principal
struck victim until defendant told principal “that’s enough”
and walked back to car, whereupon principal shot and killed
victim, defendant was liable for murder: “The victim’s death

-- 44 of 66 --

No. 22-1245 45
is clearly within the common enterprise the defendant aided
because a homicide might be expected to happen if the occa-
sion should arise within the common enterprise of an aggra-
vated assault. … A natural and probable consequence of leav-
ing the enraged [principal] alone with the victim is that [he]
would ultimately murder the victim.”) (cleaned up); State v.
Filippi, 335 N.W.2d 739, 742 (Minn. 1983) (defendant held lia-
ble for assault with a dangerous weapon after he and princi-
pal attempted to rob drugstore and principal shot at police
officers who responded to robbery, notwithstanding princi-
pal’s testimony that defendant had never before seen princi-
pal with gun and principal did not tell him that he was carry-
ing the gun with him during the burglary: court reasoned in
dicta that it is “reasonably foreseeable” that police might ar-
rive in course of burglary, and that because “a burglary of this
sort carries with it the possibility of violence, it seems reason-
able to infer from defendant’s mere intentional participation
in the burglary that defendant knew or could foresee that the
burglary might result in violence”); State v. Jackson, 601
N.W.2d 741, 751 (Neb. 1999) (where defendant and principal,
while awaiting a taxi in front of mini mart, engaged in a hos-
tile verbal exchange with two other men who had walked out
of store, principal followed men across street and began
fighting with one of the men—the victim—defendant crossed
street ostensibly to break up fight but fought back when sec-
ond man accosted him, and first man later died as a result of
blows inflicted by principal, defendant could be held liable
for manslaughter: “the jury could have determined from the
evidence that [defendant’s] participation in the assault on [the
second man] could also be characterized as assistance or en-
couragement to [the principal’s] assault on [the victim]. The
jury could also have reasonably determined that [the victim’s]

-- 45 of 66 --

46 No. 22-1245
death was a natural and expected consequence of the beating
inflicted by [the principal].”).
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-de-
sign rule of accomplice liability in very broad terms, the re-
sults of the Illinois cases are wholly consistent with the cases
from other jurisdictions which require that a secondary of-
fense have been foreseeable to the accomplice. In practice,
then, Illinois courts are not “apply[ing] its [accomplice liabil-
ity] 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 im-
agine 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.

-- 46 of 66 --

No. 22-1245 47
Likewise with Fernandez: Fernandez’s principal smashed
the window of a car in a church parking lot in broad daylight,
while worship services were commencing. One could readily
foresee that a churchgoer or a police officer might happen by,
and then what? It is anything but improbable that violence
might occur. And, of course, in both instances, Kessler and
Fernandez remained with their accomplices once gunfire
erupted and to that extent could be read as endorsing the use
of violence. See Duenas-Alvarez, 549 U.S. at 191 (noting that
many states permit jury inferences of intent in circumstances
similar to those in which California has applied the natural
and probable consequences doctrine).
In short, although Carr has arguably established that Illi-
nois’ formulation of common-design doctrine is unusually
broad to the extent it does not require that a secondary crimi-
nal act committed in furtherance of the agreed-upon target of-
fense 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 conse-
quences 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 con-
sequences 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 sec-
ondary crime was not reasonably foreseeable to the defend-
ant. See, e.g., State v. Davis, 604 P.2d 68, 72–73 (Kan. Ct. App.
1979) (defendant who stood as lookout while principal

-- 47 of 66 --

48 No. 22-1245
attempted to pry open vending machine in unoccupied apart-
ment-building laundry room could not be held liable for ag-
gravated battery after security guard interrupted the at-
tempted theft, ordered both men up against wall, and then
principal ran back into laundry room, retrieved gun, fired at
guard, and struck him: “[T]he intended crime, misdemeanor
theft, was to take place in the early morning hours in a laun-
dry room that the defendant knew to be unoccupied when the
theft occurred. … The record on appeal does not even hint
that the defendant knew or had any reason to suspect [the
principal] had a weapon. … In our opinion, it is mere specu-
lation to say that a person who with another is planning to
commit a misdemeanor theft in an unoccupied room can rea-
sonably foresee in the absence of other facts that the cocon-
spirator will shoot someone in an effort to avoid apprehen-
sion.”). But Carr has pointed us to no Illinois case which has
applied the common-design rule to hold a defendant liable for
secondary crimes that would not have been (at least arguably)
reasonably foreseeable to him. 12
12 Carr points us to the Illinois Court of Appeals’ decision in People v.
Stinde, 2011 WL 10457946 (Mar. 23, 2011), for the proposition that Illinois
courts will apply the common-design doctrine so broadly as to impose li-
ability on an accomplice for a secondary, violent crime even when the tar-
get offense of the common design was a non-violent offense. The Stinde
decision is both non-precedential and not citable even for its persuasive
value. See Ill. Sup. Ct. Rule 23(e)(1). In any case, the facts at issue in Stinde
reveal that violence was an apparent possibility from the start of the crim-
inal plan. Stinde had agreed to help his sister’s boyfriend buy some mari-
juana. But in fact, Stinde and his two cohorts intended to rip off the boy-
friend. While Stinde and the boyfriend were sitting in a parked car, osten-
sibly waiting for the “weed man” to arrive, one of Stinde’s cohorts walked
up to the car and shot and killed the boyfriend. In contesting his conviction
(continued)

-- 48 of 66 --

No. 22-1245 49
Given Duenas-Alvarez’s insistence that there be a realistic
probability that a state would apply its accountability statute
to conduct falling outside the generic definition of a crime, 549
U.S. at 193; Moncrieffe v. Holder, 569 U.S. 184, 191, 206 (2013),
we must look past what the courts of that state say to what
they actually do. In the abstract, given the broad language that
Illinois courts use to describe the common-design rule, one
can of course hypothesize scenarios in which an aider and
abettor theoretically might be held liable to account for a com-
pletely unforeseeable secondary offense that his principal
commits in furtherance of the agreed-upon target offense:
strangling a store clerk who refuses to accept a counterfeit bill
or a forged check that the accomplice prepared and the prin-
cipal attempted to pass, for example. But Illinois courts have
decided hundreds of common-design cases since the Illinois
Supreme Court decided the Brennan case 170 years ago.
Among them we have been unable to find one in which a
court has held an aider and abettor liable for a secondary of-
fense that one could not say was reasonably foreseeable to
him.
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 ma-
rijuana, 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.

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50 No. 22-1245
Perhaps another way of putting this is that although other
states nominally narrow the scope of the natural and probable
consequences doctrine by insisting that the secondary offense
be reasonably foreseeable to the accomplice, that additional
requirement does not grant the accomplice as much protec-
tion as Carr might like to think. As we have seen, once an in-
dividual has agreed to aid and abet a forcible offense—any-
thing from residential burglary to bank robbery—courts are
likely to deem almost any violent act committed in further-
ance of that offense to be reasonably foreseeable, however
sudden and unexpected it may have been to the aider and
abettor.
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

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No. 22-1245 51
accountability doctrine that is “somehow special.” Where
does this lead us?
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 accounta-
bility not as a separate offense, but rather as an alternative
way of proving the defendant guilty of the substantive of-
fense. People v. Ceja, 789 N.E.2d 1228, 1247 (Ill. 2003). Conse-
quently, conviction as an accomplice pursuant to the com-
mon-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 com-
mon-design theory of aiding and abetting rather than as prin-
cipal, 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 main-
stream—deem Illinois robbery to be a categorical mismatch
for generic robbery in view of the “special” nature of Illinois
accountability theory.
13 Looking only at the face of Carr’s prior robbery convictions, we
would not be able to tell whether he was convicted as aider and abettor,
as we would have been able to do had he been charged as such—and, on
occasion, people are charged as aiders and abettors in Illinois. E.g., People
v. Dennis, supra, 692 N.E.2d at 332; People v. Kijowski, 377 N.E.2d 1324, 1327
(Ill. App. Ct. 1978). If Carr had been charged as an accomplice, then we
could apply the Taylor categorical approach in the usual way, focusing on
the elements of the charged offense. Carr’s argument, however, is prem-
ised on the notion that he might have been convicted as an aider and abet-
tor without having been charged as such.

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52 No. 22-1245
This certainly was the premise of the petitioner’s argu-
ment in Duenas-Alvarez, and arguably it was the premise on
which the Supreme Court’s analysis proceeded. But because
the Court found that California’s accomplice liability was not
outside of the mainstream, it did not need to consider next
steps. If, as Carr argues, Illinois accomplice-liability really is
unique, we do not have that luxury.
The first problem we have with Carr’s invocation of Taylor
is that accountability is simply a theory of liability. But Tay-
lor’s categorical analysis is reserved for the elements of the of-
fense, as Carr himself agrees. See United States v. (Justin) Tay-
lor, 596 U.S. 845, 850 (2022); Descamps, 570 U.S. at 261. Ac-
countability is not an element of robbery or any other substan-
tive 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 as-
certain whether a particular juror signed the guilty verdict af-
ter finding defendant acted as the principal or acted as an ac-
complice … [but] unanimity is not required concerning alter-
nate 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 im-
port Illinois accountability principles into the elements of Illi-
nois robbery, Carr would have us input something into the

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No. 22-1245 53
elements-only categorical analysis for which it was not de-
signed.
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 con-
victions as predicates for either an increase in the minimum
and maximum statutory penalties applicable to a defendant,
see, e.g., 18 U.S.C. § 924(e) (Armed Career Criminal Act; 21
U.S.C. §§ 841(b) and 843(d) (penalties for controlled sub-
stances offenses), or an increase in the Sentencing Guidelines
offense level (and corresponding sentencing range), see, e.g.,
Guidelines § 2K2.1(a) (robbery guideline), regardless of
whether or not those convictions in fact rested on accounta-
bility theory. This would, in turn, reduce the sentencing ex-
posure for defendants with Illinois robbery convictions in
their criminal histories, against the obvious intent of Congress
and the Sentencing Commission, which both recognized that
defendants with prior violent felonies in their past are, as a
group, more dangerous to society than those without such
convictions in their histories. Sentencing judges presumably
could compensate for the distortion in the Guidelines offense
level and advisory sentencing range by taking into account
prior Illinois robbery convictions as an aspect of “the history
and characteristics of the defendant” under 18 U.S.C.
§ 3553(a)(1) and as a way of avoiding unwarranted sentencing
disparities among defendants with similar backgrounds un-
der section 3553(a)(6); but they could do nothing about the ef-
fects on the statutory minimum and maximum penalties to
which the defendant is subject. Similarly, in immigration
cases, there would be no way for a judge to compensate for
the effect of disqualifying a predicate conviction as the basis

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54 No. 22-1245
for removal. See Valivia-Flores, 876 F.3d at 1211 (O’Scanlain, J.,
concurring specially).
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 of-
fense could be labeled as a mismatch for its generic counter-
part 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-re-
moval 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 indica-
tion 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 “untena-
ble” 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 de-
termine 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

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No. 22-1245 55
Court’s decision in in Mathis v. United States, 579 U.S. 500
(2016), dooms it from the start.
Courts traditionally use the modified categorical ap-
proach when a defendant has been convicted of violating a
divisible statute, that is, a statute which lists one or more of-
fense 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 in-
structions, to determine which alternative
formed the basis of the defendant's prior convic-
tion. The court can then do what the categorical
approach demands: compare the elements of
the crime of conviction (including the alterna-
tive element used in the case) with the elements
of the generic crime.
Id.; see Shepard v. United States, 544 U.S. 13, 26 (2005) (describ-
ing 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 princi-
ples. See ILL. P ATTERN JURY INSTRUCTIONS – C RIMINAL , No. 5.03.
And if a defendant pleaded guilty to Illinois robbery as an ac-
complice, then the plea colloquy would likely reflect as much.
In such cases, where the Shepard documents confirm that the
defendant might have been convicted of Illinois robbery as an

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56 No. 22-1245
accomplice, then it arguably would be appropriate to disqual-
ify the Illinois conviction as one for a crime of violence, given
the purported mismatch between Illinois common-design lia-
bility and generic accomplice liability. On the other hand,
where a review of the Shepard documents rules out the possi-
bility that a defendant might have been convicted of Illinois
robbery as an accomplice, then there would be no need to
deem the conviction a categorical mismatch for generic rob-
bery, for the common-design rule will not have come into
play at all. The robbery conviction could then be relied upon
as a valid predicate for sentence enhancements. See Moncrieffe,
569 U.S. at 219–20 (Alito, J., dissenting) (advocating for a more
flexible, common-sense approach to assessment of state con-
victions so as to avoid results that Congress did not intend).
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 rob-
bery and was the sole actor in the two 2008 robberies.
But here we run into the third problem with Carr’s ap-
proach: 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 liabil-
ity, which suggests that we cannot employ the modified cate-
gorical 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 statu-
tory penalties under the Armed Career Criminal Act, 18

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No. 22-1245 57
U.S.C. § 924(e). The Iowa burglary statute had a broader reach
at that time than generic burglary: whereas generic burglary
requires unlawful entry into a building or other structure, the
Iowa statute also encompassed entries into land, water, and
air vehicles (i.e., cars, boats, and planes). Those various places
were listed in the state statute, and although they were
properly understood as alternative means of satisfying the lo-
cational element of the offense, 579 U.S. at 506,14 the question
14 With respect to the distinction between the elements of an offense
and the means of committing an offense, we observed in Najera-Rodriguez:
The difference between “elements” and “means” can
seem slippery, sometimes almost metaphysical, but sig-
nificant legal consequences flow from that difference.
“‘Elements’ are the ‘constituent parts’ of a crime's legal
definition—the things the ‘prosecution must prove to sus-
tain 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. 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. In addition, the jury cannot convict with-
out 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 conse-
quences, as well as for other purposes. For example, a
crime’s elements affect multiplicity challenges because
the “Double Jeopardy Clause permits successive punish-
ment or prosecution of multiple offenses arising out of the
(continued)

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58 No. 22-1245
was whether they could be treated as the equivalent of alter-
native elements for purposes of the Taylor inquiry, in which
case a court could employ the modified categorical approach
and consult the Shepard documents to confirm that a defend-
ant was convicted of burglarizing a building or other struc-
ture, such that the conviction would count as burglary for
purposes of a sentence enhancement. The Court answered
this question firmly in the negative, and reversed the lower
courts for having erroneously applied the modified categori-
cal approach to conclude that Mathis had, in fact, burglarized
a structure. “How a given defendant actually perpetrated the
crime—what we have referred to as the underlying brute facts
or means of commission—makes no difference [to the cate-
gorical inquiry]; even if his conduct fits within the generic of-
fense, the mismatch of elements saves the defendant from an
ACCA sentence.” Id. at 509 (cleaned up). The modified cate-
gorical approach, the Court admonished, “is not to be repur-
posed as a technique for discovery whether a defendant’s
prior conviction, even though for a too-broad crime, rested on
facts (or otherwise said, involved means) that also could have
satisfied the elements of a generic offense. Id. at 513–14. Here,
as in Mathis, we are dealing with something that is not an el-
ement of the offense—whether the defendant committed the
crime as an aider and abettor rather than as a principal—and
same conduct only if each offense contains a unique ele-
ment.” Id.
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 abet-
ting theory of accountability—is not an element of the offense.

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No. 22-1245 59
Mathis precludes us from “repurpos[ing]” the modified cate-
gorical approach to determine whether a defendant might
have been convicted on a particular theory of liability. See Al-
fred, 64 F.4th at 1051–55 (concurrence in part, dissent in part);
Bourtzakis v. United States, 940 F.3d 616, 627 (11th Cir. 2019)
(Robreno, D.J., concurring in part and concurring in judg-
ment).
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 de-
fendant’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 pre-
viously 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 possibil-
ity that another defendant might be able to establish “a real-
istic probability, not a theoretical possibility, that the State
would apply its statute to conduct that falls outside the

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60 No. 22-1245
generic definition of a crime. 549 U.S. at 193. But the Court did
not answer the questions we have raised here: How does the
Taylor categorical inquiry address an accomplice theory of li-
ability 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 mod-
ified categorical approach in order to assess whether accom-
plice liability was even at issue in the case resulting in the de-
fendant’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 cor-
rect 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 possibil-
ity that Carr might have been convicted as an accomplice.
Carr points us to no court that has taken such a step. 15 Carr’s
15 The Ninth Circuit briefly took this course in two cases, Valdivia-Flo-
res, supra, 876 F.3d 1201 (deeming Washington conviction for possessing a
controlled substance with intent to deliver to be a categorical mismatch
for federal counterpart based on Washington’s aiding and abetting law
which, at time of petitioner’s conviction, did not require defendant’s intent
to aid in commission of offense; consequently, conviction did not qualify
as “aggravated felony” for purposes of petitioner’s removability under
Immigration and Nationality Act), and United States v. Franklin, 904 F.3d
(continued)

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No. 22-1245 61
793 (9th Cir. 2018) (likewise deeming Washington convictions for delivery
of controlled substance to be categorical mismatch for their generic coun-
terpart based on Washington’s aiding and abetting law; consequently,
convictions did not qualify as predicate “serious drug offenses” for pur-
poses of Armed Career Criminal Act), abrogated in part by Shular v. United
States, 589 U.S. 154 (2020). More recently, however, the en banc Ninth Cir-
cuit overruled those cases in Alfred, 64 F.4th 1025.
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. Capel-
ton, 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, how-
ever, 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 lia-
bility 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
18 U.S.C. § 2); id. at 1050–66 (Collins, J., concurring in part and dissenting
in part) (asserting that a state’s accomplice liability should not be factored
into categorical analysis of robbery conviction; rather, court should con-
fine its analysis to the elements of Washington robbery and whether those
elements line up with those of generic robbery, which they do; also reject-
ing the court majority’s articulation of federal aiding and abetting liability
under § 2); id. at 1067–72 (McKeown, J., dissenting) (agreeing with lead
opinion that state’s accomplice liability must be factored into categorical
analysis of whether Washington robbery constitutes a theft offense for fed-
eral purposes, but concluding that Washington accomplice liability is not
(continued)

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62 No. 22-1245
prior convictions were for Illinois armed robbery, period. Tay-
lor asks, are the elements of Illinois robbery a match for the
elements of generic robbery? The answer to that question is
yes. Until we are told otherwise, that is the end of our inquiry.
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 Illi-
nois 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 fed-
eral 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
a categorical match with generic accomplice liability, and so Washington
robbery is not a categorical match with generic robbery); id. at 1071–74
(Van Dyke, J., dissenting) (agreeing that Washington robbery is a categor-
ical mismatch with generic robbery once accomplice liability is taken into
consideration; although finding “a lot to commend” in concurrence/dis-
sent’s exclusive focus on elements of Washington robbery alone, nonethe-
less concluding that Duenas-Alvarez forecloses that approach).

-- 62 of 66 --

No. 22-1245 63
the completion of his (revoked) state parole, and conse-
quently that period too would not be credited against his fed-
eral sentence. “A writ of habeas corpus ad prosequendum ena-
bles [the receiving jurisdiction] to take temporary custody of
a prisoner confined within another jurisdiction, and indict,
prosecute and sentence such [a] prisoner,” Flick v. Blevins, 887
F.2d 778, 781 (7th Cir. 1989) (per curiam), while “the sending
state retains full jurisdiction over the prisoner,” id. “[F]ederal
custody commences only when the state authorities relin-
quish the prisoner on satisfaction of the state obligation.”
United States v. Evans, 159 F.3d 908, 912 (4th Cir. 1998); see also
Sinito v. Kindt, 954 F.2d 467, 469 (7th Cir. 1992) (per curiam)
(“The issuance of the writ of habeas corpus ad prosequendum
did not alter [the prisoner’s] custody status. It merely changed
the location of his custody for the sentence he was already
serving.”). Carr’s position was that it was appropriate to in
some way credit this time against his federal sentence because
local authorities had arrested him and state authorities had
revoked his parole based on the same offense conduct (his un-
lawful possession of a gun) underlying the federal felon-in-
possession charge. Indeed, Carr argued, had federal authori-
ties issued the writ before he entered into the custody of the
Illinois Department of Corrections on the parole violation, all
of the time he had spent in federal pretrial confinement would
automatically be counted toward his federal sentence. But be-
cause Carr instead entered state custody before the federal
writ was issued, the federal Bureau of Prisons (which is
charged with the responsibility to calculate a defendant’s sen-
tence, including any credit for pretrial detention) would view
this 15-month period as the completion of a distinct, state-im-
posed obligation, and it would only credit Carr for the time
spent in federal custody after October 19, 2021. See 18 U.S.C.

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64 No. 22-1245
§ 3585(b) (“[a] defendant shall be given credit toward the ser-
vice of a term of imprisonment for any time he has spent in
official detention prior to the date the sentence commences …
that has not been credited against another sentence”) (emphasis
added); Manuel v. Terris, 803 F.3d 826, 828 (7th Cir. 2015); Flick,
887 F.2d at 781. Carr therefore asked the judge to reduce what-
ever sentence he decided to impose by 15 months as a way to
effectively credit Carr for this period. See Manuel, 803 F.3d at
828–29 (noting that “only the Bureau [of Prisons] is author-
ized to give credit against a prison sentence for prior time
spent in custody”) (citing United States v. Wilson, 503 U.S. 329,
333–36 (1992)); United States v. Whitlow, 740 F.3d 433, 440 (7th
Cir. 2014) (district court has discretion to reduce defendant’s
sentence to account for time spent in custody prior to com-
mencement of sentence that Bureau of Prisons will not other-
wise credit) (collecting cases).
Carr’s counsel advocated for the same relief at the sentenc-
ing 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

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No. 22-1245 65
credit for a time period that the Bureau of Prisons itself would
not grant him. 16
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 some-
thing that only the Bureau of Prisons may grant), it does not
dispute that the court had the authority and discretion to rec-
ognize 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
16 We view this case as being distinct from United States v. Kimble, 2023
WL 2259153 (7th Cir. Feb. 28, 2023) (non-precedential decision), which the
government has cited to us pursuant to Federal Rule of Appellate Proce-
dure 28(j). The issue in Kimble was whether the district court had commit-
ted procedural error by failing to address one of the defendant’s principal
arguments in mitigation when it passed over in silence the defendant’s
request for a sentence reduction to account for the time he had spent in
custody before beginning his federal sentence. We held that the district
court had committed no such error, because although that request had
been presented in the defendant’s sentencing memorandum, defense
counsel had only mentioned it in passing in one sentence of her remarks
at sentencing. Id. at *3. We added that counsel’s use of the word “credit”
to describe the request was “somewhat misleading,” because only the Bu-
reau of Prisons could credit the defendant for time spent in pre-sentencing
custody, and what the defendant was asking for was a reduction in his
sentence. In this case, by contrast, there is no question that Carr presented
his request for a sentence reduction as a major argument in mitigation in
both his written sentencing memorandum and in his counsel’s oral re-
marks at sentencing. (And the district court did, in fact, address the re-
quest.) It is true that Carr’s counsel used the term “credit” in describing
the relief Carr was asking for, but we are satisfied that his memorandum
and his counsel’s remarks made sufficiently clear that he was actually ask-
ing for a reduction in his sentence. The error here was that the district
court nonetheless misapprehended the nature of Carr’s request.

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66 No. 22-1245
court ordered Carr to serve. See Gov’t Br. 55; Whitlow, 740 F.3d
at 440.
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 ad-
dressing 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 pursu-
ant to section 2K2.1(a)(1) of the Sentencing Guidelines; we af-
firm the district court’s sentencing decision in that respect.
However, we vacate and remand the sentence for the limited
purposes of reconsidering Carr’s request for a sentencing re-
duction to account for the time he initially spent in Cook
County detention on state charges and thereafter while serv-
ing out the remainder of his revoked parole term on the prior
state convictions for armed robbery.
AFFIRMED IN PART, VACATED IN PART,
and REMANDED.

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