Solicitation to Commit Residential Burglary a Crime of Violence under USSG 2L1.2(b)

U.S. v. Cornelio-Pena, -- F.3d --, 2006 WL 218189 (10th Cir. 1/30/06) - 16-level increase in reentry case was appropriate because solicitation to commit burglary of a dwelling was a crime of violence under GLs § 2L1.2. Solicitation, says the court, is "the original, direct cause of the crime if it is subsequently committed" and is sufficiently similar to the offenses listed in Application Note 5 to GLs § 2L1.2 to be encompassed by it. There was no constitutional Booker error in the district court's determination that solicitation of burglary was a crime of violence because it involves a question of law and besides, the Apprendi exception for prior convictions applies to the determination whether a prior conviction was a violent felony. Non-constitutional error in mandatory application of the GLs was harmless because the district court would likely give the same sentence if there was a remand since it imposed an alternative sentence that was the same as the actual sentence.