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Federal racketeering conviction counts as prior drug offense under § 961.41(3g)(c)

State v. Rogelio Guarnero, 2014 WI App 56, petition for review granted 11/14/14, affirmed, 2015 WI 72; case activity: 2013AP1753-CR; 2013AP1754-CR

Guarnero’s conviction for violating the Federal Racketeer Influenced and Corrupt Organizations (RICO) Act was a conviction for a crime “under a statute … relating to controlled substances,” and therefore qualified as a prior offense under the repeat drug offender enhancement provision of § 961.41(3g)(c), because the predicate acts of racketeering involved, among other things, controlled substance offenses.

Guarnero was charged with possession of cocaine in violation of § 961.41(3g)(c), an unclassified misdemeanor ordinarily punishable by up to a year in jail. But the state alleged–and the trial court found–Guarnero was a second or subsequent drug offender, which enhanced the offense to a Class I felony. (¶¶1, 4). A defendant is a second or subsequent offender under § 961.41(3g)(c) if, at any time prior to being convicted in the present case, he was “convicted of any felony or misdemeanor under this chapter or under any statute of the United States or of any state relating to controlled substances, …” The prior conviction used to enhance Guarnero’s penalty was his conviction in a federal RICO prosecution, where he and 48 others were charged with being members and associates of the Latin Kings. According to the count in the indictment to which Guarnero pleaded guilty, the defendants conspired to violate 18 U.S.C. § 1962(c) by conducting and participating in an enterprise that included engaged in acts of violence, including murder, attempted murder, robbery, extortion, and distribution of controlled substances. (¶2).

Guarnero argues RICO is not a “statute … relating to controlled substances” and so can’t be used to enhance his sentence. The court of appeals disagrees, saying the RICO conviction is a crime relating to controlled substances under the “categorical” and “modified categorical” approaches that courts use “to see if the alleged enhancing conviction carries its burden ….” (¶9). The court quotes a summary of the approaches from Evans v. Wisconsin Dep’t of Justice, 2014 WI App 31, ¶18, 353 Wis. 2d 289, 844 N.W.2d 403:

Under the categorical approach, courts ordinarily “‘look only to the fact of conviction and the statutory definition of the prior offense.’” When a statute defines an element in the alternative, however, the categorical approach is “modified” to determine which alternative formed the basis of conviction. Under the modified categorical approach, courts consult a “limited class of documents,” including charging documents, transcripts of plea colloquies, and jury instructions. The purpose of consulting such documents is “to identify, from among several alternatives, the crime of conviction.”

Based on the discussions of the approaches in United States v. Castleman, 572 U.S. ___, 134 S. Ct. 1405 (2014), and Descamps v. United States, 570 U.S. ___, 133 S. Ct. 2276 (2013), the court of appeals concludes that the modified categorical approach permits looking at certain documents beyond the elements of the offense “when a predicate criminal statute has alternate paths to conviction.” (¶8). “Put succinctly,” the court says, “[i]f the face of the statute (here, the Racketeer Act) reveals that there is more than one route to conviction, and one of those routes satisfies an enhancement prerequisite, then a court asked to apply the enhancement may look to see what route the defendant took towards his or her conviction.” (¶11 (formatting altered)).

Because “there are many, many ways that a person may violate” the federal RICO statute, “the [statute’s] provisions, which incorporate the expansive definition of ‘racketeering activity,’ are ‘divisible,’ and this permits use of the modified categorical approach. Thus, the circuit court and we may look at the indictment to which Guarnero pled guilty as well as his plea-bargained acknowledgment that he was ‘in fact, guilty of the offense’ set out in Count Two of the indictment.” (¶12). Looking at the indictment and related documents, the court concludes Guarnero’s RICO conviction counts as a prior drug offense:

8        … Guarnero pled guilty to Count Two of the federal indictment, which charged that Guarnero violated 18 U.S.C. § 1962(d) by conspiring to violate 18 U.S.C. § 1962(c). Although neither section references controlled substances in haec verba, they do, of course, make unlawful “racketeering activity” and conspiring to engage in “racketeering activity” which, as we have seen, is defined by the Racketeer Act to include activities involving controlled substances, such as cocaine. Thus, the circuit court correctly concluded that the Racketeer Act and 18 U.S.C. §§ 1962(c) & (d) are a statute and sections “relating to controlled substances” as that phrase is used in Wis. Stat. § 961.41(3g)(c).

The “categorical” and “modified categorical” approach was developed to help determine whether a prior state-law conviction is a “violent felony” under the Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e)(1), and is also used by federal courts to determine whether a prior conviction counts for other purposes, like deportation under immigration law. It may be appropriate for the second-offense enhancers under § 961.41(3g)(c) to (em), though the court doesn’t explain why it adopts the approach instead of simply trying to discern the meaning of “any statute … relating to controlled substances.”

But even if the approach is appropriate, reading Descamps, 133 S. Ct. at 2283-86, and its summary of Taylor v. United States, 495 U.S. 575 (1990), and Shepard v. United States, 544 U.S. 13 (2005), leaves one with considerable doubt about whether the court correctly applies the approach. To see why, a more detailed explanation of the approach is necessary. Be forewarned: This involves a lengthier exposition than a typical post, but the novelty and potential impact of the approach make it important to try to understand the law involved.

The ACCA defines “violent felony” in various ways, one of which is that the prior conviction was for a crime that “is  burglary, arson, or extortion,…” § 924(e)(2)(B)(ii). Under the categorical approach, a court looks not to the facts of the prior conviction, but to whether the elements defining the crime of conviction categorically fit with the elements of a “generic” definition (determined by contemporary usage) of burglary, arson, or extortion.

If the state statute has the same elements as the generic ACCA crime, then the prior conviction is an ACCA predicate; the same is true if the state statute defines the crime more narrowly than the generic crime, for a person convicted under that narrower law is necessarily guilty of all the generic crime’s elements. “But if the state statute sweeps more broadly than the generic crime, a conviction under that law cannot count as an ACCA predicate, even if the defendant actually committed the offense in its generic form. The key … is elements, not facts.” Descamps, 133 S. Ct. at 2283 (emphasis added). For example, a defendant can receive an ACCA enhancement for a burglary only if he was convicted of a crime having “the basic elements” of generic burglary—i.e., “unlawful or unprivileged entry into, or remaining in, a building or structure, with intent to commit a crime.” Thus, a conviction under the California burglary statute can’t be a predicate because “California defines ‘burglary’ so broadly as to include shoplifting.” Descamps, 133 S. Ct. at 2283; Taylor, 495 U.S. at 591.

But what about a statute with alternative elements—e.g., a burglary statute that conforms to the generic crime but also prohibits entry of an automobile as well as a building. One of those alternatives (a building) corresponds to an element in generic burglary, while the other (an automobile) does not. “Because the statute is ‘divisible’—i.e., comprises multiple, alternative versions of the crime [of burglary]—a later sentencing court cannot tell, without reviewing something more, if the defendant’s conviction was for the generic (building) or non-generic (automobile) form of burglary.” Descamps, 133 S. Ct. at 2284. In this situation a court may examine a limited class of documents to determine which of a statute’s alternative elements formed the basis of the defendant’s prior conviction. This is the “modified” categorical approach. Thus Shepard, which addressed a Massachusetts burglary statute covering entries into boats and cars as well as buildings, held a court could look at a restricted set of materials (e.g., charging documents, the plea colloquy) to determine if the defendant had been convicted of entering a building or, alternatively, a car or boat. 544 U.S. at 20-21, 25-26.

What Descamps and prior cases establish, then, is that the modified categorical approach is “a tool” for implementing the categorical approach’s focus on the elements of a crime. It allows for comparison of elements when the statute of conviction lists alternative ways of committing the generic crime and so effectively creates several different crimes. But before the tool can be employed, one of the alternatives must match the generic crime: “If at least one, but not all of those [divisible] crimes matches the generic version, a court needs a way to find out which the defendant was convicted of. That is the job, as we have always understood it, of the modified approach: to identify, from among several alternatives, the crime of conviction so that the court can compare it to the generic offense.” Descamps, 133 S. Ct. 2285 (emphasis added). Thus, it’s not enough that the crime of conviction is divisible; it is also necessary for one of those divisible crimes to match–categorically fit with–the generic crime.

This reveals the problem with the court’s use of the modified categorical approach in this case. While the court makes a lot of the fact that the RICO crimes are divisible (¶¶3, 7, 8, 11-12), it never defines the applicable “generic” offense beyond referring to the phrase “a statute … relating to controlled substances.” Nor does the court ever compare the generic and RICO crimes to see if there’s a match, element for element, between any of the RICO crimes and a generic crime. Yet it seems indisputable there is no such match because of the additional elements of the RICO crimes—e.g., in Guarnero’s case, employment by or association with an enterprise that is engaged in or affecting interstate commerce; conducting or participating in the conduct of such enterprise’s affairs through a pattern of racketeering activity, 18 U.S.C. § 1962(c)—that go far beyond a generic drug offense. Unlike a burglary that can be committed by entering a car or a building, RICO is not some alternative way to commit a generic controlled substances offense; it is an entirely separate offense that may—but, as evidenced by the long list of racketeering acts (¶7 n.1), does not necessarily—include acts that could be controlled substances offenses. Since its elements sweep beyond just drug offenses, RICO is simply not a generic drug offense. Cf. James v. United States, 550 U.S. 195, 197, 212 (2007) (conviction for attempted burglary under Florida law was not an enumerated offense of burglary because it included elements that are not part of the generic offense of burglary).

Because there’s never a match, never a categorical fit, between a RICO crime and a generic drug offense, the modified categorical approach has no role here. Just as Descamps referred to the “discrepancy” between generic burglary and the California burglary statute resulting because the latter “define[s] burglary more broadly” than the generic offense, 133 S. Ct. at 2286, quoting Taylor, 495 U.S. at 599, here, too, there is a discrepancy between a statute relating to controlled substances and the RICO statute because the latter defines a set of crimes that are far broader than controlled substances offenses. As with Descamps, we know the crime of conviction, and it does not correspond to the relevant generic offense. “Under [the Court’s] decisions, the inquiry is over.” 133 S. Ct. at 2286.

Ultimately, then, the decision in this case effectively inverts the method it purports to deploy, ignoring the elements and relying on the fact that one of the predicate acts of Guarnero’s RICO conviction involved drug offenses. So while the categorical and modified categorical approach will govern application of second-offense enhancers under § 961.41(3g) (assuming the opinion is published as recommended), by misapplying the doctrine it adopts the opinion establishes an unfortunate precedent for the use of the approach in future cases.

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