In a decision that is short on analysis and long on Sixth Amendment problems, the supreme court holds that Guarnero’s prior conviction for conspiring to violate 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 factual basis for the conviction involved controlled substance offenses.
Guarnero was charged with simple possession of cocaine, an unclassified misdemeanor ordinarily punishable by up to a year in jail. But he was convicted and sentenced as a second or subsequent drug offender under § 961.41(3g)(c), which enhanced the offense to a Class I felony. (¶¶7-9). To be a second or subsequent offender , the defendant has to have a prior conviction for “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 from a federal prosecution charging him and numerous co-defendants with multiple counts of conspiring to engage in various kinds of racketeering activity in violation 18 U.S.C. § 1962(d). Many kinds of criminal acts qualify as “racketeering activity” as that is defined under 18 U.S.C. § 1961(1); distributing controlled substances is one, with other notable examples being murder, kidnapping, arson, robbery, and extortion. The single count to which Guarnero pleaded guilty alleged that the defendants engaged in the specific racketeering activity of distribution of controlled substances. (¶¶4-6). Guarnero argued a conviction for racketeering conspiracy isn’t a conviction under a “statute relating to controlled substances” because the RICO conspiracy offense does not have as an element activity involving controlled substances; rather, controlled substances violations are one among many criminal acts that can can qualify as racketeering activity. (¶¶8, 10).
In rejecting Guarnero’s argument, the majority focuses on § 961.41(3g)(c)‘s phrase “relating to controlled substances” and uses ordinary dictionary definitions to conclude the phrase means “to be connected to or linked to controlled substances.” (¶¶14-17). But because offenses “linked” to controlled substances are only one of a wide variety of offenses that can constitute racketeering activity, the majority says it must determine which racketeering activity supports Guarnero’s RICO conspiracy conviction: “Such a determination is necessary to ascertain whether the unlawful conduct underlying his prior conviction is related to controlled substances. For example, were we not to consider the unlawful conduct that gave rise to the RICO conviction, a defendant convicted of RICO conspiracy based on sports bribery could have his or her penalty erroneously enhanced under Wis. Stat. § 961.41(3g)(c) because sports bribery fits within the definition of racketeering activity, but is not related to controlled substances.” (¶20).
How is this determination to be made? Here’s what the majority says:
¶21 When the statute underlying a prior conviction presents alternative methods of violating the statute, it is appropriate to consult a limited class of documents to determine what statutory alternative formed the basis for the defendant’s prior conviction. See Descamps v. United States, __ U.S. __, 133 S. Ct. 2276, 2285 (2013). In this case, we can glean the necessary information from Guarnero’s RICO conspiracy plea, which incorporates Count Two of his RICO indictment.
¶22 Guarnero’s RICO conspiracy plea shows that he was convicted of RICO conspiracy based on racketeering activity involving controlled substances. To explain further, Guarnero’s plea agreement contained his admission that as a member of the Latin Kings he engaged in acts that included the “extortion and distribution of controlled substances” because Count Two of the indictment is attached to his plea agreement. Count Two provides that, as a member of the Latin Kings, he “engaged in” the “distribution of controlled substances.” These documents confirm that the method of racketeering activity that underlies the RICO conspiracy of which Guarnero was convicted related to controlled substances. Because Guarnero’s RICO conspiracy conviction was related to controlled substances within the meaning of Wis. Stat. § 961.41(3g)(c), the penalty for Guarnero’s cocaine possession conviction was properly enhanced.
The majority also rejects Guarnero’s contention that looking at the facts underlying his RICO conviction violates his Sixth Amendment right to have a jury determine facts that increase a penalty beyond the prescribed statutory maximum, Apprendi v. New Jersey, 530 U.S. 466, 490 (2000). The sole exception to Apprendi is for sentence enhancement based on the fact of a prior conviction. The majority believes its approach in this case is consistent with Apprendi based on State v. LaCount, 2008 WI 59, ¶52, 310 Wis. 2d 85, 750 N.W.2d 780, which read the post-Apprendi decision in Shepard v. United States, 544 U.S. 13 (2005), as having “relaxed the holding” of Apprendi and therefore allowed a judge, rather than a jury, to determine the applicability of a defendant’s prior conviction for sentence enhancement purposes “when the necessary information concerning the prior conviction can be readily determined from an existing judicial record.” Likewise, the majority says, review of whether Guarnero’s prior RICO conspiracy conviction applied to enhance his cocaine possession conviction relies “on necessary information from Guarnero’s existing judicial record, his guilty plea” as permitted under Apprendi and Shepard as understood by LaCount. (¶25).
A dissent by Justice Bradley (joined by Justice Abrahamson) criticizes the majority’s statutory analysis for invoking “mere synonyms, providing no additional insight into how broadly or narrowly the term ‘relating to’ should be defined” (¶40) and failing to address the main issue debated by the parties, which was whether the court of appeals was correct in adopting a method of analysis federal courts use in interpreting enhancer statutes (about which more below) and which is an issue of first impression (¶¶31-35, 41-53).
As our post on the court of appeals’ decision explains in detail, the court of appeals applied (or, really, misapplied) the “categorical” and “modified categorical” approaches created by federal courts to discern what crimes are covered by various federal sentencing enhancer statutes. While the majority agrees with the ultimate conclusion of the court of appeals, it does not describe, discuss, or even explicitly refer to the “categorical” and “modified categorical” approaches, much less analyze this case using one of them. Instead, the majority “does not decide between the two approaches,” says its analysis “mirrors” the modified categorical approach, but then never explains why it is only “mirroring” that approach rather than adopting it. (¶29 n.15).
The majority’s method is strange—indeed, passing strange—for two reasons. First, as the dissent points out (¶¶31, 34, 42-45), which approach to use and how to apply it in this case was the issue presented in the petition for review and briefed and argued by the parties—rightly so, given that the court of appeals discussed the two approaches and (putatively) used the modified categorical approach to decide the case. Second, the majority cites Descamps—the most recent U.S. Supreme Court case on the two approaches—as if that decision provides authority for its analysis. (¶21). But the majority offers no explanation for why Descamps supports an approach that “mirrors” (instead of applies) the modified categorical approach. In fact, if the majority actually understood Descamps, the majority would realize its analysis is completely wrong.
The “categorical” and “modified categorical” approaches appear daunting at first, but understanding why they were created makes them comprehensible. A careful reading of Descamps provides this understanding; so does Guarnero’s clear and thorough brief-in-chief. (Our previous post describes the approaches, but doesn’t say much about their origin.)
The two approaches were developed to interpret federal enhancer statutes that required a conviction of enumerated predicate offenses (e.g., burglary). The Court concluded that, as written by Congress, those enhancer statutes focused on the elements of the crime, not the facts of the particular offense. Under this “categorical” approach, whether a prior conviction was covered required a determination of whether the statute defining the offense had the same elements as the “generic” predicate offense. If not, the inquiry was over: the prior conviction could not be used to enhance a sentence. If the categorical approach showed the statute defining the offense is “divisible”—that is, it defined the crime with alternative elements, some matching the generic crime and some not—then, and only then, the Court would use the “modified” categorical approach to implement the categorical approach by allowing a review of a limited array of documents (for instance, charging documents, plea transcripts) to determine whether the conviction is based on the set of alternative elements that match the generic crime.
If the majority had understood these origins, it would understand that the categorical approach should be used to interpret § 961.41(3g)(c). That’s because the statute’s plain language focuses on the offense as defined by its elements, not the facts of the offense. Why is that? Because the statute refers to a prior conviction “under any statute … relating to controlled substances, …” Though the majority claims it starts with the language of the statute (¶13), in fact its analysis never mentions the word “statute” and instead talks only about “relating to controlled substances” in a vacuum. A comparison of the elements of the RICO conspiracy offense (supplied by the majority in ¶6) shows at a glance that it isn’t a “statute relating to controlled substances.” Under the categorical approach, the inquiry is over, and the RICO conviction can’t be used to enhance Guarnero’s conviction. Descamps, 133 S. Ct. at 2293.
Moreover, after Apprendi, the categorical/modified categorical approaches are no longer just about correctly applying statutory language. They also avoid Sixth Amendment violations by assuring that sentence enhancements imposed without a jury finding are limited to the fact of a prior conviction instead of the facts of the offense. Descamps describes this in a passage partially quoted—but completely misunderstood—by the majority. (¶24). Descamps says that a finding that a prior conviction can be used to enhance a sentence:
would (at the least) raise serious Sixth Amendment concerns if it went beyond merely identifying a prior conviction. Those concerns, we recognized in Shepard, counsel against allowing a sentencing court to “make a disputed” determination “about what the defendant and state judge must have understood as the factual basis of the prior plea,” or what the jury in a prior trial must have accepted as the theory of the crime. 544 U.S., at 25 (plurality opinion)…. Hence our insistence on the categorical approach.
Criticizing the lower court decision it was reviewing, Descamps continues:
….the Ninth Circuit’s ruling flouts our reasoning—here, by extending judicial factfinding beyond the recognition of a prior conviction. Our modified categorical approach merely assists the sentencing court in identifying the defendant’s crime of conviction, as we have held the Sixth Amendment permits. But the Ninth Circuit’s reworking authorizes the court to try to discern what a trial showed, or a plea proceeding revealed, about the defendant’s underlying conduct. …. And there’s the constitutional rub. The Sixth Amendment contemplates that a jury—not a sentencing court—will find such facts, unanimously and beyond a reasonable doubt. And the only facts the court can be sure the jury so found are those constituting elements of the offense—as distinct from amplifying but legally extraneous circumstances. …. Similarly, as Shepard indicated, when a defendant pleads guilty to a crime, he waives his right to a jury determination of only that offense’s elements; whatever he says, or fails to say, about superfluous facts cannot license a later sentencing court to impose extra punishment. See 544 U.S., at 24-26 (plurality opinion). So when the District Court here enhanced Descamps’ sentence, based on his supposed acquiescence to a prosecutorial statement (that he “broke and entered”) irrelevant to the crime charged, the court did just what we have said it cannot: rely on its own finding about a non-elemental fact to increase a defendant’s maximum sentence.
Descamps, 133 S. Ct. at 2288-89 (emphasis added).
In other words, Descamps criticized (and reversed) the Ninth Circuit for doing exactly what the majority does in this case. The majority explicitly says that “Guarnero’s prior conviction, due to the manner in which Guarnero violated the RICO conspiracy statute, relates to controlled substances.” (¶3 (emphasis added)). And it says it has to “ascertain whether the unlawful conduct underlying his prior conviction is related to controlled substances” and proceeds to look at documents showing the factual basis of his plea. (¶¶5, 6, 20, 22). Again, the plain language of § 961.41(3g)(c) demands a focus on the statute of conviction rather than the conduct leading to it, and Descamps shows that using the prior conviction to enhance a sentence based on the factual basis for the plea or the manner in which the offense was committed violates the Sixth Amendment. (The majority’s misunderstanding of Descamps is also evident from its belief that Descamps “confirms” LaCount. (¶25 n.14). As Guarnero notes (reply brief at 13), Descamps came after LaCount, and the above quotations from Descamps show LaCount is simply wrong.)
There are other enhancer statutes in ch. 961 with similar, if not identical, “statute relating to controlled substances” language, e.g., §§ 961.41(3g)(d), (e), and (em) and 961.48(3). There may be other examples outside ch. 961 as well. This decision will be used by the state and sentencing judges to justify looking beyond the elements of the prior conviction in those settings, too. Argue against it: argue this decision is wrong because it’s based on an incomplete reading of the statutory language and an incomprehension of Descamps. Raising and preserving the issue in new cases is the only way to assure that this very mistaken decision will someday be overruled.