Issue (composed by On Point)
Does Guarnero’s conviction for violating the Federal Racketeer Influenced and Corrupt Organizations (RICO) Act qualify as a prior offense under the repeat drug offender enhancement provision of § 961.41(3g)(c) because the RICO conviction’s predicate acts involved, among other things, controlled substance offenses, thus making the RICO conviction a conviction for a crime “under a statute … relating to controlled substances”?
The court of appeals upheld the use of Guarnero’s RICO conviction to enhance the penalty for his misdemeanor possession of cocaine charge, concluding that RICO is a “statute … relating to controlled substances.” It came to this conclusion using the “modified categorical” approach that courts use to see if an alleged enhancing conviction satisfies statutory criteria for being a prior conviction. This approach is used when a statute defines an element in the alternative, as it allows the court to determine which alternative formed the basis of conviction by consulting a limited class of documents (such as charging documents, transcripts of plea colloquies, and jury instructions) in order to identify, from among several alternatives, the crime of conviction. This approach contrasts with the “categorical” approach to making that determination, under courts ordinarily look only to the fact of conviction and the statutory definition of the prior offense. See Evans v. Wisconsin Dep’t of Justice, 2014 WI App 31, ¶18, 353 Wis. 2d 289, 844 N.W.2d 403. These alternate approaches were recently employed, and discussed in some detail, by the U.S. Supreme Court 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), on which the court of appeals purported to rely.
But for the reasons set forth at great length in our post on the decision, the court of appeals effectively inverted the categorical approaches—which are ultimately two different ways of focusing on the elements of the crime of conviction—by ignoring the elements and relying instead on the fact that one of the predicate acts of Guarnero’s RICO conviction involved drug offenses. This misapplication of the doctrine establishes an unfortunate precedent for the use of the approaches in future cases, whether they involve second-offense enhancers under ch. 961 or elsewhere, so let’s hope the supreme court straightens it out.