State v. Guarnero
848 N.W.2d 329
Wis. Ct. App.2014Background
- Rogelio Guarnero pled guilty in federal court to Count Two of an indictment charging conspiracy in violation of 18 U.S.C. § 1962(d) (RICO), which alleged participation in a Latin Kings enterprise engaging in, among other things, distribution of controlled substances including cocaine.
- Wisconsin charged Guarnero with possession of cocaine as a second-offense felony under Wis. Stat. § 961.41(3g)(c), which upgrades possession to a Class I felony if the defendant previously "has at any time been convicted of any felony or misdemeanor... relating to controlled substances" under federal or state law.
- The circuit court treated Guarnero’s federal RICO guilty plea as a predicate conviction "relating to controlled substances" because Count Two alleged racketeering activity that included drug distribution.
- Guarnero argued on appeal that the RICO statute (18 U.S.C. §§ 1962(c) & (d)) is a statute "relating to racketeering, not drugs," and therefore cannot serve as a controlled-substance predicate for Wisconsin’s enhancement provision.
- He also sought to have his felony bail-jumping conviction reduced to a misdemeanor, contingent on recharacterizing the cocaine possession as a misdemeanor.
- The court resolved statutory-interpretation questions de novo and considered whether the modified categorical approach permits consulting the charging documents/plea to determine whether the RICO conviction was based on drug-related racketeering.
Issues
| Issue | Plaintiff's Argument (Guarnero) | Defendant's Argument (State) | Held |
|---|---|---|---|
| Whether a federal RICO conviction under 18 U.S.C. §§ 1962(c)/(d) qualifies as a prior "statute of the United States ... relating to controlled substances" for Wis. Stat. § 961.41(3g)(c) enhancement | RICO is a statute about racketeering generally, not controlled substances; §1962(d) does not on its face require proof of drug offenses so it is not a controlled-substance statute | RICO defines "racketeering activity" to include drug trafficking and other drug offenses; where indictment/plea show drug-related racketeering, the prior conviction relates to controlled substances | Held: RICO is divisible and, using the modified categorical approach, the court may consult the indictment and plea; Guarnero’s RICO plea was based on drug-related racketeering and thus qualifies as a predicate under §961.41(3g)(c) |
| Whether the modified categorical approach may be used to identify which alternative of a divisible federal statute formed the basis of conviction | Rule of lenity / plain-text reading prevents treating a RICO conviction as a drug-related predicate absent explicit statutory text mentioning drugs | Descamps and Castleman permit the modified categorical approach for divisible statutes; RICO’s definition of racketeering activity includes drug offenses, so it is divisible | Held: RICO’s alternatives make it divisible; Descamps and Castleman authorize examining plea/indictment to identify the route of conviction |
| Whether the rule of lenity or fair-warning/due process requires construing §961.41(3g)(c) in Guarnero’s favor | Argues ambiguity exists and lenity should apply; lacked fair warning that a RICO plea could trigger Wisconsin repeater statute | The statutory text and RICO’s clear incorporation of drug offenses remove ambiguity; Castleman’s lenity analysis controls | Held: No grievous ambiguity; rule of lenity and fair-warning do not require relief |
| Whether bail-jumping conviction should be reduced to a misdemeanor because the cocaine possession should be a misdemeanor | If cocaine possession is misdemeanor, bail-jumping would be misdemeanor | If cocaine possession is felony (predicate satisfied), bail-jumping remains felony | Held: Because the cocaine possession conviction stands as a second-offense felony, the felony bail-jumping conviction is affirmed |
Key Cases Cited
- Descamps v. United States, 570 U.S. 254 (2013) (modified categorical approach limited to statutes that are divisible)
- United States v. Castleman, 572 U.S. 157 (2014) (applies modified categorical approach and rejects lenity when text, structure, history resolve ambiguity)
- State v. Cole, 262 Wis. 2d 167 (2003) (discusses rule of lenity and its application in Wisconsin)
- Evans v. Wisconsin Dep’t of Justice, 353 Wis. 2d 289 (2014) (explains categorical and modified categorical approaches under Wisconsin law)