State v. Rogelio Guarnero
867 N.W.2d 400
Wis.2015Background
- In 2005 Guarnero pled guilty in federal court to a RICO conspiracy (18 U.S.C. § 1962(d)) based on Count Two of a 38-count indictment alleging the Milwaukee Latin Kings engaged in, among other acts, distribution of controlled substances; the plea did not specify which predicate acts he personally committed.
- The federal plea agreement incorporated Count Two, which described racketeering activity that included distribution of cocaine, crack, and marijuana; other counts involving marijuana and firearms were dismissed.
- In 2012 Guarnero was charged in Wisconsin with possession of cocaine under Wis. Stat. § 961.41(3g)(c), which enhances a second-or-subsequent possession to a Class I felony if the defendant previously was convicted of a state or federal offense "relating to controlled substances."
- The State alleged Guarnero’s prior RICO conspiracy conviction related to controlled substances and therefore enhanced the Wisconsin cocaine possession charge to a felony; Guarnero moved to dismiss and later sought postconviction relief arguing the RICO prior could not serve as a predicate.
- The circuit court and the court of appeals affirmed the enhancement; the Wisconsin Supreme Court granted review on whether the RICO conviction "relates to controlled substances," whether examination of plea/indictment materials violated the Sixth Amendment, and whether lenity or due process barred enhancement.
Issues
| Issue | Plaintiff's Argument (Guarnero) | Defendant's Argument (State) | Held |
|---|---|---|---|
| Whether a prior federal RICO conspiracy conviction "relates to controlled substances" under Wis. Stat. § 961.41(3g)(c) so as to enhance a Wisconsin cocaine-possession sentence | RICO is a statute with many possible predicates; because §1962(d) is broader than necessarily drug-related the court may not look beyond statutory elements — the conviction therefore does not necessarily "relate to" controlled substances | The RICO conspiracy conviction here was based on Count Two alleging distribution of controlled substances; courts may consult limited plea/indictment documents to identify the predicate conduct, so the conviction relates to controlled substances | The conviction related to controlled substances because Guarnero’s plea and Count Two show the racketeering predicate involved drug distribution; enhancement was proper |
| Whether the court violated the Sixth Amendment by examining plea/indictment materials to identify the predicate acts for enhancement | Guarnero: examining facts beyond the conviction elements improperly increases punishment without jury findings | State: the fact of a prior conviction is excepted from Apprendi; Shepard and LaCount allow limited reliance on plea/charging records to identify the statutory alternative underpinning a prior conviction | Held: No Sixth Amendment violation; relying on the plea/indictment is permitted under Shepard/LaCount’s application of Apprendi/Sherpard limited-exception principles |
| Whether the rule of lenity requires construing "relating to" narrowly in favor of Guarnero | Guarnero: phrase is ambiguous regarding whether courts may look beyond statutory elements; ambiguity requires lenity and favoring defendant | State: the statutory phrase is plain — "relating to" means "connected with"; no grievous ambiguity exists so lenity does not apply | Held: No grievous ambiguity; rule of lenity does not apply |
| Whether enhancement violates due process because Guarnero lacked fair notice that a RICO plea could be used to enhance later state sentencing | Guarnero: no Wisconsin precedent had held a RICO conviction related to controlled substances, so he lacked fair notice | State: the plain meaning and existing case law (Moline) provided notice that offenses "related to" controlled substances may be used for enhancement | Held: Due process claim rejected — construction is commonsense and consistent with prior interpretation (Moline), so fair notice exists |
Key Cases Cited
- State v. Guarnero, 354 Wis. 2d 307, 848 N.W.2d 329 (Wis. 2014) (affirming enhancement where RICO conspiracy conviction was linked to drug distribution)
- Kalal v. Circuit Court for Dane Cnty., 271 Wis. 2d 633, 681 N.W.2d 110 (Wis. 2004) (statutory interpretation principles; give ordinary meaning to statutory language)
- State v. Moline, 229 Wis. 2d 38, 598 N.W.2d 929 (Ct. App. 1999) (commonsense reading of "relating to controlled substances"; prior conviction may be "linked" to drugs)
- Apprendi v. New Jersey, 530 U.S. 466 (2000) (any fact increasing penalty beyond statutory maximum must be submitted to a jury, except prior convictions)
- Shepard v. United States, 544 U.S. 13 (2005) (permitted use of charging document, plea agreement, or plea colloquy to identify which statutory alternative formed the basis of a prior plea)
- Descamps v. United States, 570 U.S. 254 (2013) (modified categorical approach applies only in a narrow range of cases to identify which statutory alternative supported a conviction)
- State v. LaCount, 310 Wis. 2d 85, 750 N.W.2d 780 (Wis. 2008) (explaining application of Apprendi and Shepard in Wisconsin; judges may rely on existing judicial records to determine applicability of priors)
- State v. Cole, 262 Wis. 2d 167, 663 N.W.2d 700 (Wis. 2003) (rule of lenity requires resolving grievous ambiguity in penal statutes in favor of defendant)