United States v. Jesus Tello
2012 U.S. App. LEXIS 14664
| 7th Cir. | 2012Background
- Tello and Hill were Milwaukee Latin Kings; Tello pled guilty to RICO conspiracy (Count Two) while Hill challenged sentencing as a career offender.
- Count One alleged substantive RICO (1962(c)) with numerous predicate acts; Count Two alleged conspiracy (1962(d)) to conduct the enterprise through a pattern of racketeering.
- Tello admitted two acts in his plea: one matched a listed predicate act, the other did not, but the plea tracked Count Two.
- The district court held an evidentiary proceeding to determine if Tello was the shooter in the June 2002 Espinoza attack, treating that act as relevant conduct.
- Hill, initially deemed a career offender on remand after this court’s prior reversal, was resentenced based on an accessory-after-the-fact theory regarding a murder weapon.
- The court ultimately affirmed Tello’s conviction but vacated Hill’s sentence and remanded for resentencing due to improper application of an accessory-after-the-fact enhancement.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Did Tello’s guilty plea constructively amend Count Two? | Tello asserts disparity between indictment and plea acts. | Government contends plea tracked Count Two; no amendment. | No plain error; conviction affirmed. |
| Was Hill’s remand sentence improper for applying waived accessory enhancement? | Government could pursue accessory enhancement on remand. | Waived enhancement should not be considered on remand. | District court erred; remand for resentencing without the accessory enhancement. |
Key Cases Cited
- Salinas v. United States, 522 U.S. 52 (Supreme Court 1997) (dual requirements for 1962(d) conspiracy; no need to prove two predicate acts by each conspirator)
- Glecier v. United States, 923 F.2d 496 (7th Cir. 1991) (indictment need not list specific predicate acts for RICO conspiracy)
- Quintanilla v. United States, 2 F.3d 1469 (7th Cir. 1993) (conspiracy elements distinguishable from substantive RICO)
- Campione v. United States, 942 F.2d 429 (7th Cir. 1991) (indictment may describe conspiracy without naming each predicate act)
- Neapolitan v. United States, 791 F.2d 489 (7th Cir. 1986) (section 1962(d) broad conspiracy liability; no required overt acts)
- Bradley v. United States, 381 F.3d 641 (7th Cir. 2004) (distinction between constructive amendment and plea modification when acts not essential)