STATE of Wisconsin, Plaintiff-Respondent, v. Rogelio GUARNERO, Defendant-Appellant-Petitioner.
Nos. 2013AP1753-CR & 2013AP1754-CR
Supreme Court of Wisconsin
July 9, 2015
2015 WI 72 | 867 N.W.2d 400
Oral argument March 10,
For the defendant-appellant-petitioner, there were briefs by Robert J. Eddington, Milwaukee, and oral argument by Robert J. Eddington.
For the plaintiff-respondent, the cause was argued by Sara Lynn Larson, assistant attorney general, with whom on the brief was Brad Schimel, attorney general.
¶ 1. PATIENCE DRAKE ROGGENSACK, C.J. We review a decision of the court of appeals1 that affirmed the circuit court‘s2 conclusion that Rogelio Guarnero‘s prior federal RICO3 conspiracy conviction served as a prior conviction under
to controlled substances and therefore enhanced Guarnero‘s cocaine possession to a second offense under
¶ 2. Guarnero appealed, contending that the circuit court improperly enhanced the penalty for conviction of cocaine possession due to his prior RICO conspiracy conviction. Guarnero also argued that his felony bail-jumping conviction should have been a misdemeanor offense because his cocaine possession conviction should have been an unenhanced misdemeanor. The court of appeals affirmed the circuit court, concluding that RICO and
¶ 3. We conclude that Guarnero‘s prior conviction, due to the manner in which Guarnero violated the RICO conspiracy statute, relates to controlled substances. Therefore, Guarnero‘s prior RICO conviction enhances the penalty for cocaine possession under
I. BACKGROUND
¶ 4. In 2005, a grand jury issued a 38-count indictment in the United States District Court for the Eastern District of
¶ 5. Count Two of the indictment alleged that Guarnero and others were members or associates of the Latin Kings, a criminal racketeering organization that “engaged in acts of violence, including murder, attempted murder, robbery, extortion and distribution of controlled substances.” Count Two of the indictment also alleged that Guarnero knowingly and intentionally conspired with others to violate
[T]o conduct and participate, directly and indirectly, in the conduct of the affairs of that enterprise through a pattern of racketeering activity involving . . . multiple acts involving the distribution of controlled substances including cocaine, cocaine base in the form of “crack” cocaine and marijuana in violation of the laws of the United States[.]
The indictment continued: “It was a part of the conspiracy that each defendant agreed that a conspirator would commit at least two acts of racketeering activity in the conduct of the affairs of the enterprise,” and that this conduct violated
¶ 6. Guarnero pled guilty to conspiracy of violating RICO as set out in Count Two, and the United States dismissed the remaining counts of the indictment. The plea agreement contained a section titled “Elements,” which stated:
The parties understand and agree that in order to sustain the charge of Conspiracy to Commit RICO as set forth in Count Two, the government must prove each of the following propositions beyond a reasonable doubt:
First, that the defendant knowingly conspired to conduct or participate in the conduct of the affairs of the Milwaukee Latin Kings, an enterprise, through a pattern of racketeering activity as described in Count Two;
Second, that the Milwaukee Latin Kings were an enterprise; and
Third, that the activities of the Milwaukee Latin Kings would affect interstate commerce.
Guarnero‘s plea agreement acknowledged that Guarnero had conspired to commit at least two qualifying criminal acts, but the plea agreement did not specify which acts he had committed. The plea agreement also contained Guarnero‘s admission that police officers found marijuana in his apartment while they executed a firearm search warrant at Guarnero‘s residence.
¶ 7. In August 2012, Guarnero was arrested for possession of cocaine in violation of
¶ 8. Guarnero filed a motion to dismiss the cocaine possession charge, arguing that his prior RICO conviction could not serve as a prior conviction to enhance the penalty for cocaine possession conviction to a second offense under
¶ 9. Subsequently, the circuit court found Guarnero guilty of violating
¶ 10. Guarnero moved for postconviction relief, which the circuit court denied. The circuit court concluded that a “RICO conviction can deal with drug-related activity or not be related to drugs or drug activity.” The court also noted that “count two of the federal indictment related to distribution of controlled substances, including cocaine and other drugs.”
¶ 11. The court of appeals affirmed the circuit court orders. Guarnero, 354 Wis. 2d 307, ¶¶ 1, 14. The court referred to Guarnero‘s guilty plea and held that the RICO conspiracy statute related to controlled substances. Id., ¶ 12. The court rejected Guarnero‘s arguments based on the rule of lenity and due process. Id., ¶ 13. The court of appeals also affirmed Guarnero‘s conviction for felony bail jumping. Id., ¶ 14.
II. DISCUSSION
A. Standard of Review
¶ 12. We review the court of appeals’ affirmance of the circuit court‘s denial of Guarnero‘s motion to dismiss and motion for postconviction relief in which Guarnero argued that his prior RICO conspiracy conviction was not related to controlled substances under
B. Statutory Interpretation
¶ 13. Our review focuses on whether a federal RICO conspiracy conviction is related to controlled substances so that it may serve as a prior conviction triggering penalty enhancement for a cocaine possession conviction under
¶ 14. Our focus is on “relating to controlled substances” in
Cocaine and cocaine base. If a person possess[es] or attempts to possess cocaine or cocaine base, or a controlled substance analog of cocaine or cocaine base, the person shall be fined not more than $5,000 and may be imprisoned for not more than one year in the county jail upon a first conviction and is guilty of a Class I felony for a 2nd or subsequent offense. For purposes of this paragraph, an offense is considered a 2nd or subsequent offense if, prior to the offender‘s conviction of the offense, the offender has at any time been convicted of any felony or misdemeanor under this chapter or under any statute of the United States or of any state relating to controlled substances, controlled substance analogs, narcotic drugs, marijuana, or depressant, stimulant, or hallucinogenic drugs.
¶ 15. The statutory phrase, “relating to controlled substances,” in
¶ 16. In order to determine the common meaning of “relating to,” we turn to a dictionary definition of “relate.” Id., ¶ 54 (referring to the dictionary definition of statutory language with a common meaning). “Relate” is defined as a “connection, relation, or reference.” The American Heritage Dictionary of the English Language 1482 (5th ed. 2011). We conclude that
¶ 17. Our interpretation of “relating to” is consistent with the court of appeals’ interpretation of “relating to controlled substances” in State v. Moline, 229 Wis. 2d 38, 598 N.W.2d 929 (Ct. App. 1999).9 In Moline, the parties advanced technical interpretations of the phrase, “relating to controlled substances,” that were grounded in punctuation and grammatical nuances. Id. at 41-42. The court rejected technical interpretations in favor of a commonsense reading of “relating to” and concluded that Moline‘s prior conviction for possession of drug paraphernalia was “linked” to controlled substances. Id. at 42. We interpret
State raised for the first time at oral argument. He asserted that at oral argument the State first argued that ”
C. Application to Federal RICO Conspiracy
¶ 18. We next apply our interpretation of “relating to controlled substances” in
¶ 19. The definition of racketeering activity lists many qualifying offenses, including “dealing in a controlled substance or listed chemical (as defined in section 102 of the Controlled Substances Act)” and “the felonious manufacture, importation, receiving, concealment, buying, selling, or otherwise dealing in a controlled substance or listed chemical (as defined in section 102 of the Controlled Substances Act), punishable under any law of the United States.”
¶ 20. However, we determine which racketeering activity supports Guarnero‘s RICO conspiracy conviction, because only some of the multiple definitions of racketeering activity in
¶ 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, 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
D. Sixth Amendment
¶ 23. Guarnero also contends that his Sixth Amendment rights were violated by the court‘s examination of more than the elements of his RICO conviction, rather than a jury‘s consideration of the facts underlying his RICO conviction. Under the
¶ 24. The United States Supreme Court has held that “any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” Apprendi v. New Jersey, 530 U.S. 466, 490 (2000). The Court stated that the sole exception is the fact of a prior conviction. Id. The Court revisited this concern in Shepard v. United States, 544 U.S. 13 (2005). There, in reviewing a plea, the Court approved use of the charging document, plea agreement or transcript of a plea colloquy, but only to assess whether Shepard pled to violating the statute by a method that permitted the penalty to be enhanced under the Armed Career Criminal Act. Id. at 25-26. The transcript was not to be used “to determine ‘what the defendant and state judge must have understood as the factual basis of the prior plea.‘” Descamps, 133 S. Ct. at 2284 (quoting Shepard, 544 U.S. at 25).
¶ 25. In State v. LaCount, 2008 WI 59, 310 Wis. 2d 85, 750 N.W.2d 780, we considered the effect of Apprendi and Shepard on a circuit court‘s role in determining whether a prior conviction provided the basis for enhancing a defendant‘s sentence.
The Shepard decision relaxed the holdings of . . . Apprendi . . . so that, when Shepard and Apprendi are read together, a trial court judge, rather than a jury, is allowed 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.
Id., ¶ 52.14 In our review of whether Guarnero‘s prior RICO conspiracy conviction applied to enhance his cocaine possession conviction, we rely on necessary information from Guarnero‘s existing judicial record, his guilty plea. Our examination of Guarnero‘s guilty plea did not violate Guarnero‘s Sixth Amendment right because it is consistent with the principles underlying Apprendi and Shepard as we explained in LaCount. Id.
¶ 26. Guarnero further asserts that the meaning of the phrase, “relating to controlled substances,” in
¶ 27. However, the rule of lenity applies if a “grievous ambiguity” remains after a court has determined the statute‘s meaning by considering statutory language, context, structure and purpose, such that the court must “simply guess” at the meaning of the statute. Castleman, 134 S. Ct. at 1416; see Kalal, 271 Wis. 2d 633, ¶¶ 45-46. Here, applying the rule of lenity is unnecessary. There is no “grievous ambiguity” or uncertainty in
F. Due Process
¶ 28. As a final argument, Guarnero contends that he did not have fair notice that his guilty plea to the RICO conspiracy charge could subject him to sentence enhancement in a subsequent criminal case because no Wisconsin case had held such a conviction related to controlled substances. “[D]ue process bars courts from applying a novel construction of a criminal statute to conduct that neither the statute nor any prior judicial decision has fairly disclosed to be within its scope.” Lanier, 520 U.S. at 266.
¶ 29. Guarnero‘s contention misses his mark in at least two respects. First, our construction of
¶ 30. We conclude that Guarnero‘s prior conviction, due to the manner in which Guarnero violated the RICO conspiracy statute, relates to controlled substances. Therefore, Guarnero‘s prior RICO conviction enhances the penalty for cocaine possession under
By the Court.—The decision of the court of appeals is affirmed.
¶ 31. ANN WALSH BRADLEY, J. (dissenting). In reading the five paragraphs of the majority‘s brief statutory analysis, one would never guess that the issue presented is one of first impression in this state. The petition for review states the issue as follows: Did the court of appeals err when it looked “beyond the statutory elements of Guarnero‘s prior racketeering conspiracy conviction and conclude that his prior conviction was a second or subsequent offense.”
¶ 32. Nor would one likely guess that in a one-sentence pronouncement, tucked away in its application discussion, the majority actually answers this question of first impression—without any acknowledgement that it is doing so and without any analysis whatsoever.
¶ 33. Our responsibility to develop and clarify the law is not well served by the majority‘s failure to acknowledge the issue and subject it to analysis. It is particularly problematic because this issue is not only one of first impression but also one of statewide importance having the potential to affect the interpretation of numerous criminal statutes.
¶ 34. The court of appeals forthrightly addressed the issue and after a thorough analysis adopted an approach called the modified categorical approach, meaning in essence that in applying “related to” a court may look beyond the statutory elements of the conviction to limited extraneous documents. The court of appeals, however, did not have the benefit of the most recent United States Supreme Court decision, which, along with other precedent, appears to suggest a contrary result. The majority has the benefit of Mellouli v. Lynch, 135 S. Ct. 1980 (2015), decided June 1, 2015, but its opinion fails to discuss it, referencing the case only briefly in a single footnote.
¶ 35. Regardless of whether we adopt as a matter of first impression the categorical approach (looking to the elements only) or a modified categorical approach (looking
¶ 36. Because it is unclear if “related to” should be narrowly construed, limited to looking only at the statutory elements, or more broadly construed, looking beyond the elements, the statute is ambiguous. Given the ambiguity, I would apply the rule of lenity which dictates that ambiguity in penal statutes be interpreted in favor of the defendant. Accordingly, I respectfully dissent.
I
¶ 37. The majority‘s statutory analysis of
¶ 38. Based on its determination that “relating to” means “connected with” or “linked to” the majority determines that the statutory language is clear. Tucked away in its application discussion, and without analysis, the majority makes a one-sentence pronouncement that answers the issue of first impression without acknowledging that it is doing so. It chooses the modified categorical approach, allowing for looking beyond the statutory elements to a limited class of other documents: “[w]hen 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.” Id., ¶ 21.
¶ 39. Ultimately the majority declines to follow the rule of lenity, which dictates that ambiguous or uncertain penal statutes be interpreted in favor of defendants. Having determined that the statutory language is clear, it concludes that the rule of lenity does not apply. Id., ¶ 27.
II
¶ 40. The majority‘s analysis of the statutory language begs the question. Just as “relating to” fails to inform how broadly or narrowly those words should be defined, so do the substitute words “connected with” and “linked to.” They are mere synonyms, providing no additional insight into how broadly or narrowly the term “relating to” should be defined.
¶ 41. We are left to question if a reference to controlled substances in a document relating to the conviction will suffice to render it a conviction relating to a controlled substance, or if the involvement of controlled substances must be an element proved in obtaining the conviction. Thus, defining the words “relating to” as “to be connected with or linked to” does not answer the issue before us: Did the court of appeals err when it looked “beyond the statutory elements of Guarnero‘s prior racketeering conspiracy conviction and conclude that his prior conviction was a second or subsequent offense?”
¶ 42. The parties debate between two possible approaches for answering this issue. Guarnero contends that the categorical approach should govern. Under that approach, a court‘s inquiry into a past conviction is limited to considering the elements of the statute violated. If a relationship to controlled substances is not required in order for there to be a conviction under the statute, then it could not be considered a conviction relating to controlled substances.
¶ 44. This court has not previously addressed the debate over whether to adopt the categorical approach or the modified categorical approach. The issue is one of first impression that may have far-reaching effects due to the host of Wisconsin statutes depending on the characterization of prior offenses. See, e.g.,
¶ 45. Ignoring the debate, the majority takes an approach that appears to be contrary to the well-established approach recently affirmed by the United States Supreme Court, without any explanation why. Without commenting on the lengthy briefing and murky case law on this issue, and without acknowledging it as an issue, the majority addresses it in a single sentence. It announces “[w]hen 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.” Majority op., ¶ 21 (citing Descamps v. United States, 133 S. Ct. 2276, 2285 (2013)).
¶ 46. A recent pronouncement of the United States Supreme Court suggests this is error.
¶ 47. In Mellouli v. Lynch, 135 S. Ct. 1980 (June 1, 2015), the Supreme Court considered whether a state drug conviction qualified as a law “relating to a controlled substance” under a federal deportation statute,
¶ 48. The Court also acknowledged that there is a long history of limiting an assessment of a conviction to the language of the statute and disallowing an examination of the facts underlying the crime. Id. at 1986-87. Following that history, the Court did not use the modified categorical approach of consulting extra-neous documents. Rather, it focused on the words of the statutes and determined that because the definition of controlled substances in the state law was broader than that in the federal law, the state crime did not constitute a conviction relating to controlled substances. Id. at 1988.
¶ 49. This case appears analogous to Mellouli. As with Mellouli, the statute that the defendant previously violated,
¶ 50. Rather than analyzing this case law, the majority supports its approach with a single citation, “See
¶ 51. In Descamps the Court considered whether the violation of a state statute prohibiting burglary qualified as a violent felony under the Armed Career Criminal Act (ACCA). 133 S. Ct. 2276. The state statute at issue contained a broader definition of burglary than the definition in the ACCA. The Court observed that when a state law defines a crime in the alternative, a court may “examine a limited class of documents to determine which of a statute‘s alternative elements formed the basis for the defendant‘s prior conviction.” Id. at 2284. However, it stressed that this approach, referred to as the modified categorical approach, applies only to a “narrow range of cases.” Id. at 2283-84 (citing Taylor v. United States, 495 U.S. 575 (1990)). “Our decisions authorize review of the plea colloquy or other approved extra-statutory documents only when a statute defines burglary not (as here) overbroadly, but instead alternatively . . . .” Id. at 2286.
¶ 52. Ultimately the Descamps Court determined that the modified categorical approach was inapplicable to the state statute it was considering because the statute merely defined burglary more broadly than the federal statute and did not contain alternative elements. Id. at 2285. Because an individual could violate the state statute without committing a violent felony, the court concluded that the state conviction could not qualify as a violent felony conviction. Id.
¶ 53. The majority makes no attempt to determine whether a crime involving a controlled substance was an element of Guarnero‘s RICO conviction or was merely part of a broad definition of “racketeering activity.” Descamps and Mellouli stress this is an important distinction because a court may not apply the modified categorical approach where there is merely a broadly defined term.2
III
¶ 54. Regardless if it is determined as a matter of first impression that the categorical approach or the modified approach controls, I determine that the rule of lenity should be applied here.
¶ 55. As the United States Supreme Court has stated, “construction of a criminal statute must be guided by the need for fair warning.” Crandon v. United States, 494 U.S. 152, 160 (1990). The rule of lenity “ensures fair warning by so resolving ambiguity in a criminal statute as to apply it only to conduct clearly covered.” United States v. Lanier, 520 U.S. 259, 266 (1997). Thus, when a criminal statute is ambiguous and
¶ 56. Here, the legislative history does not shine any light on our inquiry. Although
able at www.uniformlaws.org/shared/docs/controlled%20substances/UCSA_final%20_94%20with%2095amends.pdf.
¶ 57. Given the ambiguity in the statute which is left unanswered by the legislative history, the majority should have applied the rule of lenity. There are two criteria for application of the rule of lenity: “(1) the penal statute is ambiguous; and (2) [a court is] unable to clarify the intent of the legislature by resort to legislative history.” State v. Luedtke, 2015 WI 42, ¶ 73, 362 Wis. 2d 1, 863 N.W.2d 592.
¶ 58. As discussed above, both of these requirements are met. We have oft stated that “a statute is ambiguous if it is capable of being understood by reasonably well-informed persons in two or more senses.” State ex rel. Kalal v. Circuit Court, 2004 WI 58, ¶ 47, 271 Wis. 2d 633, 681 N.W.2d 110.
¶ 60. Accordingly, for the reasons set forth above, I respectfully dissent.
¶ 61. I am authorized to state that Justice SHIRLEY S. ABRAHAMSON joins this dissent.