State v. Guarnero
| Decision Date | 29 April 2014 |
| Docket Number | Nos. 2013AP1753–CR, 2013AP1754–CR.,s. 2013AP1753–CR, 2013AP1754–CR. |
| Citation | 2014 WI App 56,848 N.W.2d 329,354 Wis.2d 307 |
| Parties | STATE of Wisconsin, Plaintiff–Respondent, v. Rogelio GUARNERO, Defendant–Appellant. |
| Court | Wisconsin Court of Appeals |
OPINION TEXT STARTS HERE
On behalf of the defendant-appellant, the cause was submitted on the briefs of Robert J. Eddington, Milwaukee.
On behalf of the plaintiff-respondent, the cause was submitted on the brief of J.B. Van Hollen, attorney general, and Sara Lynn Larson, assistant attorney general.
Before CURLEY, P.J., FINE and KESSLER, JJ.
¶ 1 Rogelio Guarnero appeals the judgment entered after a bench trial convicting him of unlawfully possessing cocaine, as a second offense, seeWis. Stat. § 961.41(3g)(c), and felony bail jumping, seeWis. Stat. § 946.49(1)(b). He also appeals the circuit court's order denying his motion for postconviction relief. He claims that the circuit court improperly used Guarnero's federal conviction, entered on his guilty plea, for violating the Racketeer Influenced and Corrupt Organizations Act, 18 U.S.C. § § 1961–1968, as the second-offense predicate under § 961.41(3g)(c), and that therefore his cocaine-possession conviction should have been a misdemeanor rather than a felony. The bail-jumping charge arose out of his receipt of stolen property, seeWis. Stat. § 943.34(1)(a), while he was out on bond in connection with the cocaine charge. He pled guilty to the bail-jumping charge but argues it should have been a misdemeanor bail-jumping conviction, because, as noted, he says that the cocaine matter should have been charged as a misdemeanor. There are no disputed material facts on this appeal, and we affirm.
¶ 2 A United States grand jury charged Guarnero and forty-eight others with violating the Racketeer Act. The case was plea-bargained and Guarnero pled guilty to Count Two of the indictment, which, as material, alleged that Guarnero and others “were members and associates of the Latin Kings, a criminal organization whose members and associates engaged in acts of violence, including murder, attempted murder, robbery, extortion and distribution of controlled substances, and which operated principally on the south side of Milwaukee.” (Emphasis added.) Count Two charged, as material, that Guarnero and others “knowingly and intentionally conspired to violate Title 18, United States Code § 1962(c), that is, to 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,” and that this violated the conspiracy section, 18 U.S.C. § 1962(d). In the plea-bargained agreement, which both Guarnero and his then-lawyer signed, Guarnero not only agreed to plead guilty to Count Two of the indictment but also specifically affirmed that he “acknowledges, understands, and agrees that he is, in fact, guilty of the offense” charged in Count Two of the indictment.
¶ 3 18 U.S.C. § 1962(c) provides:
It shall be unlawful for any person employed by or associated with any enterprise engaged in, or the activities of which affect, interstate or foreign commerce, to conduct or participate, directly or indirectly, in the conduct of such enterprise's affairs through a pattern of racketeering activity or collection of unlawful debt.
(Emphasis added.) 18 U.S.C. § 1962(d) provides: “It shall be unlawful for any person to conspire to violate any of the provisions of subsection (a), (b), or (c) of this section.” We emphasize the words “racketeering activity” in § 1962(c) because, as we will see, that phrase is expansively defined by the Act and sets out many different ways a person can violate the Act, including unlawful acts in connection with controlled substances. See18 U.S.C. §§ 1961(1)(A) & 1961(1)(D); see also Sedima, S.P.R.L. v. Imrex Co., Inc., 473 U.S. 479, 481–482, 105 S.Ct. 3275, 87 L.Ed.2d 346 (1985) () (emphasis added; quoting 18 U.S.C. § 1961(1)).
¶ 4 The State charged Guarnero with violating Wis. Stat. § 961.41(3g)(c), and, as we have seen, the circuit court found him guilty of that crime. Section 961.41(3g) provides, as material:
No person may possess or attempt to possess a controlled substance or a controlled substance analog unless the person obtains the substance or the analog directly from, or pursuant to a valid prescription or order of, a practitioner who is acting in the course of his or her professional practice, or unless the person is otherwise authorized by this chapter to possess the substance or the analog. Any person who violates this subsection is subject to the following penalties:
....
(c) 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.
(Introduction's italics in original; emphasis added.) Thus, in order to be a “2nd or subsequent offender” under § 961.41(3g)(c), the person, as material here, must have “been convicted of any felony or misdemeanor ... under any statute of the United States ... relating to controlled substances.” (Emphasis added.) The circuit court held “that count two of the federal indictment related to distribution of controlled substances, including cocaine and other drugs.”
¶ 5 Guarnero contends that his conviction on his guilty plea to Count Two of the federal indictment does not satisfy Wis. Stat. § 961.41(3g)(c)'s enhancement provision because, according to him, the Racketeer Act, and, specifically 18 U.S.C. § 1962(d), is not a statute and not a section “relating to controlled substances,” as required by § 961.41(3g)(c). As phrased by his statement of the “issues presented,” he argues that the Racketeer Act “is a statute relating to racketeering, not drugs; which on its face says nothing about controlled substances; and which requires no proof that anyone (let alone the defendant) has committed any controlled substance violation[.]” As explained below, we disagree.
¶ 6 Our review on this statutory-interpretation appeal is de novo. See Village of Shorewood v. Steinberg, 174 Wis.2d 191, 201, 496 N.W.2d 57, 61 (1993). Further, we apply a statute as it is written unless it is constitutionally infirm or its text does not reveal the legislature's intent. See State ex rel. Kalal v. Circuit Court for Dane County, 2004 WI 58, ¶¶ 43–44, 271 Wis.2d 633, 661–662, 681 N.W.2d 110, 123–124.
¶ 7 As seen in the footnote to this sentence, the Racketeer Influenced and Corrupt Organizations Act's definition of “racketeering activity” is broad. 1 Among the things it sweeps into the definition are: “dealing in a controlled substance or listed chemical (as defined in section 102 of the Controlled Substances Act), which is chargeable under State law and punishable by imprisonment for more than one year.” 18 U.S.C. § 1961(1)(A). The definition also includes “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.” 18 U.S.C. § 1961(1)(D).
¶ 8 As we have seen, Guarnero pled guilty to Count Two of the federal indictment, which charged that Guarnero violated 18 U.S.C. § 1962(d) by conspiring to violate 18 U.S.C. § 1962(c). Although neither section references controlled substances in haec verba, they do, of course, make unlawful “racketeering activity” and conspiring to engage in “racketeering activity” which, as we have seen, is defined by the Racketeer Act to include activities involving controlled substances, such as cocaine. Thus, the circuit court correctly concluded that the Racketeer Act and 18 U.S.C. §§ 1962(c) & (d) are a statute and sections “relating to controlled substances” as that phrase is used in Wis. Stat. § 961.41(3g)(c). This is in keeping with the rule most recently recognized by the United States Supreme Court in United States v. Castleman, 572 U.S. ––––, 134 S.Ct. 1405, 188 L.Ed.2d 426 (2014), and Descamps v. United States, 570 U.S. ––––, 133 S.Ct. 2276, 186 L.Ed.2d 438 (2013), which permit looking at a charging document and a guilty plea (among other things that we do not have to decide for the purposes of this appeal) when a predicate criminal statute has alternate paths to conviction. We asked the parties to submit letter briefs addressing how Descamps and Castleman affected this appeal. For the reasons discussed below, we believe these decisions are dispositive.
¶ 9 Statutes that enhance a conviction's penalty or impose a restriction because the defendant has violated some other law are common. See, e.g., Evans v. Wisconsin Dep't of Justice, 2014 WI App 31, ¶ 4, 353 Wis.2d, 289, 292, 844 N.W.2d 403, 404 (...
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State v. Guarnero, s. 2013AP1753–CR
...affirmed the circuit court, concluding that RICO and 18 U.S.C. § 1962(c) and (d) (2005)6 related to controlled substances. State v. Guarnero, 2014 WI App 56, ¶ 8, 354 Wis.2d 307, 848 N.W.2d 329.¶ 3 We conclude that Guarnero's prior conviction, due to the manner in which Guarnero violated th......