United States v. Tello

• Court: U.S. Court of Appeals — Seventh Circuit
• Writing for the Court: ROVNER
• Citation: United States v. Tello, 687 F.3d 785 (7th Cir. 2012)
• Decision Date: 18 July 2012
• Docket Number: Nos. 10–2677,10–2933.,s. 10–2677
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. Jesus TELLO and Kenneth Hill, Defendants–Appellants.

687 F.3d 785

UNITED STATES of America, Plaintiff–Appellee,

v.Jesus TELLO and Kenneth Hill, Defendants–Appellants.

Nos. 10–2677, 10–2933.

United States Court of Appeals, Seventh Circuit.

Argued Jan. 10, 2012.

Decided July 18, 2012.

Mario F. Gonzales (argued), Attorney, Office of the United States Attorney, Milwaukee, WI, for Plaintiff–Appellee.

Robert A. Handelsman (argued), Attorney, Chicago, IL, for Jesus Tello.

Anne M. Bensky (argued), Attorney, Garvey, McNeil & Associates, Madison, WI, for Kenneth Hill.

Before BAUER, ROVNER, and SYKES, Circuit Judges.

ROVNER, Circuit Judge.

Jesus Tello and Kenneth Hill, both members of the Milwaukee chapter of the Latin Kings street gang, pleaded guilty to a charge that they had conspired to conduct the affairs of the Latin Kings through a pattern of racketeering activity. See18 U.S.C. § 1962(d). Tello appeals his conviction, contending that the acts of racketeering referenced in his plea agreement varied materially from those alleged in the indictment. In essence, he contends that he pleaded guilty to an offense different from the one with which he was charged. Hill contests the sentence he received following a prior, successful appeal challenging his treatment as a career offender. Hill contends that the district court on remand substantially enhanced his offense level based on a ground that the government had waived by not raising it sooner. For the reasons that follow, we affirm Tello's conviction but vacate Hill's sentence.

I.

The Almighty Latin King Nation is a national, criminal enterprise composed of individual chapters located in various cities throughout the country. See United States v. Olson, 450 F.3d 655, 661–62 (7th Cir.2006) (describing organization of Latin Kings). Its members have engaged in acts of violence—including murder, attempted murder, robbery, and extortion—as well as narcotics distribution. The Milwaukee chapter of the gang was founded in the mid–1980s and over time came to control a large territory on the city's south side. Id. at 662. Within the Milwaukee chapter of the gang, there were, at the time of the indictment, four subsets of the Latin Kings: the 19th Street Kings, the Sawyer Kings, the Wild Walker Kings, and the 23rd Street Kings. Tello was a member of the 23rd Street Kings, while Hill was a member of the 19th Street Kings. Tello and Hill were among forty-nine Milwaukee-area Latin Kings indicted in September 2005 on charges of racketeering, racketeering conspiracy, narcotics trafficking and conspiracy, and unlawful possession and distribution of firearms.

Count One of the indictment alleged that Hill, Tello, and the other defendants conducted or participated, directly and indirectly, in the conduct of the affairs of an enterprise engaged in or affecting interstate commerce—namely, the Latin Kings—through a pattern of racketeering activity, in violation of the Racketeer Influenced and Corrupt Organizations Act (“RICO”), 18 U.S.C. § 1962(c). R. 12 at 3 ¶ 1. This count alleged generally that “[c]riminal activity committed by the members of the Latin King enterprise include[d] murder, attempted murder, drug trafficking, firearm offenses, robbery, kidnapping, assault and battery, home invasion, arson, drive-by shootings and intimidation of witnesses.” Id. at 3 ¶ 2. It subsequently listed some sixty predicate acts of racketeering that together formed the pattern of racketeering through which the affairs of the Latin Kings allegedly had been conducted. Id. at 9–36. Tello was identified as the perpetrator of or a participant in three of these alleged predicate acts: No. 10—a conspiracy to murder unnamed rival gang members; No. 14—the attempted murder of an individual by the name of Jose Espinoza; and No. 19—the attempted murder of Rene Carmona, Daniel Carmona, and Pedro Gaona, who were members of the Mexican Posse, a rival gang. Id. at 13–14, 15–16, 18. Hill was separately named in connection with five predicate acts: Nos. 31, 44, and 45—all involving the distribution of or the possession with the intent to distribute marijuana; No. 47—the kidnapping and intimidation of a witness for the purpose of obstructing justice; and No. 60–conspiracy with other Latin King members to distribute and to possess with the intent to distribute cocaine, crack cocaine, and marijuana. Id. at 23, 28–30, 36.

Count Two of the indictment alleged that the defendants had conspired to conduct,and to participate directly or indirectly in the conduct of, the affairs of the Latin Kings enterprise through a pattern of racketeering activity, in violation of section 1962(d). R. 12 at 37–39 ¶ 17–18. That pattern allegedly included a variety of federal and state offenses, including the distribution of marijuana, cocaine, and crack cocaine; kidnapping; witness tampering and retaliation; homicide; robbery; and arson. Id. The allegations of Count One, including the various predicate acts of racketeering set forth there, were incorporated by reference, id. at 37 ¶ 14, and it was further alleged to be “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,” id. at 39 ¶ 18.

Like most of their co-defendants, both Tello and Hill pleaded guilty to Count Two of the indictment, charging them with RICO conspiracy. Because Hill does not challenge his conviction, we may pass over the details of his guilty plea for now and focus for a moment on Tello's written plea agreement and change-of-plea colloquy.

Count Two of the indictment was incorporated into paragraph 4 of Tello's plea agreement, R. 1473 at 1–2 ¶ 4 & Ex. A, and in the next paragraph of that agreement Tello stated expressly that he “acknowledges, understands, and agrees that he is, in fact, guilty of the offense described in paragraph 4,” id. at 2 ¶ 5. Tello also specifically admitted “that he conspired with other Latin King gang members to commit at least two qualifying criminal act[s] in furtherance of the criminal enterprise.” Id. The agreement then proceeded to identify two criminal acts that Tello acknowledged having committed in furtherance of the charged conspiracy: (1) on July 12, 2002, Tello had fired shots at rival Mexican Posse gang members Rene and Daniel Carmona and Pedro Gaona; and (2) on October 24, 2004, Tello and other Latin King members had sexual contact with a female under the age of 18 who was unconscious for much of the assault, an offense for which Tello was subsequently convicted in state court. Id. at 2–3 ¶ 5. The first of these incidents corresponded to predicate act No. 19 set forth in Count One of the indictment. See R. 12 at 18–19. The second of these incidents, however, did not correspond to any of the predicate acts alleged in Count One. Tello and his counsel signed the agreement on April 1, 2009.

Tello appeared before the court on April 7, 2009, to change his plea from not guilty to guilty. After ascertaining that Tello understood the various rights he was giving up by pleading guilty, the court asked Tello whether he had reviewed the facts alleged in Count Two and the additional facts set forth in paragraph 5 of the plea agreement, and Tello said that he had. R. 1824 at 6. The court then asked Tello whether those were the facts to which he intended to plead guilty, and Tello answered in the affirmative. Id. The court then confirmed that Tello had no questions about the plea, that he understood the maximum penalties that might be imposed on him, and that it was his wish to plead guilty. Id. at 6–7. Tello then formally pleaded “[g]uilty” to Count Two. Id. at 7. Satisfied that Tello was pleading guilty knowingly, intelligently, and voluntarily, the district court accepted his plea and found him guilty. Id. at 8.

Subsequent to Tello's guilty plea, the court held an evidentiary hearing to assess Tello's culpability with respect to a third criminal act—identified as predicate act No. 14 in Count One of the indictment, R. 12 at 15–16—involving the attempted murder of Jose Espinoza on or about June 4, 2002. R. 1666. Espinoza had been shot in the head but miraculously had survived the attack. Tello denied that he was the individual who shot Espinoza, and as the government contended the shooting constituted relevant conduct that the court should consider in sentencing Tello, it was necessary for the court to take evidence and render a finding as to whether Tello was in fact the shooter. This was a contingency that the parties had anticipated in the plea agreement. R. 1473 at 6 ¶ 14. After considering the evidence presented at that hearing, including the testimony of Espinoza himself, the court found that Tello had in fact shot Espinoza and that pursuant to section 1B1.3 of the Sentencing Guidelines, this constituted relevant conduct for sentencing purposes. R. 1748.

Tello was sentenced on June 30, 2010. The guideline governing RICO offenses directs the court to use the offense level applicable to one of the predicate offenses underlying the RICO charge if that offense level is greater than the default level specified by the RICO guideline. SeeU.S.S.G. § 2E1.1. Consistent with that directive, and in view of Tello's acknowledgment that he had fired a gun at members of the rival Mexican Posse gang on July 12, 2002, the court referenced the guideline for attempted murder. SeeU.S.S.G. § 2A2.1.¹ The court then applied a three-level enhancement to the base offense level specified by that guideline based on the degree of injury that had been inflicted on Rene Carmona (he was shot in the leg) in that attack. R. 1825 at 10–11. The parties had not agreed to that enhancement in the plea agreement, but they had acknowledged that the government was free to seek that enhancement at sentencing. R. 1473 at 6 ¶ 14. Tello's adjusted offense level, coupled with his criminal history, resulted in an advisory sentencing range of 121 to 151 months. The court opted to impose a sentence at the top...