United States v. Jesus Tello ( 2012 )


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  •                            In the
    United States Court of Appeals
    For the Seventh Circuit
    Nos. 10-2677 & 10-2933
    U NITED STATES OF A MERICA,
    Plaintiff-Appellee,
    v.
    JESUS T ELLO and
    K ENNETH H ILL,
    Defendants-Appellants.
    Appeals from the United States District Court
    for the Eastern District of Wisconsin.
    No. 05 CR 240—Rudolph T. Randa, Judge.
    A RGUED JANUARY 10, 2012—D ECIDED JULY 18, 2012
    Before B AUER, R OVNER, and SYKES, Circuit Judges.
    R OVNER, 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. See 
    18 U.S.C. § 1962
    (d). Tello appeals his conviction, contending that
    the acts of racketeering referenced in his plea agree-
    2                                  Nos. 10-2677 & 10-2933
    ment varied materially from those alleged in the indict-
    ment. 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 fol-
    lowing 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 en-
    gaged 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
    Nos. 10-2677 & 10-2933                                  3
    in September 2005 on charges of racketeering, racke-
    teering 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 com-
    merce—namely, the Latin Kings—through a pattern of
    racketeering activity, in violation of the Racketeer In-
    fluenced 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 con-
    nection 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
    4                                    Nos. 10-2677 & 10-2933
    and intimidation of a witness for the purpose of ob-
    structing justice; and No. 60—conspiracy with other
    Latin King members to distribute and to possess with
    the intent to distribute cocaine, crack cocaine, and mari-
    juana. 
    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; hom-
    icide; 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 con-
    spiracy 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 chal-
    lenge 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 col-
    loquy.
    Count Two of the indictment was incorporated into
    paragraph 4 of Tello’s plea agreement, R. 1473 at 1-2
    Nos. 10-2677 & 10-2933                                     5
    ¶ 4 & Ex. A, and in the next paragraph of that agree-
    ment 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 conspir-
    acy: (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 sub-
    sequently 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 cor-
    respond 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
    6                                   Nos. 10-2677 & 10-2933
    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, in-
    telligently, 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 contin-
    gency that the parties had anticipated in the plea agree-
    ment. 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
    Nos. 10-2677 & 10-2933                                        7
    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. See U.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. See U.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 en-
    hancement in the plea agreement, but they had acknowl-
    edged that the government was free to seek that enhance-
    ment 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 of that
    range, citing among other factors Tello’s significant
    1
    The court opted not to take the Espinoza shooting into account
    in calculating the offense level because, according to the
    probation officer’s assessment, that shooting would have
    produced a higher base offense level than the one the parties
    had adopted in their plea agreement. See R. 1473 at 6 ¶ 15
    (plea agreement) (specifying base offense level of 27); Revised
    PSR dated June 22, 2010 at 6 (assigning base offense level of 30
    to Espinoza shooting); R. 1825 at 10 (sentencing hearing)
    (adopting base offense level of 27 in accord with plea agree-
    ment).
    8                                    Nos. 10-2677 & 10-2933
    degree of involvement with the Latin Kings, the violent
    nature of the criminal acts Tello had committed in fur-
    therance of the conspiracy, and his lack of cooperation
    with the authorities.
    Hill was initially classified as a career offender (a desig-
    nation that added 13 levels to his final offense level)
    and was ordered to serve a prison term of 188 months.
    See U.S.S.G. § 4B1.1. He appealed, challenging the career-
    offender designation. We concluded that because one
    of the two prior convictions on which that designation
    rested—a conviction in Wisconsin state court for second
    degree recklessly endangering safety—did not constitute
    a crime of violence, Hill did not qualify as a career of-
    fender. United States v. Hill, 372 F. App’x 656, 657-58
    (7th Cir. 2010) (non-precedential decision). We therefore
    remanded for resentencing, directing the district court
    on remand to address Hill’s further contention that the
    conduct underlying his reckless endangerment con-
    viction was carried out in furtherance of the conspiracy
    to which he had pleaded guilty and therefore should
    not be included in his criminal history calculation. Id.
    at 658.
    On remand, the district court accepted the govern-
    ment’s argument, not raised previously, that Hill was
    an accessory after the fact to a murder committed by a
    fellow Latin Kings member. See U.S.S.G. § 2X3.1. The .32-
    caliber revolver used to commit that murder was among
    four firearms that were discovered in a search of the
    residence of Hill’s girlfriend on the day after the mur-
    der. The weapons were secreted above the ceiling in the
    Nos. 10-2677 & 10-2933                                 9
    bedroom that Hill used. Hill admitted to investigators
    that he allowed the Latin Kings to use that residence
    to store weapons, and he gave them details as to how
    three of the four firearms had come to be there.
    He denied knowing that the .32-caliber revolver was
    present or where it came from, however. To rebut Hill’s
    claim of ignorance, the government elicited testimony
    from a police detective at Hill’s resentencing that given
    Hill’s status as a high-ranking member of the Latin
    Kings (Hill was a “Casinca,” or second in command), it
    was “entirely unlikely” that another gang member
    would store a murder weapon at the residence without
    Hill’s knowledge. R. 1857 at 12. The district court in
    turn found it “beyond . . . comprehension” that Hill
    would not have known that the gun was stored at the
    residence in the ceiling above his bedroom. Id. at 28.
    The court found that Hill’s knowing concealment of
    the weapon was sufficient to render him an accessory
    after the fact to the murder. Id. at 28-29.
    The finding that Hill was an accessory after the fact
    had the effect of raising his offense level and sub-
    stantially increasing the sentencing range recommended
    by the Sentencing Guidelines. Absent that finding, Hill’s
    total offense level would have been 16, as indicated
    in the updated presentence report prepared by the proba-
    tion officer on remand. When coupled with Hill’s
    criminal history of VI, that would have produced an
    advisory sentencing range of 46 to 57 months; although
    that range was superseded by the statutory minimum of
    60 months specified by 
    18 U.S.C. § 924
    (c). See U.S.S.G.
    10                                 Nos. 10-2677 & 10-2933
    § 5G1.1(b). By contrast, the application of the accessory
    guideline resulted in a total offense level of 27, which
    in turn yielded an advisory sentencing range of 130 to
    162 months, more than twice the original range. The
    court ordered Hill to serve a sentence at the top of that
    range, 162 months.
    The government first raised its contention that Hill
    was an accessory after the fact to the murder in a letter
    it sent to the court in advance of Hill’s resentencing.
    R. 1786. The accessory-after-the-fact guideline was not
    one referenced in Hill’s plea agreement, despite the
    parties’ acknowledgment that the gun used to commit
    the murder had been discovered in his girlfriend’s resi-
    dence (referred to in the agreement as Hill’s residence),
    R. 1130 at 3-4, and their further acknowledgment that
    the parties had “discussed all of the sentencing guide-
    lines provisions which they believe to be applicable to
    the offense . . .,” id. at 6 ¶ 12. Similarly, the probation
    officer made no finding that Hill qualified as an acces-
    sory after the fact, either in the presentence report pre-
    pared for Hill’s original sentencing or for the second
    sentencing on remand from the prior appeal. Hill
    himself objected to the government’s new argument in
    a handwritten letter to the court, noting that “the sole
    purpose” for which he was before the court a second
    time was for resentencing after the court determined
    how his reckless endangerment conviction was to be
    treated vis-à-vis his criminal history. R. 1793 at 2.
    Nos. 10-2677 & 10-2933                                11
    II.
    As we have noted, Tello challenges his conviction on
    appeal, whereas Hill challenges his sentence. We take
    each appeal in turn.
    A. Tello
    Tello elected to plead guilty to the RICO conspiracy
    charge set forth in Count Two in a written plea agree-
    ment. In his plea agreement, he also acknowledged re-
    sponsibility for two crimes committed in furtherance
    of the alleged conspiracy: (1) the July 2002 shooting
    attack on rival Mexican Posse gang members Rene
    Carmona, Daniel Carmona, and Pedro Gaona; and (2) the
    October 2004 sexual assault on a minor female. The first
    of these incidents was among the predicate acts of racke-
    teering attributed to Tello in Count One of the indict-
    ment (the substantive RICO charge) but the second
    was not.
    Tello argues that his guilty plea (and thus his convic-
    tion) is invalid because the sexual assault charge
    referenced in his plea agreement was not one of the
    predicate acts of racketeering identified in the indict-
    ment. Tello assumes that the predicate acts of racke-
    teering attributed to him in Count One became part of
    the RICO conspiracy alleged in Count Two and served
    to delineate the parameters of that conspiracy. His plea
    agreement, however, acknowledged only one of the
    three predicate acts attributed to him in Count One
    and added a second that was never mentioned in the
    12                                      Nos. 10-2677 & 10-2933
    indictment. Thus, in Tello’s view, there was a disparity
    between the RICO conspiracy alleged in the indictment
    and the one described in his plea agreement, with the
    result that he pleaded guilty to a conspiracy different
    from the one with which he was charged. Although Tello
    does not use the term “constructive amendment,” his
    argument is, in essence, a contention that the plea pro-
    ceeding (including both the plea agreement and
    the change-of-plea hearing) constructively amended the
    conspiracy charge and thereby violated Tello’s Fifth
    Amendment right to indictment by a grand jury on all
    charges for which he is held to answer. U.S. C ONST. amend.
    5; see United States v. Miller, 
    471 U.S. 130
    , 140, 
    105 S. Ct. 1811
    , 1817 (1985); Stirone v. United States, 
    361 U.S. 212
    , 217,
    
    80 S. Ct. 270
    , 273 (1960); United States v. Haskins, 
    511 F.3d 688
    , 692 (7th Cir. 2007).2 Tello believes his guilty
    plea is invalid by reason of the disparity, and he seeks
    2
    Because the plea agreement omitted mention of two of the
    predicate acts mentioned in the indictment, one might argue
    that the omission constituted a narrowing of the charged
    conspiracy and thus a variance from the indictment. See, e.g.,
    United States v. Rosin, 
    892 F.2d 649
    , 651 (7th Cir. 1990) (variance
    narrows charges in indictment, whereas constructive amend-
    ment broadens bases for conviction by establishing offense
    not fully contained within indictment). However, because the
    plea agreement also references a predicate act not alleged in
    the indictment, and because it is Tello’s contention that he
    pled guilty to an offense distinct from the one with which
    he was charged, we view the constructive amendment
    doctrine as the one most appropriate to the argument Tello
    is making.
    Nos. 10-2677 & 10-2933                                  13
    to have his plea and conviction set aside and the case
    remanded for further proceedings.
    Because Tello failed to raise this issue below and did
    not ask the district court for leave to withdraw his guilty
    plea, our review is for plain error. E.g., United States v.
    Perez, 
    673 F.3d 667
    , 669 (7th Cir. 2012); United States v.
    Griffin, 
    521 F.3d 727
    , 730 (7th Cir. 2008). Under the plain
    error standard of review, we will reverse the district
    court’s judgment only if we find: (1) an error or defect
    (2) that is clear or obvious (3) affecting the defendant’s
    substantial rights (4) and seriously impugning the
    fairness, integrity, or public reputation of judicial pro-
    ceedings. Perez, 
    673 F.3d at 669
     (quoting United States
    v. Anderson, 
    604 F.3d 997
    , 1002 (7th Cir. 2010)). In the
    present context, a plain error is one that raises a
    reasonable probability that the defendant would not
    have pleaded guilty absent the error. E.g., Griffin, 
    521 F.3d at 730
    .
    To understand why Tello’s argument fails, it is
    necessary to appreciate the distinction between the sub-
    stantive RICO charge set forth in Count One of the in-
    dictment—to which Tello did not plead guilty—and
    the racketeering conspiracy charge set forth in Count
    Two—to which he did plead guilty. Count One alleged
    a violation of section 1962(c). That section of the
    statute makes it 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
    14                                    Nos. 10-2677 & 10-2933
    of racketeering activity . . . .” In short, section 1962(c)
    makes it a crime to operate or manage an enterprise
    affecting interstate commerce through a pattern of racke-
    teering activity. Brouwer v. Raffensperger, Hughes & Co.,
    
    199 F.3d 961
    , 963-64 (7th Cir. 2000) (construing Reves v.
    Ernst & Young, 
    507 U.S. 170
    , 
    113 S. Ct. 1163
     (1993)).
    The statute in turn defines a pattern of racketeering
    activity to require at least two acts of racketeering
    activity committed within a ten-year period. See 
    18 U.S.C. § 1961
    (5). To be guilty of the substantive 1962(c) offense,
    then, an individual must, among other things, participate
    in two or more predicate acts of racketeering. § 1962(c);
    see Salinas v. United States, 
    522 U.S. 52
    , 62-63, 
    118 S. Ct. 469
    , 476 (1997); United States v. Flemmi, 
    245 F.3d 24
    , 26
    (1st Cir. 2001); United States v. Diaz, 
    176 F.3d 52
    , 93 (2d
    Cir. 1999); United States v. Vaccaro, 
    115 F.3d 1211
    , 1220
    (5th Cir. 1997); United States v. Starrett, 
    55 F.3d 1525
    , 1553-
    54 (11th Cir. 1995).
    Count Two, by contrast, charged Tello with conspiring
    to conduct the affairs of the Latin Kings through a
    pattern of racketeering, in violation of section 1962(d).
    Whereas subsections (a) through (c) of section 1962 are
    aimed at substantive RICO offenses, subsection (d) is
    aimed at the unlawful agreement to commit one of the
    substantive offenses identified in the preceding subsec-
    tions, see United States v. Quintanilla, 
    2 F.3d 1469
    , 1484
    (7th Cir. 1993); and in this case, Count Two alleged that
    Tello and his codefendants had conspired to violate
    subsection (c). In order to establish Tello’s guilt on
    Count Two, it was not necessary to show that he
    Nos. 10-2677 & 10-2933                                       15
    actually conducted the affairs of the Latin Kings, or
    participated in the conduct of those affairs, through a
    pattern of racketeering activity comprising at least
    two predicate acts of racketeering. That would have
    been the proof necessary to establish Tello’s guilt on
    Count One, which alleged a substantive RICO offense.
    But the section 1962(d) conspiracy provision, unlike sec-
    tion 1962(c), is not a substantive RICO offense. Quintanilla,
    
    2 F.3d at 1484
    ; see also United States v. Glecier, 
    923 F.2d 496
    ,
    499-500 (7th Cir. 1991). It punishes the agreement to
    commit such an offense. Goren v. New Vision Int’l, Inc., 
    156 F.3d 721
    , 731 (7th Cir. 1998), modified in other respects by
    Brouwer, 
    199 F.3d at 965
    ; Glecier, 
    923 F.2d at 500
    . A section
    1962(d) conspiracy charge thus does not require proof
    that the defendant committed two predicate acts of racke-
    teering, Salinas, 
    522 U.S. at 63, 65-66
    , 
    118 S. Ct. at 476, 478
    ,
    that he agreed to commit two predicate acts, ibid., or,
    for that matter, that any such acts were ultimately com-
    mitted by anyone, 
    id. at 63
    , 
    118 S. Ct. at 476
     (noting
    that section 1962(d) includes “no requirement of some
    overt act or specific act”); Gagan v. American Cablevision,
    Inc., 
    77 F.3d 951
    , 959 (7th Cir. 1996).
    Tello’s appeal fails to recognize this distinction.
    His argument, focused as it is on the difference be-
    tween the predicate acts referenced in the indictment
    and those identified in his plea agreement, presumes
    that proof of at least two specific predicate acts of racke-
    teering that he committed (or agreed to commit) was
    a prerequisite to his conviction for racketeering con-
    spiracy under section 1962(d). This is the very presump-
    tion that the Supreme Court in Salinas described as
    16                                   Nos. 10-2677 & 10-2933
    “wrong.” 
    522 U.S. at 63
    , 
    118 S. Ct. at 476
    . In order to con-
    vict a defendant under section 1962(d), the government
    need only prove that he agreed that some member(s) of
    the conspiracy would commit two or more predicate
    acts, not that the defendant himself committed or agreed
    to commit such acts. United States v. Benabe, 
    654 F.3d 753
    , 776 (7th Cir. 2011) (citing Salinas, 
    522 U.S. at 65-66
    ;
    
    118 S. Ct. at 478
    ), cert. denied, 
    132 S. Ct. 1051
    , 1054, 1612,
    1986 (2012); United States v. Campione, 
    942 F.2d 429
    , 437
    (7th Cir. 1991); see also Glecier, 
    923 F.2d at 500
     (“Neither
    overt acts nor specific predicate acts that the defendant
    agreed personally to commit need be alleged or proved
    for a section 1962(d) offense.”) (citations omitted); United
    States v. Neapolitan, 
    791 F.2d 489
    , 498 (7th Cir. 1986)
    (“[S]ection 1962(d) [is] broad enough to encompass
    those persons who, while intimately involved in the
    conspiracy, neither agreed to personally commit nor
    actually participated in the commission of the predicate
    crimes.”), abrogation on other grounds recognized by
    United States v. Rogers, 
    89 F.3d 1326
    , 1336-37 (7th Cir.
    1996); DeGuelle v. Camilli, 
    664 F.3d 192
    , 204 (7th Cir.
    2011); Goren, 
    156 F.3d at 731
    .
    Tello’s understanding of RICO conspiracy is one that
    improperly attempts to import the requirements of the
    substantive offense set forth in subsection (c) of the
    statute into the conspiracy offense identified in sub-
    section (d), by demanding that each named defendant
    agree to commit at least two predicate acts of racketeering
    himself. Those acts in turn would become essential ele-
    ments of the charged conspiracy, thus giving rise to the
    type of argument Tello is making in this appeal. But
    Tello’s understanding would sever section 1962(d) from
    Nos. 10-2677 & 10-2933                                     17
    its roots in traditional conspiracy law. See Neapolitan,
    
    791 F.2d at 497
    . Ordinary conspiracy principles require
    only that the conspirators embrace a common criminal
    objective. See, e.g., United States v. Green, 
    648 F.3d 569
    ,
    579 (7th Cir. 2011); United States v. King, 
    627 F.3d 641
    , 651
    (7th Cir. 2010). Here, the agreed-to goal would be that
    the affairs of the enterprise would be carried out through
    a pattern of two or more racketeering acts committed
    by some member or members of the conspiracy. See
    Quintanilla, 
    2 F.3d at 1484-85
    ; see also Brouwer, 
    199 F.3d at 967
     (defendant must knowingly agree to perform
    services of a kind which facilitate the activities of those
    who operate the enterprise). Requiring an agreement by
    each conspirator to commit two predicate acts himself
    would require a degree of personal involvement in the
    offense that is unprecedented in conspiracy law.
    Neapolitan, 
    791 F.2d at 497-98
    . Indeed, by making the
    commission of two or more predicate acts by each con-
    spirator an essential element of the offense, Tello’s under-
    standing of RICO conspiracy would essentially require
    that a defendant commit the substantive RICO offense
    set out in subsection (c) of the statute, and thereby
    render the conspiracy offense set out in subsection (d) a
    nullity. Glecier, 
    923 F.2d at 501
    ; see also Quintanilla,
    
    2 F.3d at 1485
    . That result would be inconsistent with
    traditional principles of statutory interpretation. See, e.g.,
    United States v. Atlantic Research Corp., 
    551 U.S. 128
    , 137,
    
    127 S. Ct. 2331
    , 2337 (2007); Duncan v. Walker, 
    533 U.S. 167
    , 174, 
    121 S. Ct. 2120
    , 2125 (2001).
    Having in mind the basic distinction between a charge
    of a substantive RICO violation under section 1962(c)
    18                                    Nos. 10-2677 & 10-2933
    and a conspiracy charge under section 1962(d), we turn
    our attention to what was alleged in the conspiracy
    charge set forth in Count Two of the indictment
    against Tello and his codefendants, and then we will
    compare those allegations to the facts that Tello admitted
    in pleading guilty. Our review of Count Two and Tello’s
    guilty plea necessarily must focus on the essential
    elements of RICO conspiracy, for it is only a divergence
    between allegations and proof as to those elements
    that will result in a constructive amendment of the
    charge. See Miller, 
    471 U.S. at 136
    , 
    105 S. Ct. at 1815
     (“A
    part of the indictment unnecessary to and independent
    of the allegations of the offense proved may normally be
    treated as ‘a useless averment’ that ‘may be ignored.’ ”)
    (quoting Ford v. United States, 
    273 U.S. 593
    , 602, 
    47 S. Ct. 531
    , 534 (1927)); United States v. Cina, 
    699 F.2d 853
    , 857-58
    (7th Cir. 1983) (“In general, either an amendment or a
    variance will be allowed to stand if it does not change an
    ‘essential’ or ‘material’ element of the charge so as to
    cause prejudice to the defendant.”); see also United States
    v. Alhalabi, 
    443 F.3d 605
    , 613 (7th Cir. 2006); United States v.
    Krilich, 
    159 F.3d 1020
    , 1027 (7th Cir. 1998); United States
    v. Leichtnam, 
    948 F.2d 370
    , 377 (7th Cir. 1991); United
    States v. Williams, 
    798 F.2d 1024
    , 1032-33 (7th Cir. 1986).
    For an indictment to adequately set forth the elements
    of a racketeering conspiracy, it need only charge—after
    identifying a proper enterprise and the defendant’s
    association with that enterprise—that the defendant
    knowingly joined a conspiracy, the objective of which
    was to operate that enterprise through a pattern of racke-
    teering activity. Glecier, 
    923 F.2d at 500
    . Here, Count Two
    of the indictment alleged, in relevant part:
    Nos. 10-2677 & 10-2933                                    19
    15. At various times relevant to this Indictment, the
    defendants named in Count Two and others
    known and unknown, were members and associ-
    ates of the Latin Kings, a criminal organization
    whose members and associates engaged in acts
    of violence, including murder, attempted mur-
    der, robbery, extortion and distribution of con-
    trolled substances, and which operated principally
    on the south side of Milwaukee.
    ***
    17. From on or about January 1, 1998, and continuing
    until at least September 27, 2005, in the State and
    Eastern District of Wisconsin, and elsewhere,
    [the defendants, including] . . . Jesus Tello, a/k/a/
    “Spider,”. . . together with other persons known
    and unknown, being members and associates of
    the racketeering enterprise described in para-
    graphs 2 through 17 that is, the Latin Kings, an
    enterprise, which engaged in, and the activities of
    which affected, interstate and foreign commerce,
    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 in-
    volving multiple acts indictable under the provi-
    sions of Title 18, United States Code, sections, 1201,
    1512, 1513; and multiple acts involving violations
    of the laws of the State of Wisconsin, chargeable
    under the provisions of Wisconsin Statutes, Sec-
    20                                   Nos. 10-2677 & 10-2933
    tions 940.01, 939.32, . . . 939.31, 943.32, 943.02 and
    940.31; and 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, includ-
    ing Title 21, United States Code, Sections 841 and
    846.
    18. 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.
    R. 12 at 37-39. These allegations, accepted as true, were
    sufficient to establish that Tello knowingly agreed to
    conduct the affairs of the Latin Kings through a pattern of
    racketeering activity. As we have discussed, it was not
    necessary for Tello to agree to commit specific predicate
    acts or to participate in the commission of those acts as
    long as he agreed the acts would be committed on
    behalf of the conspiracy. MCM Partners, Inc. v. Andrews-
    Bartlett & Assocs., Inc., 
    62 F.3d 967
    , 980 (7th Cir. 1995);
    Quintanilla, 
    2 F.3d at 1484
    ; Glecier, 
    923 F.2d at 500
    .
    Both paragraphs 15 and 17 cite multiple examples of
    racketeering activity in which members of the Latin
    Kings engaged and agreed to engage, including acts
    of violence and acts involving the distribution of con-
    trolled substances, and paragraph 18 alleges that each
    defendant agreed that some member of the conspiracy
    would commit at least two such predicate acts. Further
    detail was unnecessary: the indictment did not need to
    identify the specific predicate acts that Tello agreed
    would be committed, see Campione, 
    942 F.2d at 436, 437
    ,
    Nos. 10-2677 & 10-2933                                    21
    nor was it necessary for the government to prove that
    any of the racketeering acts referenced in Count Two
    occurred at a particular time or place. Benabe, 
    654 F.3d at 777
    . See, e.g., Glecier, 
    923 F.2d at 500-01
     (indictment
    sufficient despite fact that it did not list specific
    predicate acts in which defendant was involved,
    where it alleged that defendant knowingly joined a con-
    spiracy, the objective of which was to operate enterprise
    through pattern of racketeering activity consisting of
    multiple acts of bribery: “[The] separate crime [of con-
    spiracy] centers on the act of agreement, which makes
    unnecessary—and in many cases impossible—the identi-
    fication in the indictment of specific predicate acts that
    have come to fruition.”) (emphasis in original) (citing
    United States v. Phillips, 
    874 F.2d 123
    , 127-28 n. 4 (3d Cir.
    1989) (indictment was sufficient in charging elements
    of RICO conspiracy despite the fact that it did not
    specify particular acts of bribery and extortion in
    which defendants were involved); and United States v.
    Sutherland, 
    656 F.2d 1181
    , 1197 (5th Cir. 1981) (rejecting
    contention that RICO conspiracy indictment was insuf-
    ficiently specific where indictment identified pattern
    of racketeering activity as “a number of bribes that oc-
    curred between November 1975 and January 1980”));
    United States v. Crockett, 
    979 F.2d 1204
    , 1209-10 (7th Cir.
    1992) (RICO conspiracy indictment sufficient where
    it identified types of violent crimes constituting pattern
    of racketeering, purposes for which those crimes were
    carried out, and time frame during which the crimes
    occurred).
    It is true that the opening paragraph of Count Two
    incorporated by reference the allegations of Count One,
    22                                 Nos. 10-2677 & 10-2933
    the substantive section 1962(c) charge, R. 12 at 39 ¶ 14,
    but that boilerplate did not by itself alter the nature of
    Count Two’s conspiracy charge to demand proof that
    Tello committed any of the specific predicate acts
    set forth in Count One. On the contrary, paragraph 18
    alleges that the defendants agreed that “a conspirator”
    would commit at least two predicate acts, not that every
    defendant (including Tello) would commit two such acts,
    let alone the specific acts attributed to each defendant
    in Count One. R. 12 at 39 ¶ 18 (emphasis ours). As we
    have said, neither section 1962(d) nor the case law inter-
    preting that subsection of RICO required such proof,
    and so any allegation as to overt acts, including
    predicate acts of racketeering, that Tello may have com-
    mitted in furtherance of the charged conspiracy, would
    constitute surplusage rather than an essential element
    of the charged conspiracy. Such surplus allegations
    thus would not support a later charge of constructive
    amendment based on a divergence between the acts
    alleged in the indictment and the acts, if any, acknowl-
    edged in the guilty plea. See Leitchnam, 
    948 F.2d at 377
    (“if the indictment charges a conspiracy and lists overt
    acts, but it’s not necessary to prove the overt acts to
    prove the conspiracy . . ., then jury instructions that do
    not demand proof of the overt acts do not impermis-
    sibly amend the indictment”); United States v. Franco,
    
    874 F.2d 1136
    , 1143-44 (7th Cir. 1989) (district court did
    not constructively amend indictment by instructing
    jury that it need not find defendant guilty of committing
    overt acts (or means and methods of the conspiracy)
    set forth in nine extra paragraphs of indictment, as
    Nos. 10-2677 & 10-2933                                      23
    these were unnecessary to establish defendant’s guilt on
    conspiracy charge); Williams, 
    798 F.2d at 1032-33
     (jury
    instructions did not constructively amend indictment
    by not identifying as elements of charged conspiracy
    the specific roles of conspirators and various overt acts
    committed in furtherance of charged conspiracy which
    were set forth in seven paragraphs of the indictment,
    as those allegations were unnecessary to establish de-
    fendant’s guilt on conspiracy charge).
    The plea agreement, which Tello and his counsel
    signed, in turn tracked and admitted the essential al-
    legations of Count Two, thus establishing Tello’s guilt
    on the conspiracy charge. Paragraph 4 of the agreement
    incorporated Count Two, a copy of which was at-
    tached to the agreement, R. 1473 at 1-2 ¶ 4 & Ex. A, and
    Paragraph 5 stated that “[t]he defendant acknowledges,
    understands, and agrees that he is, in fact, guilty of the
    offense described in [P]aragraph 4,” 
    id.
     at 2 ¶ 5. At the
    change of plea hearing, in response to questions posed
    by the court, Tello specifically acknowledged that he
    had read the allegations of Count Two and wished to
    plead guilty to the same. R. 1824 at 6.
    It is clear, then, that Tello was pleading guilty to pre-
    cisely the same racketeering conspiracy that was alleged
    in the indictment. There is no risk of double jeopardy,
    which is one of the primary evils of constructive amend-
    ment (because the alteration of the charged offense
    leaves the defendant exposed to a second prosecution for
    the crime as set forth in the indictment). See, e.g., United
    States v. Folks, 
    236 F.3d 384
    , 392 (7th Cir. 2001). The indict-
    24                                 Nos. 10-2677 & 10-2933
    ment adequately detailed the conspiracy’s time frame,
    place, scope, participants, and intended categories of
    racketeering activities, and the plea agreement incorpo-
    rated all of those same details. And Tello cannot claim
    to have been caught by surprise by the offense to which
    he was pleading guilty (a second evil posed by a con-
    structive amendment, see United States v. Penaloza, 
    648 F.3d 539
    , 546 (7th Cir. 2011)), as the contours of the
    offense were committed to writing in an agreement
    that both he and his counsel reviewed and signed.
    We acknowledge that Paragraph 5 of the plea agree-
    ment set forth more than Tello’s simple admission to
    the allegations set forth in Count Two of the indictment.
    It went on to state that “[t]he defendant further admits
    that he conspired with other Latin King members to
    commit at least two qualifying criminal act[s] in further-
    ance of the criminal enterprise” and that “[t]he fol-
    lowing criminal acts were acts in furtherance of that
    conspiracy.” R. 1473 at 2 ¶ 5. Paragraph 5 then described
    two crimes in which Tello had participated, including
    the July 2002 attack on three members of the Mexican
    Posse gang (Rene and Daniel Carmona and Pedro
    Gaona) along with the October 2004 sexual assault upon
    a female minor. 
    Id.
     at 2-3 ¶ 5.
    But this does not signal that Tello was pleading guilty
    to a different or expanded offense. For all of the reasons
    we have discussed, it was unnecessary for Tello to
    admit that he participated in two or more predicate acts
    of racketeering, or to any overt act in furtherance of the
    charged racketeering conspiracy, in order to be found
    Nos. 10-2677 & 10-2933                                   25
    guilty on Count Two. Nonetheless, any criminal acts
    that Tello committed in furtherance of the conspiracy
    would matter for sentencing purposes, as those acts
    would constitute relevant conduct under the Sentencing
    Guidelines. U.S.S.G. § 1B1.3(a). This explains why the
    district court conducted an evidentiary hearing to de-
    termine Tello’s culpability for a third act, the June 2002
    attempted murder of Jose Espinoza. It also explains
    why, as anticipated in the plea agreement, Tello’s
    offense level was adjusted upward based on the injury
    inflicted on Rene Carmona in the July 2002 Mexican
    Posse incident.
    We note finally that this case is readily distinguishable
    from United States v. Bradley, 
    381 F.3d 641
     (7th Cir. 2004),
    upon which Tello relies. The defendant in Bradley was
    charged with using or carrying a firearm in furtherance
    of a drug trafficking offense, in violation of 
    18 U.S.C. § 924
    (c). Conduct constituting a drug trafficking crime
    is an element of a section 924(c) offense, and where,
    as in Bradley, the indictment specifies a particular drug
    trafficking crime, the government must prove that the
    defendant used or carried a firearm in furtherance of
    that particular crime. 
    381 F.3d at 646
    . The parties in
    Bradley failed to appreciate that point, and during the
    defendant’s plea colloquy the government identified a
    marijuana-related offense that was different from the
    cocaine base offense cited in the indictment, thereby
    modifying that element of the charged offense. In
    contrast to Bradley, the commission of a particular predi-
    cate act was not an essential element of the racketeering
    conspiracy offense with which Tello was charged. Conse-
    26                                Nos. 10-2677 & 10-2933
    quently, the plea agreement’s acknowledgment of predi-
    cate acts different from those cited in the indictment
    did not modify the offense in any material way. The
    essential elements to which Tello agreed remained
    the same from the indictment to the plea agreement.
    Those elements are outlined in paragraphs 15, 17, and 18
    of the indictment above. The sexual assault charge in-
    cluded in the plea agreement was relevant conduct com-
    mitted in addition to those elements and was not neces-
    sary to convict Tello under section 1962(d).
    Reviewing Tello’s argument in light of the proof neces-
    sary to sustain Tello’s conviction under section 1962(d),
    we conclude that no plain error occurred during the
    change of plea process. Both the indictment and the
    plea agreement contained sufficient information for Tello
    to knowingly and voluntarily plead guilty, and the
    two documents were wholly consistent with respect to
    the essential elements of racketeering conspiracy. Tello
    admitted to the elements of RICO conspiracy. Conse-
    quently, any disparity between the predicate acts of
    racketeering attributed to him in Count One of the in-
    dictment and the acts in furtherance of the conspiracy
    that he acknowledged in the plea agreement did not
    impact the validity of Tello’s guilty plea and convic-
    tion. None of those acts were essential to Tello’s guilt.
    B. Hill
    This is Hill’s second appeal and, like the first, it
    focuses on his sentence. Hill contends that after this
    court in the prior appeal sustained his challenge to the
    Nos. 10-2677 & 10-2933                                    27
    finding that he was a career offender, the district court
    was presented with a straightforward task on remand:
    to recalculate his offense level without the career
    offender designation, to determine whether his reckless
    endangerment conviction was properly considered as
    part of the RICO conspiracy to which he pleaded guilty
    in this case rather than as a distinct offense that was
    part of his prior criminal history, and then to re-sentence
    him once those two matters were addressed. Instead,
    the court allowed the government to propose an
    altogether different enhancement for being an acces-
    sory after the fact to a rival gang member’s murder,
    see U.S.S.G. § 2X3.1, notwithstanding the fact that this
    enhancement had not been raised previously. That en-
    hancement, which the district court found applicable,
    boosted Hill’s offense level nearly to what it had been
    when Hill was first deemed a career offender. Hill con-
    tends that the government had waived any reliance on
    this enhancement by not proposing it sooner, and that
    the district court exceeded the scope of our mandate
    by entertaining the government’s argument on remand.
    We agree.3
    Nothing stood in the way of the government raising
    the accessory-after-the-fact enhancement at the time of
    Hill’s first sentencing. Hill’s connection with the gun
    3
    Hill additionally contends that the record does not support
    imposition of the accessory enhancement. But because we
    conclude that the court should not have considered this en-
    hancement, we need not address the merits of the enhance-
    ment in this case.
    28                                   Nos. 10-2677 & 10-2933
    used to murder the rival gang member was known at
    that time; indeed, the relevant facts were recited in
    Hill’s plea agreement. R. 1130 at 3-4 (noting, inter alia,
    that the revolver used in murder of rival gang member
    was among four firearms discovered in the search of the
    residence that Hill used, that Hill was known to store
    firearms used by fellow gang members and admitted
    as much, and that Hill acknowledged knowing that
    the other three firearms were present). As we have
    noted, the plea agreement also stated that the parties had
    “discussed all of the sentencing guidelines provisions
    which they believe to be applicable to the offense . . .,” id.
    at 6 ¶ 12. Nowhere in the plea agreement, however,
    was there any mention that the accessory guideline
    might apply to Hill based on the presence of the
    revolver in his residence.
    The government contends that there was no need to
    raise the accessory guideline at the time of Hill’s original
    sentencing, because the district court’s determination
    that Hill was a career offender rendered other enhance-
    ments irrelevant. Yet, it was not a foregone conclu-
    sion that the court would find that Hill was a career
    offender: the plea agreement acknowledged only that
    Hill might qualify as a career offender, id. at 8 ¶ 18, and
    Hill himself argued to the court—correctly, as it turned
    out—that his criminal history did not meet the criteria
    for career-offender status, R. 1235 at 5-7; R. 1250. The
    government surely anticipated the possibility that the
    district court might agree with Hill that the career
    offender guideline did not apply, as well as the possi-
    bility that even if the district court deemed Hill a
    Nos. 10-2677 & 10-2933                                    29
    career offender, this court might see things differently,
    as it ultimately did in the prior appeal. The government
    thus had every reason to raise other potentially ap-
    plicable enhancements to Hill’s offense level.
    In short, there was no legitimate reason for the gov-
    ernment to ignore the accessory-after-the-fact guideline
    at the time of Hill’s first sentencing, and its failure to do
    so resulted in a waiver of its arguments as to that guide-
    line. The prior appeal focused solely on Hill’s criminal
    history (Chapter 4 of the Guidelines) and in particular
    on whether he qualified as a career offender under
    section 4B1.1. Our resolution of that issue in no way
    implicated the underlying offense conduct (Chapter 2
    of the Guidelines), which of course included Hill’s
    status as an accessory after the fact under section 2X3.1.
    When we remanded the case so that Hill could be re-
    sentenced, we instructed the court to consider whether
    Hill’s conviction for reckless endangerment encom-
    passed conduct that should be viewed as in furtherance
    of the conspiracy to which he pled guilty in this case
    rather than as an aspect of his prior criminal history;
    but we otherwise left the Guidelines calculations undis-
    turbed. Nothing in our decision invited the parties or
    the court to start from scratch and explore entirely
    new enhancements. See United States v. Parker, 
    101 F.3d 527
    , 528 (7th Cir. 1996) (“If the opinion identifies a
    discrete, particular error that can be corrected on remand
    without the need for a redetermination of other issues,
    the district court is limited to correcting that error.”).
    When it permitted the government to make a
    Guidelines argument that it had long since waived, the
    30                                  Nos. 10-2677 & 10-2933
    district court therefore exceeded the scope of our
    remand, as we likewise concluded in United States v.
    Wilson, 
    131 F.3d 1250
    , 1253 (7th Cir. 1997). There, we
    had ordered that Wilson be resentenced upon con-
    cluding that the district court had arrived at an
    erroneous offense level as a result of its decision not to
    group together his mail fraud and money laundering
    offenses. See United States v. Wilson, 
    98 F.3d 281
     (7th Cir.
    1996). On remand, the court grouped the two sets of
    convictions as instructed, but it also accepted the gov-
    ernment’s argument, made for the first time on
    remand, that the mail fraud should be treated as
    relevant conduct vis-à-vis the money laundering
    pursuant to U.S.S.G. § 1B1.3(a)(2). The relevant conduct
    determination had the effect of increasing Wilson’s
    offense level and sentencing range; and the sentence
    that the court imposed on remand exceeded the
    original sentence by twenty months. Wilson appealed a
    second time, and we concluded that the court had
    erred when it increased Wilson’s offense level based on
    an argument that the government had long since waived:
    That offense level was erroneous . . . because the
    district court exceeded the scope of our remand
    in reassessing the question of relevant conduct. In
    advance of our first decision in this case, the govern-
    ment had never asserted that Wilson’s acts of mail
    fraud qualified as relevant conduct for purposes of
    his money laundering conviction under section 1B1.3.
    The government, in other words, never suggested
    that the mail fraud and money laundering were
    related as relevant conduct either under subsection
    Nos. 10-2677 & 10-2933                                     31
    (a)(1) or (a)(2) of the relevant conduct guideline. In
    the absence of such an argument, the district court
    accepted the PSR’s recommendation that the mail
    fraud did not qualify as relevant conduct with
    respect to the money laundering. And having never
    advocated a relevant conduct finding below, the
    government did not cross-appeal on that issue once
    Wilson challenged the grouping determination in
    this court. The government also never suggested in
    briefing the first appeal that a decision in Wilson’s
    favor on the grouping issue would serve to reopen
    the matter of relevant conduct. For all intents and
    purposes, then, the relevant conduct issue had
    been finally determined by the time this court con-
    sidered Wilson’s first appeal, and nothing we could
    say about grouping would serve to reopen that issue.
    
    131 F.3d at 1253-54
    ; see also United States v. Sutton, 
    582 F.3d 781
    , 786 (7th Cir. 2009); cf. United States v. White, 
    406 F.3d 827
    , 832-33 & n.2 (7th Cir. 2005) (where district
    court found at first sentencing that defendant had ob-
    structed justice but did not apply obstruction enhance-
    ment because underlying conduct overlapped with con-
    duct supporting murder cross-reference, district court
    was free to impose enhancement on remand once
    murder cross-reference was held erroneous on appeal,
    as enhancement was based on existing record and gov-
    ernment was not afforded opportunity to present new
    evidence). What we said in Wilson is just as true here:
    Having failed to argue in the first instance that Hill was
    an accessory after the fact to a rival gang member’s mur-
    der, that subject was closed when we ordered that Hill
    be resentenced.
    32                                 Nos. 10-2677 & 10-2933
    The district court therefore erred in applying the ac-
    cessory guideline on remand. Hill must again be resen-
    tenced, this time without the section 2X3.1 enhancement.
    III.
    We A FFIRM Tello’s conviction. No plain error occurred
    with respect to the plea agreement’s identification of
    predicate acts of racketeering that were different from
    the acts cited in the indictment. We V ACATE Hill’s
    sentence and R EMAND for resentencing based on our
    conclusion that the district court exceeded the scope
    of our remand in permitting the government to make
    an argument for an enhancement to the offense level
    that it had waived by not raising previously.
    7-18-12
    

Document Info

Docket Number: 10-2677

Filed Date: 10/17/2012

Precedential Status: Precedential

Modified Date: 10/30/2014

Authorities (41)

united-states-v-james-walter-starrett-timothy-kevin-duke-michael-lee , 55 F.3d 1525 ( 1995 )

united-states-v-jose-diaz-also-known-as-jolly-jesse-rodriguez-also-known , 176 F.3d 52 ( 1999 )

United States v. Flemmi , 245 F.3d 24 ( 2001 )

United States v. Artez Lamont Rogers and Harrison R. King , 89 F.3d 1326 ( 1996 )

virginia-e-brouwer-wesley-baxter-alberta-e-haessig-hardy-hicks-jr , 199 F.3d 961 ( 2000 )

Stirone v. United States , 80 S. Ct. 270 ( 1960 )

United States v. Clarence Crockett and Albert Tocco , 979 F.2d 1204 ( 1992 )

United States v. Daniel P. Glecier , 923 F.2d 496 ( 1991 )

United States v. Carlos Quintanilla and Leticia Gutierrez , 2 F.3d 1469 ( 1993 )

United States v. Perez , 673 F.3d 667 ( 2012 )

United States v. Clinton S. Parker, Also Known as Spanky , 101 F.3d 527 ( 1996 )

united-states-v-robert-neapolitan-united-states-of-america-v-thomas , 791 F.2d 489 ( 1986 )

united-states-v-larry-olson-also-known-as-oreo-andrew-acosta-also-known , 450 F.3d 655 ( 2006 )

United States v. Miller , 105 S. Ct. 1811 ( 1985 )

United States v. King , 627 F.3d 641 ( 2010 )

United States v. John Cina , 699 F.2d 853 ( 1983 )

james-l-gagan-v-american-cablevision-inc-allwave-cable-construction , 77 F.3d 951 ( 1996 )

United States v. Abdul Karim Alhalabi , 443 F.3d 605 ( 2006 )

judith-goren-individually-and-on-behalf-of-all-others-similarly-situated , 156 F.3d 721 ( 1998 )

United States v. Penaloza , 648 F.3d 539 ( 2011 )

View All Authorities »