United States v. Jesus Tello

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