State v. Rogelio Guarnero

2015 WI 72

SUPREME COURT OF WISCONSIN
CASE NO.: 2013AP1753-CR & 2013AP1754-CR
COMPLETE TITLE: State of Wisconsin,
Plaintiff-Respondent,
v.
Rogelio Guarnero,
Defendant-Appellant-Petitioner.

REVIEW OF A DECISION OF THE COURT OF APPEALS
(Reported at 354 Wis. 2d 307, 848 N.W.2d 329)
(Ct. App. 2014 – Published)
PDC No: 2014 WI App 56

OPINION FILED: July 9, 2015
SUBMITTED ON BRIEFS:
ORAL ARGUMENT: March 10, 2015

SOURCE OF APPEAL:
COURT: Circuit
COUNTY: Milwaukee
JUDGE: Timothy G. Dugan

JUSTICES:
CONCURRED:
DISSENTED:
NOT PARTICIPATING: BRADLEY, ABRAHAMSON, J.J., dissent. (Opinion
Filed.)

ATTORNEYS:
For the defendant-appellant-petitioner, there were briefs
by Robert J. Eddington, Milwaukee, and oral argument by Robert
J. Eddington.

For the plaintiff-respondent, the cause was argued by Sara
Lynn Larson, assistant attorney general, with whom on the brief
was Brad Schimel, attorney general.
 2015 WI 72
NOTICE
This opinion is subject to further
editing and modification. The final
version will appear in the bound
volume of the official reports.
No. 2013AP1753-CR & 2013AP1754-CR
(L.C. No. 2012CF2319 & 2012CF4088)

STATE OF WISCONSIN : IN SUPREME COURT

State of Wisconsin,

Plaintiff-Respondent, FILED
v. JUL 9, 2015
Rogelio Guarnero, Diane M. Fremgen
Clerk of Supreme Court
Defendant-Appellant-Petitioner.

REVIEW of a decision of the Court of Appeals. Affirmed.

¶1 PATIENCE DRAKE ROGGENSACK, C.J. We review a decision
of the court of appeals1 that affirmed the circuit court's2

conclusion that Rogelio Guarnero's prior federal RICO3 conspiracy
conviction served as a prior conviction under Wis. Stat.

1
State v. Guarnero, 2014 WI App 56, 354 Wis. 2d 307, 848
N.W.2d 329.
2
The Honorable Timothy G. Dugan of Milwaukee County
presided.
3
Racketeer Influenced and Corrupt Organizations Act, 18
U.S.C. §§ 1961-68 (2005).
 No. 2013AP1753-CR & 2013AP1754-CR

§ 961.41(3g)(c) (2011-12)4 and therefore enhanced the penalty for
his Wisconsin cocaine possession conviction. Under
§ 961.41(3g)(c), a court concludes that cocaine possession is a
second offense when a statute under which the defendant
previously was convicted relates to controlled substances. The
circuit court considered the language of the RICO conspiracy
statute and Guarnero's RICO indictment to reach its conclusion
that the RICO conspiracy statute related to controlled
substances and therefore enhanced Guarnero's cocaine possession
to a second offense under § 961.41(3g)(c).5
¶2 Guarnero appealed, contending that the circuit court
improperly enhanced the penalty for conviction of cocaine

possession due to his prior RICO conspiracy conviction.
Guarnero also argued that his felony bail-jumping conviction
should have been a misdemeanor offense because his cocaine
possession conviction should have been an unenhanced
misdemeanor. The court of appeals affirmed the circuit court,
concluding that RICO and 18 U.S.C. § 1962(c) and (d) (2005)6
related to controlled substances. State v. Guarnero, 2014 WI
App 56, ¶8, 354 Wis. 2d 307, 848 N.W.2d 329.

4
All subsequent references to the Wisconsin Statutes are to
the 2011-12 version unless otherwise indicated.
5
A second or subsequent offense is a Class I felony. Wis.
Stat. § 961.41(3g)(c).
6
All subsequent references to the United States Code are to
the 2005 version unless otherwise indicated.

2
 No. 2013AP1753-CR & 2013AP1754-CR

¶3 We conclude that Guarnero's prior conviction, due to
the manner in which Guarnero violated the RICO conspiracy
statute, relates to controlled substances. Therefore,
Guarnero's prior RICO conviction enhances the penalty for
cocaine possession under Wis. Stat. § 961.41(3g)(c) to a second
offense as a Class I felony. We further conclude that
Guarnero's bail-jumping offense is properly a felony conviction.
Accordingly, we affirm the court of appeals decision that
affirmed the circuit court's denial of Guarnero's motion to
dismiss and motion for postconviction relief.7
I. BACKGROUND
¶4 In 2005, a grand jury issued a 38-count indictment in

the United States District Court for the Eastern District of
Wisconsin, alleging that 49 members of the Milwaukee chapter of
the Latin Kings violated RICO. Guarnero was one of the 49
individuals indicted. He was personally charged with five of
the 38 counts: counts 2, 20, 24, 25 and 26.
¶5 Count Two of the indictment alleged that Guarnero and
others were members or associates of the Latin Kings, a criminal
racketeering organization that "engaged in acts of violence,
including murder, attempted murder, robbery, extortion and
distribution of controlled substances." Count Two of the
indictment also alleged that Guarnero knowingly and

7
Guarnero, 354 Wis. 2d 307, ¶¶12, 14.

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 No. 2013AP1753-CR & 2013AP1754-CR

intentionally conspired with others to violate 18 U.S.C.
§ 1962(c):

[T]o conduct and participate, directly and indirectly,
in the conduct of the affairs of that enterprise
through a pattern of racketeering activity involving
. . . multiple acts involving the distribution of
controlled substances including cocaine, cocaine base
in the form of "crack" cocaine and marijuana in
violation of the laws of the United States[.]
The indictment continued: "It was a part of the conspiracy that
each defendant agreed that a conspirator would commit at least
two acts of racketeering activity in the conduct of the affairs
of the enterprise," and that this conduct violated 18 U.S.C.
§ 1962(d). Guarnero was charged with four other counts that
involved possession of marijuana and firearms.

¶6 Guarnero pled guilty to conspiracy of violating RICO
as set out in Count Two, and the United States dismissed the
remaining counts of the indictment. The plea agreement
contained a section titled "Elements," which stated:

The parties understand and agree that in order to
sustain the charge of Conspiracy to Commit RICO as set
forth in Count Two, the government must prove each of
the following propositions beyond a reasonable doubt:

First, that the defendant knowingly conspired to
conduct or participate in the conduct of the affairs
of the Milwaukee Latin Kings, an enterprise, through a
pattern of racketeering activity as described in Count
Two;

Second, that the Milwaukee Latin Kings were an
enterprise; and

Third, that the activities of the Milwaukee Latin
Kings would affect interstate commerce.

4
 No. 2013AP1753-CR & 2013AP1754-CR

Guarnero's plea agreement acknowledged that Guarnero had
conspired to commit at least two qualifying criminal acts, but
the plea agreement did not specify which acts he had committed.
The plea agreement also contained Guarnero's admission that
police officers found marijuana in his apartment while they
executed a firearm search warrant at Guarnero's residence.
¶7 In August 2012, Guarnero was arrested for possession
of cocaine in violation of Wis. Stat. § 961.41(3g)(c), which
contains an enhanced penalty provision. The provision enhances
the penalty for a cocaine possession conviction to a second or
subsequent offense if the defendant has previously "been
convicted of any felony or misdemeanor under this chapter or

under any statute of the United States or of any state relating
to controlled substances." § 961.41(3g)(c). The complaint
listed Guarnero's RICO conspiracy conviction, noted that it was
related to controlled substances, and listed the cocaine
possession as a felony second or subsequent offense contrary to
§ 961.41(3g)(c).
¶8 Guarnero filed a motion to dismiss the cocaine
possession charge, arguing that his prior RICO conviction could
not serve as a prior conviction to enhance the penalty for
cocaine possession conviction to a second offense under Wis.
Stat. § 961.41(3g)(c). The circuit court denied Guarnero's
motion to dismiss. The court recognized the many possible bases

for RICO convictions and concluded that RICO was related to
controlled substances because of the specific charges in Count
Two of the indictment. Guarnero petitioned for leave to take an
5
 No. 2013AP1753-CR & 2013AP1754-CR

interlocutory appeal of the circuit court's denial of his motion
to dismiss. The court of appeals denied leave.8
¶9 Subsequently, the circuit court found Guarnero guilty
of violating Wis. Stat. § 961.41(3g)(c). Guarnero stipulated to
the facts of his possession of cocaine and his prior RICO
conspiracy conviction. Under the § 961.41(3g)(c) enhancement,
Guarnero's cocaine possession constituted a felony. The court
also convicted Guarnero of felony bail jumping, an offense that
occurred while Guarnero was on bail for the felony cocaine
possession charge.
¶10 Guarnero moved for postconviction relief, which the
circuit court denied. The circuit court concluded that a "RICO

conviction can deal with drug-related activity or not be related
to drugs or drug activity." The court also noted that "count
two of the federal indictment related to distribution of
controlled substances, including cocaine and other drugs."
¶11 The court of appeals affirmed the circuit court
orders. Guarnero, 354 Wis. 2d 307, ¶¶1, 14. The court referred
to Guarnero's guilty plea and held that the RICO conspiracy
statute related to controlled substances. Id., ¶12. The court
rejected Guarnero's arguments based on the rule of lenity and
due process. Id., ¶13. The court of appeals also affirmed
Guarnero's conviction for felony bail jumping. Id., ¶14.

8
At that time, the court of appeals also denied Guarnero's
motion to consolidate Milwaukee County Circuit Court Case Nos.
12CF2319 and 12CF4088. The court of appeals later consolidated
the cases on August 20, 2013.

6
 No. 2013AP1753-CR & 2013AP1754-CR

II. DISCUSSION
A. Standard of Review
¶12 We review the court of appeals' affirmance of the
circuit court's denial of Guarnero's motion to dismiss and
motion for postconviction relief in which Guarnero argued that
his prior RICO conspiracy conviction was not related to
controlled substances under Wis. Stat. § 961.41(3g)(c). In
order to review the questions presented, we interpret
§ 961.41(3g)(c). Statutory interpretation presents a question
of law that we independently review, while benefitting from the
discussions of the court of appeals and the circuit court.
Richards v. Badger Mut. Ins. Co., 2008 WI 52, ¶14, 309 Wis. 2d
541, 749 N.W.2d 581.
B. Statutory Interpretation
¶13 Our review focuses on whether a federal RICO
conspiracy conviction is related to controlled substances so
that it may serve as a prior conviction triggering penalty
enhancement for a cocaine possession conviction under Wis. Stat.
§ 961.41(3g)(c). When we interpret a statute, we "begin[] with
the language of the statute. If the meaning of the statute is
plain, we ordinarily stop the inquiry." State ex rel. Kalal v.
Circuit Court for Dane Cnty., 2004 WI 58, ¶45, 271 Wis. 2d 633,
681 N.W.2d 110 (internal quotation marks and citation omitted).
We give statutory language its "common, ordinary, and accepted
meaning, except that technical or specially-defined words or
phrases are given their technical or special definitional
meaning." Id.
7
 No. 2013AP1753-CR & 2013AP1754-CR

¶14 Our focus is on "relating to controlled substances" in
Wis. Stat. § 961.41(3g)(c), the statute that prohibits
possession of cocaine, which provides:

Cocaine and cocaine base. If a person
possess[es] or attempts to possess cocaine or cocaine
base, or a controlled substance analog of cocaine or
cocaine base, the person shall be fined not more than
$5,000 and may be imprisoned for not more than one
year in the county jail upon a first conviction and is
guilty of a Class I felony for a 2nd or subsequent
offense. For purposes of this paragraph, an offense
is considered a 2nd or subsequent offense if, prior to
the offender's conviction of the offense, the offender
has at any time been convicted of any felony or
misdemeanor under this chapter or under any statute of
the United States or of any state relating to
controlled substances, controlled substance analogs,
narcotic drugs, marijuana, or depressant, stimulant,
or hallucinogenic drugs.
¶15 The statutory phrase, "relating to controlled
substances," in Wis. Stat. § 961.41(3g)(c) is undefined. As the
words the legislature chose are not technical or specially-
defined, we give them their "common, ordinary, and accepted
meaning." Id., ¶45.
¶16 In order to determine the common meaning of "relating
to," we turn to a dictionary definition of "relate." Id., ¶54
(referring to the dictionary definition of statutory language
with a common meaning). "Relate" is defined as a "connection,
relation, or reference." The American Heritage Dictionary of
the English Language 1482 (5th ed. 2011). We conclude that Wis.
Stat. § 961.41(3g)(c) requires that the prior conviction be
connected to controlled substances if a prior conviction is to
trigger penalty enhancement under § 961.41(3g)(c).

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 No. 2013AP1753-CR & 2013AP1754-CR

¶17 Our interpretation of "relating to" is consistent with
the court of appeals' interpretation of "relating to controlled
substances" in State v. Moline, 229 Wis. 2d 38, 598 N.W.2d 929
(Ct. App. 1999).9 In Moline, the parties advanced technical
interpretations of the phrase, "relating to controlled
substances," that were grounded in punctuation and grammatical
nuances. Id. at 41-42. The court rejected technical
interpretations in favor of a commonsense reading of "relating
to" and concluded that Moline's prior conviction for possession
of drug paraphernalia was "linked" to controlled substances.
Id. at 42. We interpret Wis. Stat. § 961.41(3g)(c) as requiring
the prior conviction, here RICO conspiracy, to be connected to

or linked to controlled substances, just as possession of drug
paraphernalia was in Moline.10

9
In State v. Moline, 229 Wis. 2d 38, 41-42, 598 N.W.2d 929
(Ct. App. 1999), the court of appeals interpreted "relating to
controlled substances" as used in Wis. Stat. § 961.48(3), which
includes the same penalty enhancement structure as Wis. Stat.
§ 961.41(3g)(c).
10
After oral argument, we ordered the parties to provide
supplemental briefs on an issue that Guarnero asserted the State
raised for the first time at oral argument. He asserted that at
oral argument the State first argued that "18 U.S.C.
§ 841(b)(1)(C)" in the RICO judgment of conviction was a
scrivener's error and the correct statute was 21 U.S.C.
§ 841(b)(1)(C). 21 U.S.C. § 841(b)(1)(C) lists controlled
substances offenses and penalties.

(continued)
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 No. 2013AP1753-CR & 2013AP1754-CR

C. Application to Federal RICO Conspiracy
¶18 We next apply our interpretation of "relating to
controlled substances" in Wis. Stat. § 961.41(3g)(c) to
Guarnero's prior conviction for a RICO conspiracy. Guarnero was
convicted of 18 U.S.C. § 1962(d), which causes conspiring to
violate subsections (a), (b), and (c) to be unlawful. 18 U.S.C.
§ 1962(d). Each subsection, (a) through (c), involves
racketeering activity11 and serves to link RICO conspiracy with
racketeering activities that could involve controlled
substances.12
¶19 The definition of racketeering activity lists many
qualifying offenses, including "dealing in a controlled

substance or listed chemical (as defined in section 102 of the
Controlled Substances Act)" and "the felonious manufacture,

In supplemental briefing, Guarnero contended that the
scrivener's error was the inclusion of a reference to
§ 841(b)(1)(C), regardless of the chapter number. Guarnero
argues that he pled guilty and was convicted of Count Two of the
federal indictment that included 18 U.S.C. § 1962(d), a RICO
conspiracy charge, and that the reference to 18 U.S.C.
§ 841(b)(1)(C) was in error. However, neither the State's
reference at oral argument nor Guarnero's discussion in
supplemental briefing affects our approach to the issues
presented by the parties to this review.
11
Subsections of 18 U.S.C. § 1962 involve a pattern of
racketeering activity: (a) deriving income from racketeering
activity; (b) acquiring interest in an enterprise through
racketeering activity; or (c) participating in an enterprise
through racketeering activity.
12
Count Two of Guarnero's RICO indictment clarifies that
Guarnero's conspiracy charge was based on Guarnero conspiring to
violate 18 U.S.C. 1962(c).

10
 No. 2013AP1753-CR & 2013AP1754-CR

importation, receiving, concealment, buying, selling, or
otherwise dealing in a controlled substance or listed chemical
(as defined in section 102 of the Controlled Substances Act),
punishable under any law of the United States." 18 U.S.C.
§ 1961(1)(A) & (D). RICO conspiracy can be related to
controlled substances for the purposes of Wis. Stat.
§ 961.41(3g)(c) because RICO conspiracy in 18 U.S.C. § 1962(d)
is connected to controlled substances through the racketeering
activity definition, § 1961(1)(A) and (D).
¶20 However, we determine which racketeering activity
supports Guarnero's RICO conspiracy conviction, because only
some of the multiple definitions of racketeering activity in 18

U.S.C. § 1961(1) are linked to controlled substances. Such a
determination is necessary to ascertain whether the unlawful
conduct underlying his prior conviction is related to controlled
substances. For example, were we not to consider the unlawful
conduct that gave rise to the RICO conviction, a defendant
convicted of RICO conspiracy based on sports bribery could have
his or her penalty erroneously enhanced under Wis. Stat.
§ 961.41(3g)(c) because sports bribery fits within the
definition of racketeering activity, but is not related to
controlled substances. See 18 U.S.C. § 1961(1)(B).
¶21 When the statute underlying a prior conviction
presents alternative methods of violating the statute, it is
appropriate to consult a limited class of documents to determine
what statutory alternative formed the basis for the defendant's
prior conviction. See Descamps v. United States, __ U.S. __,
11
 No. 2013AP1753-CR & 2013AP1754-CR

133 S. Ct. 2276, 2285 (2013). In this case, we can glean the
necessary information from Guarnero's RICO conspiracy plea,
which incorporates Count Two of his RICO indictment.
¶22 Guarnero's RICO conspiracy plea shows that he was
convicted of RICO conspiracy based on racketeering activity
involving controlled substances. To explain further, Guarnero's
plea agreement contained his admission that as a member of the
Latin Kings he engaged in acts that included the "extortion and
distribution of controlled substances" because Count Two of the
indictment is attached to his plea agreement. Count Two
provides that, as a member of the Latin Kings, he "engaged in"
the "distribution of controlled substances." These documents

confirm that the method of racketeering activity that underlies
the RICO conspiracy of which Guarnero was convicted related to
controlled substances. Because Guarnero's RICO conspiracy
conviction was related to controlled substances within the
meaning of Wis. Stat. § 961.41(3g)(c), the penalty for
Guarnero's cocaine possession conviction was properly enhanced.13

13
In a recent Supreme Court opinion, Mellouli v. Lynch, __
U.S. __, 135 S. Ct. 1980 (2015), the Court discussed whether
conviction of a state crime is a deportable offense. Id. at
1982-83. Mellouli focused on whether the controlled substance
that resulted in a state conviction was a controlled substance
"included in one of five federal schedules." Id. at 1984. It
has no application here, as it does not focus on determining
which of several statutory alternatives formed the basis for the
defendant's prior conviction.

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 No. 2013AP1753-CR & 2013AP1754-CR

D. Sixth Amendment
¶23 Guarnero also contends that his Sixth Amendment rights
were violated by the court's examination of more than the
elements of his RICO conviction, rather than a jury's
consideration of the facts underlying his RICO conviction.
Under the Sixth Amendment, "[i]n all criminal prosecutions, the
accused shall enjoy the right to a speedy and public trial, by
an impartial jury." U.S. Const. amend. VI.
¶24 The United States Supreme Court has held that "any
fact that increases the penalty for a crime beyond the
prescribed statutory maximum must be submitted to a jury, and
proved beyond a reasonable doubt." Apprendi v. New Jersey, 530
U.S. 466, 490 (2000). The Court stated that the sole exception
is the fact of a prior conviction. Id. The Court revisited
this concern in Shepard v. United States, 544 U.S. 13 (2005).
There, in reviewing a plea, the Court approved use of the
charging document, plea agreement or transcript of a plea
colloquy, but only to assess whether Shepard pled to violating
the statute by a method that permitted the penalty to be
enhanced under the Armed Career Criminal Act. Id. at 25-26.
The transcript was not to be used "to determine 'what the
defendant and state judge must have understood as the factual
basis of the prior plea.'" Descamps, 133 S. Ct. at 2284
(quoting Shepard, 544 U.S. at 25).
¶25 In State v. LaCount, 2008 WI 59, 310 Wis. 2d 85, 750
N.W.2d 780, we considered the effect of Apprendi and Shepard on

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 No. 2013AP1753-CR & 2013AP1754-CR

a circuit court's role in determining whether a prior conviction
provided the basis for enhancing a defendant's sentence.

The Shepard decision relaxed the holdings of . . .
Apprendi . . . so that, when Shepard and Apprendi are
read together, a trial court judge, rather than a
jury, is allowed to determine the applicability of a
defendant's prior conviction for sentence enhancement
purposes, when the necessary information concerning
the prior conviction can be readily determined from an
existing judicial record.
Id., ¶52.14 In our review of whether Guarnero's prior RICO
conspiracy conviction applied to enhance his cocaine possession
conviction, we rely on necessary information from Guarnero's

existing judicial record, his guilty plea. Our examination of
Guarnero's guilty plea did not violate Guarnero's Sixth
Amendment right because it is consistent with the principles
underlying Apprendi and Shepard as we explained in LaCount. Id.
E. Rule of Lenity
¶26 Guarnero further asserts that the meaning of the
phrase, "relating to controlled substances," in Wis. Stat.
§ 961.41(3g)(c) is ambiguous; and accordingly, the rule of

lenity requires that the ambiguity be resolved in his favor.
The rule of lenity provides that when doubt exists as to the
meaning of a criminal statute, "a court should apply the rule of
lenity and interpret the statute in favor of the accused."
State v. Cole, 2003 WI 59, ¶13, 262 Wis. 2d 167, 663 N.W.2d 700.

14
Descamps v. United States, __ U.S. __, 133 S. Ct. 2276,
2288 (2013) confirms our conclusion in State v. LaCount, 2008 WI
59, 310 Wis. 2d 85, 750 N.W.2d 780.

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 No. 2013AP1753-CR & 2013AP1754-CR

Stated otherwise, the rule of lenity is a canon of strict
construction, ensuring fair warning by applying criminal
statutes to "conduct clearly covered." United States v. Lanier,
520 U.S. 259, 266 (1997); see also United States v. Castleman,
__ U.S. __, 134 S. Ct. 1405, 1416 (2014) (addressing the need
for fair warning implicit in the rule of lenity).
¶27 However, the rule of lenity applies if a "grievous
ambiguity" remains after a court has determined the statute's
meaning by considering statutory language, context, structure
and purpose, such that the court must "simply guess" at the
meaning of the statute. Castleman, 134 S. Ct. at 1416; see
Kalal, 271 Wis. 2d 633, ¶¶45-46. Here, applying the rule of

lenity is unnecessary. There is no "grievous ambiguity" or
uncertainty in Wis. Stat. § 961.41(3g)(c) that would cause a
court to "simply guess" as to the meaning of the statute.
Castleman, 134 S. Ct. at 1416. There is no grievous ambiguity
in § 961.41(3g)(c), in 18 U.S.C. § 1961(1)(A)&(D), or in 18
U.S.C. § 1962(d). Accordingly, we do not apply the rule of
lenity.
F. Due Process
¶28 As a final argument, Guarnero contends that he did not
have fair notice that his guilty plea to the RICO conspiracy
charge could subject him to sentence enhancement in a subsequent
criminal case because no Wisconsin case had held such a
conviction related to controlled substances. "[D]ue process
bars courts from applying a novel construction of a criminal
statute to conduct that neither the statute nor any prior
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 No. 2013AP1753-CR & 2013AP1754-CR

judicial decision has fairly disclosed to be within its scope."
Lanier, 520 U.S. at 266.
¶29 Guarnero's contention misses his mark in at least two
respects. First, our construction of Wis. Stat. § 961.41(3g)(c)
is not "novel," but rather, a commonsense reading of the words
the legislature chose. Second, Moline explained that "[i]f it
is found to be related to drugs, it is very clearly an offense
which may serve as the basis for an enhanced penalty." Moline,
229 Wis. 2d at 42. Our statutory interpretation herein is
consistent with Moline where the same plain language, "relating
to controlled substances" that appears in § 961.41(3g)(c) was
interpreted in Wis. Stat. § 961.48(3), thereby giving notice of

conduct that could result in sentence enhancement. Accordingly,
due process does not bar enhancement of Guarnero's conviction
under § 961.41(3g)(c).15
15
In a recent Supreme Court opinion, Johnson v. United
States, 576 U.S. __ (2015), the Court discussed whether part of
the "residual clause" of the Armed Career Criminal Act (ACCA)
that provides, "otherwise involves conduct that presents a
serious potential risk of physical injury to another," 18 U.S.C.
§ 924(e)(2)(B)(ii), is unconstitutionally vague, in violation of
the due process clause. Johnson, 576 U.S. __, at 5. Johnson is
of even passing consideration here because a line of ACCA cases
is analogous to the approach we have taken: choosing between
examination solely in terms of how the law defines an offense,
or examination of a limited class of documents to determine what
statutory alternative formed the basis for the defendant's prior
conviction. See United States v. Castleman, __ U.S. __, 134
S. Ct. 1405, 1413-14 (2014). The differing approaches apply to
different parts of the ACCA language. Id. at 1409, 1413-14;
Johnson, 576 U.S. __, at 4. The former approach applies to 18
U.S.C. § 924(e)(2)(B)(ii) and the latter applies to 18 U.S.C.
§ 924(e)(2)(B)(i). The Court does not decide between the two
approaches.
(continued)
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III. CONCLUSION
¶30 We conclude that Guarnero's prior conviction, due to
the manner in which Guarnero violated the RICO conspiracy
statute, relates to controlled substances. Therefore,
Guarnero's prior RICO conviction enhances the penalty for
cocaine possession under Wis. Stat. § 961.41(3g)(c) to a second
offense as a Class I felony. We further conclude that
Guarnero's bail-jumping offense is properly a felony conviction.
Accordingly, we affirm the court of appeals decision that
affirmed the circuit court's denial of Guarnero's motion to
dismiss and motion for postconviction relief.
By the Court.—The decision of the court of appeals is

affirmed.

The Court's vagueness concerns centered on the necessity of
imagining whether an "ordinary case" of a particular crime
involved sufficient risk. Johnson, 576 U.S. __, at 5. The
Court mentioned one of the federal analogs to our analysis in
passing, essentially noting that because Johnson was a
§ 924(e)(2)(B)(ii) case, the "solely in terms of the law"
approach applied. Johnson does not affect the validity of the
alternate approach, which mirrors the analysis here.

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¶31 ANN WALSH BRADLEY, J. (dissenting). In reading the
five paragraphs of the majority's brief statutory analysis, one
would never guess that the issue presented is one of first
impression in this state. The petition for review states the
issue as follows: Did the court of appeals err when it looked
"beyond the statutory elements of Guarnero's prior racketeering
conspiracy conviction and conclude that his prior conviction was
a second or subsequent offense."
¶32 Nor would one likely guess that in a one-sentence

pronouncement, tucked away in its application discussion, the
majority actually answers this question of first impression——
without any acknowledgement that it is doing so and without any
analysis whatsoever.
¶33 Our responsibility to develop and clarify the law is
not well served by the majority's failure to acknowledge the
issue and subject it to analysis. It is particularly
problematic because this issue is not only one of first

impression but also one of statewide importance having the
potential to affect the interpretation of numerous criminal
statutes.
¶34 The court of appeals forthrightly addressed the issue
and after a thorough analysis adopted an approach called the
modified categorical approach, meaning in essence that in
applying "related to" a court may look beyond the statutory
elements of the conviction to limited extraneous documents. The
court of appeals, however, did not have the benefit of the most
recent United States Supreme Court decision, which, along with

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 No. 2013AP1753-CR & 2013AP1754-CR.awb

other precedent, appears to suggest a contrary result. The
majority has the benefit of Mellouli v. Lynch, 135 S. Ct. 1980
(2015), decided June 1, 2015, but its opinion fails to discuss
it, referencing the case only briefly in a single footnote.
¶35 Regardless of whether we adopt as a matter of first
impression the categorical approach (looking to the elements
only) or a modified categorical approach (looking beyond the
elements to extraneous documents), one thing is clear: neither
the statute, Wis. Stat. § 961.41(3g)(c), nor its legislative

history answers the question. They are silent on the issue of
how broadly or narrowly the term "related to" should be defined.
¶36 Because it is unclear if "related to" should be
narrowly construed, limited to looking only at the statutory
elements, or more broadly construed, looking beyond the
elements, the statute is ambiguous. Given the ambiguity, I would
apply the rule of lenity which dictates that ambiguity in penal
statutes be interpreted in favor of the defendant. Accordingly,

I respectfully dissent.
I
¶37 The majority's statutory analysis of Wis. Stat.
§ 961.41(3g)(c) is truncated. Consisting of a mere five
paragraphs, it is limited to consulting a dictionary definition
of "relate" and a case addressing the interpretation of "relate"
with respect to a different prior offense. Majority op., ¶¶13-
17.
¶38 Based on its determination that "relating to" means
"connected with" or "linked to" the majority determines that the

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statutory language is clear. Tucked away in its application
discussion, and without analysis, the majority makes a one-
sentence pronouncement that answers the issue of first
impression without acknowledging that it is doing so. It
chooses the modified categorical approach, allowing for looking
beyond the statutory elements to a limited class of other
documents: "[w]hen the statute underlying a prior conviction
presents alternative methods of violating the statute, it is
appropriate to consult a limited class of documents to determine

what statutory alternative formed the basis for the defendant's
prior conviction." Id., ¶21.

¶39 Ultimately the majority declines to follow the rule of
lenity, which dictates that ambiguous or uncertain penal
statutes be interpreted in favor of defendants. Having
determined that the statutory language is clear, it concludes
that the rule of lenity does not apply. Id., ¶27.
II

¶40 The majority's analysis of the statutory language begs
the question. Just as "relating to" fails to inform how broadly
or narrowly those words should be defined, so do the substitute
words "connected with" and "linked to." They are mere synonyms,
providing no additional insight into how broadly or narrowly the
term "relating to" should be defined.
¶41 We are left to question if a reference to controlled
substances in a document relating to the conviction will suffice
to render it a conviction relating to a controlled substance, or
if the involvement of controlled substances must be an element

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proved in obtaining the conviction. Thus, defining the words
"relating to" as "to be connected with or linked to" does not
answer the issue before us: Did the court of appeals err when it
looked "beyond the statutory elements of Guarnero's prior
racketeering conspiracy conviction and conclude that his prior
conviction was a second or subsequent offense?"
¶42 The parties debate between two possible approaches for
answering this issue. Guarnero contends that the categorical
approach should govern. Under that approach, a court's inquiry

into a past conviction is limited to considering the elements of
the statute violated. If a relationship to controlled
substances is not required in order for there to be a conviction
under the statute, then it could not be considered a conviction
relating to controlled substances.
¶43 In contrast, the State advocates for the modified
categorical approach. That approach would permit the court to
consult a limited number of extraneous documents to determine if

the prior conviction involved controlled substances.
¶44 This court has not previously addressed the debate
over whether to adopt the categorical approach or the modified
categorical approach. The issue is one of first impression that
may have far-reaching effects due to the host of Wisconsin
statutes depending on the characterization of prior offenses.
See, e.g., Wis. Stat. §§ 939.615(2)(b), 939.618(2), 939.619(2),
940.43(5), 940.45(5).
¶45 Ignoring the debate, the majority takes an approach
that appears to be contrary to the well-established approach

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 No. 2013AP1753-CR & 2013AP1754-CR.awb

recently affirmed by the United States Supreme Court, without
any explanation why. Without commenting on the lengthy briefing
and murky case law on this issue, and without acknowledging it
as an issue, the majority addresses it in a single sentence. It
announces "[w]hen the statute underlying a prior conviction
presents alternative methods of violating the statute, it is
appropriate to consult a limited class of documents to determine
what statutory alternative formed the basis for the defendant's
prior conviction." Majority op., ¶21 (citing Descamps v. United

States, 133 S. Ct. 2276, 2285 (2013)).
¶46 A recent pronouncement of the United States Supreme
Court suggests this is error.
¶47 In Mellouli v. Lynch, 135 S. Ct. 1980 (June 1, 2015),
the Supreme Court considered whether a state drug conviction
qualified as a law "relating to a controlled substance" under a
federal deportation statute, 8 U.S.C. § 1227(a)(2)(B)(i). The
Court observed that the definition of "controlled substance" in

the state law included at least nine substances not included in
the federal list of controlled substances. Id. at 1984, 1988.
¶48 The Court also acknowledged that there is a long
history of limiting an assessment of a conviction to the
language of the statute and disallowing an examination of the
facts underlying the crime. Id. at 1986-87. Following that
history, the Court did not use the modified categorical approach
of consulting extraneous documents. Rather, it focused on the
words of the statutes and determined that because the definition
of controlled substances in the state law was broader than that

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in the federal law, the state crime did not constitute a
conviction relating to controlled substances. Id. at 1988.
¶49 This case appears analogous to Mellouli. As with
Mellouli, the statute that the defendant previously violated, 18
U.S.C. § 1962(d), contains a phrase that is broadly defined such
that a conviction under the statute may or may not be a prior
conviction relating to controlled substances.1 As with Mellouli,
the face of the statute Guarnero violated does not reveal which
portion of the definition was the basis for his conviction.

Thus, there is a strong implication that like Mellouli, the

analysis should end there with the conclusion that Guarnero's
prior conviction does not qualify as a crime relating to
controlled substances. Extraneous documents relating to his
conviction should not be consulted.
¶50 Rather than analyzing this case law, the majority
supports its approach with a single citation, "See Descamps v.
United States." Majority op., ¶21. However, Descamps does not

clearly support its decision to use the modified categorical
approach because it clarifies that the approach applies only in
limited circumstances.
¶51 In Descamps the Court considered whether the violation
of a state statute prohibiting burglary qualified as a violent
felony under the Armed Career Criminal Act (ACCA). 133 S. Ct.
2276. The state statute at issue contained a broader definition

1
The definition of "racketeering activity," refers to
approximately 90 different crimes, including some involving
controlled substances. 18 U.S.C. § 1961(1).

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 No. 2013AP1753-CR & 2013AP1754-CR.awb

of burglary than the definition in the ACCA. The Court observed
that when a state law defines a crime in the alternative, a
court may "examine a limited class of documents to determine
which of a statute's alternative elements formed the basis of
the defendant's prior conviction." Id. at 2284. However, it
stressed that this approach, referred to as the modified
categorical approach, applies only to a "narrow range of cases."
Id. at 2283-84 (citing Taylor v. United States, 495 U.S. 575
(1990)). "Our decisions authorize review of the plea colloquy

or other approved extra-statutory documents only when a statute
defines burglary not (as here) overbroadly, but instead
alternatively . . . ." Id. at 2286.

¶52 Ultimately the Descamps Court determined that the
modified categorical approach was inapplicable to the state
statute it was considering because the statute merely defined
burglary more broadly than the federal statute and did not
contain alternative elements. Id. at 2285. Because an

individual could violate the state statute without committing a
violent felony, the court concluded that the state conviction
could not qualify as a violent felony conviction. Id.
¶53 The majority makes no attempt to determine whether a
crime involving a controlled substance was an element of
Guarnero's RICO conviction or was merely part of a broad
definition of "racketeering activity." Descamps and Mellouli
stress this is an important distinction because a court may not

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apply the modified categorical approach where there is merely a
broadly defined term.2
III
¶54 Regardless if it is determined as a matter of first
impression that the categorical approach or the modified
approach controls, I determine that the rule of lenity should be
applied here.
¶55 As the United States Supreme Court has stated,
"construction of a criminal statute must be guided by the need

for fair warning." Crandon v. United States, 494 U.S. 152, 160

(1990). The rule of lenity "ensures fair warning by so
resolving ambiguity in a criminal statute as to apply it only to
conduct clearly covered." United States v. Lanier, 520 U.S.
259, 266 (1997). Thus, when a criminal statute is ambiguous and
is not clarified by resort to legislative history, that penal
statute "should be construed strictly against the party seeking

2
The United States Supreme Court has also recently
reaffirmed that courts must use the categorical approach when
deciding whether a conviction constitutes a prior conviction for
a violent felony under the Armed Career Criminal Act. Johnson
v. United States, No. 13-7120, 576 U.S. ___ (June 26, 2015).
Both the majority and the dissent in Johnson analyzed the issue
of which approach should be applied. The dissent advocated for
the modified categorical approach, but the majority of the Court
decided otherwise. In choosing between the two approaches it
stated: "'[T]he only plausible interpretation' of the law,
therefore, requires use of the categorical approach." Id.
(quoting Taylor v. United States, 495 U.S. 575, 602 (1990).

The analysis and discussion of the issue by both the
majority and the dissent likewise reaffirms that selecting an
approach requires a more detailed analysis than the majority's
single sentence.

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to exact statutory penalties and in favor of the person on whom
statutory penalties are sought to be imposed." State v. Morris,
108 Wis. 2d 282, 289, 322 N.W.2d 264 (1982).
¶56 Here, the legislative history does not shine any light
on our inquiry. Although Wis. Stat. § 961.41(3g)(c) has been
renumbered, the language at issue in this case has been almost
unchanged since its initial enactment in 1971.3 It was enacted
as part of Wisconsin's Uniform Controlled Substances Act. That
Act was "a product of the National Conference of Commissioners

on Uniform State Laws (NCCUSL)." State v. Hansen, 2001 WI 53,

¶16, 243 Wis. 2d 328, 627 N.W.2d 195. Where the legislature
enacts a uniform act provision, we consider the intent of the
drafters of the uniform law, and "will presume the intent of the
drafters is the intent of the legislature in the absence of
evidence to the contrary." Id. A review of the comments,
however, provides no guidance here because they do not address
how "relating to" should be defined. See NCCUSL, Uniform

Controlled Substances Act § 408, Comment (1970), in Handbook of

3
Wisconsin Stat. § 161.41(2r)(b) (1971) stated:

For purposes of this subsection, an offense is
considered a 2nd or subsequent offense if, prior to
his conviction of the offense the offender has at any
time been convicted under this chapter or under any
statute of the United States or of any state relating
to controlled substances, narcotic drugs, marijuana or
depressant, stimulant or hallucinogenic drugs.

The only difference between this language and the current
version of Wis. Stat. § 971.41(3g)(c) is that the words "any
felony or misdemeanor under this chapter" have been inserted
into the description of a conviction.

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the National Conference of Commissioners on Uniform State Laws
and Proceedings of the Annual Conference Meeting in its Seventy-
Ninth Year (1970); NCCUSL, Uniform Controlled Substances Act
§ 413, Comment (1990), in Handbook of the National Conference of
Commissioners on Uniform State Laws and Proceedings of the
Annual Conference Meeting in its Ninety-Ninth Year (1990);
NCCUSL, Uniform Controlled Substances Act § 413, Comment (1994),
available at
www.uniformlaws.org/shared/docs/controlled%20substances/UCSA_fin

al%20_94%20with%2095amends.pdf.
¶57 Given the ambiguity in the statute which is left
unanswered by the legislative history, the majority should have
applied the rule of lenity. There are two criteria for
application of the rule of lenity: "(1) the penal statute is
ambiguous; and (2) [a court is] unable to clarify the intent of
the legislature by resort to legislative history." State v.

Luedtke, 2015 WI 42, ¶73, 362 Wis. 2d 1, 863 N.W.2d 592.

¶58 As discussed above, both of these requirements are
met. We have oft stated that "a statute is ambiguous if it is
capable of being understood by reasonably well-informed persons
in two or more senses." State ex rel. Kalal v. Circuit Court,
2004 WI 58, ¶47, 271 Wis. 2d 633, 681 N.W.2d 110. Wisconsin
Stat. § 961.41(3g)(c) can reasonably be interpreted in two ways:
one that looks beyond the statutory elements, and one that
considers only the statutory elements. In other words, one in
which a reference to controlled substances in extraneous
documents relating to a conviction could suffice to render it a

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conviction relating to a controlled substance, or one in which
the involvement of controlled substances must be an element
proved in obtaining the conviction. Therefore the statute is
ambiguous.
¶59 The legislative history is silent on the issue. As a
result, the court is unable to clarify the intent of the
legislature by resort to legislative history. Having met both
requirements, application of the rule of lenity is appropriate
and Guarnero's RICO conviction should not be considered a prior

conviction relating to controlled substances.
¶60 Accordingly, for the reasons set forth above, I
respectfully dissent.
¶61 I am authorized to state that Justice SHIRLEY S.
ABRAHAMSON joins this dissent.

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