In the

United States Court of Appeals

For the Seventh Circuit

Nos. 10-2677 & 10-2933

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

JESUS TELLO and

KENNETH HILL,

Defendants-Appellants.

Appeals from the United States District Court

for the Eastern District of Wisconsin.

No. 05 CR 240—Rudolph T. Randa, Judge.

ARGUED JANUARY 10, 2012—DECIDED JULY 18, 2012

Before BAUER, ROVNER, and SYKES, Circuit Judges.

ROVNER, Circuit Judge. Jesus Tello and Kenneth Hill,

both members of the Milwaukee chapter of the Latin

Kings street gang, pleaded guilty to a charge that they

had conspired to conduct the affairs of the Latin Kings

through a pattern of racketeering activity. 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 indictment. In essence, he contends that he pleaded guilty to

an offense different from the one with which he was

charged. Hill contests the sentence he received following a prior, successful appeal challenging his

treatment as a career offender. Hill contends that the

district court on remand substantially enhanced his

offense level based on a ground that the government

had waived by not raising it sooner. For the reasons that

follow, we affirm Tello’s conviction but vacate Hill’s

sentence.

I.

The Almighty Latin King Nation is a national, criminal

enterprise composed of individual chapters located in

various cities throughout the country. See United States

v. Olson, 450 F.3d 655, 661-62 (7th Cir. 2006) (describing

organization of Latin Kings). Its members have engaged in acts of violence—including murder, attempted

murder, robbery, and extortion—as well as narcotics

distribution. The Milwaukee chapter of the gang was

founded in the mid-1980s and over time came to control

a large territory on the city’s south side. Id. at 662.

Within the Milwaukee chapter of the gang, there were,

at the time of the indictment, four subsets of the Latin

Kings: the 19th Street Kings, the Sawyer Kings, the Wild

Walker Kings, and the 23rd Street Kings. Tello was a

member of the 23rd Street Kings, while Hill was a

member of the 19th Street Kings. Tello and Hill were

among forty-nine Milwaukee-area Latin Kings indicted
Nos. 10-2677 & 10-2933 3

in September 2005 on charges of racketeering, racketeering conspiracy, narcotics trafficking and conspiracy,

and unlawful possession and distribution of firearms.

Count One of the indictment alleged that Hill, Tello,

and the other defendants conducted or participated,

directly and indirectly, in the conduct of the affairs of

an enterprise engaged in or affecting interstate commerce—namely, the Latin Kings—through a pattern of

racketeering activity, in violation of the Racketeer Influenced and Corrupt Organizations Act (“RICO”), 18

U.S.C. § 1962(c). R. 12 at 3 ¶ 1. This count alleged

generally that “[c]riminal activity committed by the

members of the Latin King enterprise include[d] murder,

attempted murder, drug trafficking, firearm offenses,

robbery, kidnapping, assault and battery, home invasion,

arson, drive-by shootings and intimidation of witnesses.”

Id. at 3 ¶ 2. It subsequently listed some sixty predicate

acts of racketeering that together formed the pattern

of racketeering through which the affairs of the Latin

Kings allegedly had been conducted. Id. at 9-36. Tello

was identified as the perpetrator of or a participant in

three of these alleged predicate acts: No. 10—a conspiracy

to murder unnamed rival gang members; No. 14—the

attempted murder of an individual by the name of

Jose Espinoza; and No. 19—the attempted murder of

Rene Carmona, Daniel Carmona, and Pedro Gaona,

who were members of the Mexican Posse, a rival gang.

Id. at 13-14, 15-16, 18. Hill was separately named in connection with five predicate acts: Nos. 31, 44, and 45—all

involving the distribution of or the possession with

the intent to distribute marijuana; No. 47—the kidnapping
4 Nos. 10-2677 & 10-2933

and intimidation of a witness for the purpose of obstructing justice; and No. 60—conspiracy with other

Latin King members to distribute and to possess with

the intent to distribute cocaine, crack cocaine, and marijuana. Id. at 23, 28-30, 36.

Count Two of the indictment alleged that the

defendants had conspired to conduct, and to

participate directly or indirectly in the conduct of, the

affairs of the Latin Kings enterprise through a pattern

of racketeering activity, in violation of section 1962(d).

R. 12 at 37-39 ¶ 17-18. That pattern allegedly included

a variety of federal and state offenses, including the

distribution of marijuana, cocaine, and crack cocaine;

kidnapping; witness tampering and retaliation; homicide; robbery; and arson. Id. The allegations of Count

One, including the various predicate acts of racketeering

set forth there, were incorporated by reference, id. at 37

¶ 14, and it was further alleged to be “part of the conspiracy that each defendant agreed that a conspirator

would commit at least two acts of racketeering

activity in the conduct of the affairs of the enterprise,” id.

at 39 ¶ 18.

Like most of their co-defendants, both Tello and Hill

pleaded guilty to Count Two of the indictment, charging

them with RICO conspiracy. Because Hill does not challenge his conviction, we may pass over the details of

his guilty plea for now and focus for a moment on

Tello’s written plea agreement and change-of-plea colloquy.

Count Two of the indictment was incorporated into

paragraph 4 of Tello’s plea agreement, R. 1473 at 1-2
Nos. 10-2677 & 10-2933 5

¶ 4 & Ex. A, and in the next paragraph of that agreement Tello stated expressly that he “acknowledges,

understands, and agrees that he is, in fact, guilty of the

offense described in paragraph 4,” id. at 2 ¶ 5. Tello also

specifically admitted “that he conspired with other

Latin King gang members to commit at least two

qualifying criminal act[s] in furtherance of the criminal

enterprise.” Id. The agreement then proceeded to

identify two criminal acts that Tello acknowledged

having committed in furtherance of the charged conspiracy: (1) on July 12, 2002, Tello had fired shots at rival

Mexican Posse gang members Rene and Daniel Carmona

and Pedro Gaona; and (2) on October 24, 2004, Tello and

other Latin King members had sexual contact with a

female under the age of 18 who was unconscious for

much of the assault, an offense for which Tello was subsequently convicted in state court. Id. at 2-3 ¶ 5. The first

of these incidents corresponded to predicate act No. 19

set forth in Count One of the indictment. See R. 12 at 18-19.

The second of these incidents, however, did not correspond to any of the predicate acts alleged in Count

One. Tello and his counsel signed the agreement on

April 1, 2009.

Tello appeared before the court on April 7, 2009, to

change his plea from not guilty to guilty. After

ascertaining that Tello understood the various rights he

was giving up by pleading guilty, the court asked Tello

whether he had reviewed the facts alleged in Count Two

and the additional facts set forth in paragraph 5 of the

plea agreement, and Tello said that he had. R. 1824 at 6.

The court then asked Tello whether those were the facts
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, intelligently, and voluntarily, the district court accepted

his plea and found him guilty. Id. at 8.

Subsequent to Tello’s guilty plea, the court held an

evidentiary hearing to assess Tello’s culpability with

respect to a third criminal act—identified as predicate act

No. 14 in Count One of the indictment, R. 12 at 15-

16—involving the attempted murder of Jose Espinoza on

or about June 4, 2002. R. 1666. Espinoza had been shot in

the head but miraculously had survived the attack.

Tello denied that he was the individual who shot

Espinoza, and as the government contended the

shooting constituted relevant conduct that the court

should consider in sentencing Tello, it was necessary

for the court to take evidence and render a finding as

to whether Tello was in fact the shooter. This was a contingency that the parties had anticipated in the plea agreement. R. 1473 at 6 ¶ 14. After considering the evidence

presented at that hearing, including the testimony

of Espinoza himself, the court found that Tello had in

fact shot Espinoza and that pursuant to section 1B1.3 of

the Sentencing Guidelines, this constituted relevant

conduct for sentencing purposes. R. 1748.

Tello was sentenced on June 30, 2010. The guideline

governing RICO offenses directs the court to use the
Nos. 10-2677 & 10-2933 7

The court opted not to take the Espinoza shooting into account 1

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 agreement).

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 enhancement in the plea agreement, but they had acknowledged that the government was free to seek that enhancement at sentencing. R. 1473 at 6 ¶ 14. Tello’s adjusted

offense level, coupled with his criminal history, resulted

in an advisory sentencing range of 121 to 151 months.

The court opted to impose a sentence at the top of that

range, citing among other factors Tello’s significant
8 Nos. 10-2677 & 10-2933

degree of involvement with the Latin Kings, the violent

nature of the criminal acts Tello had committed in furtherance of the conspiracy, and his lack of cooperation

with the authorities.

Hill was initially classified as a career offender (a designation 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 careeroffender 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 offender. 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 conviction 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 government’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 murder. 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 substantially 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 probation 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 residence (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 guidelines 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 accessory after the fact, either in the presentence report prepared 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 agreement. In his plea agreement, he also acknowledged responsibility 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 racketeering attributed to Tello in Count One of the indictment (the substantive RICO charge) but the second

was not.

Tello argues that his guilty plea (and thus his conviction) is invalid because the sexual assault charge

referenced in his plea agreement was not one of the

predicate acts of racketeering identified in the indictment. Tello assumes that the predicate acts of racketeering 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

Because the plea agreement omitted mention of two of the 2

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 amendment 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.

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 proceeding (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. CONST. 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). Tello believes his guilty 2

plea is invalid by reason of the disparity, and he seeks
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 proceedings. 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 substantive RICO charge set forth in Count One of the indictment—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 racketeering 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 subsections, 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 section 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 racketeering, 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 committed 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 between 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 racketeering that he committed (or agreed to commit) was

a prerequisite to his conviction for racketeering conspiracy under section 1962(d). This is the very presumption 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 convict 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 subsection (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 elements 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 conspirator an essential element of the offense, Tello’s understanding 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 racketeering 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 associates of the Latin Kings, a criminal organization

whose members and associates engaged in acts

of violence, including murder, attempted murder, robbery, extortion and distribution of controlled substances, and which operated principally

on the south side of Milwaukee. 

* * *

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 paragraphs 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 involving multiple acts indictable under the provisions 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, including 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. AndrewsBartlett & 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 controlled 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 conspiracy, the objective of which was to operate enterprise

through pattern of racketeering activity consisting of

multiple acts of bribery: “[The] separate crime [of conspiracy] centers on the act of agreement, which makes

unnecessary—and in many cases impossible—the identification 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 insufficiently specific where indictment identified pattern

of racketeering activity as “a number of bribes that occurred 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 interpreting that subsection of RICO required such proof,

and so any allegation as to overt acts, including

predicate acts of racketeering, that Tello may have committed 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, acknowledged 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 impermissibly 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 defendant’s guilt on conspiracy charge).

The plea agreement, which Tello and his counsel

signed, in turn tracked and admitted the essential allegations 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 attached 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 precisely 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 amendment (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 incorporated 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 constructive 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 agreement 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 furtherance of the criminal enterprise” and that “[t]he following 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 determine 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 predicate 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 predicate 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 included in the plea agreement was relevant conduct committed in addition to those elements and was not necessary to convict Tello under section 1962(d). 

Reviewing Tello’s argument in light of the proof necessary 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. Consequently, any disparity between the predicate acts of

racketeering attributed to him in Count One of the indictment 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 conviction. 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

Hill additionally contends that the record does not support 3

imposition of the accessory enhancement. But because we

conclude that the court should not have considered this enhancement, we need not address the merits of the enhancement in this case.

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 accessory 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 enhancement, 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 contends 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
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 enhancements irrelevant. Yet, it was not a foregone conclusion 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 possibility 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 applicable enhancements to Hill’s offense level.

In short, there was no legitimate reason for the government 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 guideline. 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 resentenced, we instructed the court to consider whether

Hill’s conviction for reckless endangerment encompassed 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 undisturbed. 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 concluding 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 government’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 government 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 considered 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 obstructed justice but did not apply obstruction enhancement because underlying conduct overlapped with conduct 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 government 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 murder, 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 accessory guideline on remand. Hill must again be resentenced, this time without the section 2X3.1 enhancement.

III.

We AFFIRM 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 VACATE Hill’s

sentence and REMAND 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