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, 

 v. 

Rogelio Guarnero, 

 Defendant-Appellant-Petitioner. 

FILED 

JUL 9, 2015 

Diane M. Fremgen 

Clerk of Supreme Court 

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 

2 

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

3 

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

4 

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

5 

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 
No. 2013AP1753-CR & 2013AP1754-CR 

6 

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

7 

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

8 

¶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 speciallydefined, 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). 
No. 2013AP1753-CR & 2013AP1754-CR 

9 

¶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) 
No. 2013AP1753-CR & 2013AP1754-CR 

10 

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

11 

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. __, 
No. 2013AP1753-CR & 2013AP1754-CR 

12 

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

13 

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 
No. 2013AP1753-CR & 2013AP1754-CR 

14 

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

15 

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 
No. 2013AP1753-CR & 2013AP1754-CR 

16 

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

17 

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

1 

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

2 

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

3 

statutory language is clear. Tucked away in its application 

discussion, and without analysis, the majority makes a onesentence 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 
No. 2013AP1753-CR & 2013AP1754-CR.awb 

4 

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

5 

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

6 

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

7 

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

8 

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

9 

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

10 

the National Conference of Commissioners on Uniform State Laws 

and Proceedings of the Annual Conference Meeting in its SeventyNinth 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 
No. 2013AP1753-CR & 2013AP1754-CR.awb 

11 

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

1