U.S. v. Tello

In prosecution on charge of conspiracy to conduct gang activities through pattern of racketeering activity under 18 USC section 1962(d), Ct. of Appeals rejected defendant’s claim that his guilty plea to said charge was invalid because sexual assault incident referenced in his guilty plea was not one of predicate acts of racketeering identified in indictment. Conviction under section 1962(d) does not require proof that defendant committed two predicate acts of racketeering, but only that defendant had entered into agreement that some members of conspiracy would commit two or more predicate acts. Thus, no fatal variance between indictment and guilty plea occurred since inclusion of sexual assault conduct in plea was unnecessary. Remand, though, was required for new sentencing hearing where Dist. Ct. imposed enhancement that was not raised by govt. in initial sentencing hearing.