PRIMER

RICO
GUIDELINE
(Racketeer Influenced and Corrupt Organizations)

March 2020

Prepared by the Office of General Counsel, U.S. Sentencing Commission

Disclaimer: This document is intended to assist in understanding and applying the

sentencing guidelines. The information in this document should not be considered
definitive or comprehensive. In addition, the information in this document does not
represent an official Commission position on any particular issue or case, and it is not
binding on the Commission, the courts, or the parties in any case. To the extent this
document includes unpublished cases, practitioners should be cognizant of Fed. R. App.
P. 32.1, as well as any corresponding rules in their jurisdictions.
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TABLE OF CONTENTS

I. INTRODUCTION...........................................................................................................................1
II. RELEVANT STATUTES................................................................................................................1
A. THE STATUTORY SCHEME ...............................................................................................................1
1. 18 U.S.C. § 1962: Prohibited Activities ............................................................................... 1
2. 18 U.S.C. § 1961: Definitions ................................................................................................... 4
3. 18 U.S.C. § 1963: Criminal Penalties ................................................................................... 7
4. Double Jeopardy Considerations for RICO Conspiracy and Substantive
Offenses ..................................................................................................................................................... 8
III. SECTION 2E1.1 (UNLAWFUL CONDUCT RELATING TO RACKETEER INFLUENCED
AND CORRUPT ORGANIZATIONS) .................................................................................................... 10
A. GENERALLY ................................................................................................................................... 10
B. DETERMINING THE OFFENSE LEVEL FOR A RICO OFFENSE ........................................................ 10
1. Relevant Conduct ....................................................................................................................... 11
2. Calculating the Offense Level for a RICO Offense ...................................................... 13
C. APPLICATION CONSIDERATIONS .................................................................................................. 20
1. RICO Count and Other Counts of Conviction ................................................................ 20
2. RICO Count and Acceptance of Responsibility (§3E1.1) ........................................ 20
3. RICO Offense as a Predicate Offense for the Career Offender Guideline
(§4B1.1) and 18 U.S.C. § 924(c).................................................................................................. 21
4. Ex Post Facto Issues and the “One Book” Rule ............................................................ 21

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I. INTRODUCTION

The purpose of this primer is to provide a general overview of the pertinent

statutes, sentencing guidelines, and relevant case law regarding the Racketeer Influenced
and Corrupt Organizations Act, 1 commonly referred to as the “RICO Act” or simply “RICO.”
This primer focuses primarily on application of the RICO guideline and related sentencing
issues. It is not intended as a comprehensive compilation of case law addressing these
issues or as a substitute for independent research and primary authority.

II. RELEVANT STATUTES

A. THE STATUTORY SCHEME

The RICO Act 2 provides for criminal prosecution of racketeering activities as part of
an ongoing criminal organization. As noted in RICO’s legislative history, RICO is designed
to address the infiltration of legitimate enterprises by organized crime and other illegal
ventures. 3 Some examples provided in the legislative history include the infiltration of
legitimate businesses such as laundry services, retail stores, restaurants and nightclubs, or
labor unions to commit gambling, money laundering, loan sharking, or extortion. 4 Under
RICO, leaders of criminal organizations can be held liable for crimes they order others to
commit, or assist them in committing, in furtherance of the ongoing criminal organization.
As discussed below, section 1962 sets forth three substantive offenses and makes it a crime
to conspire to commit any of the three substantive offenses, section 1961 provides
definitions for terms used in the RICO statute, and section 1963 establishes criminal
penalties, including imprisonment, fines, and criminal forfeiture. 5

1. 18 U.S.C. § 1962: Prohibited Activities

Section 1962(a), (b), and (c) set forth the substantive prohibited activities. Section
1962(d) makes it unlawful to conspire to commit any such prohibited activities. Each of
the prohibited activities includes, as a necessary element, proof of a “pattern of
racketeering activity” or “collection of an unlawful debt.” 6

1 Organized Crime Control Act of 1970, Pub. L. No. 91–452, § 901(a), 84 Stat. 922, 941–48 (codified as

amended at 18 U.S.C. §§ 1961–68).

2 See 18 U.S.C. §§ 1961–68.
3 See S. Rep. No. 91–617, 76–77 (1969).
4 Id.
5 The RICO Act also provides for civil remedies and other procedural requirements against persons who
engage in racketeering activities, which are set forth at 18 U.S.C. §§ 1964–68.
6 18 U.S.C. § 1962.

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a. 18 U.S.C. § 1962(a)

Under section 1962(a), it is a crime to “use or invest” any income derived from “a
pattern of racketeering activity” or through “collection of an unlawful debt” to establish,
acquire an interest in, or operate “any enterprise” engaged in or affecting interstate
commerce. 7 To establish an offense under section 1962(a), the government must show
that the defendant had derived income from a pattern of racketeering or collection of
unlawful debt, and then used or invested some part of that income in the establishment and
operation of an enterprise, which was engaged in or its activities affected commerce. 8 An
example of a violation of section 1962(a) is a drug dealer using the proceeds of a pattern of
drug trafficking crimes to invest in or operate a legitimate business. 9

b. 18 U.S.C. § 1962(b)

Section 1962(b) prohibits acquiring or maintaining an interest in, or control of, any
enterprise that is engaged in or affects interstate commerce “through a pattern of
racketeering activity or through collection of an unlawful debt.” 10 This provision
essentially makes it unlawful to take over an enterprise that affects interstate commerce
through a pattern of racketeering activity or collection of unlawful debt. An example of a
section 1962(b) violation is an organized crime figure taking over a legitimate business
through a pattern of extortionate and loansharking acts designed to intimidate the owners
into selling the business to him. 11

c. 18 U.S.C. § 1962(c)

Section 1962(c) makes it unlawful for any person “employed by or associated with
any enterprise engaged in” or affecting interstate or foreign commerce “to conduct or
participate, directly or indirectly, in the conduct of such enterprise’s affairs through a
pattern of racketeering activity or collection of unlawful debt.” 12 For example, employees

7 Id. § 1962(a).
8 See, e.g., United States v. Vogt, 910 F.2d 1184, 1194 (4th Cir. 1990); United States v. Carlock, 806 F.2d 535,
547 (5th Cir. 1986); United States v. Robertson, 73 F.3d 249, 251 (9th Cir. 1996) (“Unlike § 1962(c), § 1962(a)
prohibits not the engagement in racketeering acts to conduct an enterprise affecting interstate commerce, but
rather the use or investment of the proceeds of racketeering acts to acquire, establish or operate such an
enterprise.”) (emphasis in original).
9 See, e.g., United States v. Robertson, 514 U.S. 669 (1995) (defendant convicted of narcotic offenses and of

violating section 1962(a) by investing the proceeds of those unlawful activities in a gold mine).
10 18 U.S.C. § 1962(b).
11 See, e.g., United States v. Biasucci, 786 F.2d 504, 506–07 (2d Cir. 1986) (acquisition of interests in and

control over businesses through loansharking activities involving collection of unlawful debt); see also United
States v. Jacobson, 691 F.2d 110, 112 (2d Cir. 1982) (acquisition of bakery’s lease as security for usurious
loan).
12 18 U.S.C. § 1962(c).

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of the New York State Department of Motor Vehicles violated this provision by using the
DMV to process fraudulent licenses and registrations for stolen vehicles in exchange for
money. 13

Section 1962(c) requires the existence of two distinct entities: a “person” and an
“enterprise” that is not simply the same person referred to by a different name. 14 Criminal
liability depends on showing that the person conducted or participated in the conduct of
the enterprise’s affairs. 15 For purposes of RICO, a corporate employee (a natural person) is
distinct from the corporation itself, a legally different entity with different rights and
responsibilities due to its different legal status, even where the employee is the
corporation’s sole owner. 16 Likewise, the existence of an enterprise is separate from the
pattern of racketeering activity in which the enterprise engages. 17 The enterprise is
“proved by evidence of an ongoing organization . . . and by evidence that various associates
function as a continuing unit” while the pattern of racketeering activity is proved by
evidence of at least two racketeering acts committed by participants in the enterprise. 18
However, evidence establishing the pattern of racketeering activity and evidence
establishing an enterprise “may in particular cases coalesce.” 19

d. 18 U.S.C. § 1962(d)

Section 1962(d) provides that “[i]t shall be unlawful for any person to conspire to
violate any of the provisions of subsection (a), (b), or (c) of this section.” 20 Unlike the
general conspiracy statute applicable to federal crimes, which requires proof that at least
one of the conspirators committed an “act to effect the object of the conspiracy,” 21 there is
no requirement under section 1962(d) that an “overt act” or specific act be committed in
furtherance of a RICO conspiracy. 22

13 See United States v. Alkins, 925 F.2d 541, 551–53 (2d Cir. 1991).
14 See Cedric Kushner Promotions, Ltd. v. King, 533 U.S. 158, 161 (2001).
15 See Reves v. Ernst & Young, 507 U.S. 170, 185 (1993).
16 See Cedric Kushner Promotions, Ltd., 533 U.S. at 163 (“After all, incorporation’s basic purpose is to create a

distinct legal entity, with legal rights, obligations, powers, and privileges different from those of the natural
individuals who created it, who own it, or whom it employs.”).
17 United States v. Turkette, 452 U.S. 576, 583 (1981).
18 Id.
19 Boyle v. United States, 556 U.S. 938, 947 (2009) (citing Turkette, 452 U.S. at 583).
20 18 U.S.C. § 1962(d).
21 See id. § 371.
22 See id. § 1962(d); see also Salinas v. United States, 522 U.S. 52, 63 (1997) (“There is no requirement of
some overt act or specific act in the [RICO statute], unlike the general conspiracy provision applicable to
federal crimes, which requires that at least one of the conspirators have committed an ‘act to effect the object
of the conspiracy.’”).

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Furthermore, a defendant who conspires to commit a substantive offense under

section 1962(a), (b), or (c) can be convicted of a RICO conspiracy even though the
defendant does not personally commit or agree to commit the racketeering activity or
collection of unlawful debt required for commission of the underlying substantive
offense. 23
2. 18 U.S.C. § 1961: Definitions

The RICO Act broadly defines certain terms and concepts used in the statute,
including the following:

a. Racketeering Activity

RICO defines “racketeering activity” as any crime enumerated in subdivisions A–G of

that subsection. The listed crimes are often referred to as “predicate acts,” since
committing an enumerated crime is the foundation for a RICO offense. 24 Criminal acts
committed outside of the United States can serve as RICO predicate offenses, “but only to
the extent that the predicates alleged in a particular case themselves apply
extraterritorially.” 25

Subdivision A includes “any act or threat involving” listed state offenses, such as
murder, kidnapping, gambling, arson, robbery, bribery, extortion, dealing in a controlled
substance, and other serious crimes, punishable by imprisonment for more than one
year. 26 This definition does not list specific state statutes. Rather, as the Supreme Court has
held in the context of plea bargaining, a state statutory offense may constitute a
racketeering act under subdivision A provided it substantially conforms to the “generic”
definition of the state offense referenced at the time RICO was enacted. 27 Further, the
language “chargeable under state law” means that the offense was chargeable under state
law at the time the underlying conduct was committed. 28

23 Salinas, 522 U.S. at 65–66 (explaining that a defendant can violate section 1962(d) without “himself

commit[ting] or agree[ing] to commit two or more” acts of racketeering activity); see United States v.
Fernandez, 388 F.3d 1199, 1230 (9th Cir. 2004) (holding after Salinas that a defendant is guilty of conspiracy
to violate § 1962(c) if he knowingly agreed to facilitate a scheme which includes the operation or
management of a RICO enterprise, regardless of whether he actually conspired to operate or manage the
enterprise himself).
24 See, e.g., Boyle v. United States, 556 U.S. 938 (2009).
25 RJR Nabisco, Inc. v. European Cmty., 136 S. Ct. 2090, 2102-03 (2016) (“To give a[n] example, a violation of
§ 1962 could be premised on a pattern of killings of Americans abroad in violation of § 2332(a)—a predicate
that all agree applies extraterritorially—whether or not any domestic predicates are also alleged.”).
26 18 U.S.C. § 1961(1)(A).
27See, e.g., United States v. Kirsch, 903 F.3d 213, 225 (2d Cir. 2018); United States v. Adams, 722 F.3d 788,
802 (6th Cir. 2013); United States v. Ferriero, 866 F.3d 107, 115 (3d Cir. 2017).
28 See, e.g., United States v. Licavoli, 725 F.2d 1040, 1045–47 (6th Cir. 1984); United States v. Malatesta, 583
F.2d 748, 757 (5th Cir. 1978); United States v. Forsythe, 560 F.2d 1127, 1134–35 (3d Cir. 1977) (fact that

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Subdivisions B, C, E, F, and G include “any act which is indictable under” listed

federal statutes. 29 These provisions are narrower than subdivision A because the act must
be “indictable under” one of the listed federal statutes at the time the subdivision was
enacted. Attempts and conspiracies may not be used as racketeering acts unless they are
expressly included within the terms of the statute. 30 For example, a conspiracy to violate
the Hobbs Act 31 may be used as a predicate racketeering act under subdivision B because
the Hobbs Act statute expressly makes conspiracy a crime. 32

Subdivision D includes “any offense involving” listed categories of federal offenses. 33

Because this subdivision uses the phrase “any offense involving,” it includes attempts and
conspiracies. 34

b. Pattern of Racketeering

A “pattern of racketeering activity” requires “at least two acts of racketeering

activity,” one of which occurred after the effective date of the RICO statute and the last of
which occurred within ten years after the commission of a prior racketeering act. 35 The
ten-year limitation excludes any period of imprisonment. 36 As the Supreme Court has held,
establishing a pattern of racketeering activity requires more than simply proving two
racketeering acts within a statutorily prescribed time period; there must also be proof that
the racketeering acts are related to and amount to, or pose a threat of, continued criminal

former state bribery statute was recodified to provide for a term of imprisonment not exceeding one year did
not preclude prosecution under RICO for conduct prior to enactment of the subsequent bribery statute).
29 18 U.S.C. § 1961(1)(B), (C), (E), (F), and (G) (listing specific federal statutes constituting racketeering acts).
Notably, subdivision G describes racketeering activity as any act indictable under any provision listed in
section 2332b(g)(5)(B) of title 18, which adds approximately 50 terrorism-related offenses to the list of
racketeering acts. See 18 U.S.C. § 2332b (Acts of terrorism transcending national boundaries).
30 See 18 U.S.C. § 1961(1)(B), (C), (E), (F), and (G).
31 See id. § 1951.
32 See id. § 1951(a) (“Whoever in any way or degree obstructs, delays, or affects commerce or the movement

of any article or commodity in commerce, by robbery or extortion or attempts or conspires so to do . . . .”).

33 18 U.S.C. § 1961(1)(D).
34 See, e.g., United States v. Darden, 70 F.3d 1507, 1524–25 (8th Cir. 1995) (conspiracy to distribute and
possession with intent to distribute controlled substances constitute RICO predicate acts, but simple
possession of cocaine does not); United States v. Echeverri, 854 F.2d 638 (3d Cir. 1988) (conspiracy to
possess and distribute a controlled substance constitute RICO predicate acts); United States v. Weisman, 624
F.2d 1118, 1123–24 (2d Cir. 1980) (conspiracy to commit offense involving bankruptcy fraud or securities
fraud is a RICO predicate act) (abrogation on other grounds recognized by Ianniello v. United States, 10 F.3d 59,
62 (2d Cir. 1993)).
35 18 U.S.C. § 1961(5).
36 See id. (excluding any period of imprisonment from the ten-year limitations period).

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activity. 37

c. Unlawful debt

RICO defines an “unlawful debt” as a debt (A) incurred or contracted in gambling

activity which is a violation of state or federal law or which is unenforceable under state or
federal law in whole or in part as to principal or interest because of the laws relating to
usury, and (B) which was incurred in connection with gambling in violation of state or
federal law or lending money at a rate usurious under state or federal law. 38 Thus, an
unlawful debt is a debt that arises from illegal gambling or loansharking activities. The
prohibition on the “collection of unlawful debt” under RICO encompasses efforts to collect
on a usurious loan without distinguishing whether the collection was for cash or
collateral. 39 Unlike the requirement that a “pattern of racketeering” consist of at least two
racketeering acts, the element of the “collection of an unlawful debt” can be predicated on a
single occurrence, such as the collection of a single unlawful debt. 40

d. Person

For purposes of the RICO Act, a “person” includes “any individual or entity capable
of holding a legal or beneficial interest in property.” 41

e. Enterprise

An “enterprise” includes two categories of association. The first category

encompasses “any individual, partnership, corporation, association, or other legal entity.” 42

37 See H.J. Inc. v. Northwestern Bell Tel. Co., 492 U.S. 229, 240 (1989) (“RICO’s legislative history tells us . . .
that the relatedness of racketeering activities is not alone enough to satisfy § 1962’s pattern element. To
establish a RICO pattern, it must also be shown that the predicate themselves amount to, or that they
otherwise constitute a threat of, continuing racketeering activity.”) (emphasis in original); Sedima, S.P.R.L. v.
Imrex Co., 473 U.S. 479, 496 n.14 (1985).
38 18 U.S.C. § 1961(6).
39 Goldenstein v. Repossessors, Inc., 815 F.3d 142, 148 (3d Cir. 2016).
40 United States v. Weiner, 3 F.3d 17, 24 (1st Cir. 1993) (citations omitted) (holding that “a single collection of
an unlawful debt satisfies section 1962(c)’s ‘collection of unlawful debt’ requirement”); United States v.
Giovanelli, 945 F.2d 479, 490 (2d Cir. 1991) (“Unlike a ‘pattern of racketeering activity’ which requires proof
of two or more predicate acts, to satisfy RICO’s ‘collection of unlawful debt’ definition the government need
only demonstrate a single collection.”); United States v. Vastola, 899 F.2d 211, 228 n.21 (3d Cir. 1990),
vacated and remanded on other grounds, 497 U.S. 1001 (1990); United States v. Pepe, 747 F.2d 632, 645 (11th
Cir. 1984); see also H.J. Inc., 492 U.S. at 232 (stating that “[e]ach prohibited activity is defined in 18 U.S.C.
§ 1962 to include, as one necessary element, proof either of ‘a pattern of racketeering activity’ or of ‘collection
of an unlawful debt’”).
41 18 U.S.C. § 1961(3).
42 See id. § 1961(4); United States v. Turkette, 452 U.S. 576, 580 (1981).

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The second category covers “any union or group of individuals associated in fact although
not a legal entity.” 43 Each category describes a separate type of enterprise covered by the
statute—those that are recognized as legal entities and those that are not. 44 Thus, the term
“enterprise” includes both legitimate and illegitimate enterprises. 45

The “enterprise” that is referred to in section 1962(a) and (b) is acquired through an
unlawful pattern of racketeering activity or by money obtained from an unlawful pattern of
racketeering activity. 46 By contrast, the “enterprise” referred to in section 1962(c) is the
vehicle through which the unlawful pattern of racketeering is committed. 47 The Supreme
Court has held that “RICO both protects a legitimate ‘enterprise’ from those who would use
unlawful acts to victimize it, and also protects the public from those who would unlawfully
use an ‘enterprise’ (whether legitimate or illegitimate) as a ‘vehicle’ through which
‘unlawful . . . activity is committed.’” 48 Thus, the Court recognized that under section
1962(c) and (d), a legitimate enterprise may be the “victim” of racketeering activity.

3. 18 U.S.C. § 1963: Criminal Penalties

The RICO Act establishes criminal penalties for a violation of section 1962. Pursuant
to section 1963(a), a violation of section 1962 is punishable by a fine or a term of
imprisonment not to exceed 20 years, or both. If the RICO violation is based on
racketeering activity that is charged as a predicate act and has a maximum penalty of life
imprisonment, the maximum penalty for the RICO violation is also life imprisonment. 49

In addition, section 1963(a) mandates forfeiture to the United States, irrespective of

any provision of state law, of all property. This includes any property interest acquired or
maintained in violation of section 1962, 50 any interest in, security of, claim against, or

43 Id.
44 See Boyle v. United States, 556 U.S. 938, 945 (2009).
45Turkette, 452 U.S. at 584–85 (“There is no inconsistency or anomaly in recognizing that § 1962 applies to
both legitimate and illegitimate enterprises.”).
46 18 U.S.C. § 1962(a), (b).
47 See id. § 1962(c).
48See Cedric Kushner Promotions, Ltd. v. King, 533 U.S. 158, 164–65 (2001) (quoting Turkette, 452 U.S. at
591).
49 If the government seeks a sentence exceeding the 20-year statutory maximum, a jury must find beyond a
reasonable doubt (or the defendant must have admitted in pleading guilty) that the defendant committed a
racketeering act for which the maximum penalty includes life imprisonment. See United States v. Nguyen,
255 F.3d 1335, 1343–44 (11th Cir. 2001) (holding that RICO defendants’ sentences ran afoul of Apprendi
because they were sentenced to a term greater than 20 years, but the jury did not find the defendants
committed a racketeering act carrying a potential life sentence); see also Apprendi v. New Jersey, 530 U.S. 466
(2000).
50 18 U.S.C. § 1963(a)(1).

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property or contract right of any kind affording a source of influence in the RICO
enterprise, 51 and any proceeds from the racketeering activity or unlawful debt collection. 52
Section 1963(b) specifies the type and nature of “property” subject to criminal forfeiture
under the RICO Act, including real property and tangible and intangible personal
property, 53 and extends criminal forfeiture to any property that is subsequently
transferred to a person other than the defendant, unless the transferee can establish that
he or she is a bona fide purchaser. 54 Sections 1963(d)–(m) set forth certain actions and
procedures that the government may take, upon a court order, regarding the disposition of
property forfeited pursuant to the criminal forfeiture provisions of the RICO Act. 55 RICO
criminal forfeiture is to be imposed “in addition to any other sentence” for a violation of
section 1962. 56 A criminal forfeiture award is a part of the defendant’s sentence, not part
of the substantive offense of conviction. 57

4. Double Jeopardy Considerations for RICO Conspiracy and

Substantive Offenses

The Double Jeopardy Clause prohibits successive prosecutions or punishments for

the same offense. 58 Two offenses are separate offenses if each contains an element not
contained in the other. 59 In the RICO context, double jeopardy issues may be triggered in
two ways: 1) a defendant is prosecuted for a RICO conspiracy and a substantive RICO
offense, and; 2) a defendant is prosecuted for a substantive RICO offense and for offenses
charged as racketeering acts underlying the RICO offense.

The Supreme Court has long recognized that “in most cases separate sentences can
be imposed for the conspiracy to do an act and for the subsequent accomplishment of the
end.” 60 “Because a RICO conspiracy contains a different element than a substantive RICO

51 See id. § 1963(a)(2)(A)–(D).

52 See id. § 1963(a)(3).
53 See id. § 1963(b).
54 See id. § 1963(c).
55 See id. § 1963(d)–(m).
56 See id. § 1963(a).
57 Libretti v. United States, 516 U.S. 29, 39 (1995) (“Congress plainly intended forfeiture of assets to operate

as punishment for criminal conduct in violation of the federal drug and racketeering laws, not as a separate
substantive offense.”). Indeed, the Supreme Court observed that criminal forfeiture as authorized by the RICO
statute “is clearly a form of monetary punishment no different, for Eighth Amendment purposes, from a
traditional fine,” and, therefore, is subject to the Eighth Amendment’s prohibition against “cruel and unusual
punishment” or “excessive fines.” Alexander v. United States, 509 U.S. 544, 558 (1993).
58 See United States v. Ursery, 518 U.S. 267, 273 (1996).
59 See Blockburger v. United States, 284 U.S. 299, 304 (1932).
60 Iannelli v. United States, 420 U.S. 770, 777–78 (1975).

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violation, namely an agreement with others to commit a substantive RICO violation”, a

RICO conspiracy and a substantive RICO violation are not the same offense for double
jeopardy purposes and, accordingly, may be punished separately.” 61 Likewise, courts have
held that a RICO substantive or conspiracy offense and its underlying racketeering acts are
separate offenses for double jeopardy purposes and may be prosecuted and cumulatively
punished. 62

Furthermore, a jury’s finding that a defendant did not commit a crime in an earlier
trial (federal or state) does not preclude the government from later proving that he or she
knowingly agreed to facilitate a racketeering scheme under RICO. 63 The government may
predicate a RICO conspiracy charge on acquitted conspiracy counts from a previous trial
when “a comparison of ‘basic’ and RICO conspiracy makes clear that acquittal of the former
does not compel the conclusion that a jury necessarily decided an essential element of the
latter” because “RICO conspiracy and ‘basic’ conspiracy [ ] have qualitatively different mens
rea requirements as to agreement and intent.” 64 Therefore, “[a] jury’s finding that a
defendant did not conspire to commit a particular predicate act does not necessarily
preclude a subsequent finding that he or she knowingly agreed to facilitate a racketeering
scheme that involved, or was intended to involve, that same predicate act.” 65

61 See, e.g., United States v. Marino, 277 F.3d 11, 39 (1st Cir. 2002); United States v. Sessa, 125 F.3d 68, 71 (2d
Cir. 1997); United States v. Rone, 598 F.2d 564, 569–71 (9th Cir. 1979).
62 See, e.g., United States v. Masters, 978 F.2d 281, 285 (7th Cir. 1992) (rejecting the defendant’s argument
that cumulative terms for racketeering and racketeering conspiracy violate the Double Jeopardy Clause);
United States v. Pungitore, 910 F.2d 1084, 1105–07 (3d Cir. 1990) (double jeopardy does not preclude
prosecution for RICO offenses charging predicate acts for which the defendant was previously tried and
acquitted or previously convicted); United States v. Ciancaglini, 858 F.2d 923, 928 (3d Cir. 1988) (defendant’s
prior RICO conviction did not bar on double jeopardy grounds instant successive prosecution for RICO
conspiracy and substantive RICO offense involving same enterprise as prior conviction because successive
indictment alleged different pattern of racketeering activity); United States v. Grayson, 795 F.2d 278, 282 (3d
Cir. 1986) (“The language and legislative history of RICO indicates little doubt that Congress, in enacting
RICO, sought to allow separate prosecution and punishment of predicate offenses and a subsequent RICO
offense.”).
63See, e.g., United States v. Zemlyansky, 908 F.3d 1, 10–11 (2d Cir. 2018) (defendant’s prior acquittal on
substantive counts of insurance-related mail fraud and money laundering did not preclude government from
predicating his RICO conspiracy charge on conduct mirroring those same counts in subsequent trial); United
States v. Burden, 600 F.3d 204, 228–29 (2d Cir. 2010) (acquittal on state murder charge did not bar its use as
a predicate racketeering act for RICO violation under the dual sovereignty principle); United States v. Licavoli,
725 F.2d 1040, 1047 (6th Cir. 1984) (same); United States v. Malatesta, 583 F.2d 748, 757 (5th Cir. 1978)
(same); United States v. Frumento, 563 F.2d 1083, 1086–89 (3d Cir. 1977) (same).

64 Zemlyansky, 908 F.3d at 11.

65 Id. at 11–12.

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III. SECTION 2E1.1 (UNLAWFUL CONDUCT RELATING TO RACKETEER

INFLUENCED AND CORRUPT ORGANIZATIONS)

A. GENERALLY

The guidelines instruct users to determine the applicable Chapter Two guideline by
referring to Appendix A (Statutory Index) for the offense of conviction (i.e., the offense
conduct charged in the indictment or information of which the defendant was convicted). 66
For a violation of the RICO Act, 18 U.S.C. § 1962, Appendix A specifies the offense guideline
at §2E1.1 (Unlawful Conduct Relating to Racketeer Influenced and Corrupt Organizations).
Section 2E1.1 has two alternative base offense levels and instructs the court to apply
whichever is the greater. There are no specific offense characteristics.

Section 2E1.1 refers the court to other offense guidelines based on the underlying
racketeering activity. The Commentary to §2E1.1 specifically directs the court to look
ahead to certain parts of Chapter Three and, in some instances, to Chapter Four (Criminal
History) 67 to determine the appropriate offense level for the RICO offense. In many
instances, the offense level for the RICO offense will be determined by the offense level for
the underlying racketeering activity due to the wide variety of criminal conduct covered
under §2E1.1.

B. DETERMINING THE OFFENSE LEVEL FOR A RICO OFFENSE

Section 2E1.1(a) specifies that the base offense level is the greater of

(1) 19; or

(2) “the offense level applicable to the underlying racketeering activity.”

Section 2E1.1(a), therefore, establishes an alternative minimum base offense level of

19—a floor under which the [RICO] offense level may not be set [regardless] of the offense
level for the underlying racketeering activity associated with the RICO violation. 68 As such,

66U.S. SENTENCING COMM’N, Guidelines Manual, §1B1.2 (Nov. 2018) [hereinafter USSG] (explaining how to
determine the applicable guidelines).
67 See USSG §2E1.1, comment. (n.1) (requiring application of Chapter Two offense guideline and adjustments
in Chapter Three, Parts A, B, C, and D); id. at comment. (n.4) (discussing the treatment of a “prior sentence” as
defined in Chapter Four in determining the appropriate offense level). In addition, certain offense guidelines
require application of the criminal history provisions under Chapter Four to determine the appropriate base
offense level, such as Chapter Two, Part D (Offenses Involving Drugs and Narco-Terrorism), Part K (Offenses
Involving Public Safety), and Part L (Offenses Involving Immigration, Naturalization, and Passports).
68 See id. §2E1.1(a)(1) and comment. (n.3). See also United States v. Morgano, 39 F.3d 1358, 1378–79 (7th

Cir. 1994) (district court properly found RICO base offense level of 19 because §2E1.1(a)’s alternative
minimum base offense level of 19 establishes “a floor under which the base offense level may not be set no
matter what the offense level may be for the predicate acts associated with the RICO violation”); United States

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a RICO defendant’s base offense level will not be less than 19. 69

1. Relevant Conduct

Section 1B1.3(a) directs the court to consider all relevant conduct in determining
the base offense level, specific offense characteristics, and cross references in Chapter Two
and Chapter Three adjustments. Relevant conduct includes “all acts and omissions
committed, aided, abetted, counseled, commanded, induced, procured, or willfully caused
by the defendant,” and, “in the case of a jointly undertaken criminal activity[,]. . . all
reasonably foreseeable acts and omissions of others in furtherance of the jointly
undertaken criminal activity.” 70

In determining the offense level applicable to the underlying racketeering activity under
subsection (a)(2), §1B1.3 directs the court to account for all relevant conduct 71 that
qualifies as a racketeering act under section 1961(1). 72 Relevant conduct includes conduct
that is charged or uncharged, 73 as well as acquitted conduct. 74 Thus, the underlying
racketeering activity consists of any underlying offense (charged, uncharged, or acquitted)
that qualifies under the statute as racketeering activity or collection of unlawful debt. 75

v. Olson, 22 F.3d 783, 786–87 (8th Cir. 1994) (district court erred in calculating the defendant’s base offense
level at 17 for her RICO conspiracy because §2E1.1(a) provides that the base offense level for a RICO offense
is 19 unless the offense level applicable to the underlying racketeering activity is greater); United States v.
Butler, 954 F.2d 114, 120–22 (2d Cir. 1992) (same).
69 USSG §2E1.1, comment. (n.3).
70 See id. §1B1.3(a)(1). See also United States v. Carrozza, 4 F.3d 70 (1st Cir. 1993).
71 See USSG §1B1.3.
72 See 18 U.S.C. § 1961(1) (defining “racketeering activity”).
73 See United States v. Flemmi, 245 F.3d 24, 30 n.4 (1st Cir. 2001) (citations omitted) (“To be sure, a
sentencing judge may consider uncharged predicate acts in a RICO case, . . . but the judge nonetheless must
stay below the maximum penalty allowed under the charges delineated in the indictment and submitted to
the jury.”).
74 As explained in the Commentary to §1B1.3, this provision does not require that the defendant be convicted

of multiple counts. USSG §1B1.3, comment. (backg’d) (“Conduct that is not formally charged or is not an
element of the offense of conviction may enter into the determination of the applicable guideline sentencing
range.”); id. at comment. (n.5) (“subsection (a)(2)[ ] applies to offenses of a character for which §3D1.2(d)
would require grouping of multiple counts, had the defendant been convicted of multiple counts”). See also
United States v. Pica, 692 F.3d 79, 88–90 (2d Cir. 2012) (“A district court may treat acquitted conduct as
relevant conduct at sentencing, provided that it finds by a preponderance of the evidence that the defendant
committed the conduct”); United States v. Mercado, 474 F.3d 654, 657 (9th Cir. 2007) (“[T]he constitutional
propriety of a sentencing court’s consideration of conduct which underlay an acquitted charge existed before
creation of the Guidelines and continues to exist today.”); United States v. Watts, 519 U.S. 148, 157 (1997)
(sentencing court may consider conduct of which defendant has been acquitted, so long as that conduct has
been proved by a preponderance of the evidence).
75See, e.g., United States v. Flores, 912 F.3d 613, 621–22 (D.C. Cir. 2019) (holding defendant’s murder of a
Mexican national in Mexico was not relevant conduct under §1B1.3(a)(1)(A) because it was not “‘indictable,’

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Therefore, an act may be within the scope of a RICO conspiracy but cannot be considered in
determining the offense level if it is not chargeable under a statute in § 1961(1). 76 In a
RICO conspiracy, the most serious underlying racketeering activity to be used in
determining “the offense level applicable to the underlying racketeering activity” is not
necessarily set by overt acts personally committed by the defendant. 77 Rather, it may be set
by conduct of others that are “reasonably foreseeable” results of a defendant’s gang
activities.

a. Burden of proof for uncharged underlying offenses

In some cases, a jury verdict may not indicate which of multiple underlying offenses
were found to have been committed in furtherance of the RICO violation, or the jury may
find some of the charged underlying offenses were committed, but not others. There may
also be additional uncharged underlying offenses that may be accounted for as relevant
conduct in determining the offense level for the underlying racketeering activity.

The majority of circuits have held that uncharged (or acquitted) underlying offenses
(i.e., “predicate acts”) may be accounted for as relevant conduct if the court finds the
underlying offense has been proven by a preponderance of the evidence. 78 The circuits
reasoned that, unlike a multi-object conspiracy, which is treated under the guidelines at
§1B1.2(d) (Applicable Guidelines) as if each object constitutes a single-object conspiracy, a
RICO conspiracy itself is a single-object conspiracy with the object being to engage in
racketeering in violation of section 1962. 79 That is, “the underlying acts of racketeering in
a RICO conspiracy are not considered to be the objects of the conspiracy, but simply

‘chargeable,’ or ‘punishable’ under one of the statutes identified in § 1961(1)” and thus outside the scope of
“racketeering activity”).
76 Flores, 912 F.3d at 621–22.

77United States v. Porraz, 943 F.3d 1099, 1103 (7th Cir. 2019) (holding that §2A1.5 was properly used to
calculate defendant’s guideline range in a RICO conspiracy offense because murder by other gang members
was a reasonably foreseeable result of gang activity).

78 United States v. Barragan, 871 F.3d 689, 717 (9th Cir. 2017); United States v. Garcia, 754 F.3d 460, 482-83
(7th Cir. 2014); United States v. Yannotti, 541 F.3d 112, 129–30 (2d Cir. 2008); United States v. Massino, 546
F.3d 123, 135 (2d Cir. 2008); United States v. Corrado, 227 F.3d 528, 542 (6th Cir. 2000); United States v.
Carrozza, 4 F.3d 70, 79–80 (1st Cir. 1993).
79 Section 1B1.2(d) instructs that “[a] conviction on a count charging a conspiracy to commit more than one
offense shall be treated as if the defendant had been convicted on a separate count of conspiracy for each
offense that the defendant conspired to commit.” USSG §1B1.2(d). The Commentary to §1B1.2 cautions
courts to take “particular care” in applying subsection (d) and, in cases where the verdict or guilty plea does
not specify which offense was the object of the conspiracy, subsection (d) should only be applied where an
object offense has been proven beyond a reasonable doubt to the sentencing court as if it were sitting as a
trier of fact. USSG §1B1.2, comment. (n.4). See also Carrozza, 4 F.3d at 79–80; Garcia, 754 F.3d at 482;
Yannotti, 541 F.3d at 129–30; Massino, 546 F.3d at 134–36; Corrado, 227 F.3d at 542.

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conduct that is relevant to the central objective—participating in a criminal enterprise.” 80

A conviction for a RICO conspiracy therefore does not require proof of the actual
commission of an underlying offense by the defendant or any other conspirator. 81 The
underlying offenses serve only to establish the existence of the charged agreement among
members of the conspiracy to violate the RICO Act; they do not constitute separate criminal
objectives that must each be proven beyond a reasonable doubt. 82

By contrast, the Eleventh Circuit has held that where the jury finds the defendant
guilty of a RICO conspiracy, but does not indicate which of the underlying offenses the
defendant committed, the defendant’s offense level is properly based upon the underlying
offenses that the court finds are proven beyond a reasonable doubt as if the court were
sitting as trier of fact. 83

2. Calculating the Offense Level for a RICO Offense

To determine which offense level to use under §2E1.1, the court must calculate the
offense level for both subsections (a)(1) and (a)(2). 84 Thus, to calculate the offense level for
subsection (a)(1), the court uses the minimum base offense level 19 and applies the
applicable Chapter Three adjustments from Parts A (Victim-Related Adjustments), B (Role
in the Offense), and C (Obstruction and Related Adjustments). 85 Likewise, to calculate the
offense level applicable to the underlying racketeering activity under subsection (a)(2), the
court calculates the applicable Chapter Two offense guidelines for the underlying offenses
and the Chapter Three adjustments from Parts A, B, and C, and then applies the grouping
rules in D (Multiple Counts) as needed. 86 The court then compares the offense level for
subsection (a)(1) to the offense level for subsection (a)(2) and uses whichever subsection
results in the greater offense level. 87

80 Corrado, 227 F.3d at 542 (emphasis in original).

81See Salinas v. United States, 522 U.S. 52, 64 (1997)(noting that “[t]he RICO conspiracy statute, § 1962(d),
broadened conspiracy coverage by omitting the requirement of an overt act.”).
82 See Carrozza, 4 F.3d at 79–80; Yannotti, 541 F.3d at 129–30; Corrado, 227 F.3d at 542; Garcia, 754 F.3d at

483.
83See United States v. Nguyen, 255 F.3d 1335, 1341(11th Cir. 2001) (reaffirming its previous holding in
United States v. DiGiorgio, 193 F.3d 1175, 1177–78 (11th Cir. 1999) (defendants’ offense level was properly
based upon predicate acts that the court found the defendants had committed beyond a reasonable doubt)).
84 USSG §2E1.1, comment. (n. 3).

85 See USSG §2E1.1, comment. (n.1).

86 Id.
87 Id. (“Use whichever subsection results in the greater offense level.”). See also id. §3D1.3, comment. (n.1)

(defining the “offense level” for a count as “the offense level from Chapter Two after all adjustments from
Parts A, B, and C of Chapter Three”).

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a. Single Underlying Offense

Underlying racketeering activity may consist of a single racketeering act, such as the
collection of a single unlawful debt. 88 In that case, the court follows the approach outlined
above to calculate the offense level for both subsections (a)(1) and (a)(2) and uses
whichever subsection results in the greater offense level.

b. Multiple Underlying Offenses

Application Note 1 to §2E1.1 provides specific guidance for calculating a combined

offense level for multiple underlying racketeering activity to determine whether subsection
(a)(1) or subsection (a)(2) results in the greater offense level. Application Note 1 instructs
the court to treat each underlying offense as if it were a separate count of conviction. 89 For
each underlying offense, the court applies the applicable Chapter Two offense guideline,
including specific offense characteristics, cross-references, and Chapter Three adjustments
from Parts A, B, and C. 90 The court then applies the grouping rules in Chapter Three, Part
D, to determine the combined offense level for the underlying racketeering activity. 91

88 See, e.g., United States v. Weiner, 3 F.3d 17, 24 (1st Cir. 1993) (“a single collection of an unlawful debt
satisfies section 1962(c)’s ‘collection of unlawful debt’ requirement”); United States v. Giovanelli, 945 F.2d
479, 490 (2d Cir. 1991) (“[T]o satisfy RICO’s ‘collection of unlawful debt’ definition the government need only
demonstrate a single collection.”).
89 See USSG §2E1.1, comment. (n.1).
90 See id. §1B1.5(c) (“If the offense level is determined by a reference to another offense guideline . . . the
adjustments in Chapter Three (Adjustments) also are determined in respect to the referenced offense
guideline, except as otherwise expressly provided.”); id. comment. (n.2) (instructing that a reference to use of
another guideline if that guideline results in a greater offense level means the offense level taking into
account only the Chapter Two offense, unless the offense guideline expressly provides for consideration of
both the Chapter Two offense level and applicable Chapter Three adjustments, such as the Commentary to
§2E1.1) (emphasis added). But see United States v. Damico, 99 F.3d 1431, 1436–38 (7th Cir. 1996) (district
court properly applied the four-level leadership role adjustment in subsection (a)(2) based on defendant’s
role in the overall RICO conspiracy, holding “the predicate-by-predicate approach under Application Note 1
applies, as the note states, only for the purpose of establishing a RICO defendant’s base offense level, and not
for the purpose of applying Chapter Three adjustments”); United States v. Ivezaj, 568 F.3d 88, 99 (2d Cir.
2009) (district court properly determined that the role adjustment in subsection (a)(2) is applied based on
the defendant’s role in the overall RICO enterprise; concluding that “the language of the Guidelines is clear
that the requirement to look at each individual act in a RICO offense is only for the purpose of establishing the
base offense level, not for applying the Chapter Three adjustments”); United States v. Yeager, 210 F.3d 1315,
1316-17 (11th Cir. 2000) (concluding that it is appropriate to judge a RICO defendant’s role in the offense in
subsection (a)(2) with respect to the overall RICO conspiracy for the purpose of applying an enhancement
under §3B1.1(a)); United States v. Coon, 187 F.3d 888, 899 (8th Cir. 1999) (affirming aggravating role
adjustments in subsection (a)(2) based on the defendants’ role in the overall RICO enterprise).
91See USSG §§3D1.1 (Procedure for Determining Offense Level on Multiple Counts), 3D1.2 (Groups of Closely
Related Counts), 3D1.3 (Offense Level Applicable to Each Group of Closely Related Counts), 3D1.4

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For offense guidelines that are determined largely on the basis of the total amount
of harm or loss, the quantity of a substance involved, or some other measure of aggregate
harm (i.e., drug trafficking, bribery, money laundering, fraud, and other similar offenses),
the offense guideline is applied once and the offense level is calculated based on the
aggregate harm or quantity. 92 Thus, where multiple underlying offenses use the same
offense guideline and group under §3D1.2(d), the court applies the Chapter Two offense
guideline and any adjustments in Chapter Three, Parts A, B, and C, based on the aggregate
harm or quantity. 93

Offenses that use different offense guidelines do not group under §3D1.2(d) merely
by being listed on the “included” list. 94 Different offense guidelines, however, may group
under a different rule in §3D1.2 if the offense conduct involves the same victim and the
same act or transaction, or involves the same victim and two or more acts or transactions
connected by a common criminal objective or constituting part of a common scheme or
plan, or when one predicate act embodies conduct that is treated as a specific offense
characteristic in, or other adjustment to, the guideline applicable to another predicate act. 95

Similarly, certain offense guidelines are specifically “excluded” from grouping under
§3D1.2(d), such as robbery, assault, murder, kidnapping, and other similar crimes. 96 Such
offenses, however, may group with other offenses under a different rule in §3D1.2.

i. Examples

Example 1: The defendant was convicted of one count of violating section 1962(d)
(RICO conspiracy). The underlying racketeering activity consists of three racketeering acts
of distribution of a controlled substance and possession with intent to distribute a
controlled substance in violation of 21 U.S.C. § 841. The defendant possessed a firearm and
supervised at least two other participants in committing the drug trafficking offenses.

To determine whether subsection (a)(1) or subsection (a)(2) results in the greater

offense level, the court calculates the offense level for subsection (a)(1) by starting with the
minimum base offense level 19 and adding two levels for the defendant’s role in the RICO
offense (§3B1.1(c)), resulting in an offense level of 21.

(Determining the Combined Offense Level).

92See id. §3D1.2(d) (listing offenses that are grouped based on aggregate harm or if the offense behavior is
ongoing or continuous in nature and the offense guideline is written to cover such behavior).
93 See id. §3D1.3(b) and comment. (n.3).
94 See id. §§3D1.2(d) and comment. (n.6); 3D1.3(b) and comment. (n.3).
95 See id. §3D1.2(a), (b), and (c).
96 See id. §3D1.2(d) (providing list of “excluded” offenses from operation of Rule (d)).

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To determine the offense level applicable to the underlying racketeering activity, the
court determines that the applicable Chapter Two guideline for the underlying offenses is
§2D1.1 (Unlawful Manufacturing, Importing, Exporting, or Trafficking (Including
Possession with Intent to Commit These Offenses) Attempt or Conspiracy). Because
§2D1.1 is on the “included” list under §3D1.2(d), the underlying offenses are grouped
together as if they were a single count of conviction and the offense guideline is applied
once. Based on the aggregate quantity of drugs, the base offense level is level 32. Two
levels are added for possession of a dangerous weapon (§2D1.1(b)(1)) and two levels are
added for role in the offense (§3B1.1(c)). The resulting offense level for the underlying
racketeering activity is level 36.

Because the offense level for subsection (a)(2), level 36, is greater than the offense level for
subsection (a)(1), level 21, the court uses subsection (a)(2) as the offense level for the RICO
offense.

Example 2: The defendant was convicted of violating section 1962(d). The

underlying offenses consist of three racketeering acts of bribery in violation of 18 U.S.C.
§ 201. The defendant managed less than five participants in the RICO enterprise. Although
the defendant was not a public official, the defendant used his position of trust in a private
corporation to commit the bribery offenses in furtherance of the RICO enterprise.

To determine whether subsection (a)(1) or (a)(2) results in the greater offense

level, the court calculates the offense level for subsection (a)(1) by starting with the
minimum base offense level 19 and adding two levels for the defendant’s managerial role in
the overall RICO enterprise (§3B1.2(c)) and two levels for abuse of a position of trust
(§3B1.3), resulting in an offense level of 23.

In determining the offense level for subsection (a)(2), the applicable Chapter Two
guideline for the underlying bribery offenses is §2C1.1 (Offering, Giving, Soliciting, or
Receiving a Bribe). Because §2C1.1 is on the “included” list under §3D1.2(d), the court

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treats the underlying bribery offenses as if they were a single count of conviction and uses
a single application of the offense guideline. Starting with base offense level 12, two levels
are added for more than one bribe (§2C1.1(b)(1)) and four levels are added for aggregate
loss of more than $15,000 (§2C1.1(b)(2)). Two levels are added for the defendant’s
managerial role in the bribery offenses involving less than five participants (§3B1.1(c)).
Although the defendant abused a position of trust in the bribery scheme, the Commentary
to §2C1.1 instructs that the abuse of trust adjustment is inapplicable under the §2C1.1
offense guideline. 97 The resulting offense level for the underlying racketeering activity is
level 20.

(Single Application of §2C1.1)

B0L 12
+2 (more than one bribe) +4 (value > $15K)
+ 2 (role in the offense) + 2 (abuse of trust)
Combined OL = 20

Because the offense level for the underlying racketeering activity under subsection (a)(2),
level 20, is less than the offense level for subsection (a)(1), level 23, the court uses
subsection (a)(1) as the offense level for the RICO offense.

Example 3: The defendant was convicted of one count of violating section 1962(c).
The underlying racketeering activity consists of three racketeering acts of extortion by
force involving three victims. A participant in the RICO enterprise threatened to kill the
first victim and seriously injured the second victim. The third victim ultimately complied
with the extortion and lost his business as a result. The business was valued at $85,000.
The defendant was the leader of the overall RICO enterprise involving more than five
participants and personally supervised another associate in the extortion of the second
victim.

To determine whether the offense level for subsection (a)(1) or (a)(2) is greater, the
court determines that the offense level for subsection (a)(1) is level 23: the minimum base
offense level 19, plus four levels for the defendant’s role in the overall RICO enterprise
(§3B1.1(a)). For subsection (a)(2), the applicable Chapter Two guideline for the
underlying extortion offenses is §2B3.2 (Extortion by Force or Threat of Injury or Serious
Damage). The extortion offenses are not grouped because each offense involves a different

97 See id. §2C1.1, comment. (n.6). See also United States v. Butt, 955 F.2d 77, 88–90 (1st Cir. 1992) (holding
that subsection (a)(1), as a generic RICO base offense level, does not fall within the limitation of §3B1.3, and
thus applying abuse of trust adjustment is not impermissible double counting).

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victim. 98 Extortion One (victim one) has an offense level of 20: base offense level 18, plus
two levels for threat of death (§3B3.2(b)(1)). Extortion Two (victim two) has an offense
level of 24: base offense level 18, plus four levels for serious bodily injury
(§2B3.2(b)(4)(B)) and two levels for the defendant’s role in the extortion of the second
victim (§3B1.1(c)). Extortion Three (victim three) has an offense level of 19: base offense
level 18, plus one level for loss of more than $20,000 (§2B3.2(b)(2)). Pursuant to §3D1.4,
three units are added to the offense with the highest offense level, resulting in a combined
offense level of 27 for the underlying racketeering activity.

Because the resulting offense level for subsection (a)(2), level 27, is greater than the
offense level for subsection (a)(1), level 23, the court uses subsection (a)(2) as the offense
level for the RICO offense.

c. Applying cross-references in offense guidelines

In some cases, the Chapter Two offense guideline applicable to an underlying

offense may include a determination of the applicability of a “cross reference” to another
offense guideline, such as the cross reference in the robbery guideline at §2B3.1(c), the
extortion guideline at §2B3.2(c), or the drug trafficking guideline at §2D1.1(d). In the event
the cross reference applies, the court applies the Chapter Two offense guideline applicable
to the cross reference and the Chapter Three adjustments from Parts A, B, C, and D to
determine the combined offense level for the underlying racketeering activity.

d. Analogizing state crimes (Application Note 2)

When the underlying offense that constitutes a racketeering act is a violation of

state law, the Commentary to §2E1.1 at Application Note 2 instructs the court to use the

98 See USSG §3D1.2(d) and comment. (backg’d.).

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Chapter Two offense guideline corresponding to the most analogous federal offense. 99 For
instance, if the underlying offense is conspiracy to commit murder under state law, the
offense guideline for the most analogous federal offense is §2A1.5 (Conspiracy or
Solicitation to Commit Murder). 100 Similarly, if the underlying offense is murder under
state law, the offense guideline for the most analogous federal offense is §2A1.1 (First
Degree Murder), even absent premeditation or malice aforethought. 101

e. “Prior sentence” rule (Application Note 4)

The Commentary to §2E1.1, at Application Note 4, explains that conduct may be

charged in the RICO count of conviction as part of a pattern of racketeering activity even
when the defendant has previously been convicted and sentenced for that conduct. 102
However, for purposes of calculating the RICO guideline, if the previously imposed
sentence resulted from a conviction that occurred before “the last overt act” (i.e., the last
underlying offense) of the instant RICO offense, that previously imposed sentence is to be
treated as a prior sentence under §4A1.2(a)(1) (Prior Sentence) as part of the defendant’s
criminal history. It should not be treated as relevant conduct for purposes of determining
the offense level for the instant RICO offense. 103

Notably, Application Note 4 refers to the “last overt act of the instant offense” 104 and
not to the last overt act that is charged in the indictment or other charging instrument.
Thus, applicability of the “prior sentence” rule in Application Note 4 turns on the date the

99See id. §2E1.1, comment. (n.2). See also id. §2X5.1 (for a felony offense for which there is no specified
guideline, apply the “most analogous offense guideline”).
100 See United States v. Scott, 642 F.3d 791, 801–02 (9th Cir. 2011) (“The special verdict form indicates the
jury found [defendant] guilty of conspiring to murder under state law, so the district court properly
analogized to the federal offense of conspiracy to murder.”).
101 See United States v. Minicone, 960 F.2d 1099, 1110 (2d Cir. 1992) (defendant convicted of RICO
conspiracy based on his involvement in the enterprise’s gambling activity and second degree murder under
the New York Penal Code; district court properly analogized the definition of first degree murder in 18 U.S.C.
§ 1111 and used the applicable guideline for first degree murder at §2A1.1); see also United States v. Carr, 424
F.3d 213, 231 (2d Cir. 2005) (district court properly applied base offense level for federal offense of first
degree murder, reiterating its conclusion in Minicone that the absence of reference to premeditation or malice
aforethought in the state second degree murder statute does not mean that federal first degree murder is not
the most analogous federal offense).
102 See USSG §2E1.1, comment. (n.4).
103 Id. Application Note 4 was intended “to clarify the treatment of certain conduct for which the defendant

previously has been sentenced as either part of the instant offense or prior criminal record.” See USSG App. C,
amend. 142 (effective Nov. 1, 1989). See also Minicone, 960 F.2d at 1111 (rejecting government’s argument
that the district court erred in assessing prior conviction only in calculating criminal history and not in
calculating the base offense level, explaining that the “district court reasonably construed Note 4 to mean that
the conduct underlying the previously imposed sentence should not be used in calculating the base offense
level for the instant [RICO] offense”).
104 See USSG §2E1.1, comment. (n.4).

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last underlying offense occurred regardless of whether that underlying offense was
charged in the indictment.

The distinction between treating a previously convicted racketeering act as relevant

conduct or as a prior sentence highlights that the RICO Act allows separate prosecution and
punishment of the underlying acts of racketeering activity and the subsequent RICO
violation. 105 Similarly, a RICO violation should be considered separate from a previously
sentenced racketeering act. Although racketeering activity constitutes an element of the
RICO offense, a previously sentenced racketeering act indicates that the defendant is a
repeat offender who violated the law once by committing the predicate act—for which the
defendant was convicted and sentenced—and again by engaging in a pattern of
racketeering activity in violation of the RICO Act.

C. APPLICATION CONSIDERATIONS

1. RICO Count and Other Counts of Conviction

When the RICO count is one of multiple counts of conviction, the court must
determine the offense level for the RICO count and for each of the other counts of
conviction, and apply the grouping rules in Chapter Three, Part D, to determine a single
combined offense level that encompasses all counts to which the defendant has been
convicted. 106 For instance, if the defendant was convicted of one count of RICO conspiracy
charging two racketeering acts of extortion and two substantive counts of extortion, in
violation of 18 U.S.C. § 1951(a), or if the defendant was convicted of one count of RICO
conspiracy and one count of obstruction of justice, in violation of 18 U.S.C. § 1510, the court
applies the grouping rules in Chapter Three, Part D, to determine a combined offense level
for all counts of conviction.

2. RICO Count and Acceptance of Responsibility (§3E1.1)

A defendant who has accepted responsibility in accordance with §3E1.1 qualifies for
a decrease of two to three levels. 107 The acceptance of responsibility adjustment is applied
after determining the offense level for the RICO count (and the combined offense level for
multiple counts of conviction).

105United States v. Riccobene, 709 F.2d 214, 232 (3d Cir. 1983) (“The predicate offenses . . . are not
themselves the RICO violation[;] they are merely one element of the crime. [RICO] does not prohibit the
commission of the individual racketeering acts. Rather, it bans the operation of an ongoing enterprise by
means of those acts.”) overruled in part on other grounds by Griffin v. United States, 502 U.S. 46 (1991), as
recognized by United States v. Bergrin, 650 F.3d 257, n.5 (3d Cir. 2011).
106 USSG Ch. 3, intro. comment.
107 Id. §3E1.1.

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3. RICO Offense as a Predicate Offense for the Career Offender

Guideline (§4B1.1) and 18 U.S.C. § 924(c)

A RICO conviction may qualify as a predicate offense for purposes of the career
offender guideline at §4B1.1 and for a violation of 18 U.S.C. § 924(c).

Section 4B1.1 provides that a defendant is a career offender if the defendant is at

least 18 years old at the time of the instant offense, the instant offense is a “crime of
violence” or “controlled substance offense” as those terms are defined at §4B1.2, and the
defendant has at least two prior felony convictions that are either a “crime of violence” or
“controlled substance offense.” Because a RICO conviction hinges on proof of the
underlying offenses comprising the “pattern of racketeering activity,” the court must
determine whether the underlying offenses qualify as “crimes of violence” or “controlled
substance offenses” under §4B1.2 to determine whether the RICO conviction qualifies as a
predicate offense for the career offender enhancement. 108

Section 924(c) provides that a person who uses or carries a firearm during and in
relation to, or possesses a firearm in furtherance of, a “crime of violence” or “drug
trafficking crime,” as those terms are defined in section 924(c), shall be sentenced to a term
of imprisonment ranging from five to 25 years consecutive to the sentence for the
underlying offense. In a RICO case, where there is proof of the commission of at least two
racketeering acts (i.e., a pattern of racketeering activity) that qualify either as a “crime of
violence” or “drug trafficking crime” under section 924(c), a RICO conviction can serve as a
predicate offense for a violation of section 924(c). 109 However, at least one circuit has held
a RICO conspiracy offense is not a crime of violence under section 924(c) because it only
requires an agreement to commit an offense and thus does not require the force necessary
to meet the elements clause. 110

4. Ex Post Facto Issues and the “One Book” Rule

Section 1B1.11 (Use of Guidelines Manual in Effect on Date of Sentencing (Policy

Statement)) directs the court to use the Guidelines Manual in effect on the date of

108See United States v. Brown, 945 F.3d 72, 76 (2d Cir. 2019) (holding the career offender enhancement
applied based on RICO conspiracy with predicate acts of bank robbery, which is a crime of violence under
§4B1.2(a)); United States v. Scott, 642 F.3d 791, 801 (9th Cir. 2011) (holding the same for RICO conspiracy
with underlying predicate acts of murder).
109 United States v. Ayala, 601 F.3d 256, 267 (4th Cir. 2010) (RICO conspiracy to commit crimes including
murder, kidnapping, and robbery is a crime of violence for purposes of 18 U.S.C. § 924(c) liability); United
States v. Ivezaj, 568 F.3d 88, 96 (2d Cir. 2009) (RICO count qualifies as crime of violence where government
proved at least two underlying racketeering acts qualified as crimes of violence under 18 U.S.C. § 924(c)).
110United States v. Jones, 935 F.3d 266, 271–274 (5th Cir. 2019) (holding it was plain error to convict
defendants of section 924(c) offenses based on RICO conspiracy as a crime of violence).

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sentencing. 111 But if application of the current guidelines would violate the Ex Post Facto
Clause of the U.S. Constitution, 112 the court shall use the version of the Guidelines Manual in
effect on the date that the offense was committed, which is referred to as the “one book”
rule. 113

RICO offenses are continuing offenses and may extend across different versions of
the Guidelines Manual without violating the Ex Post Facto Clause. 114 Thus, a defendant who
participates in a RICO conspiracy and who does not withdraw from that conspiracy before
the effective date of a Guidelines Manual providing a higher offense level will be sentenced
pursuant to the more recent edition of the Guidelines Manual. 115 For example, a defendant
was convicted of a RICO conspiracy spanning 15 years from 2001 to 2016 with two
racketeering acts, one of which was a 2002 attempted murder of a rival gang member.
Prior to November 1, 2004, the base offense level for attempted murder under
§2A2.1(a)(1) was level 28. 116 Effective November 1, 2004, the base offense level for
attempted murder under §2A2.1(a)(1) increased to level 33. 117 Because the defendant’s
involvement in the RICO conspiracy continued beyond 2004, the later edition of the
Guidelines Manual in effect at the time of the defendant’s sentencing is applied and the base
offense level for the underlying attempted murder offense is 33. 118

111 USSG §1B1.11(a).

112U.S. CONST. art. I, § 9, cl. 3 (prohibiting the passage of a law that criminally punishes conduct that was
lawful when committed or increases punishment for conduct after it has occurred).
113 USSG §1B1.11(b). See also Peugh v. United States, 569 U.S. 530, 533 (2013) (holding that “there is an ex
post facto violation when a defendant is sentenced under Guidelines promulgated after he committed his
criminal acts and the new version provides a higher applicable Guidelines sentencing range than the version
in place at the time of the offense”).
114 See, e.g., United States v. Jackson, 983 F.2d 757, 771 (7th Cir. 1993), overruled on other grounds by Ratzlaf
v. United States, 510 U.S. 135 (1994); United States v. Moscony, 927 F.2d 742, 754–56 (3d Cir. 1991); United
States v. Eisen, 974 F.2d 246, 268–69 (2d Cir. 1992); United States v. Butler, 954 F.2d 114, 120–21 (2d Cir.
1992).
115 USSG §1B1.11, comment. (backg’d). See also United States v. Korando, 29 F.3d 1114, 1120 (7th Cir. 1994)
(citing Jackson, 983 F.2d at 771).
116 See USSG App. C, amend. 311 (effective Nov. 1, 1990).
117 See USSG §2A2.1(a)(1).
118 See, e.g., United States v. Hurley, 63 F.3d 1, 19–20 (1st Cir. 1995) (district court properly applied for the
RICO violation the money laundering guideline in effect at the time of sentencing where the RICO conspiracy
continued at least until after November 1, 1991, when the new and broader money laundering guideline took
effect); United States v. Minicone, 960 F.2d 1099, 1111 (2d Cir. 1992) (no ex post facto violation where RICO
conspiracy continued after sentencing guidelines took effect in 1987, even though predicate acts occurred
prior to date of the guidelines).

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