Federal Sentencing Guidelines for RICO

Federal Sentencing Guidelines for RICO: Why Mob Bosses Got 100 Years

The Racketeer Influenced and Corrupt Organizations Act transformed federal prosecution forever. On January 13, 1987, a federal judge in Manhattan sentenced the heads of New York’s Five Families to 100 years each in prison. Tony Salerno of the Genovese family, Carmine Persico of the Colombo family, and their co-defendants received the maximum possible sentence under RICO – more time than most murderers serve. They weren’t convicted of pulling triggers themselves. They were convicted of running an enterprise that committed crimes. That’s the genius and the danger of RICO. The law doesn’t just punish your crimes. It punishes you for being part of an organization that commits crimes.

Here’s what makes RICO sentencing different from every other federal offense. The maximum sentence is 20 years per count – but counts can stack without limit. If prosecutors charge you with five RICO violations, you’re facing 100 years. If the underlying racketeering activity includes a crime punishable by life imprisonment, like murder, the RICO count itself becomes a life sentence. John Gotti earned the nickname “The Teflon Don” because RICO charges wouldn’t stick to him throughout the 1980s. Then in 1992, they did. He died in prison in 2002, serving a life sentence.

The base offense level for RICO under Sentencing Guideline § 2E1.1 is 19 – but that’s just the floor. The guidelines instruct courts to use whichever calculation is higher: the base level or the offense level for the underlying racketeering activity. If you committed wire fraud as your predicate offense, the fraud calculation might exceed level 19. If you committed drug trafficking, the drug calculation almost certainly exceeds it. Your RICO sentence isn’t really about RICO at all. It’s about the worst thing the enterprise did.

The Law That Took Down the Mafia – And Now Targets Everyone

Heres the paradox nobody anticipated when Congress passed RICO in 1970. The law was designed specificly to destroy organized crime – the Cosa Nostra families that had operated with impunity for decades. Prosecutors couldnt touch mob bosses who ordered crimes but never committed them personally. Traditional conspiracy law required proving each defendant agreed to specific crimes. RICO changed everything by creating enterprise liability.

But the statute dosent say “organized crime” anywhere. It says “enterprise.” And the Supreme Court defined enterprise so broadly in Boyle v. United States that any group with a purpose, relationships, and longevity can qualify. Street gangs are enterprises. Motorcycle clubs are enterprises. Corporations that commit fraud are enterprises. Political organizations that engage in corruption are enterprises. The same law that put Tony Salerno away for running a crime family is now being used to prosecute everyone from gang members to business executives.

The P. Diddy indictment in 2024 shows how far RICO has traveled from its original purpose. Prosecutors are using the same legal framework that dismantled the Five Families to go after allegations that have nothing to do with traditional organized crime. Once something becomes an “enterprise” under RICO, the sentencing exposure explodes. Crimes that would otherwise carry five-year maximums suddenly carry twenty years. Crimes that would be prosecuted individually get stacked into patterns. The tool designed for the mob now reaches anywhere prosecutors want it to reach.

The ‘Pattern’ Requirement – Two Crimes Changes Everything

Heres the thing about RICO that people dont understand. You need at least two predicate acts within ten years to establish a “pattern of racketeering activity.” Thats it. Two related crimes in a decade, and suddenly your facing RICO instead of whatever the underlying charges would have been. The same wire fraud that might get you five years alone becomes part of a twenty-year RICO case when prosecutors prove its part of a pattern.

The two-act requirement sounds like a safeguard, but its actualy remarkably easy to satisfy. The acts just need to share the same purpose, results, participants, victims, or methods. If you commit fraud twice, thats a pattern. If you sell drugs twice, thats a pattern. The Supreme Court said in H.J. Inc. v. Northwestern Bell that prosecutors must show either “closed-ended continuity” (criminal conduct over a substantial period) or “open-ended continuity” (past conduct that threatens repetition). But courts have found continuity in cases spanning just a few months when theres a continuing enterprise.

The predicate offenses include 35 categories of crime – 27 federal and 8 state crimes. Murder, kidnapping, gambling, arson, bribery, extortion, mail fraud, wire fraud, securities fraud, drug trafficking, money laundering, obstruction of justice. Basicly any serious crime can serve as a RICO predicate. If your accused of committing two of these crimes through an enterprise, prosecutors have what they need to charge RICO.

Enterprise Liability – You’re Responsible for Everyone’s Crimes

Heres were RICO becomes terrifying. Under traditional criminal law, your responsible for your own conduct. Under RICO, your responsible for the conduct of the enterprise. If your part of an organization that commits crimes – even if your role is peripheral – the full scope of the enterprises criminal activity can be attributed to you at sentencing.

The “enterprise” can be anything from a Fortune 500 corporation to an informal group of friends who decided to commit crimes together. The Supreme Court in United States v. Turkette held that association-in-fact enterprises dont need formal structure, hierarchy, or written agreements. They just need an ongoing organization and associates functioning as a continuing unit. Three people who repeatedly sell drugs together are an enterprise. A business that uses employees to commit fraud is an enterprise.

This creates liability that nobody anticipates. You join a group. The group commits crimes you didnt participate in. Those crimes happened while you were associated with the enterprise. At your sentencing, the government argues those crimes are part of the pattern – and the judge calculates your offense level based on all of it. Your not being sentenced for what you did. Your being sentenced for what the enterprise did.

The Mafia Commission Trial demonstrated this perfectly. Prosecutors didnt have to prove each defendant committed each crime. They proved the Commission existed as an enterprise, that each defendant was associated with it, and that the enterprise engaged in a pattern of racketeering. Every member got attributed the full weight of what the organization did.

RICO Conspiracy – Convicted Without Committing a Crime

Heres the inversion that makes RICO so powerful for prosecutors. Under regular conspiracy law, the government must prove an agreement to commit a crime plus an overt act in furtherance of that agreement. Under RICO conspiracy (18 USC 1962(d)), theres no overt act requirement at all. The agreement itself is the crime.

This means you can be convicted of RICO conspiracy without ever committing a single predicate offense yourself. If you agreed to participate in the conduct of an enterprises affairs through racketeering activity, your guilty – even if you never actualy did anything. You never sold drugs. You never committed fraud. You never hurt anyone. But you agreed to be part of an organization that would do those things. Thats enough for conviction and up to twenty years in prison.

Defense attorneys fight this aggressively becuase the implications are so severe. Prosecutors use RICO conspiracy to sweep in defendants who were barely involved with the enterprise. Someone who provided minor assistance or peripheral support can find themselves facing the same charges as the organizations leaders. The conspiracy provision lets prosecutors build cases against entire networks rather then just the people who committed crimes.

Think about what this means practically. Your friend starts a business that turns out to be fraudulent. You helped with the website once. The business commits wire fraud dozens of times over three years. Prosecutors charge RICO conspiracy, naming you as a participant in the enterprise. You didnt commit any fraud yourself. But you agreed to be involved with the enterprise, and the enterprise committed fraud. Thats the theory, and courts have accepted it.

The Sentencing Math for RICO

Let me walk you threw how RICO sentences are actualy calculated. This is the math that determines wheather your serving ten years or life.

RICO uses Sentencing Guideline § 2E1.1. The guideline provides two alternative base offense levels: level 19, or the offense level for the underlying racketeering activity minus 1. You use whichever is higher. In practice, the underlying activity almost always produces the higher calculation.

If your predicate offense was drug trafficking involving five kilograms of cocaine, the drug guideline (§ 2D1.1) produces an offense level around 32. Your RICO sentence starts there, not at level 19. If your predicate was securities fraud causing $10 million in losses, the fraud guideline (§ 2B1.1) might produce level 28 or higher. RICO’s base level is just a floor that rarely matters.

Add the standard enhancements and offense levels climb rapidly:

• Leadership role (+2 to +4 levels) if you organized, led, or managed others in the enterprise. Most RICO defendants face this enhancement becuase RICO cases inherently involve organized activity.
• Obstruction of justice (+2 levels) if you destroyed evidence, intimidated witnesses, or lied to investigators.
• Vulnerable victim (+2 levels) if the enterprise targeted elderly, disabled, or otherwise vulnerable people.

Stack multiple predicate offenses and multiple enhancements, and RICO sentences reach astronomical levels. At offense level 38 with Criminal History Category I, the guidelines range is 235-293 months – roughly 20 to 24 years. Add multiple counts, and sentences approach what the mob bosses recieved.

Forfeiture – Losing Your Business Before Trial

Heres the uncomfortable truth about RICO that hits defendants before they ever see a courtroom. RICO’s forfeiture provisions under 18 USC 1963 allow the government to seize any property derived from the racketeering activity, any interest in the enterprise itself, and any property affording a source of influence over the enterprise.

This means if you used your legitimate business as the RICO enterprise, you can lose the entire business – not just profits from criminal activity, but the whole thing. Real estate, equipment, inventory, accounts receivable, goodwill – everything. The government dosent just take what you made from crime. They take the vehicle you used to commit it.

Worse, the government can obtain restraining orders to freeze assets before trial. While your presumed innocent, your bank accounts are frozen. Your business cant operate. Your cant hire lawyers with your own money becuase the assets are restrained. The government can effectivly destroy you financially before your ever convicted of anything.

Criminal forfeiture requires conviction, but civil forfeiture dosent. The government can sue your property directly, separate from any criminal case against you. The burden shifts – you have to prove the assets are legitimate. Combined with the criminal prosecution, RICO forfeiture creates comprehensive asset destruction that exceeds almost any other federal statute.

What To Do If Your Facing RICO Charges

If your facing RICO charges – wheather your alleged to be an enterprise leader or a peripheral participant – heres what you need to understand immediatly.

Identify the enterprise theory. What entity or association is the government calling the enterprise? Your business? An informal group? Understanding the enterprise theory reveals what conduct prosecutors will try to attribute to you.

Calculate your predicate exposure. Which racketeering acts are you personally accused of committing? Which acts will the government attribute to you through enterprise liability? The distinction matters enormously for sentencing.

Assess forfeiture risk. What assets might be subject to forfeiture? If you own a business thats being called the enterprise, assume the government wants to take it. Plan accordingly.

Understand conspiracy vs. substantive charges. Are you charged under § 1962(a), (b), (c), or (d)? The conspiracy provision (d) dosent require you to have committed any predicate acts. If your only charged with conspiracy, focus defenses on wheather you actually agreed to participate.

Consider cooperation early. RICO cases often involve many defendants. The first to cooperate gets the best deals. If you have information about the enterprise’s leadership or other participants, that information has value. The question is wheather trading it makes sense for your situation.

Preserve any defense on enterprise membership. Not everyone associated with a group is part of the enterprise for RICO purposes. If you can establish you were genuinely peripheral – not a participant in the enterprise’s affairs – that may defeat the charges entirely.

The RICO statute was designed to be comprehensive, powerful, and difficult to escape. It succeeds at all three. Understanding how prosecutors build RICO cases – and how sentencing works once they do – is essential to surviving charges that can produce sentences measured in decades.