912 F.3d 613
D.C. Cir.2019Background
- Francisco Carbajal-Flores, a Los Zetas cartel member, pleaded guilty to RICO conspiracy (18 U.S.C. §1962(d)) and accessory-after-the-fact counts related to the murder and attempted murder of two ICE Special Agents; he also admitted shooting and killing a kidnapped Mexican national in Mexico earlier in 2011.
- The plea agreement and PSR reached a Guidelines offense level of 43 (base level derived from murder guideline §2A1.1) and an adjusted total of 40 after acceptance credits, producing a Guidelines range of 292–365 months; PSR alternatively noted a lower range (70–87 months) if the Mexican murder were excluded.
- The PSR grouped counts and treated four overt acts (including the Mexican kidnap-murder and the ICE-agent murder) as relevant racketeering activity; the Probation Office invoked §1B1.3 in its addendum but primarily cited the accomplice-subsection §1B1.3(a)(1)(B) rather than the defendant-acts subsection §1B1.3(a)(1)(A).
- At sentencing the District Court adopted the PSR as written without separately explaining the legal basis for including the Mexican murder in the §2E1.1 calculation; the court sentenced Flores to 12 years plus supervised release.
- On appeal Flores argued the District Court erred by including the murder of a Mexican national (committed in Mexico) as relevant conduct/racketeering activity for calculating the RICO §2E1.1 base offense level; the government argued Flores was judicially estopped from challenging the plea agreement’s Guidelines calculation and that relevant-conduct rules allow extraterritorial acts to be considered.
Issues
| Issue | Plaintiff's Argument (U.S.) | Defendant's Argument (Flores) | Held |
|---|---|---|---|
| Whether judicial estoppel bars Flores from challenging the plea-agreement Guidelines calculation | Flores adopted the Guidelines calculation in the plea agreement, so he should be estopped from contesting it on appeal | Plea stipulations as to legal conclusions are not binding; plea reserved court’s final sentencing discretion | Judicial estoppel does not apply — plea agreement did not procure a judicial ruling and legal stipulations aren’t binding on court |
| Whether the District Court properly applied U.S.S.G. §1B1.3 when adopting the PSR | The PSR correctly used relevant-conduct principles to include extraterritorial acts; any error is harmless | PSR conflated accomplice subsection §1B1.3(a)(1)(B) with defendant-acts subsection §1B1.3(a)(1)(A); court gave no explanation which it relied on | Procedural error: record unclear whether §1B1.3(a)(1)(A) was applied; cannot affirm without clarity; remand required |
| Whether the Mexican kidnap murder qualifies as "underlying racketeering activity" under U.S.S.G. §2E1.1(a)(2) and 18 U.S.C. §1961(1) | Relevant-conduct doctrine permits consideration of extraterritorial acts within the RICO conspiracy scope | An act must qualify as a RICO predicate (i.e., indictable/chargeable/punishable under §1961(1)) to be used under §2E1.1 — the Mexican murder is not such a predicate | Substantive error: the Mexican murder is not "racketeering activity" under §1961 and therefore cannot be used to compute the §2E1.1 base offense level; remand for resentencing |
| Whether the Guidelines error prejudiced Flores’s sentence | Inclusion of the Mexican murder was proper; any adjustments harmless | Inclusion inflated base offense level from 27 to 43, drastically increasing guideline range | Error was prejudicial and requires resentencing |
Key Cases Cited
- New Hampshire v. Maine, 532 U.S. 742 (doctrine and factors for judicial estoppel)
- Molina-Martinez v. United States, 136 S. Ct. 1338 (district court’s improper Guidelines calculation is a significant procedural error)
- Gall v. United States, 552 U.S. 38 (procedural error standards for sentencing)
- RJR Nabisco, Inc. v. European Community, 136 S. Ct. 2090 (definition and requirement that racketeering activity be indictable/chargeable/punishable under §1961)
- United States v. Carrozza, 4 F.3d 70 (§2E1.1’s “underlying racketeering activity” limited to acts that qualify as RICO predicate acts)