995 F.3d 214
D.C. Cir.2021Background
- Francisco Carbajal Flores was a Los Zetas member who pled guilty to: (1) a RICO conspiracy to import controlled substances (18 U.S.C. § 1962(d)); (2) accessory after the fact to the murder of a U.S. Special Agent (18 U.S.C. §§ 3, 1111, 1114); and (3) accessory after the fact to the attempted murder of a U.S. Special Agent (18 U.S.C. §§ 3, 1113, 1114).
- Flores admitted serving as a lookout, hitman, and briefly as a hit‑squad commander for Los Zetas, and that he carried out violence to protect cartel drug‑smuggling routes into the U.S.; he also provided facts about the ambush that killed Special Agent Jaime Zapata and wounded Special Agent Victor Avila in Mexico.
- On initial appeal this court remanded (United States v. Flores) because the district court had improperly used the murder of a Mexican national to calculate the RICO base offense level.
- On remand the probation office calculated a Guidelines offense level of 43; the district court reimposed a 12‑year term. Flores again appealed, challenging: (a) several Guidelines enhancements (drug‑quantity attribution, role enhancement, violence/restraint enhancements tied to conduct in Mexico); and (b) his convictions under 18 U.S.C. § 1114 as extraterritorial prosecutions.
- The panel affirmed the RICO sentencing calculations but vacated the two § 1114 convictions under plain‑error review because this circuit held in Garcia Sota that § 1114 does not apply extraterritorially; the case was remanded for limited resentencing.
Issues
| Issue | Plaintiff's Argument (Flores) | Defendant's Argument (Government) | Held |
|---|---|---|---|
| Drug‑quantity attribution for Guidelines (U.S.S.G. § 1B1.3) | Court erred in attributing the total quantity trafficked by Los Zetas during Flores’ tenure because Flores was an enforcer with no agreement to import or direct role in shipments. | Flores’ admissions and role (lookout, enforcer, commander) tied him to the conspiracy’s overall scheme, so total quantity was attributable. | Affirmed: total quantity attributable based on plea admissions and jointly undertaken criminal activity. |
| Role enhancement (§ 3B1.1(c)) | Flores contends he was primarily a hitman and not a supervisor; report did not identify subordinates he supervised. | Flores served as a commander with authority over hit‑squad members (e.g., directing movements, summoning members, collecting taxes). | Affirmed: two‑level managerial/supervisory enhancement supported by record and circumstantial evidence. |
| Enhancements for threats/violence and physical restraint tied to conduct in Mexico (U.S.S.G. §§ 2D1.1(b)(2), 3A1.3) | Violent acts in Mexico against Mexican victims are not relevant conduct for the U.S. drug importation conspiracy and thus should not enhance the RICO sentence. | Flores admitted violent acts were undertaken to protect Mexico–U.S. drug routes; such conduct qualifies as racketeering activity and relevant conduct for sentencing. | Affirmed: violence in Mexico was racketeering activity related to the drug‑trafficking RICO conspiracy and properly considered. |
| Validity of convictions under 18 U.S.C. § 1114 for crimes in Mexico; forfeiture/plain‑error review | § 1114 does not apply extraterritorially (per Garcia Sota); convictions for conduct in Mexico must be vacated even though Flores pleaded guilty. | Government urged forfeiture/waiver and argued Flores should pursue relief in § 2255; also argued plea bargaining and foregone charges bear on remedy. | Vacated: under Rule 52(b) plain‑error review the court found the error plain, affecting substantial rights (including assessments and collateral consequences), and exercised discretion to vacate the § 1114 convictions; remanded for limited resentencing. |
Key Cases Cited
- United States v. Garcia Sota, 948 F.3d 356 (D.C. Cir. 2020) (held 18 U.S.C. § 1114 does not apply extraterritorially)
- United States v. Flores, 912 F.3d 613 (D.C. Cir. 2019) (prior remand addressing use of extraterritorial murder as racketeering activity in Guidelines calculation)
- Olano v. United States, 507 U.S. 725 (1993) (framework for plain‑error review under Fed. R. Crim. P. 52(b))
- Class v. United States, 138 S. Ct. 798 (2018) (guilty plea does not bar appellate challenge when court lacked power to enter conviction)
- Dominguez Benitez v. United States, 542 U.S. 74 (2004) (special prejudice showing for reversing plea‑based Rule 11 errors)
- United States v. Gibbs, 190 F.3d 188 (3d Cir. 1999) (attributing conspiracy drug quantity to enforcers is permissible in appropriate cases)
- United States v. Wilson, 605 F.3d 985 (D.C. Cir. 2010) (role‑enhancement requires evidence defendant exercised control over others)
- Henderson v. United States, 568 U.S. 266 (2013) (clarified timing and application of plain‑error review when law changes on appeal)
- Ball v. United States, 470 U.S. 856 (1985) (unauthorized convictions can have collateral consequences and constitute impermissible punishment)