UNITED STATES OF AMERICA, APPELLEE v. FRANCISCO CARBAJAL FLORES, ALSO KNOWN AS DALMATA, APPELLANT
No. 19-3100
United States Court of Appeals FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued September 10, 2020 Decided April 23, 2021
Appeal from the United States District Court for the District of Columbia (No. 1:11-cr-00143-1)
Richard K. Gilbert, appointed by the court, argued the cause for appellant. With him on the briefs was Kristen Grim Hughes, appointed by the court.
Suzanne G. Curt, Assistant U.S. Attorney, argued the cause for appellee. With her on the brief were Elizabeth Trosman, Michael DiLorenzo, and Karen P. Seifert, Assistant U.S. Attorneys.
Before: ROGERS and RAO, Circuit Judges, and RANDOLPH, Senior Circuit Judge.
Opinion of the Court filed by Circuit Judge RAO.
Opinion dissenting in part filed by Senior Circuit Judge RANDOLPH.
The government charged Flores with various crimes related to his role with Los Zetas, a violent, transnational criminal organization that controls hundreds of miles of territory along the United States-Mexico border, as well as various drug trafficking routes. Los Zetas transports multi-ton quantities of cocaine and marijuana from Mexico to the United States each month.
Los Zetas operates with a militaristic structure and protects its territory with force. A plaza boss controls a town with the cartel‘s hit squads (“estacas“). Each hit squad is led by a commander (“comandante“) who manages the squad‘s armed hitmen (“sicarios“). Frequently patrolling by vehicle, the hit squads “provid[e] protection for the cartel‘s illegal activity, including protection of its lucrative drug trafficking routes from Mexico to the United States, identification and elimination of rival cartel members, kidnap[p]ings, carjackings, human smuggling and assassinations.” App. 38. Los Zetas also employs lookouts (“halcones“) to monitor activity in the cartel‘s territory.
Flores joined Los Zetas in November 2009 as a lookout, became a hitman in May 2010, and was later promoted to a hit squad commander. Flores admitted that during his time with Los Zetas he “carried out various acts of violence and intimidation on behalf of the organization against Mexican law enforcement officers and rival drug cartel members for the purpose of maintaining control over the organization‘s territory, to include its drug smuggling routes to the United States.” App. 38–39.
As part of a plea agreement, Flores also provided information about an attack on two U.S. Immigration and Customs Enforcement Special Agents. On February 15, 2011, Special Agents Jaime Zapata and Victor Avila were returning to Mexico City in an armored SUV when two vehicles—each occupied by a Los Zetas hit squad—forced the SUV off the road near San Luis Potosi. Special Agent Avila stated they were diplomats from the U.S. Embassy, but the hit squad nonetheless fired at least eighty-eight rounds of ammunition at the agents, with several rounds entering the SUV through an open window. Special Agent Zapata was killed, and Special Agent Avila was seriously wounded. Both hit squads fled.
Flores belonged to one of these hit squads, but he was not present at the attack because he was visiting his family that day. When Flores rejoined the squad, they told him what transpired during the attack and made multiple inculpatory statements. Flores was tasked with protecting his fellow hit squad members from arrest. But about a week after the attack, Mexican authorities arrested Flores and his hit squad. Authorities also recovered various weapons, which ballistics testing linked to cartridge casings recovered from the scene of the attack.
Following his arrest, Flores was charged in a four-count indictment. The government entered into a plea agreement with Flores that allowed him to plead to more limited charges and that included a detailed statement of facts. Pursuant to that agreement, he pled guilty to three counts:1 (1) a RICO conspiracy, in violation of
Consistent with his plea agreement, Flores testified as a government witness in the trial of two individuals who participated in the attack on the Special Agents. The district court subsequently sentenced Flores to twelve years of incarceration, followed by three years of supervised release, a $300 special assessment, and restitution. Flores appealed, challenging the district court‘s consideration of his murder of a Mexican national when it calculated his Sentencing Guidelines (“Guidelines“) range. We agreed with Flores that the district court erred and remanded for resentencing because Flores’ murder of a Mexican national did not qualify as “underlying racketeering activity” and thus could not be used when calculating his base offense level for the RICO conspiracy. See United States v. Flores, 912 F.3d 613, 622–23 (D.C. Cir. 2019) (“Flores I“) (cleaned up).
The Probation Office prepared a revised presentence report, calculating Flores’ total offense level under the Guidelines at 43. After a hearing, the district court again sentenced Flores to twelve years’ imprisonment with credit for time served, followed by three years of supervised release, a $300 special assessment, and restitution.
In this second appeal, Flores challenges the district court‘s calculation of his sentence for the RICO conspiracy under the Guidelines. In addition, Flores argues his convictions for being an accessory after the fact to the murder and attempted murder of two Special Agents should be vacated because the statute under which he was convicted,
II.
Flores argues that the district court erred in sentencing him for the RICO conspiracy by miscalculating his offense level under the Guidelines. This court reviews a sentence imposed under the Guidelines to determine whether it is “reasonable.” United States v. Blalock, 571 F.3d 1282, 1285 (D.C. Cir. 2009) (quoting Gall v. United States, 552 U.S. 38, 46 (2007)). Reasonableness review is a two-step process: First, this court ensures the district court did not procedurally err by, for instance, miscalculating the Guidelines. Id. Second, the court reviews the sentence for substantive reasonableness under an abuse of discretion standard. Id. Flores challenges only the accuracy of the district court‘s Guidelines calculations, so our analysis focuses on the first step. We accept the district court‘s findings of fact unless they are clearly erroneous and “give due deference to the district court‘s application of the [G]uidelines to the facts.” United States v. McCants, 554 F.3d 155, 160 (D.C. Cir. 2009) (cleaned up).
Flores contends that the district court erred in adopting a Guidelines total offense level of 43 by (1) attributing to Flores the total amount of drugs Los Zetas imported to the United States while he worked for
A.
Flores first argues the district court erred when it attributed to him the total amount of drugs Los Zetas trafficked to the United States during his roughly fifteen months working for the cartel.
A court determines a defendant‘s base offense level by examining his “[r]elevant [c]onduct.” U.S.S.G. § 1B1.3 (2018). Where there is “jointly undertaken criminal activity“—such as a criminal enterprise—an individual defendant is accountable for the conduct of others that was “within the scope of,” “in furtherance of,” and “reasonably foreseeable in connection with that criminal activity.” See
Here, Flores pled guilty to participating in a drug trafficking conspiracy that spanned from November 2009 through February 2011 and involved multiple acts of importing five kilograms or more of cocaine into the United States. Flores admitted that when he began working for Los Zetas, he knew it was a criminal organization dedicated to drug trafficking and the transshipment of drugs. Likewise, in the statement of facts accompanying his guilty plea, Flores admitted knowing that Los Zetas imported massive quantities of cocaine into the United States, and that the cartel was responsible for transporting multi-ton quantities of cocaine and marijuana each month to the United States. Flores further admitted he engaged in acts of violence and intimidation to maintain the cartel‘s territory—including its drug smuggling routes to the United States. Based on these admissions, the district court did not clearly err when determining the drug quantity attributable to Flores. See United States v. Santos, 357 F.3d 136, 141 (1st Cir. 2004) (explaining the sentencing court was entitled to rely on concessions defendant made when pleading guilty in determining drug quantity attributable to him); see generally Blackledge v. Allison, 431 U.S. 63, 74 (1977) (stating that facts acknowledged during guilty plea proceedings have a “strong presumption of verity“).
In arguing that the district court erred in determining the drug quantity for which he was responsible, Flores focuses on the meaning of “jointly undertaken criminal activity” in
Undeterred, Flores argues that “[t]he law in this Circuit does not permit a district court, for sentencing purposes, to attribute to an individual defendant the
We find that the district court did not commit reversible error in determining the drug quantity for which Flores was responsible.4
B.
Second, Flores argues the district court erred in enhancing his offense level by two points based on his role in the RICO conspiracy. We disagree. This two-point enhancement applies if the defendant was an “organizer, leader, manager, or supervisor” of the criminal activity.
Although “[a]n enhancement under § 3B1.1 must be supported by the preponderance of the evidence, ... such evidence may be circumstantial.” United States v. Graham, 162 F.3d 1180, 1183 (D.C. Cir. 1998) (cleaned up).
Flores argues that the presentence report focuses on his role as a hitman—which is generally not a supervisory role—and that the report did not describe whom he allegedly supervised. Although Flores admits the report recognizes that he served as the commander of a hit squad, he argues this was not the district court‘s stated reason for the role enhancement.
At the resentencing hearing, however, the district court made clear that the two-point
Moreover, a preponderance of the evidence shows Flores had a supervisory role in which he exercised some control over others. For instance, Flores acknowledges he served as a commander. Flores described the role of a commander in detail in his testimony at the Garcia Sota trial, explaining that commanders decided what vehicles to hijack for Los Zetas to use; determined when hit squad members could leave and return to their squads; and summoned hit squad members for cartel meetings. In addition, Flores acknowledged that, during his time as a commander, his hit squad collected “taxes” from Los Zetas controlled junk yards and drug houses. These facts demonstrate that Flores—even if for a brief time5—held a supervisory role with the authority to direct others, which distinguishes his role from less-culpable participants. See, e.g., Wilson, 605 F.3d at 1038 (upholding application of an enhancement in a drug conspiracy case where the defendant directed the activity of “foot soldiers” and was considered a leader by crew members).6 We conclude the district court did not commit reversible error in applying the two-point supervisory role enhancement.
C.
Finally, Flores argues the district court erred by considering his criminal conduct in Mexico when imposing a two-point enhancement for his use of “threats and violence,”
conspiracy to traffic drugs into the United States, and therefore the district court cannot consider them as “relevant conduct” for the RICO conspiracy. Relying on the reasoning of Flores I, in which the court held that the murder of a Mexican national in Mexico could not be used when calculating Flores’ base offense level, 912 F.3d at 621–22, Flores maintains that the district court erred in considering his other criminal conduct perpetrated in Mexico when it recalculated his sentence.
In Flores I, this court held that “the relevant conduct Guidelines cannot be used to calculate the base offense level of an act that does not qualify as ‘racketeering activity.‘” 912 F.3d at 621. We therefore consider whether Flores’ underlying conduct
The grounds for finding error in Flores I are not present here because the relevant conduct used to calculate Flores’ base offense level was racketeering activity. In light of Flores’ admission that he committed kidnappings, murders, and numerous other violent crimes to protect Los Zetas’ Mexico-United States drug trafficking routes, the district court did not commit reversible error in imposing a two-point enhancement for the use of threats and violence and a two-point enhancement for the use of physical restraints. See
In sum, we affirm the district court‘s calculation of Flores’ sentence for the RICO conspiracy.
III.
Flores also argues that we should vacate his convictions for accessory after the fact to the murder and attempted murder of U.S. officials under Section 1114. Because Section 1114 does not apply extraterritorially, as Garcia Sota recognized, Flores maintains that the district court erred in convicting him under that statute for crimes committed in Mexico. The government responds that Flores forfeited this argument by failing to raise it on direct appeal. Because we find plain error in this case, we conclude that Flores’ convictions under Section 1114 must be vacated.
In general, an appellant who fails to raise an available issue in an initial appeal may not raise that claim in a second appeal after remand because such claims are forfeited. See, e.g., United States v. Saani, 794 F.3d 44, 48 (D.C. Cir. 2015). Absent plain error, we will not vacate or reverse in a second appeal based on an argument that could have been, but was not, raised in a first appeal. Id. Under
As a threshold matter, for Rule 52(b) to apply, there must be an “error.” “Deviation from a legal rule is ‘error’ unless the rule has been waived.” Id. at 732–33. In this case, there was an error: Flores was convicted on two counts under Section 1114 for conduct that occurred in Mexico, though this court subsequently held that the statute does not apply extraterritorially. See Garcia Sota, 948 F.3d at 357. Although Flores pled guilty to these charges, his plea does not constitute a waiver of the legal rule under the reasoning in Class v. United States, 138 S. Ct. 798, 805–06 (2018). In Class, the Supreme Court held that “a guilty plea by itself [does not] bar[] a federal criminal defendant from challenging the constitutionality of the statute of conviction on direct appeal.” Id. at 803. The underlying rationale of the Menna-Blackledge doctrine—which the Court applied in Class—also applies here. See id. at 803-04 (citing Menna v. New York, 423 U.S. 61, 63 & n.2 (1975) (per curiam); Blackledge v. Perry, 417 U.S. 21, 30 (1974)). That doctrine provides “that a guilty plea does not bar a claim on appeal where on the face of the record the court had no power to enter the conviction or impose the sentence.” Class, 138 S. Ct. at 804 (cleaned up). In light of this court‘s decision in Garcia Sota, it is now clear that the court had no power to convict and sentence Flores under Section 1114 because the underlying conduct occurred in Mexico. Because extraterritorial application of Section 1114 was an error, and Flores’ guilty plea does not bar his claim on appeal, we proceed under the Rule 52(b) plain error framework.
We next consider whether the error was “plain,” which may be apparent only on appeal. See Henderson v. United States, 568 U.S. 266, 279 (2013) (concluding that “whether a legal question was settled or unsettled at the time of trial, it is enough that an error be plain at the time of appellate consideration“) (cleaned up). At the time of Flores’ trial and first appeal, the extraterritorial application of Section 1114 was an unsettled question in this circuit. After Garcia Sota, however, it is now clear that Section 1114 has no extraterritorial application, so the district court‘s error is plain.
Third, the error must “affect[] substantial rights.”
Although vacating the Section 1114 convictions would not directly reduce Flores’
Furthermore, the erroneous convictions also affect Flores’ substantial rights because they have “potential adverse collateral consequences that may not be ignored.” Ball v. United States, 470 U.S. 856, 865 (1985); see also Rutledge, 517 U.S. at 302–03 (reaffirming Ball). For example, Flores would continue to have two very serious convictions on his record (accessory to murder and to attempted murder), which would affect his criminal history category and thus his sentence if he is convicted of any future offenses. See Ball, 470 U.S. at 865. Even if Flores is charged but not convicted of a future offense, a judge may consider his criminal history when deciding whether to grant bail pending trial, which would affect his liberty. The convictions may also “be used to impeach [Flores‘] credibility and certainly carr[y] the societal stigma accompanying any criminal conviction.” Id.
Thus, even though the convictions do not affect the length of the current sentence, they infringe Flores’ liberty and constitute “an impermissible punishment.” Id.; see also United States v. Tann, 577 F.3d 533, 539–40 (3d Cir. 2009)
(“Following Ball and Rutledge, numerous courts of appeals have concluded that a defendant‘s substantial rights are affected by the additional, unauthorized conviction, even when the immediate practical effect may not increase the defendant‘s prison term, or may only be a negligible assessment.“); id. at 539 n.7 (collecting cases).8 The erroneous convictions affect Flores’ substantial rights by leaving in place the special assessments and subjecting him to the collateral consequences of two serious criminal convictions.9
Finally, because Rule 52 is “permissive, not mandatory,” we must consider “whether the error seriously affects the fairness, integrity or public reputation of judicial proceedings.” Henderson, 568 U.S. at 272 (cleaned up). “An error may seriously affect the fairness, integrity or public reputation of judicial
discussed, vacatur will not decrease Flores’ sentence, but the erroneous convictions have the type of potential adverse consequences recognized by the Supreme Court as additional punishments, which in turn seriously affect the fairness of the judicial proceedings. In addition, because it is now plain that courts in this circuit lack the power to convict and punish Flores under Section 1114 for extraterritorial conduct, it would seriously affect the integrity and public reputation of the courts to nonetheless affirm such convictions and punishments.
When determining whether to exercise our discretion to address an issue that could have been raised in an initial appeal, we have considered whether there is an “exceptional circumstance[], where injustice might otherwise result.” See United States v. Henry, 472 F.3d 910, 913 (D.C. Cir. 2007) (per curiam) (cleaned up); see also United States v. Brice, 748 F.3d 1288, 1289 (D.C. Cir. 2014). And “we have suggested that an intervening change in the law can constitute an exceptional circumstance.” Henry, 472 F.3d at 914 (cleaned up). Here, there was an intervening change in the law—this court decided Garcia Sota after the district court had resentenced Flores. “[I]njustice might otherwise result” if Flores continues to be punished for conduct that does not constitute a crime pursuant to the law under which he was convicted. Id. at 913 (cleaned up). Placing our imprimatur on an erroneous conviction would cause a “reasonable citizen” to take a “diminished view of the judicial process and its integrity.” Rosales-Mireles v. United States, 138 S. Ct. 1897, 1908 (2018) (cleaned up).10
With no mention of the plain error analysis, the government maintains that Flores forfeited his argument by failing to raise it in the district court and therefore we cannot consider his claims here. Instead, the government states that Flores must first bring his claim in the district court pursuant to
Because we find a plain error occurred, we consider Flores’ forfeited argument challenging his convictions under Section 1114. Addressing the merits of that argument is
straightforward: We vacate Flores’ two convictions under Section 1114 because that statute does not apply extraterritorially.
***
For the reasons stated above, we affirm the district court‘s sentencing with respect to Flores’ conviction for RICO conspiracy and vacate Flores’ two convictions under Section 1114. We remand for a limited resentencing in which the district court may determine whether to modify its sentence in light of our vacatur.
So ordered.
RANDOLPH, Senior Circuit Judge, dissenting in part,
Pursuant to a negotiated agreement in 2011, Flores pled guilty to a three-count information. He is now before our court for the second time. The court affirms his sentence on count 1 (RICO), a result with which I agree. But I do not agree with the court‘s decision to vacate his convictions on count 2 (accessory after the fact to the murder of a U.S. officer) and count 3 (accessory after the fact to the attempted murder of a U.S. officer).
The majority opinion speaks of “injustice,” of the “integrity and public reputation of judicial proceedings,” of “fairness.” Majority Op. 14, 18. I speak not only of Flores’ failure to raise any of the legal points my colleagues now find persuasive, but also of the murders he committed, of the people he tortured, and of the other atrocities he committed while working for a Mexican cartel that smuggled illegal drugs into the United States. An Addendum to this opinion, consisting of an excerpt of Flores’ testimony, gives a general description of his activities. Other parts of the record contain details, but they are unnecessary to recount. This case is not an academic exercise.
The murder and the attempted murder mentioned in the information occurred in Mexico, as did Flores’ participation. The officers who were ambushed were Special Agents of U.S. Immigration and Customs Enforcement. The original indictment superseded by the information to which Flores pled guilty contained four counts.
The original indictment‘s first two counts were the same as counts 2 and 3 of the superseding information. Those counts charged Flores under
After Flores pled guilty to the information and the district court sentenced him, he appealed to this court. Our court vacated his sentence and remanded for resentencing.4 The district court sentenced him again, and then, in a separate case, another panel of our court heard the appeal of two of the triggermen in the murder and attempted murder. That panel, disagreeing with other circuits, ruled that
Flores then perfected his second appeal to this court, arguing that his convictions on counts 2 and 3 for violating
My colleagues therefore rest their decision to vacate his convictions on
Under this rule, Flores had “the burden of persuasion with respect to prejudice.” United States v. Olano, 507 U.S. 725, 734 (1993). He did not carry that burden. In neither his opening brief nor his reply brief did he even make the attempt. Yet for some unstated reason, the court steps in and tries to cure his omission. The court‘s effort on his behalf is of doubtful propriety. It is also unpersuasive.
Flores admits, and the court acknowledges, that vacating his
In its effort to fill the gap, the court offers two considerations. The first is that Flores was subject to a pair of $100 special assessments on the two
The court‘s other idea, again not one Flores endorsed, is that his
Neither Flores nor my colleagues make any effort to satisfy the Dominguez Benitez requirement. That is understandable. Flores could not possibly meet the Supreme Court‘s test. In pleading guilty to the
It follows that even if the
But assume that Flores had carried his burden of showing prejudice and that he had established that but for the error regarding
One such legal principle, ignored here by the court and Flores, is this: “the fact that a defendant did not object, despite unsettled law, may well count against the grant of Rule 52(b) relief.” Henderson, 568 U.S. at 278–79.
Our circuit had not decided the territorial scope of
A second omitted principle is the doctrine of invited error. “If a defendant invites error by the district court, he is ‘barred from complaining about it on appeal.‘” United States v. Ginyard, 215 F.3d 83, 88 (D.C. Cir. 2000) (quoting United States v. Harrison, 103 F.3d 986, 992 (D.C. Cir. 1997)). The court seems to rest the error with the district court‘s acceptance of the plea. But it was Flores who negotiated this guilty plea with the advice of counsel. He affirmed that “[he] fully [understood] this Plea Agreement and voluntarily agree[d] to it.” App. 34. Flores, at least partially, invited this error.
Yet another principle results from the fact that this is Flores’ second appeal. The principle is this: “absent exceptional circumstances,” the court will not address an argument that could have been raised during the initial appeal. United States v. Brice, 748 F.3d 1288, 1289 (D.C. Cir. 2014); United States v. Henry, 472 F.3d 910, 913 (D.C. Cir. 2007); Laffey v. Nw. Airlines, Inc., 740 F.2d 1071, 1089–90 (D.C. Cir. 1984) (quoting Fogel v. Chestnutt, 668 F.2d 100, 109 (2d Cir. 1981) (Friendly, J.)). There are no “exceptional circumstances” here. As previously mentioned, Flores made a strategic decision to not raise this
Consider how our court handled the appeal of another member of Flores’ cartel hit squad. A week after oral argument in this case, a different panel of this court — a panel that included a member of today‘s majority — denied the appeal of one of the triggermen who pled guilty to two counts under
To sum up, Flores did not carry his burden of showing prejudice, and he gave no reason for the court to exercise its discretion. By any measure, he was an accessory after the fact to the murder and attempted murder of two U.S. officers in Mexico. If
ADDENDUM
Transcript of Flores’ Testimony, Supp. App. 17–18:
Q: You previously told us about some violent crimes that Sicarios commit on behalf of the cartel. Did you, while you were a Sicarios [sic], personally take part in some of those violent crimes?
A: Yes, that‘s right.
Q: Let me ask you some specific questions. Have you participated in and conducted kidnappings?
A: Yes, ma‘am.
Q: Have you abused or tortured any of the individuals that you had kidnapped or had in your custody?
A: Yes, that‘s right.
Q: Have you personally committed executions on behalf of the cartel?
A: Yes, I did that.
Q: And have you also participated in destroying and hiding the remains of victims who have been killed by the cartel?
A: I did not understand your question fully. Can you please repeat it?
Q: Have you personally participated in hiding or destroying the remains of bodies of people who have been killed by the cartel?