United States v. Flores

• Decision Date: 23 April 2021
• Docket Number: No. 19-3100,19-3100
• Parties: UNITED STATES of America, Appellee v. Francisco Carbajal FLORES, also known as Dalmata, Appellant
• Court: U.S. Court of Appeals — District of Columbia Circuit

995 F.3d 214

UNITED STATES of America, Appellee

v.Francisco Carbajal FLORES, also known as Dalmata, Appellant

No. 19-3100

United States Court of Appeals, District of Columbia Circuit.

Argued September 10, 2020

Decided April 23, 2021

Richard K. Gilbert, Sacramento, 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 dissenting in part filed by Senior Circuit Judge Randolph.

Rao, Circuit Judge:

Mexican cartel member Francisco Carbajal Flores pled guilty to three counts. The first involved a racketeer influenced and corrupt organization ("RICO") conspiracy to import controlled substances into the United States, and the second and third counts related to being an accessory after the fact to the murder and attempted murder in Mexico of two U.S. Special Agents. On appeal, Flores argues that the district court erred in sentencing him for the RICO conspiracy because it miscalculated his offense level under the U.S. Sentencing Guidelines. In addition, Flores argues that his other two convictions should be vacated because 18 U.S.C. § 1114, which criminalizes the killing or attempted killing of a U.S. officer, does not apply extraterritorially, as recognized by this court's recent decision in United States v. Garcia Sota , 948 F.3d 356 (D.C. Cir. 2020). We affirm the district court's sentence for the RICO conspiracy and vacate Flores’ two convictions under Section 1114.

I.

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 18 U.S.C. § 1962(d) ; (2) accessory after the fact to the murder of an officer or employee of the United States, in violation of 18 U.S.C. §§ 3, 1111, 1114 ; and (3) accessory after the fact to the attempted murder of an officer or employee of the United States, in violation of 18 U.S.C. §§ 3, 1113, 1114.²

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, 18 U.S.C. § 1114, does not apply extraterritorially, as we recently recognized in Garcia Sota , 948 F.3d at 357. We consider each claim in turn.

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, 128 S.Ct. 586, 169 L.Ed.2d 445 (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 the cartel; (2) applying an enhancement for a managerial role; and (3) applying enhancements related to Flores’ criminal conduct occurring in Mexico. We find no reversible error in the district court's calculation of Flores’ sentence.

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 id. § 1B1.3(a)(1)(B) & app. n.3.

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,...