United States v. Flores

• Decision Date: 04 January 2019
• Docket Number: No. 17-3090,17-3090
• Citation: 912 F.3d 613
• 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

912 F.3d 613

UNITED STATES of America, Appellee

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

No. 17-3090

United States Court of Appeals, District of Columbia Circuit.

Argued October 17, 2018

Decided January 4, 2019

Richard K. Gilbert, appointed by the court, argued the cause and filed the briefs for appellant. Kristen G. Hughes, appointed by the court, entered an appearance.

Peter S. Smith, Assistant U.S. Attorney, argued the cause for appellee. With him on the brief were Jessie K. Liu, U.S. Attorney, and Elizabeth Trosman and John P. Mannarino, Assistant U.S. Attorneys.

Before: Wilkins and Katsas, Circuit Judges, and Sentelle, Senior Circuit Judge.

Wilkins, Circuit Judge.

Appellant Francisco Carbajal-Flores pleaded guilty to one count of conspiracy to conduct the affairs of an enterprise through a pattern of racketeering activity ("RICO conspiracy"), in violation of 18 U.S.C. § 1962(d) ; one count of accessory after the fact for the murder of an officer or employee of the United States, in violation of 18 U.S.C. §§ 3, 1111, and 1114 ; and one count of 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, and 1114. He appeals his sentence, arguing that the District Court erred when it considered his murder of a Mexican national in Mexico when calculating his sentence under the Sentencing Guidelines. We agree with Flores, and we vacate and remand to the District Court for resentencing.

I.

The following facts are taken from the Stipulated Statement of Facts attached to Flores’s Plea Agreement. Flores does not dispute the facts on appeal.

Flores was a member of the Los Zetas Cartel ("the Cartel") — a violent and sophisticated criminal organization spanning from Central America to the United States. The Cartel was responsible for transporting multi-ton quantities of cocaine and marijuana, on a monthly basis, from Mexico to the United States. The Cartel’s hit squads patrolled Cartel-controlled territory primarily by vehicle, providing 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, kidnappings, carjackings, human smuggling, and assassinations.

In January 2011, while assigned to a hit squad located in San Luis Potosí, Mexico, Flores and others kidnapped a person that they believed to be a rival cartel member. During the kidnapping, Mexican authorities confronted Flores’s hit squad, and a chase and gun battle ensued. Flores’s hit squad eventually escaped. During the escape, Flores was ordered to execute the kidnapping victim, and Flores did so by shooting him.

On February 15, 2011, ICE Special Agents Jaime Zapata ("SA Zapata") and Victor Avila ("SA Avila") were returning to Mexico City after meeting with U.S. personnel in Matehuala, Mexico. As the two ICE agents drove south on Mexican Highway 57, outside of San Luis Potosí, they encountered two vehicles, each occupied by an armed Cartel hit squad. The two hit squads forced the ICE agents off the road and attempted to steal their armored car. The hit men subsequently fired nearly 100 rounds at the Special Agents, with several rounds entering the armored car through an open window. SA Zapata was killed and SA Avila was seriously wounded. The hit squads fled.

Flores was not present during the February 15, 2011, attack on the ICE agents. The next day, Flores attempted to rejoin his hit squad but was told not to return. Members of the hit squad told Flores what had happened during the attack, and they made several inculpatory statements about their participation in that attack.

Law enforcement personnel from Mexico and the United States worked together to identify the perpetrators. On February 23, 2011, Mexican authorities arrested members of the hit squad, including Flores, who was serving as the hit squad’s lookout at the time of the arrest. Authorities recovered various firearms the hit squad had stored, and ballistics testing linked those weapons to the attack on the ICE agents.

On May 28, 2011, Flores voluntarily surrendered to the U.S. government. In connection with the February 15, 2011, attack on the two ICE agents, Flores was charged by Information with RICO conspiracy (Count One); accessory after the fact for the murder of an officer or employee of the United States (Count Two); and accessory after the fact to the attempted murder of an officer or employee of the United States (Count Three).

In January 2012, Flores pleaded guilty to all charges in the Information. Pursuant to the Plea Agreement, the parties agreed to a Sentencing Guidelines calculation, which Flores now argues was legally incorrect. To calculate a Guidelines sentence, a district court must first select the applicable offense guideline and then select the base offense level within that applicable offense guideline. See U.S.S.G. §§ 1B1.1(a)(1)-(2), 1B1.2(a). Here, under Count One, the parties agreed that

[t]he underlying racketeering activity conducted by members of the criminal enterprise in this case involved murder; distribution or importation of a controlled substance; conspiracy to do the same; and accessory after the fact to commit the murder or the attempted murder of an officer or employee of the United States.

J.A. 39. The parties agreed to U.S.S.G. § 2E1.1 as the applicable offense guideline, and they agreed that the base offense level for Count One would be 43 under U.S.S.G. § 2E1.1(a)(2), because the base offense level for murder is 43 under U.S.S.G. § 2A1.1(a).

The Plea Agreement calculated the base offense level for Count Two as 30 under U.S.S.G. §§ 2A1.1 and 2X3.1(a)(3)(A), and it calculated the base offense level for Count Three as 27 under U.S.S.G. §§ 2A2.1 and 2X3.1. Under U.S.S.G. § 3D1.2(c), the parties agreed to treat the counts as closely related because Count One embodied the conduct alleged in Counts Two and Three. Therefore, the applicable offense level to the group became that of the most serious of the counts within the group, resulting in an overall offense level of 43.

Pursuant to the Plea Agreement, if Flores demonstrated an acceptance of responsibility to the satisfaction of the government, the government would agree to a two-level reduction with respect to Count Two under U.S.S.G. § 3E1.1(a) and a one-level reduction under U.S.S.G. § 3E1.1(b). With a Criminal History Category of I and a base offense level of 40, the parties agreed that the applicable Guidelines range would be 292 to 365 months of incarceration. The parties also agreed that the District Court would make any final Guidelines determinations and that the agreed-upon calculation in the Plea Agreement was not binding on the Court.

The presentence report ("PSR") arrived at the same Guidelines calculation as the Plea Agreement but calculated it differently by grouping the counts pursuant to U.S.S.G. § 3D1.2(b) and determining the combined offense level pursuant to U.S.S.G. § 3D1.4. The PSR identified four separate overt acts of the RICO conspiracy described in Count One: the murder of SA Zapata (Overt Act One); the attempted murder of SA Avila (Overt Act Two); the murder of the kidnap victim in January 2011 (Overt Act Three); and distribution/importation of five kilograms or more of a mixture and substance containing a detectable amount of cocaine and 1,000 kg or more of a mixture and substance containing a detectable amount of marijuana (Overt Act Four).

Flores objected to the PSR’s analysis with respect to Overt Act Three on the ground that the murder of the Mexican kidnap victim was not "racketeering activity" because it was not a violation of U.S. law. The government also filed some objections and comments to the PSR, but it did not object to the PSR treating the murder of the kidnap victim as a separate racketeering activity. The government did, however, urge the PSR writer to treat the murder of SA Zapata as reasonably foreseeable conduct.

The Probation Office did not change its calculation with respect to the murder of the kidnap victim. It responded that

[Flores] would be held accountable for any activities that were reasonably foreseeable in connection with the criminal activity that occurred during the commission of the offense of conviction, in preparation for that offense, or in the course of attempting to avoid detection or responsibility for that offense, USSG § 1B1.3(a)(1)(B). The murder of the kidnap victim in January of 2011, was also in furtherance of the Zeta’s lucrative drug trafficking operation and was included in the RICO offense to which he pled. However, should the Court determine the defendant’s position is correct the total offense level would be 27 (base offense level 30, reduced by three levels for acceptance of responsibility) and his advisory guideline range would be 70 to 87 months.

J.A. 118.

Before sentencing, both parties filed sentencing memoranda. The government urged the District Court to adopt the analysis of the PSR and moved for a downward departure of seven levels in light of Flores’s substantial assistance to the government.

This seven-level departure was based, in part, on Flores’s testimony against his coconspirators, and it resulted in a guideline range of 135 to 168 months. Flores’s sentencing memorandum repeated his argument that the murder of the Mexican kidnap victim could not be racketeering activity under 18 U.S.C. § 1961.

At the sentencing hearing, Flores’s counsel repeated his argument about the Mexican kidnap victim and the government repeated its argument that the murder of SA Zapata and "the other murders were all certainly foreseeable." J.A. 158-61. The District Court did not specifically address Flores’s argument and adopted the PSR as written. The District Court sentenced Flores to a total of twelve years of incarceration, to be followed by three years of supervised release. The District Court entered judgment in November 2017....