United States v. Francisco Flores

U
 United States Court of Appeals
         FOR THE DISTRICT OF COLUMBIA CIRCUIT



Argued September 10, 2020            Decided April 23, 2021

                       No. 19-3100

               UNITED STATES OF AMERICA,
                       APPELLEE

                             v.

 FRANCISCO CARBAJAL FLORES, ALSO KNOWN AS DALMATA,
                     APPELLANT


        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.
                                2
   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
                                3
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
                                  4
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

1
  The three-count information included two of the four counts for
which he was indicted and a RICO conspiracy charge that was not
included in the indictment.
2
  Section 1114 makes it illegal to “kill[] or attempt[] to kill any
officer or employee of the United States … while such officer or
employee is engaged in or on account of the performance of official
duties.” 18 U.S.C. § 1114. Section 1114 incorporates Sections 1111
and 1113 by reference: a person who violates 1114 “shall be
punished … in the case of murder, as provided under section 1111”
or “in the case of attempted murder or manslaughter, as provided in
section 1113.”

Id. § 1114(1), (3).

Section 3 provides the standard for
being an “accessory after the fact” to these crimes.

Id. § 3. For

brevity, we refer to Counts 2 and 3 as convictions under Section
1114.
                                5
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.”
                                 6
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 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
                                7
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

, 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
U.S.S.G. § 1B1.3(a)(1)(B). He maintains that he had no
agreement relating to the importation of drugs and had no direct
role in any of the drug trafficking transactions. Yet courts have
often attributed to enforcers the entire drug quantity that passes
through a conspiracy while they were participants in the
                                8
conspiracy. See United States v. Gibbs, 

190 F.3d 188

, 214 (3d
Cir. 1999) (collecting cases); see also United States v.
Laureano-Pérez, 

797 F.3d 45

, 81 (1st Cir. 2015) (finding that
the organization’s enforcer could “reasonably have
anticipated” the quantity of drugs involved and that there was
no error in attributing the entire amount trafficked by the
conspiracy to him) (cleaned up). Flores admitted using
violence and intimidation to protect lucrative drug trafficking
routes from Mexico to the United States in exchange for a
monthly salary. The cartel earns money by trafficking drugs, so
even if he did not personally traffic drugs to the United States,
his argument that he did not receive proceeds from drug
trafficking is unpersuasive.

     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 quantity of drugs
attributable to the conspiracy as a whole.” Flores Br. 41. Yet
none of the cases Flores cites prohibits such an attribution when
a district court determines it is warranted. See, e.g., United
States v. Saro, 

24 F.3d 283

, 288–90 (D.C. Cir. 1994); 

Gibbs,
190 F.3d at 214

–15. In fact, in Saro, a case on which Flores
heavily relies, this court explained that “[i]n some conspiracies,
of course, each participant has joined (implicitly or explicitly)
in the overall scheme, so that the scope of the conspiracy is
identical for 

each,” 24 F.3d at 289

(emphasis omitted), meaning
the district court has authority to attribute the total amount of
drugs involved in the conspiracy to each defendant. Here, the
co-conspirators joined an “overall scheme” to traffic drugs into
the United States. As a lookout, Flores reported on the
movement of rival cartels and law enforcement, which
facilitated drug trafficking. As a hitman and commander,
Flores used violence and intimidation to keep the drug routes
open for transport. It follows that Flores was part of the “overall
scheme” of the conspiracy and that the district court reasonably
                                    9
attributed to Flores the total amount of drugs he conceded Los
Zetas trafficked into the United States during the time he served
in those positions.3

     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. U.S.S.G. § 3B1.1(c).
“[P]ersons receiving an enhancement under § 3B1.1 must
exercise some control over others.” United States v. Wilson,

605 F.3d 985

, 1037 (D.C. Cir. 2010) (per curiam) (cleaned up).

3
  “[T]he role of enforcer is often central to the viability of the drug
conspiracy, which perforce exists in a dangerous environment,” but
“there may be different types of enforcers in a conspiracy” to whom
different amounts of drugs may be attributed. 

Gibbs, 190 F.3d at 214

.
Thus, although the entire drug quantity that passed through a
conspiracy may not be attributable to every enforcer, based on
Flores’ admissions in the statement of facts accompanying his guilty
plea, the district court did not clearly err in attributing such a quantity
to him for the duration of his participation in the conspiracy.
4
  Flores also cursorily argues the district court erred by imposing a
two-point enhancement for methamphetamine importation because
Flores “did not … have anything to do with that.” Flores Br. 33. But
in the statement of facts supporting his guilty plea, Flores admitted
he was aware the cartel imported methamphetamines into the United
States, and—as discussed—that his role was to keep the Mexico-
United States drug smuggling routes open. The district court did not
err in imposing the two-point enhancement.
                              10
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 enhancement for a supervisory
role was imposed based on Flores’ role as a commander. The
district court adopted the presentence report without much
additional explanation. When discussing the enhancement, the
district court referred to Flores’ role as a hitman and a
commander, but ultimately focused on Flores’ position of
authority vis-à-vis other members of his hit squad, thus tying
the enhancement to Flores’ role as a commander.

      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
                                  11
demonstrate that Flores—even if for a brief time 5 —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,”
U.S.S.G. § 2D1.1(b)(2), and a two-point enhancement for
physical restraint of a victim

, id. § 3A1.3. Because

his acts of
violence were all committed in Mexico against Mexican
victims, Flores asserts they did not relate to Los Zetas’

5
  Flores relies on the fact he was demoted to a hitman after his arrest,
but that does not negate his service as a commander for a couple of
weeks. The Guidelines provide no minimum amount of time a
defendant must serve in a supervisory role to qualify for the
enhancement. See U.S.S.G. § 3B1.1(c).
6
  To support his argument that the district court erred in applying this
two-point enhancement, Flores also points to seemingly
contradictory language in the revised presentence report suggesting
the enhancement was imposed based on his non-supervisory role as
a hitman. But Flores did not raise this argument in the district court
at resentencing, so it is forfeited. In any event, although the district
court adopted the presentence report “as written,” Supp. App. 76,
during resentencing the district court also adopted the government’s
argument that the enhancement was appropriate based on Flores’ role
as a commander. The defense made no objection that such a finding
would be inconsistent with the presentence report.
                               12
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 qualifies as “racketeering activity.”

Id. (citing
U.S.S.G. §

2E1.1(a)(2)); see also RJR Nabisco, Inc. v.
European Cmty., 

136 S. Ct. 2090

, 2096 (2016) (“[RICO]
predicates include any act ‘indictable’ under specified federal
statutes, … and any offense involving … drug-related activity
that is ‘punishable’ under federal law.”). In resentencing
Flores, the district court focused on activity that qualifies as
“racketeering activity.” Specifically, Flores’ sentence was
based on his guilty plea to a RICO conspiracy charge where the
pattern of racketeering activities included conspiracy to import
into the United States substantial quantities of cocaine and
marijuana in violation of federal law. See 21 U.S.C. § 952
(prohibiting importation of controlled substances into the
United States);

id. § 963 (applying

the same punishment for
conspiracy to commit the same). Flores admitted to
“kidnap[p]ing, assault, attempted murder, and murder as a
means of protecting the … lucrative drug distribution routes
from Mexico to the United States.” App. 57. Flores also
admitted he “carried out various acts of violence and
intimidation on behalf of [Los Zetas] against Mexican law
enforcement officers and rival drug cartel members for the
purpose of maintaining control over the … drug smuggling
                               13
routes to the United States.” App. 38–39. Thus, Flores’ guilty
plea effectively concedes that his violent conduct was related
to the drug smuggling conspiracy and therefore was
racketeering activity.

     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

id. § 1B1.3(a), (a)(1)(A)

(explaining that “specific offense characteristics” and
“adjustments” “shall be determined on the basis of … all acts
and omissions committed, aided, abetted, counseled,
commanded, induced, procured, or willfully caused by the
defendant”).

    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.
                                14
     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 Federal Rule

of Criminal
Procedure 52(b), “a court of appeals may correct [a forfeited]
error” “only if it is plain and affects substantial rights.” United
States v. Olano, 

507 U.S. 725

, 732 (1993) (cleaned up). “[A]nd
the court should not exercise that discretion unless the error
seriously affects the fairness, integrity or public reputation of
judicial proceedings.”

Id. (cleaned up).

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
                                 15
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.” FED. R.
CRIM. P. 52(b). The Supreme Court has explained that “[i]n
most cases,” affecting the defendant’s substantial rights
“means that the error must have been prejudicial,” and also that
some errors may be “presumed prejudicial.” 

Olano, 507 U.S.
at 734

–35. Prejudice exists where the error “affected the
outcome of the district court proceedings.”

Id. at 734.

Flores
argues the Section 1114 convictions affect his substantial rights
because he “stands convicted of two crimes for which the
government lacked the power to constitutionally prosecute
him.” Flores Br. 39. The district court’s error of applying
Section 1114 extraterritorially “affected the outcome of the
district court proceedings” because Flores would not have been
convicted under Section 1114. 

Olano, 507 U.S. at 734

.
                                 16
     Although vacating the Section 1114 convictions would not
directly reduce Flores’ prison sentence,7 the convictions have
other consequences, including that Flores remains responsible
for a $100 special assessment for each of the two Section 1114
convictions. The dissent dismisses these special assessments as
mere “trifles,” Dissenting Op. 3, but the modest sums
nonetheless constitute punishments. See Rutledge v. United
States, 

517 U.S. 292

, 301 (1996) (holding that a second
conviction that carries with it a special assessment “amount[s]
to a second punishment”).

     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

7
  Flores concedes that “if this Court affirms the district court’s
determination [of] the offense level for the RICO conspiracy,” which
we do, see supra Part II, then the other two convictions “add nothing
to the sentence.” Flores Reply Br. 6.
                                  17
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 proceedings independent of the defendant’s
innocence.” 

Olano, 507 U.S. at 736

–37 (cleaned up). As

8
  Contrary to the dissent’s implication, we have never held that a
reduction in sentence is the only way to demonstrate that an error
affects substantial rights. While it is true that Flores does not
elaborate on the specific prejudicial effects of his erroneous
conviction, the dissent correctly notes that this court “indisputably”
has authority to identify and correct plain error sua sponte.
Dissenting Op. 8 n.10 (citing cases).
9
  The dissent focuses on the counterfactual that Flores would have
pled guilty to other equally serious crimes and thus, as with errors
under Federal Rule of Criminal Procedure 11, Flores must satisfy the
“special requirement” of showing “a reasonable probability that, but
for the error, he would not have entered the plea.” Dissenting Op. 4
(quoting United States v. Dominguez Benitez, 

542 U.S. 74

, 83
(2004)). The plain error in this case, however, relates not to the Rule
11 procedures for accepting a plea, but rather the distinct error of
convicting a person under a statute that does not apply to the
underlying conduct.
                                 18
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


10
   The dissent’s reliance on an unpublished decision involving
another Los Zetas cartel member involved in the same attack is
misplaced. Dissenting Op. 8 (citing United States v. Zapata
Espinoza, 830 F. App’x 324 (D.C. Cir. 2020) (per curiam)). Plain
error review must be “case-specific” and “fact-intensive.” Puckett v.
United States, 

556 U.S. 129

, 142 (2009). While Zapata Espinoza was
                                  19
     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
28 U.S.C. § 2255 and show “he is innocent of both the charges
related to [Section] 1114 and other, more or equally serious
charges that the government forewent during the course of plea
negotiations.” Gov’t Br. 32. The government relies on Bousley
v. United States, 

523 U.S. 614

(1998), which established that,
in the context of habeas proceedings, “where the [g]overnment
has forgone more serious charges in the course of plea
bargaining, petitioner’s showing of actual innocence must also
extend to those charges.”

Id. at 624.

But this is not a habeas
proceeding, and the government does not address why the plain
error framework should not apply to Flores’ appeal of the
district court’s resentencing. Under the plain error analysis,
Flores is not required to show actual innocence to secure a
remedy. See 

Olano, 507 U.S. at 736

–37 (“[W]e have never held
that a Rule 52(b) remedy is only warranted in cases of actual
innocence. Rather, … [a]n error may ‘seriously affect the
fairness, integrity or public reputation of judicial proceedings’
independent of the defendant’s innocence.”). Nothing in Olano
requires that we consider foregone charges when determining
whether an error is plain and affects substantial rights.

    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

involved in the same attack on U.S. agents and was convicted under,
inter alia, Section 1114, he brought a different procedural challenge
to his sentence and did not raise the extraterritorial reach of Section
1114. The failure of the court to sua sponte identify and correct the
potential Garcia-Sota error in Zapata Espinoza does not undercut the
identification of error in this case.
                               20
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 18 U.S.C. § 3 (accessory) and § 1114
(murder and attempted murder of a U.S. officer). The other two
counts in the indictment charged Flores as an accessory after the
fact to the attempted murder of one of the officers, in violation
                                   2

of 18 U.S.C. §§ 3, 1116(a),1 and as an accessory after the fact to
the use of a firearm during the murder and attempted murder of
the officers, in violation of 18 U.S.C. § 3 and 18 U.S.C. §§
924(c)2 and 924(j)(1).3

     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 § 1114 does not apply
outside U.S. territory. United States v. Garcia Sota, 

948 F.3d
356

, 357 (D.C. Cir. 2020).

     Flores then perfected his second appeal to this court,
arguing that his convictions on counts 2 and 3 for violating §
1114 should be vacated. Flores never raised this issue before
the district court on sentencing or resentencing, or in our court
in his first appeal.



     1
        This section makes it a criminal offense to “kill[] or attempt to
kill a[n] . . . internationally protected person[.]” One of the officers
fit that designation.
     2
         This provision applies to “crime[s] of violence or drug
trafficking[,]” including murder and attempted murder.
     3
       This provision makes it a criminal offense to kill a person with
a firearm while committing a crime of violence. The murdered officer
was shot by Flores’ fellow members of the cartel’s hit squad.
     4
       Flores’ first appeal dealt with how the district court calculated
his sentence. United States v. Flores, 

912 F.3d 613

(D.C. Cir. 2019).
                                   3

     My colleagues therefore rest their decision to vacate his
convictions on Federal Rule of Criminal Procedure 52(b) — the
“plain error” rule.

     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 § 1114 convictions would have no effect whatsoever on his
sentence. As to any other possible prejudicial effect of these
two convictions, Flores is — as I have said — silent.

      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 § 1114 counts. Flores
agreed to pay the $200 before he was even sentenced. Whether
he ever paid them is unclear. But it hardly matters. There is a
legal doctrine that takes care of a situation such as this: “de
minimis non curat lex” — the law does not concern itself with
trifles. No wonder Flores did not bother to mention the special
assessments.5

     The court’s other idea, again not one Flores endorsed, is
that his § 1114 convictions would “affect his criminal history
category” when “he is convicted of any future offenses.”


     5
       It also comes as no surprise that Flores did not allege a possible
effect on his parole eligibility. The Sentencing Reform Act of 1984,
Pub. L. No. 98-473, ch. II, eliminated parole for federal defendants
convicted of crimes committed after November 1, 1987.
                                    4

Majority Op. 16. Is Flores planning “any future offenses”? We
certainly hope not. So where does the court come up with this
notion? Nowhere. It is fiction. To the extent anything in the
record bears on the court’s speculation, it is this: when Flores
finishes his sentence, he will be immediately deported to
Mexico. App. 32; see 8 U.S.C. §§ 1226(c)(1)(B),
1227(a)(2)(A)(iii), 1228(a). It is not apparent why, if Flores
commits future offenses in his home country, his “criminal
history category” under the U.S. Sentencing Guidelines would
matter.

     More important still, the Supreme Court has laid down a
special requirement for plain error–guilty plea cases such as this
one: “a defendant who seeks reversal of his conviction after a
guilty plea, on the ground that the district court committed plain
error under Rule 11, must show a reasonable probability that but
for the error, he would not have entered the plea.”6 United
States v. Dominguez Benitez, 

542 U.S. 74

, 83 (2004); accord
Rosales-Mireles v. United States, 

138 S. Ct. 1897

, 1904-05
(2018); Molina-Martinez v. United States, 

136 S. Ct. 1338

, 1343
(2016).

    Neither Flores nor my colleagues make any effort to satisfy
the Dominguez Benitez requirement. That is understandable.


     6
        The court claims that there was no error in “the Rule 11
procedures for accepting a plea, but rather the distinct error of
convicting a person under a statute that does not apply[.]” Majority
Op. 17 n.9. Those are one and the same. As settled long ago, Rule 11
“is designed ‘to protect a defendant who is in the position of pleading
voluntarily . . . but without realizing that his conduct does not actually
fall within the charge.’” McCarthy v. United States, 

394 U.S. 459

,
467 (1969) (quoting Fed. R. Crim. P. 11 advisory committee’s note to
1966 amendments); see also United States v. Melgar-Hernandez, 

832
F.3d 261

, 264–66 (D.C. Cir. 2016).
                                  5

Flores could not possibly meet the Supreme Court’s test. In
pleading guilty to the § 1114 charges, Flores established beyond
any doubt that he was guilty of the equally serious § 924 and §
1116 charges in the original indictment.7 The government
forewent those charges as part of the negotiated plea agreement.
Cf. Bousley v. United States, 

523 U.S. 614

, 624 (1998); see also
United States v. Baxter, 

761 F.3d 17

, 28 (D.C. Cir. 2014);
United States v. Caso, 

723 F.3d 215

, 219 (D.C. Cir. 2013);
United States v. Knight, 

981 F.3d 1095

, 1116 (D.C. Cir. 2020)
(Katsas, J., dissenting in part) (quoting Bordenkircher v. Hayes,

434 U.S. 357

, 362 (1978)); Lewis v. Peterson, 

329 F.3d 934

,
936 (7th Cir. 2003).

     It follows that even if the § 1114 charges were taken off the
table, Flores has not shown, indeed has not even attempted to
show, a “reasonable probability” that he would not have pled
guilty to being an accessory to the murder and attempted
murder. Dominguez 

Benitez, 542 U.S. at 83

. All indications
point in the opposite direction. If he could not have pleaded to
§ 1114 with respect to the murder and attempted murder, he
would have pleaded to the other two, equally serious charges
stemming from his actions as an accessory in the gunning down
of the ICE officers.

     But assume that Flores had carried his burden of showing
prejudice and that he had established that but for the error
regarding § 1114, he would not have pled guilty to accessory
charges involving the murder and the attempted murder. Even


     7
       The government’s brief, 32–33, explains this point in detail.
Flores, in his reply brief, did not dispute the government’s contention
that his factual admissions made out violations of the other two
charges in the indictment. Both of these other charges applied beyond
U.S. territory. United States v. Garcia Sota, 

948 F.3d 356

, 358, 362
(D.C. Cir. 2020).
                                  6

so, the court still had to decide whether to exercise its Rule
52(b) discretion in his favor. See Henderson v. United States,

568 U.S. 266

, 272 (2013); Johnson v. United States, 

520 U.S.
461

, 469–70 (1997). Yet the court fails to give any satisfactory
explanation about why Flores is entitled to its dispensation.

     “This is said to be a motion to the discretion of the court.
This is true. But a motion to its discretion is a motion, not to its
inclination, but to its judgment; and its judgment is to be guided
by sound legal principles.” United States v. Burr, 

25 F. Cas. 30

,
35 (C.C. Va. 1807) (No. 14692D) (Marshall, C.J.) (emphasis
added).

     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 § 1114
until Garcia 

Sota, 948 F.3d at 357

. So one may say, as the
court did here, that the issue was until then “unsettled” — at
least in this circuit. Majority Op. 15.8 Flores must have made
a deliberate and calculated decision not to contest the

    8
       Even after the Garcia Sota decision, the § 1114 issue remains
“unsettled.” The Supreme Court in 

Henderson, 568 U.S. at 278

–79,
ruled that Rule 52(b) may apply when the law became “settled” while
the case was on appeal. By “settled” the Henderson Court meant that
an intervening Supreme Court decision rendered the district court’s
ruling retroactively erroneous.

Id. at 270.

With respect to the reach
of § 1114 there has been no such Supreme Court decision and federal
law on the issue is by no means “settled.” Two circuits disagree with
this court’s decision in Garcia Sota and hold that § 1114 applies
beyond the sovereign territory of the United States. United States v.
Al Kassar, 

660 F.3d 108

, 118 (2d Cir. 2011); United States v. Benitez,

741 F.2d 1312

, 1317 (11th Cir. 1984).
                                   7

applicability of § 1114. The defendants in Garcia Sota were
two of the triggermen in the crimes to which Flores was an
accessory. They argued unsuccessfully in the district and
successfully in our court that § 1114 does not apply in Mexico.
Flores testified against them at their trial. And yet Flores did
not present this argument until his second appeal.9

     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.

     9
        Garcia Sota first challenged the extraterritoriality of § 1114 in
April 2017, six months before Flores filed his first sentencing
memorandum. Dkt. 23, United States v. Garcia Sota, 1:13-cr-00142-
RCL-1 (D.D.C. Apr. 18, 2017). Garcia Sota raised the issue again on
appeal in June 2019, six months before Flores filed his second
sentencing memorandum on remand. Appellant Br., Garcia Sota
(June 11, 2019). And even four years before that, another defendant
raised the question in United States v. Abu Khatallah, 

151 F. Supp. 3d
116

, 130–31 (D.D.C. 2015). Whereas Garcia Sota sought “to preserve
[his] rights with respect to this issue,” Flores did nothing. Dkt. 23,
United States v. Garcia Sota, 1:13-cr-00142-RCL-1 at *1.
                                   8

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 issue. This is not a case “where injustice might
otherwise result[.]” 

Henry, 472 F.3d at 913

(quoting Crocker
v. Piedmont Aviation, Inc., 

49 F.3d 735

, 740 (D.C. Cir. 1995))
(internal quotation marks omitted).

     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 §
1114. United States v. Zapata Espinoza, 830 F. App’x 324
(D.C. Cir. 2020) (per curiam). Zapata Espinoza is serving a
thirty-five-year sentence for those convictions.

Id. at 325.

As
that panel noted: “[t]here is no question that a thirty-five-year
sentence is long, but the acknowledged crime was also
indisputably heinous. Under the law and in context of sentences
imposed on other defendants for similar crimes, the sentence is
not ‘fundamentally unfair’”

Id. at 326

(citation and internal
quotation marks omitted). And the panel stated that its “own
review of the record in its entirety [does not] reveal any error
committed here that amounts to a miscarriage of justice
requiring nonenforcement of the appeal waiver.”10

Id.

10

        Almost a year earlier, Garcia 

Sota, 948 F.3d at 357

, held that
§ 1114 does not apply outside U.S. territory. Despite its “review of
the record in its entirety[,]” which plainly reveals the extraterritorial
nature of Zapata Espinoza’s convictions, the panel did not exercise its
discretion to vacate the § 1114 convictions for plain error —
something the panel indisputably had the authority to do sua sponte.
Zapata Espinoza, 830 F. App’x at 326; see Silber v. United States,

370 U.S. 717

, 717–18 (1962) (per curiam); United States v. Atkinson,
                               9

     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 § 1114 did not apply, § 924 and § 1116 did. Garcia

Sota, 948 F.3d at 358

, 362, so held with respect to two of the
trigger men. For that reason and others, there should be no
hand-wringing about Flores’ pleas of guilty to § 1114.




297 U.S. 157

, 160 (1936); United States v. Baugham, 

449 F.3d 167

,
170 (D.C. Cir. 2006).
                              10

                        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?
                        11

A: Yes, that’s right.

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