United States of America v. Francisco Flores

Washington, DC - Criminal defense lawyer represented defendant with 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 charges.

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 MexicoUnited 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.

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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' MexicoUnited 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.