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 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.
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’ 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,7the 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), and as an accessory after the fact to 1

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) and 924(j)(1). 2 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. The

4

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.

This section makes it a criminal offense to “kill[] or attempt to

1

kill a[n] . . . internationally protected person[.]” One of the officers

fit that designation.

This provision applies to “crime[s] of violence or drug 2

trafficking[,]” including murder and attempted murder. 

This provision makes it a criminal offense to kill a person with

3

a firearm while committing a crime of violence. The murdered officer

was shot by Flores’ fellow members of the cartel’s hit squad.

Flores’ first appeal dealt with how the district court calculated 4

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.” 

It also comes as no surprise that Flores did not allege a possible

5

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.” United 6

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.

The court claims that there was no error in “the Rule 11 6

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. The government

7

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

The government’s brief, 32–33, explains this point in detail.

7

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 istrue. But a motion to its discretion is a motion, not to its

inclination, but to its judgment; and its judgment isto 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. Flores must have made

8

a deliberate and calculated decision not to contest the

Even after the Garcia Sota decision, the § 1114 issue remains 8

“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.

Garcia Sota first challenged the extraterritoriality of § 1114 in

9

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.” Id. 10

Almost a year earlier, Garcia Sota, 948 F.3d at 357, held that

10

§ 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.