# United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued September 10, 2020 Decided April 23, 2021

No. 19

- 3100

U NITED S TATES OF A MERICA

, A PPELLEE

v.

F RANCISCO C ARBAJAL F LORES

, ALSO KNOWN AS D ALMATA

,

A PPELLANT

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 cou rt

.

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: R OGERS and R AO

, Circuit Judges , and R ANDOLPH

, Senior Circuit Judge

.

Opinion o f the Court filed by Circuit Judge R AO

.2

O pinion dissenting in part filed by Senior Circuit Judge

R ANDOLPH

.

R AO

, 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 sh ould 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 armed3

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 memb ers, 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, a nd 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 membe rs 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 kill ed, 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 transpired4

during the attack and made multiple inculpatory statements. Flores was tasked with protecting his fellow hit squad members

from arrest. But about a week afte r 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 plea d to more limited charges and

that included a detailed statement of fact s . Pursuant to that agreement, he pled guilty to three counts : 1 (1) a RICO conspira cy
, 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 employ ee 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 indictme nt.

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 incorporate s 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 nat ional 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 Probat ion 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 ye ars 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 be ing

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 d etermine 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 p rocedurally 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 cal culations, 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 worke d 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 h is “[r]elevant [c]onduct.” U .S.S.G. § 1B1.3 (20 18 ) . 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,” an d “reasonably foreseeable in7

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 multipl e 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 st atement 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

mon th to the United States

. Flores further admitted he engag ed

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, t he district court did not clearly err wh en 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 quan tity 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 tr afficking transactions. Yet courts have often attributed to enforcers the entire drug quantity that passes through a conspiracy while they were participants in the8

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 admit ted 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 arg ues 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 prohi bits 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 at tribute 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 reasona bly9

attributed to Flores the total amount of drugs he concede d 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

err or 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, lea der, 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 attribu table to every enforcer

, based on
Flores’ admissions in the statement of fact s 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 h is guilty plea, Flores admitted he was aware the cartel imported methamphetamine s 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

- poi nt enhancement.10

A lthough “[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) (c leaned up ).

Flores argues that the presentence report f ocuses 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 adop ted 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 exercise d 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 acknowledge d that, during

his time as a commander, his hit squad collected “taxes” from

Los Zeta s controlled junk yards and drug houses. These facts11

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 err or 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 f or 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 repor t “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 Mexic an 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. W e therefore consider whether Flores’ underlying conduct qualif

ies 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 cha rge 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 in to th e 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 s muggling13

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 n ot 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 err or 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) (expla ining 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 1 114 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. I d

. 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 he ld 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, 80 5

– 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. T he underlying rationale of the Men na

- 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). I n light of this court’s15

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

Fl ores’ 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) (concl uding 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 o f 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.” F ED

. R

. C RIM

. 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. Pr ejudice 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 pow er 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 Sectio n 1114

convictions

. The dissent dismisses these special assessments as mere “trifles,” Dis senting Op. 3, but the modest sum s nonetheless constitute punishment s

. 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 , t he erroneous convictions also affect Flores’ substantial rights because they have “potential adverse collateral consequences that may not be ignored.” Ball v.

United S tates , 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.” I d

. ; 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.” Flo res Reply Br. 6.17

Sta tes 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 eff ect may not increase the defendant’s prison term, or may only be a negligible assessment.”); i d. 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.”

Henders on , 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 e ffects 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 th e 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 punishment s

.

W hen determining whether to exercise our discretion to

address an issue that could have been raised i n 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 d oes 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 was19

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

c onsider 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

char ges 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 forgon e 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 defenda nt’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 convic tions under Section 1114. Addressing the merits of that argument is

involved in the same a ttack on U.S. agents and was convicted under,

inter alia

, S ection 1114, he brought a different procedural challenge

to his sentence and did not raise the extra territorial reach of S ection

1114

. T he 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 deter mine whether to modify its sentence in light of our vacatur.

So ordered

.R AN D O LP H
, S

en ior C ircu it Ju d g e , d is s e n ti n g in p art,

P u rs u ant to a n e g o ti ate d ag re e m e n t i n 2 0 1 1

, F lo re s p le d

g u il ty to a th

re e

- c o u n t in f o rm ati o n

. He is n o w b e f

o re o u r co u rt
f o r th e s e c o n d ti m e

. T h e c o u rt af f ir m s h is s e n

t en ce o n c o u n

t 1 (R IC O), a re s u lt w it

h w h ic h I ag re e

. But I d o n o t ag re e w it h th e

c o u rt ’s d e c is io n to v ac ate h is c o n v ic ti o n s o n co u n t 2 (ac c e s s o ry af te r th e f ac t to th e m

u rd e r o f a U

. S

. o f

f ic e r ) a n d c o u n

t 3 (ac c e s s o ry af

te r th e f ac t t o t h e att e m

p te d m u rd e r o f a U

. S

.

o f f ic e r).

T h e m ajo ri ty o p in io n s p e ak s o f “in jus ti c e , ” o f th e “in

te g ri ty

an d p u b li c re

p u tat io n o f jud ic ial p ro c e e d in g s , ” o f “f airn e s s. ”

M ajo ri ty Op

. 1 4

, 1 8

. I s p e ak n o t o n ly o f F lo re s ’ f ail u re to rais e

an y o f th e l eg a l p o in

ts m y c o ll e ag u e s n o w f

in d p e rs u as iv e , b u t
als o o f th e m

u rd e rs h e c o m

m it te d

, o f th e p e o p le h e to rt

u re d

, an d

o f th e o th e r atro c it ie s h e c o m m it te d w h il e w o rkin g f

o r a M e x ic an c arte l th at s m

u g g le d il le g al d

rug s i n t o th e U

n it e d

S tat e s

. A n A d d e n d u m to th is o p in io n , c o n si st i n g o f an e x c e rp t

o f F lo re s ’ te s ti m o n

y , g iv e s a g e n e ral d e s c ri p ti o n o f h is

ac ti v it ie s

. Ot

h e r p arts o f th e re c o rd c o n tai n d e tai ls

, b u t th e y are

u n n e c e ssa ry to re c o u n

t. T h is c as e is n o t an ac ad e m ic e x e rc is e

.

T h e mu r d er an d th e att e m p te d m u rd e r m e n

ti o n e d in th e in f o rm ati o n o c c u rre d in M ex i co , as d id F lo re s ’ p arti c ip ati o n

. T h e o f f ic e rs w h o w e re am

b u s h e d w e re S p e c ial A g e n ts o f U

. S

. Im m ig rati o n an d Cus to m s E n f

o rc e m e n t. T h e o ri g in al in d ic tm e n

t

— s u p e rs e d e d b y th e in f

o rm ati o n to w

h ic h F lo re s p le d g

u il ty

—

c o n tai n e d f o u r c o u n ts

.

T h e o ri g in al in d ic tm e n

t’ s f ir s t tw o c o u n

ts w e re th e s am e as

c o u n ts 2 an d 3 o f th e s u p e rs e d in g in f o rm ati o n

. T h o s e c o u n

ts

c h arg e d F lo re s u n d e r 1 8 U

. S

. C. § 3 (ac c e s s o ry ) an d § 1 1 1 4 (m u rd e r an d att e m

p te d m u rd e r o f a U

. S

. o f

f ic e r). T h e o th e r tw o

c o u n ts in th e in d ic tme n

t c h arg e d F lo re s as an ac c e s s o ry af te r th e f ac t to th e att e m

p te d m u rd e r o f o n e o f t h e o f

f ic e rs , in v io lat io n2

o f 1 8 U

. S

. C. § § 3

, 1 1 1 6 (a), an d as an ac c e s s o ry af te r th e f ac t to 1

th e u s e o f a f

ir e arm d u ri n g th e m

u rd e r an d att e m

p te d m u rd e r o f

th e o f f ic e rs , in v io lat io n o f 1 8 U. S

. C. § 3 an d 1 8 U

. S

. C. § §

9 2 4 (c ) an d 9 2 4 (j )(1).

2 3

A f te r F lo re s p le d g

u il t y to th e in f

o rm ati o n an d th e d is tr ic t

c o u rt s e n te n c e d h im

, h e ap p e ale d to th is c o u rt

. Our c o u rt

v ac ate d h is s e n

te n c e an d re m an d e d f

o r re s e n te n c in g

. T h e

4

d is tr ic t c o u rt s e n

te n c e d h im ag ain

, an d th e n , in a s e p ara te c as e ,

an o t h e r p an e l o f o u r c o u rt h e ard th e ap p e al o f tw o o f th e

t r i g g e rm e n in th e m

u rd e r an d att e m

p te d m u rd e r. T h at p an el

, d is ag re e in g w it

h o th e r c ir c u it s , rule d th at § 1 1 1 4 d o e s n o t ap p ly

o u ts id e U

. S

. te rri to ry

. United S tates v. Gar cia S o t a , 9 4 8 F

. 3 d

3 5 6

, 3 5 7 (D. C. Ci r. 2 0 2 0 ).

F lo re s th e n p e rf

e c te d h is s ec o n d ap p e al to th is c o u rt

, arg u in g th at h is c o n

v ic ti o n s o n c o u n

t s 2 a n d 3 f

o r v io lat in g §

1 1 1 4 s h o u ld b e v ac ate d

. F lo re s n e v e r rais e d th is is s u e b e f o re th e d is tr ic t c o u rt o n s e n

te n c in g o r re s e n t en ci n g , o r in o u r c o u rt
in h is f ir s t ap p e al.

T hi s s e c t i on m a

k e s i t a c ri m i na l of fe ns e t o “ k i l l [ ] o r a t t e m

pt t o 1

k i l l a [n ]

. . . i

nt e rn a t i on a l l y pr ot e c t e d pe rs on [.]” One of t he of fi c e rs fi t t ha t de s i g na t i on

.

T h i s p r ov

i s i on a pp l i e s t o “ c ri

m e [s ] of v

i ol e nc e or dr

ug 2

t ra ff i c k i ng [,]” i nc l ud i ng m ur de r a nd a t t e m pt e d m ur de r.

T hi s pr ov i s i on m a k e s i t a c ri m i na l of fe ns e t o k i l l a p e r so n wi

t h 3

a fi re a rm w hi l e c om m i t t i ng a c ri m e of v i ol e nc e

. T he m

ur de re d of

fi c e r

w a s s ho t by Fl or e s ’ fe l l ow m e m be rs of t he c a rt e l ’s hi t s qu a d.

Fl or e s ’ fi rs t a pp e a l de a l t wi t h h ow t

he di s t ri c t c ou rt c a l c ul a t e d 4

hi s s e nt e nc e

. Uni t

e d St at e s v

. F l ore s , 91 2 F. 3d 61 3 (D. C

. C i

r. 20 19 ).3

M y co ll e ag u e s th e re f

o re re s t th e ir d e c is io n to v ac ate h i s

c o n v ic ti o n s o n F e d e ral Rule o f Cr im in al P ro c e d

u re 5 2 (b )

— th e “p lai n e rro r” r

u le

.

U n d e r th is rule

, F lo r es h ad “th e b u rd e n o f p e rs u as io n w it h

re s p e c t to p re

jud ic e

. ” United S tates v. Ol a n o , 5 0 7 U

. S

. 7 2 5

, 7 3 4 (19 9 3 ). He d id n o t c arry t h a t b u r d e n

. In n e it h e r h is o p e n in g b ri e f n o r h is re

p ly b ri e f d i d h e e v e n m ak e th e att e m p t. Ye t f o r

s o m e u n s tat e d re as o n , th e c o u rt s te p s in a n d tr ie s to c u re h is

o mis s io n

. T h e c o u rt ’s e f f o rt o n h is b e h alf is o f d o u b tf u l

p ro p ri e ty

. It is als o u n

p e rs u as iv e

.

F lo re s ad m it s , an d th e c o u r t ac k n o w le d g e s , th at v ac ati n g h is § 1 1 1 4 c o n

v ic ti o n s w o u ld h av e n o e f f e c t w h ats o e v e r o n h is

sen t e n c e

. A s to an

y o th e r p o s s ib le p re

jud ic ial e f

f e c t o f th e se

tw o c o n v ic ti o n s , F lo re s is

— as I h av e s aid

— s il e n t.

In it s e f f o rt to f il l th e g ap , th e c o u rt o f f e rs tw o

c o n s id e rati o n s

. T h e fi rs t is th at F lo re s w as s u b je c t to a p air o f $ 1 0 0 s p e c ial as sess m e n

ts o n th e tw o § 1 1 1 4 c o u n ts

. F lo re s

ag re e d to p ay th e $ 2 0 0 b efor e h e w as e v e n s e n te n c e d

. Wh e th e r h e e v e r p aid th e m is u n c lea r

. B u t it h ard ly m att e rs

. T h e re is a le g al d o c tr in e th at take s c are o f a s it u ati o n s u c h as t h i s: “ de
mi n im is n o n cu ra t lex ”

— th e law d o e s n o t c o n c e rn it s e lf w it h

tr if le s

. No w o n d e r F lo re s d id n o t b o th e r to m e n ti o n th e s p e c ial

as s e s s m e n ts

. 5

T h e c o u r t ’s o th e r id e a, ag ain n o t o n e F lo re s e n d o rs e d

, is

t h at h is § 1 1 1 4 c o n

v ic ti o n s w o u ld “a f

f e c t h is c ri m in al h is to ry

c ate g o r y ” whe n “h e is c o n v ic te d o f an

y f u ture o f f e n s e s

. ”

I t a l s o c om e s a s no s ur

pr i s e t ha t Fl or e s di d no t a l

l e g e a po s s i

bl e 5

e ff e c t on hi s pa

ro l e e l i g i bi l i t y

. T he Se n t e nc i

ng R e fo rm A c t of 19 84

, Pub

. L

. No. 98 -4 73

, c h. I I

, e l i m i na t e d p a ro l e fo r fe de ra l de fe nd a nt s

c on v i c t e d of c ri

m e s c om m i t t e d a ft e r Nov e m

be r 1, 19 87

.4

M ajo ri ty Op

. 1 6

. Is F lo re s p lan n in g “a n y f u ture o f f e n s e s ”? W e

c e rt ain ly h o p e n o t. S o w h e re d o e s th e c o u rt c o m e u p w it h th is

n o ti o n ? No w

h e re

. It is f

ict io n

. T o th e e x

te n t an y th in g in th e

rec o rd b e ars o n th e c o u rt ’s s p e c u lat io n , it is th is : w h e n F lo re s f in is h e s h is s e n

te n c e , h e w il l b e im

m e d i ate ly d e p o rt e d to

M e x ic o

. A

p p

. 3 2 ; s ee 8 U. S

. C

. § § 1 2 2 6 ( c) (1)(B)

, 1 2 2 7 (a) ( 2 ) ( A) (i ii ), 1 2 2 8 (a). It is n o t ap p are n t w h y , if F lo re s

c o m m it s f u ture o f f e n se s in h is h o m e c o u n

tr y , h is “c ri min al

h is to ry c ate g o ry ” u n d er th e U

. S

. S e n te n c in g Guid e li n e s w o u ld

m att e r.

M o re im p o rt an t s ti ll

, th e S u p re m e Co u rt h as lai d d o w n a

s p e c ial re q

u ir e m e n t f o r p lai n e rro r–g u il ty p le a c as e s s u c h as th is

o n e : “a d e f

e n d ant w h o s e e k s re v e rs al o f h is c o n v ic ti o n af te r a

g u il ty p le a, o n th e g

ro u n d th at th e d is tr ic t c o u rt c o m m it te d p lai n

e rro r u n d e r Rule 1 1

, m

u s t s h o w a re as o n ab le p ro b ab il it y th at b u t
f o r th e e rro r, h e w o u ld n o t h av e e n te re d th e p le a.” United 6

S tates v. Doming u ez B en it ez , 5 4 2 U

. S

. 7 4

, 8 3 (20 0 4 ); a cc o rd

R o sa les-M

irel es v. United S tates

, 1 3 8 S

. Ct

. 1 8 9 7

, 1 9 0 4

- 0 5 (20 1 8 ); M o li n a -M a rti n ez v. United S tates

, 1 3 6 S

. Ct

. 1 3 3 8

, 1 3 4 3 (20 1 6 ).

Ne it h e r F lo re s n o r m

y c o ll e ag u e s m ak e an

y e f f o rt to s ati s f

y th e Doming u ez B en it

ez r eq u i r e m e n

t. T h at is u n d e rs tan d ab le

.

T he c ou rt c l a i m s t h a t t h e r e w a s no e rr or i n “ t he R ul e 11 6

pr oc e du re s fo r a c c e p t i n g a pl e a , bu t ra t he r t he di s t i nc t e rr or of

c on vi c t i n g a pe rs on un de r a s t a t ut e t ha t do e s no t a

pp l y [.]” Ma j or i t y Op. 17 n.9. T ho s e a

re on e a nd t he s a m e

. A s s e t

t l e d l on g a g o, R

ul e 11

“ i s de s i g ne d ‘t o pr ot e c t a de fe nd a

nt w ho i s i n t he po s i t i on of pl e a di

ng

v ol un t a ri l y

. . . bu t w i t ho ut re a l i z i ng t ha t hi s c on du c t do e s no t a c t

ua l l y fa l l w i t hi n t he c ha rg e

. ’” M c C art hy v

. Uni t

e d St at e s , 39 4 U. S. 45 9,

46 7 (1 96 9) (q

uo t i ng Fe d. R

. C ri

m

. P. 11 a dv

i s or y c om m i t t e e ’s no t e t o 19 66 a m e nd m e nt s ); se e al

so Uni t e d St at e s v

. M e l ga r-He rna nd

e z , 83 2

F. 3d 26 1, 26 4– 66 (D.C. C i r. 20 16 ).5

F lo re s c o u l d n o t p o s s ib ly m e e t th e S u p re m e Co u rt ’s te s t. In

p le ad in g g

u il ty to th e § 1 1 1 4 c h arg e s , F lo re s e s tab li s h e d b e y o n d

an y d o u b t th at h e w as g

u il ty o f th e e q

u all y se ri o u s § 9 2 4 an d §

1 1 1 6 c h arg e s in th e o ri g in al in d ic tm e n t. T h e g o v e rn

m e n t 7

f o re w e n t th o s e c h arg e s as p art o f th e n e g o ti ate d p le a ag re e m e n t. Cf

. B o u sley v. United S tates

, 5 2 3 U

. S

. 6 1 4

, 6 2 4 (19 9 8 ); see a lso

United S tates v. B a xter

, 7 6 1 F

. 3 d 1 7

, 2 8 (D. C. Ci r. 2 0 1 4 );

United S tates v. Cas o , 7 2 3 F

. 3 d 2 1 5

, 2 1 9 (D. C. Ci r. 2 0 1 3 );

United Sta tes v. K

n igh t

, 9 8 1 F

. 3 d 1 0 9 5

, 1 1 1 6 (D. C. Ci r. 2 0 2 0 ) (K ats as , J.

, d is s e n

ti n g in p art) (q

u o ti n g B o rd en kirch er v. Hay es , 4 3 4 U. S

. 3 5 7

, 3 6 2 (19 7 8 )); L ew is v. P eterso n , 3 2 9 F

. 3 d 9 3 4

, 9 3 6 (7th Ci r. 2 0 0 3 ).

It f o ll o w s th at e v e n if th e § 1 1 1 4 c h arg e s w e re take n o f f th e tab le

, F lo re s h as n o t s h o w n , in d e e d h as n o t ev en att e m p te d to

s h o w , a “re as o n ab le p r o b ab il it y ” th at h e w o u ld n o t h av e p le d

g u il ty to b e in g an ac c e s s o ry to th e m u rd e r an d att e m

p te d

m u r d er. Doming u ez B en it ez , 5 4 2 U

. S

. at 8 3

. A ll in d ic ati o n s

p o in t in th e o p p o s it e d ir e c ti o n

. If h e c o u ld n o t h av e p le ad e d to § 1 1 1 4 w it

h re s p ec t to th e m

u rd e r an d att e m

p te d m u rd e r, h e

w o u ld h av e p le ad e d to th e o th e r tw o , e q u all y s e ri o u s c h arg e s

s te m m in g f ro m h is ac ti o n s as an ac c e s s o ry in th e g u n n in g d o w n

o f th e IC E o f

f ic e rs

.

But as s u m e th at F lo re s h ad c arrie d h is b u rd e n o f s h o w in g

p re jud ic e a n d th at h e h ad e s tab li s h e d th at b u t f o r th e e rro r

re g ard in g § 1 1 1 4

, h e w o u ld n o t h av e p le d g u il ty to ac c e s s o ry

c h arg e s in v o lv in g th e m

u rde r a n d th e att e m

p te d m u rd e r. E v e n

T he g ov e rn m e nt ’s br i e f, 32 –3 3, e x

pl a i ns t hi s po i nt i n d e t a i l

. 7

Fl or e s , i n hi s re pl y br i e f, di d no t di s pu

t e t he g o ver nm e nt ’s c on

t e nt i on

t ha t hi s fa c t ua l a dm i s s i on s m a de o u t vi ol a t i on s of t he ot he r t w o

c ha rg e s i n t he i nd i c t m e nt

. B ot

h of t he s e ot he r c ha rg e s a pp l i e d be y on d

U. S. t e rr i t or y

. Uni t e d St at e s v

. Garc i a So t

a , 94 8 F. 3d 35 6, 35 8, 36 2 (D.C. C i r. 20 20 ).6

s o , th e c o u rt s ti ll h ad to d e c id e w h e th e r t o ex er c is e it s Rule

5 2 (b ) d i scr e ti o n in h is f

av o r. S ee Hen derso n v. United S tates

, 5 6 8 U

. S

. 2 6 6

, 2 7 2 (20 1 3 ); Jo h n so n v. United S tates

, 5 2 0 U

. S

. 4 6 1

, 4 6 9

– 7 0 (19 9 7 ). Ye t th e c o u rt f ail s to g iv e an

y s ati s f ac to ry

e x p lan ati o n ab o u t w

h y F lo re s is e n

ti tl e d to it s d is

p e n s ati o n

.

“ T h i s is s aid to b e a m o ti o n to th e d iscreti o n o f th e c o u rt

. T h is is tr u e

. But a m o ti o n to it s d iscreti o n is a m o ti o n , n o t to it s inclina ti o n , b u t to it s j

u d g men t ; an d it s jud g m e n

t is to b e g u id e d

b y s o u n d le g al p ri n c ip le s

. ” United S tates v. B u rr , 2 5 F

. Cas

. 3 0

, 3 5 (C

. C. V a. 1 8 0 7 ) ( N o

. 1 4 6 9 2 D) (M ars h all

, C. J. ) (e m p h as is

ad d e d).

On e s u c h le g al p ri n c ip le

, ig n o re d h er e b y th e c o u rt an d

F lo re s , is th is : “th e f

ac t th at a d e f

e n d a n t d i d n o t o b

je c t, d e s p it e

u n s e tt le d law

, m ay w e l l co u n t ag ain s t th e g ran t o f Rule 5 2 (b )

re li e f

. ” Hen d erso n , 5 6 8 U

. S

. at 2 7 8

– 7 9

.

Our c ir cu i t h ad n o t d e c id e d th e te rri to ri al s c o p e o f § 1 1 1 4

u n ti l Gar cia S

o ta

, 9 4 8 F

. 3 d at 3 5 7

. S o o n e m ay sa y , as th e

c o u r t d i d h e re , th at th e is s u e w as u n ti l th e n “u n s e tt le d ”

— at
le as t in th is c ir c u it

. M ajo ri ty Op

. 1 5

. F lo re s m u s t h av e m ad e 8

a d e li b e rate an d c alc u lat e d d e c is io n n o t to c o n te s t th e

E v e n a ft e r t

he Garc i a So t

a de c i s i on , t

he § 11 14 i s s ue re m a i

ns 8

“ un s e t t l e d.” T he Sup re m e C ou

rt i n He nd e rson , 56 8 U. S. a

t 27 8– 79

,

ru l e d t ha t R ul e 52 (b ) m a

y a pp l y w he n t he l a w be c a m e “ s e t t l e d” w hi l e

t he c a s e w a s on a

pp e a l

. B y “ s e t

t l e d” t he He nd e rson C ou

rt m e a nt t ha t

a n i nt e rv e ni ng Sup re m e C ou

rt de c i s i on re nd e re d t

he di s t ri c t c o u r t ’ s

ru l i ng re t ro a c t i v e l y e rr on e ou s

. Id

. a t 27 0. W i

t h r e s pe c t t o t

he re a c h

of § 11 14 t

he re ha s be e n no s uc h Sup re m e C ou rt de c i s i on a

nd fe de ra l

l a w on t h e i ss ue i s by no m e a

ns “ s e t t l e d.” T w o c i

rc ui t s di s a g re e w i t h

t h i s c ou rt ’s de c i s i on i

n Garc i a So t

a a nd ho l d t ha t § 11 14 a

pp l i e s be y on d t he s ov e re i g n t e rr i t or y of t he Uni t e d St a t e s

. Uni t e d St at e s v

. A l K assar , 66 0 F. 3d 10 8, 11 8 (2 d C i r. 20 11 ); Uni t

e d St at e s v

. B e ni t e z , 74 1 F. 2d 13 12

, 13 17 (1 1t h Ci r. 19 84 ).7

ap p li c ab il i t y o f § 1 1 1 4

. T h e d e f e n d ants in Gar cia S

o ta w e re

tw o o f th e tr ig g e rm e n i n t h e crim e s to w h ic h F lo re s w as an

ac c e s s o ry

. T h e y arg u e d u n s u c c e s s f u ll y in th e d is tr ic t an d

s u c c e s s f u ll y in o u r c o u rt th at § 1 1 1 4 d o e s n o t ap p ly in M e x ic o

. F lo re s te s ti f

ie d ag ain s t th e m at th e ir tr ial

. A n d y e t F lo re s d id

n o t p re s e n t th is arg u m e n

t u n ti l h is s e c o n d ap p e al. 9

A s e c o n d o m it

te d p ri n c ip le is th e d o c tr i n e o f in v it e d e rro r. “If a d e f e n d ant in v it e s e rro r b y th e d is tr ic t c o u rt

, h e is ‘b arre d

f ro m c o m p lai n in g ab o u t it o n ap p e al. ’” United S t a tes v. Gi n ya rd

, 2 1 5 F

. 3 d 8 3

, 8 8 (D. C. Ci r. 2 0 0 0 ) ( q u o ti n g United

S tates v. Har rison

, 1 0 3 F

. 3 d 9 8 6

, 9 9 2 (D. C. Ci r. 1 9 9 7 ) )

. T h e

c o u rt s e e m s to re s t th e e rro r w it h th e d is tr ic t c o u r t ’ s a c c e p tan c e

o f th e p le a. But it w as F lo re s w h o n eg o ti a ted th is g

u il ty p le a

w it h th e ad v ic e o f c o u n sel. He af f ir m e d th at “[h e ] f

u ll y [un d e rs to o d ] th is P le a A g re e m e n t an d v o lun

tari ly ag re e [d ] to
it

. ” A p p

. 3 4

. F lo re s , at le as t p arti all y , in v it e d th is e rro r.

Ye t an o th e r p ri n c ip le re s u lt s f rom th e f

ac t th at th is is

F lo re s ’ s e c o n d ap p e al. T h e p ri n c ip le is th is : “a b s e n t e x c e p ti o n al

c ir c u m s tan c e s , ” th e c o u rt w il l n o t ad d re s s an arg u m e n

t th at

c o u ld h av e b e e n rais e d d

u ri n g th e in it ial ap p e al. U n i t e d S tates

v. B rice

, 7 4 8 F

. 3 d 1 2 8 8

, 1 2 8 9 (D. C. Ci r. 2 0 1 4 ); United S tates v. Hen ry , 4 7 2 F

. 3 d 9 1 0

, 9 1 3 (D. C. Ci r. 2 0 0 7 ); L a ff ey v. Nw

.

Ga rc i a Sot a f

i r st c h a l l e ng e d t

he e x t ra t e rr i t or i a l i t y of § 11 14 i

n 9

A pr i l 20 17

, s i

x m on t hs be fo re Fl or e s fi l e d hi s fi rs t s e nt e nc i

ng

m e m or a nd um

. Dk t

. 23

, Uni t e d St at e s v

. Garc i a So t

a , 1: 13 -c r- 00 14 2-

R C L -1 (D.D. C

. A

pr

. 18

, 20 17 ). Ga

rc i a Sot a ra i s e d t

he i s s ue a g a i

n on

a pp e a l i n Jun e 20 19

, s i

x m on t hs be fo re Fl or e s fi l e d hi s se c o nd

s e nt e nc i ng m e m or a

nd um on re m a

nd

. Ap p e l l a

nt B r., Garc i a So t

a ( Jun e 11

, 20 19 ). A

nd e v e n fo ur y e a

rs be fo re t

ha t

, a no t he r de fe nd a

nt

ra i s e d t he qu e s t i on i

n Uni t e d St at e s v

. A b u K

ha t al l ah

, 15 1 F. Sup p. 3d

11 6, 13 0– 31 (D.D. C

. 20 15 ). W he re a s Ga rc i a Sot a s ou g

ht “ t o pr e s e rv e [h i s ] ri g ht s wi t h r e sp e c t t o t

hi s i s s ue , ” Fl or e s di

d no t hi ng

. Dk t

. 23

, Uni t e d St at e s v

. Garc i a So t

a , 1: 13 -c r- 00 14 2- R C L -1 a t *1

.8

A irl ines

, Inc

. , 7 4 0 F

. 2 d 1 0 7 1

, 1 0 8 9

– 9 0 (D. C. Ci r. 1 9 8 4 ) (q u o ti n g F o g el v. Che stnu tt

, 6 6 8 F

. 2 d 1 0 0

, 1 0 9 (2d Ci r. 1 9 8 1 ) (F ri e n d ly

, J. )). T h e re are n o “e x c e p ti o n al c ir c u m s tan c e s ” h e re

. A s p rev i o u sl y m e n

ti o n e d

, F lo re s m ad e a s tr ate g ic d e c is io n to

n o t rais e th is is s u e

. T h is is n o t a c as e “ whe r e i n jus ti c e m ig

h t

o th e r wi s e re s u lt [. ]” Hen ry , 4 7 2 F

. 3 d at 9 1 3 (q u o ti n g Croc ke r

v. P iedmo n t A viation

, Inc

. , 4 9 F

. 3 d 7 3 5

, 7 4 0 (D. C. Ci r. 1 9 9 5 )) (i n te rn al q u o tat io n m ark s o m it

te d).

Co n s id e r h o w o u r c o u rt h an d le d th e ap p e al o f an o th e r

m e m b e r o f F lo re s ’ c arte l h it s q u ad

. A w e e k af

te r o ral arg u m e n

t
in th is c as e , a d if

f e re n t p an e l o f th is c o u rt

— a p an e l th at
in c lud e d a m e m

b e r o f to d ay ’s m ajo ri ty

— d e n ie d th e ap p e al o f

o n e o f th e tr ig g e rm e n w

h o p le d g u il ty to tw o c o u n

ts u n d e r §

1 1 1 4

. United S tates v. Z a p a ta E sp ino za , 8 3 0 F

. A

p p ’x 3 2 4 (D. C. Ci r. 2 0 2 0 ) (p e r c u ri am ). Z ap ata E s p in o za i s serv in g a th ir ty

- f iv e

- y e ar s e n

te n c e f o r t h o s e c o n

v ic ti o n s

. Id. at 3 2 5

. A s th a t p an e l n o te d : “[t]h e re is n o q u e s ti o n th at a th ir

ty

- f iv e

- y e ar

s e n te n c e is lo n g , b u t th e ac k n o w le d g e d c ri m e w as als o in d is p u tab ly h e in o u s

. U

n d e r th e law an d in c o n

te x t o f s e n te n c e s im p o s e d o n o th e r d e f

e n d ants f o r s im il ar cr i mes , th e s e n

te n c e is

n o t ‘f u n d am e n tal ly u n f air’” Id. at 3 2 6 (ci t a t io n an d in te rn al

q u o tat io n m ark s o m it

te d). A n d th e p an e l s tat e d th at it s “o w n

r e v ie w o f th e re c o rd in it s e n ti re ty [d o e s n o t] re v e al an y e rro r

c o m m it te d h e re t h at am o u n

ts to a m is c arriag e o f jus ti c e

re q u ir in g n o n e n f

o rc e m e n t o f th e ap p e al w aiv e r. ” Id. 1 0

A l m os t a y e a

r e a rl i e r, Garc i a So t

a , 94 8 F. 3d a t 35 7, he l d t ha t 1 0 § 11 14 do e s no t a

pp l y ou t s i de U. S. t e r r i t o r y. De s pi t e i t s “ re v i e w of

t he re c or d i

n i t s e nt i re t y [,]” whi c h pl a i

nl y re v e a l s t

he e x t ra t e rr i t or i a l

na t ur e of Z a pa t a E s pi no z a ’s c on

v i c t i on s , t he pa ne l di d no t e x e rc i s e i

t s di s c re t i o n t o va c a

t e t he § 11 14 c on

v i c t i on s fo r pl a i

n e rr or

—

s om e t h i n g t h e pa

ne l i nd i s pu t a bl y ha d t he a ut ho ri t y t o do s ua s po nt e

. Zap at a E spi no za , 83 0 F. A

pp ’x a t 32 6; se e Si l

b e r v

. Uni t

e d St at e s , 37 0 U. S. 71 7, 71 7– 18 (1 96 2) (p e r c ur i a m ); Uni t e d St at e s v

. A t k i nso n ,9

T o s u m u p , F l o r es d id n o t c arry h is b u rd e n o f s h o w in g

p re jud ic e , an d h e g a v e n o re as o n f o r th e c o u rt to e x e rc is e it s d is c re ti o n

. By an

y m e as u re , h e w as an ac c esso ry af te r th e f ac t

to th e m u rd e r an d att e m

p te d m u rd e r o f tw o U

. S

. o f

f ic e rs in

M e x ic o

. If § 1 1 1 4 d id n o t ap p ly

, § 9 2 4 an d § 1 1 1 6 d id

. Gar cia
S o ta

, 9 4 8 F

. 3 d at 3 5 8

, 3 6 2

, s o h e ld w it h re s p e c t t o t wo o f t h e

t r i g g e r m e n

. F o r th at re as o n an d o th e rs , th e re s h o u ld b e n o h an d

- w ri n g in g ab o u t F lo re s ’ p le as o f g u il ty to § 1 1 1 4

.

29 7 U. S. 15 7, 16 0 (1 93 6) ; Uni t e d St at e s v

. B au gh am , 44 9 F. 3d 16 7,

17 0 (D. C

. C i

r. 20 06 ).1 0

A DDE NDUM

T ran s c ri p t o f F lo re s ’ T e s ti m o n y , S u p p

. A

p p

. 1 7

– 1 8 :

Q: Yo u p re v io u s ly to ld u s ab o u t s o m e v io le n t c ri m e s th at
S ic ario s c o m

m it o n b e h a l f o f th e c arte l. Di d y o u , w h il e y o u

wer e a S i c ario s [s ic ], p e rs o n all y take p art in s o m e o f th o s e

v io le n t c ri m e s ?

A : Ye s , th at’s ri g h

t.

Q: L e t m e as k y o u s o m e s p e c if ic q u e s ti o n s

. Hav e y o u

p arti c ip ate d in an d c o n d

u c te d k id n ap p in g s ?

A : Ye s , m a’a m

.

Q: Hav e y o u ab u s e d o r to rt u re d an y o f t h e in d iv id

u als th at y o u h ad k id n ap p e d o r h ad in y o u r c u s to d y ?

A : Ye s , th at’s ri g h

t.

Q: Hav e y o u p e rs o n all y c o m m it te d e x ec u t io n s o n b e h alf o f th e

c arte l?

A : Ye s , I d id th at.

Q: A n d h av e y o u als o p arti c ip ate d in d e s tr o y in g a n d h i d i n g th e

re m ain s o f v ic ti m s w

h o h av e b e e n k il le d b y th e c arte l?

A : I d id n o t u n d e rs tan d y o u r q u e s ti o n f u ll y

. Can y o u p le as e

re p e at it ?

Q: Hav e y o u p e rs o n all y p arti c ip ate d in h id in g o r d e s tr o y in g t h e

re m ain s o f b o d ie s o f p e o p le w h o h a v e b e e n k il le d b y th e c arte l?1 1

A : Ye s , th at’s ri g h

t.