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 …
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