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Case number 19-3100, United States of America versus Francisco Cabajal, also known as Dalmata Appellants.

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Mr. Gilbert for the appellant, Ms.

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Kurt for the appellee.

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Good morning.

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Good morning.

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Council for Appellants.

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Hi, Mr. Gilbert, are you able to hear me?

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Apparently not.

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How about now, Your Honor?

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Good.

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Can you hear me?

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Yes, Your Honor.

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All right, would you like to proceed?

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Yes, Your Honor.

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Thank you.

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My name is Richard Gilbert.

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I have represented Mr. Carvajal-Flores since he was presented.

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in Washington D.C.

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back in 2011.

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So it's a relationship that goes back some time.

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I have asked to reserve two minutes for rebuttal.

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Let me just start by saying that the original sin, if I can use that term, that gives rise to all of the legal issues in this case has to do with the government's insistence that Mr. Carvajal-Flores plead guilty to the Rico conspiracy.

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Well, you're not raising any rule 11 issue here, are you?

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No, Your Honor.

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So he pled guilty.

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And he pled guilty acknowledging the statement of facts presented by the government in support of the plea agreement.

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Yes.

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That's correct.

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I do think that it's important to keep in mind the language that appears in the stipulated statement of facts, particularly its use of the passive voice when it talks about things that were common knowledge or things that Mr. Carvajal-Flores was aware of.

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I think both of those expressions are really expressions that are more applicable to the issue of foreseeability.

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rather than his any specific agreement that he might have made.

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And over 25 years ago in the United States versus Sarrow, this court made it clear that foreseeability was not enough in determining responsibility after a general guilty verdict on conspiracy.

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And so we have suggested that there's actually no indication that Mr. Carvajal for us actually agreed to have anything to do specifically with drugs.

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That's why we've suggested that his offense level should be the minimum of six based on the drug quantity table.

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Well, counsel,

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I mean, you know better than I, your client made certain admissions about what his role was all about.

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And it certainly had to do with this drug trade.

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Your Honor, to be precise, I don't think that he made those kinds of admissions.

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Why was he keeping the roots open?

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Why was he trying to disrupt competition?

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I mean, we can't just ignore what your client said.

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Well, I think we've tried to present in our brief that in carrying out the activities of the Zena partel, there was a wide variety of nefarious activities that the partel engaged in, and drug trafficking was

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I think it's significant that the government and the pre-sentence report writer and eventually the judge included that Mr. Kramhoff-Loris for his actions in the state of San Luis Potosi was responsible for all of the drugs imported by the Zeta cartel during the period of time that he was a member of the conspiracy.

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I've tried to provide

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page 225 of our appendix, a map prepared by the DEA 7 as to the areas controlled by the various cartels in Mexico.

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And as you can see, the Zetas controlled the state of Nuevo Leon, which is right across the border from the city of Laredo.

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And also the Zetas control the large share of Tomalipas, the major city of which was Reynosa.

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which is right across the border from McAllen, Texas.

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So drugs would have entered the United States, not necessarily having anything to do with San Luis Potosi, which is where Mr. Carvajal-Flores was conducting activities for the Zegas.

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Mr. Gilbert, I'm interested in your arguments about vacating the guilty plea under section 1114.

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Why can't Mr. Flores raise those issues on collateral appeal?

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Why isn't that the appropriate way to raise those issues?

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Well, we would certainly, of course, like this court to consider it, because we think that if you force him to go through collateral appeal,

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The case may not get resolved before he's released.

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Because there's nothing that expedites a 2255 motion.

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Can you say some more about why you think that this is plain error under Rule 52B?

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Yes, Your Honor.

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After Garcia Sota, in this circuit,

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of the law is that a violation of section 1114 is not a crime punishable under the United States law because of extra-territorial application.

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So that's the law in this circuit.

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Has rehearing in bank been decided in the Garcia Soda case?

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Yes, your honor.

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Our research indicates that the government did file a petition for re-hearing and this court denied it.

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Okay, thanks.

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So I think that's established law down in this circuit.

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And so after the Supreme Court's Henderson decision, what's determined to be plain is what's plain at the time of the appeal.

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So he's appealing now

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And the law in this circuit is that those two convictions under 1114 are not punishable in the United States law.

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So that's why we that's the error.

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And that's, that's the law now.

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That's why we say it.

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But the government says if he hadn't pled guilty to 1114

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And we couldn't charge him with that because it didn't have extraterritorial reach.

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We would have charged him with 1116.

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And under the sentencing guidelines, he would have gotten exactly the same score as he got under 1114.

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What's your answer to that?

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Well, of course, the protected person, which is the 1116, only applied to the agent that survived, Special Agent Abima.

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because he had diplomatic status.

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He did not apply to Special Agent Zapata.

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And so... So what?

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There would be no basis to convict my client of accessory to the fact of murder.

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It would only have been the attempted murder.

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So the sentence would not have been the same in any event because of the way that you view multiple charges.

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the assuming, it all depends on what you decide the correct sentencing guideline for the RICO conspiracy is.

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Because if you agree with the pre-sentence report, then the sentencing guidelines for the other two convictions are irrelevant because of sentencing guideline of 50 produced down to 43 is much, much higher than the 30 and 29, which be the levels for the

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murder, accessory to the murder and accessory to the attempted murder.

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Did you say in your brief that vacating the sentences under 1114 would not amount to anything because they were concurrent?

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No, I did not make that specific point in our original brief.

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I am trying to reserve some time for rebuttal.

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All right.

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If my colleagues have no further questions, we'll hear from the government.

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Good morning.

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May it please the court, this is Suzanne Kurt on behalf of the United States.

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If the unless the court asks otherwise, I'd like to proceed with the issue of drug quantity.

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And I would like to first talk about the defendant's objections to that.

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Number one, he claims that he's being responsible for the drugs attributable to the entire cartel.

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That is not correct.

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Number two, he said he had no role in transporting drugs.

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That also is not correct.

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And number three, he claims that he had nothing to do with

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involvement of methamphetamine, but that is not relevant.

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Turning first to the drug quantity.

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As Judge Rogers noted in his statement of fact, Appellant acknowledged that the Los Atos cartel transported, and the word is multi-ton quantities of cocaine every single month to the United States.

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Now when the court

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decided drug quantity in this particular case, it adopted level 38.

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For a level 38, you begin with 450 kilograms or which is only one half of a ton.

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In the pre-sentence report, which the court adopted, the court stated that the minimum level that he was responsible for was one ton.

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I'm basing on the notion that multi tons were transported each month.

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I think I inadvertently overstated my burden or the government's burden.

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of proof here because when the judge adopted the pre-sentence report, he was really adopting the notion that it was one ton that they were responsible for.

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I didn't realize until reviewing for the moot that the pre-sentence report writer did not times that by the 15 months that the defendant participated in the cartel.

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So he is not being held responsible for multi, multi tons of cocaine.

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He is only being held responsible for 907 kilograms, which is one ton, which is well above level 30, the amount required for level 38.

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Secondly, appellant argues that he should be responsible for only a level six, but that is an incorrect application of the guidelines.

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He pled to an offense of five kilograms or more.

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And the guidelines require you to begin with what is the offense level applicable to the offense of conviction.

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That is at least a level 30.

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And then in terms of his own involvement,

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There, as Judge Rogers indicated, there are numerous, numerous circumstances set forth in the Statement of Facts stating that his role was to protect the cartel's drug smuggling routes into the United States.

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That was his purpose in getting hired by the Los Zetas Cartel.

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That included in the appendix at page 45, protecting the drug smuggling routes in San Luis Potosi State, as well as others.

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And he specifically acknowledged that San Luis Potosi State had lucrative drug trafficking routes into the United States.

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He acknowledged numerous times that his role was to eliminate competition for land drug routes.

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He stated that when he started working for the cartel, he gathered information on rival cartels competing for the drug routes.

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That would be in the state where he worked.

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Then he worked his way up to be a commander.

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And at that time, he still, his role was still to protect the lucrative highways in St.

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Louis Potosi for those drug trafficking routes.

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And we have cited to the court on page 36, page 39 of our brief, several cases from the third, first, and seventh circuit that talk about the important role of an enforcer, such as this appellant was, and why it is appropriate to contribute to him,

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the, although that didn't happen in this case, all of the drugs that were transported by the cartel.

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Appellant relies on Cerro, but in Cerro, the court was concerned with two appellants and whether each was, had joined in the entire conspiracy and whether each was responsible

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for the amount of drugs that the other person had engaged in.

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But at the same time, the court recognized that in some conspiracies, each defendant has joined in the overall scheme.

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So the scope is identical for each.

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And that is the type of conspiracy that we have here.

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This man's role was to protect the roots for the entire drug cartel that was going through San Luis Potosi.

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I'd like to, unless there are no further questions about drug quantity, I would like to turn my attention to Judge Ralph's question about the first issue.

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And Appellant has ignored the fact that he did not, this claim about 1114 was available to him when he brought his direct appeal.

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He doesn't claim otherwise.

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And this court has said in numerous occasions, and we've cited Henry, Bruce, and Sonny, that it's well settled that when an argument has been raised in an initial appeal, it's inappropriate to consider that argument on the second appeal following agreement, which is what we have here.

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Appellant, as Judge Rao asked about it.

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Could I just explore so I understand precisely?

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I know you reject his argument about forfeiture as opposed to waiver.

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But what was his situation?

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In other words, the direct appeal was filed when?

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The direct appeal

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was filed, I'm not sure of the exact date, but let me- What I'm trying to get at is when he filed his direct appeal, had this court already decided that section 114, 114.

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No, no, no.

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So I want to be clear, there's a Supreme Court decision written by Justice O'Connor talking about

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what a defendant is obligated to raise, where there is no definitive decision on the issue, but it's percolating, as it were.

[00:18:30] Speaker 04:
Yes.

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Is it what?

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Yes.

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Do you want me to address that?

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Well, I want to be clear.

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Is that the argument you're making as to the direct appeal?

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Yes, our argument is, in the direct appeal, he's making, in Garcia Soto, the argument was that 1114 did not apply extraterritorially.

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Those sorts of claims have been for all kinds of statutes where the conduct occurs outside the United States.

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There are cases are replete with those kinds of arguments.

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That was definitely an argument that was available to him.

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And as the court knows, in Boosley, the court discussed that where those types of arguments are circulating,

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that it's not an excuse that you didn't bring it.

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The earlier in the direct appeal was definitely available to him.

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And as a matter of fact, he made a guidelines argument that was very similar.

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He made a guidelines argument that he wasn't responsible for the conduct that occurred in Mexico as relevant conduct.

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My other point, though, that I wanted to bring out in terms of the Plain Era claim, and we believe this claim is absolutely waived.

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He relies on this court's decision in Sani and a quote there where they're talking about the Plain Era doctrine applying, but he misreads Sani.

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quote from Sonny, the court there is talking about the fact that the defendant did not raise a claim about the resentencing.

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And so yes, that would be plain error.

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But if you look at the sentence immediately before that, the court in Sonny addresses the defendant's attempt to raise a claim about his sentence that should have been raised in the first appeal.

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And the court in signing applies Bryce, which in turn applies Henry, that says it must be raised, it's waived if it's not raised in the direct appeal.

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And of course that's what... Could I just be clear on what the government's position is?

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In other words, if an issue about the extraterritorial application of various US code provisions is circulating,

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even though the Supreme Court has said that counsel has to make determinations as to what issues to bring.

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And if you've got 40 to bring, adding the 41st doesn't necessarily, or the failure to add it doesn't necessarily show an effective assistance of counsel.

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So I want to understand why, where there's nothing in the way of an overt waiver

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except through this legal theory, would the government take the position that it wants an appellant to raise everything that may be percolating out there, even though in the relevant jurisdiction, there's been no decision and no decision by the Supreme Court.

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So then the appellate court, us, supposed to apply the law as it exists at the time we're deciding the case,

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absent this retroactivity concern.

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So it's not as though, I'm just trying to understand, is the failure to say, and I raise everything else that may be percolating out there, deemed to be a waiver by the government, as opposed to what appellate is arguing that it should be viewed as a forfeiture?

[00:22:32] Speaker 04:
No, we are arguing that it's a waiver, Your Honor, because the argument was definitely available to him.

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I know that in other jurisdictions... Council, can you just take my question as I gave it to you, because that's a critical point to me.

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Not what other jurisdictions are doing, but what the government in this case is arguing he was required to do in order to avoid this waiver argument, which is a slightly new

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concept of waiver after Olano and even after Jackson versus Deno.

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So I'm just interested in it.

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No, Your Honor, we firmly believe that he waived it.

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The argument was definitely available to him at the time of the direct appeal.

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There were contrary decisions in other jurisdictions, but that, I think, I also think Boosley makes it very clear that it was his obligation to raise it at the time of the direct appeal.

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Moreover, though, what's also involved in that is this was a guilty plea.

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So as Boosley makes plain in order to, the arguments that the court's talking about may be pertinent to a direct appeal and an appeal after conviction, but not for a guilty plea.

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A whole other set of concerns come in with a guilty plea, as Boosley makes clear and as we explained in our brief.

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So it's not plain error, it's waived.

[00:24:06] Speaker 04:
We believe the law is very clear on that, that this type of claim was definitely available to counsel and therefore it has to be brought in a habeas action in the district court.

[00:24:18] Speaker 01:
I'm sorry, just from what you just said just now, do you think is your waiver argument based in part on the fact that those arguments are percolating and also that he pled guilty

[00:24:29] Speaker 01:
So is your contention also that the guilty plea waived these claims in some way?

[00:24:36] Speaker 04:
Your Honor, I have to be frank.

[00:24:38] Speaker 04:
When I first looked at this particular issue, the first thing that popped into my mind was the waiver argument, because it had not been raised in the direct appeal.

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As we were preparing for this argument, and I was working on my moots last week,

[00:24:56] Speaker 04:
I was looking at a jurisdictional issue, reading some other cases, and I came across a case called Delgado Garcia, which brought up that particular argument that you just mentioned, that the guilty plea waives it.

[00:25:11] Speaker 04:
I discussed it with my colleagues, and unfortunately, I think it's a slightly different waiver argument that we made in our brief, and to be frank with you,

[00:25:21] Speaker 04:
We did not think that it was an appropriate issue to raise in a Rule 28 letter, but it certainly is in Boosley.

[00:25:31] Speaker 04:
We think that the issue of waiver by failure to raise it in the first appeal is very clear based on this court's particular precedence.

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And the fact that these types of arguments are very common in the jurisprudence, that a particular US statute doesn't govern extraterritorially.

[00:25:51] Speaker 04:
So there would have been, therefore, this needs to be brought in the habeas context.

[00:25:59] Speaker 05:
My question was different.

[00:26:03] Speaker 05:
I wasn't talking about a specific provision of the US code.

[00:26:09] Speaker 05:
I was talking about is the government's argument that you have to raise any of these US code provisions that might apply to me for conduct taking place outside of the territorial United States has to be raised.

[00:26:29] Speaker 05:
So then I would just list all the code sections

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that the government is applying to me.

[00:26:35] Speaker 04:
Oh, no, Your Honor.

[00:26:35] Speaker 04:
Our position is that with respect to the 1114 claim that he's making now, that that had to be raised in the direct appeal, that specific claim.

[00:26:47] Speaker 04:
Because?

[00:26:49] Speaker 04:
Because that type of claim was definitely available to him at the time of the direct appeal.

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And it would have been directly relevant

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to his claim in the direct appeal, assuming that he could raise it, given the fact that it was a guilty plea, as Judge Brown mentioned.

[00:27:12] Speaker 02:
May I ask you?

[00:27:14] Speaker 02:
Yes, Your Honor.

[00:27:14] Speaker 02:
Your brief says that because it's a guilty plea, and I ask counsel for the defendant, that you have to consider what other charges could have been brought if there is a problem with

[00:27:27] Speaker 02:
with what we have here, which is one, one, one, four, and you say, yes, uh, one, one, one, six, right?

[00:27:35] Speaker 02:
Yes.

[00:27:36] Speaker 02:
Okay.

[00:27:37] Speaker 02:
But how many counts could you get out of, uh, the one, one, one, six, just one, right?

[00:27:45] Speaker 02:
Right.

[00:27:46] Speaker 02:
That's right.

[00:27:47] Speaker 02:
Um, and so, and so he's been convicted of two felony or he played guilty to two other felonies.

[00:27:54] Speaker 02:
to replace it with only one felony runs into a problem.

[00:27:58] Speaker 02:
And the problem is the $100 assessment.

[00:28:03] Speaker 02:
I'm not sure, Your Honor, what... With each felony count, the law requires that the defendant be assessed $100.

[00:28:11] Speaker 02:
So you can't say, well, there's no consequence here because the sentence would... The imprisonment sentence, yes, would be the same, but the $100 assessment would not.

[00:28:24] Speaker 04:
Well, Your Honor, I think the point you raised, these are the types of issues that should be raised in the district court in the first instance.

[00:28:33] Speaker 04:
And I would point out that we also, the use of a firearm during a drug trafficking crime, we also forwent that.

[00:28:43] Speaker 04:
He was charged with that in the initial indictment.

[00:28:46] Speaker 04:
And that is, that,

[00:28:49] Speaker 04:
we believe sentence would have to be consecutive even.

[00:28:53] Speaker 04:
So I think that that, and of course he has to show that he's not guilty of all more serious charges.

[00:29:00] Speaker 04:
And of course he's not, he can't make that with respect to the Rico conspiracy either.

[00:29:05] Speaker 04:
So I don't think he, he can't meet the burden that this court discussed in Casso and Baxter of showing he's not guilty of

[00:29:15] Speaker 04:
either equally serious charges or greater charges.

[00:29:19] Speaker 04:
And that's our position as court in our brief.

[00:29:22] Speaker 02:
OK, good.

[00:29:23] Speaker 02:
OK, thank you.

[00:29:24] Speaker 04:
Thank you, Your Honor.

[00:29:26] Speaker 04:
Are there further questions regarding the other enhancements that the court may have?

[00:29:35] Speaker 04:
Otherwise, we would submit on our brief.

[00:29:37] Speaker 05:
Thank you, Counsel.

[00:29:40] Speaker 04:
Thank you, Your Honor.

[00:29:41] Speaker 05:
Counsel for Appellant.

[00:29:44] Speaker 04:
Thank you, Your Honor.

[00:29:48] Speaker 03:
I, that this court and United States versus Dudley set out the responsibilities of the district court and arguably those of the prosecutor as to being able to make specific findings as to the scope of the agreement.

[00:30:08] Speaker 03:
And I respectfully suggest that simply knowing as a general matter

[00:30:15] Speaker 03:
that drugs might be coming through Santa Luis Potosí headed towards the border does not mean that he's specifically agreeing to all of those drugs that come through Santa Luis Potosí.

[00:30:31] Speaker 03:
I think there's got to be some specific findings made and none of those findings have to do with any specific quantities of drugs.

[00:30:42] Speaker 03:
I've addressed in our brief the government's arguments about the enforcer being responsible, but those are the cases in which the enforcer was working directly with the head of the drug trafficking organization.

[00:30:57] Speaker 03:
That's clearly not the case here, where Mr. Carvajal-Flores had bested, he said, to be a peripheral enforcer by trying to keep the Gulf cartel off the roads in San Luis Potosi.

[00:31:12] Speaker 03:
I do want to argue, I address it in my brief, the issue of whether or not the forfeiture argument is waived by virtue of the guilty plea.

[00:31:25] Speaker 03:
And I cite the case, the United States versus class that I cited in my brief.

[00:31:30] Speaker 03:
And it talks about basically the principle that look, if the argument that you're making about a charge you pled guilty to doesn't involve new facts,

[00:31:42] Speaker 03:
We're not arguing that it does, because it's undisputed that the attack on the agents occurred outside the United States of America.

[00:31:51] Speaker 03:
I believe that this is a case where, under class, the defendant is entitled, notwithstanding the guilty plea, to challenge the validity of those convictions.

[00:32:06] Speaker 03:
Ms.

[00:32:08] Speaker 03:
Kurt didn't have a chance to tell you why

[00:32:12] Speaker 03:
The fact that Mr. Carvajal-Floris had no personal involvement or knowledge of the methamphetamine is not relevant because there was an increase in the sentencing guidelines precisely for the methamphetamine.

[00:32:30] Speaker 03:
So that's, unless there's an additional question, that's all that I have.

[00:32:34] Speaker 05:
I just want to be sure I have your citation.

[00:32:37] Speaker 05:
How do you spell USV versus, is it class or glass?

[00:32:42] Speaker 03:
A class, just like an online class.

[00:32:46] Speaker 05:
C-L-A-S-S?

[00:32:48] Speaker 03:
Correct, Your Honor.

[00:32:49] Speaker 03:
Let me find that for you.

[00:32:50] Speaker 05:
Yeah, it's not in your reply brief.

[00:32:53] Speaker 03:
No, it was, I was trying, when I raised it in my initial brief, I was trying to anticipate arguments that I thought the government would raise later.

[00:33:02] Speaker 03:
And certainly the idea that he pled guilty is one of those arguments I was trying to anticipate.

[00:33:16] Speaker 05:
Well, I don't see it in your opening brief either.

[00:33:20] Speaker 03:
I'm looking desperately right now, Your Honor.

[00:33:23] Speaker 05:
OK, what is the citation?

[00:33:28] Speaker 03:
That's what I'm looking for.

[00:33:29] Speaker 03:
I'm sorry.

[00:33:50] Speaker 04:
It's 138 Supreme Court 798, a 2018 decision, Class V United States.

[00:33:58] Speaker 05:
Thank you.

[00:34:02] Speaker 05:
So my point really is not that the case didn't necessarily exist, but that the government had no opportunity to respond.

[00:34:13] Speaker 03:
Well, the government in its reply brief did not raise the issue.

[00:34:20] Speaker 03:
of Mr Carvajal-Flores being precluded from asking this court to consider the forfeiture argument.

[00:34:27] Speaker 03:
They didn't argue that the guilty plea in and of itself precluded him from raising the plain error issue.

[00:34:38] Speaker 03:
I believe, Judge Rogers, you have it right that forfeiture is simply the failure to raise an issue, but waiver requires a more intentional

[00:34:50] Speaker 03:
or bearing of an argument.

[00:34:52] Speaker 03:
And I don't believe there's any case law that argues that simply because I conceivably could have made an argument that was not yet the law in this circuit, that therefore that's a waiver and not a forfeiture.

[00:35:05] Speaker 05:
Well, a counsel acknowledged the earlier points you were making, but comes back and says Boosley.

[00:35:12] Speaker 05:
And you say Boosley is inapplicable here.

[00:35:16] Speaker 03:
Well, I think what makes Boosley inapplicable

[00:35:19] Speaker 03:
is in Casso, this court tried to divine what the Supreme Court had in mind in Boosley and concluded that the requirement to prove innocence on all the other more serious charges was either a matter of the inherent in plea bargaining or was

[00:35:45] Speaker 03:
designed to avoid the defendant getting a windfall.

[00:35:49] Speaker 03:
And eventually that's what this court settled on in Baxter was the rationale behind Boosley.

[00:35:53] Speaker 03:
But in this case, depending on how you resolve the sentencing guideline issues, the government forced him to plead guilty to an offense that if the government's calculations are correct, carried a life sentence and carried a guideline sentence of life.

[00:36:14] Speaker 03:
which is what 43 is.

[00:36:16] Speaker 03:
And so certainly that was a, they got that plea as a result of the plea bargain.

[00:36:24] Speaker 03:
So that's a more serious offense that they were able to extract that from him.

[00:36:33] Speaker 03:
So that's why I think Boosley is not applicable because they were able as a result of plea bargaining to get him to plead to a much more serious offense.

[00:36:44] Speaker 03:
than the ones that we're asking them for today.

[00:36:47] Speaker 05:
All right.

[00:36:48] Speaker 05:
Do my colleagues have any questions?

[00:36:52] Speaker 05:
No.

[00:36:53] Speaker 05:
Thank you, Council.

[00:36:54] Speaker 05:
We'll take the case under advisement.

[00:36:56] Speaker 03:
Thank you, Your Honor.