United States v. Francisco Flores

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued October 17, 2018 Decided January 4, 2019

No. 17-3090

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 and filed the briefs for appellant. Kristen G. Hughes,
appointed by the court, entered an appearance.

Peter S. Smith, Assistant U.S. Attorney, argued the cause
for appellee. With him on the brief were Jessie K. Liu, U.S.
Attorney, and Elizabeth Trosman and John P. Mannarino,
Assistant U.S. Attorneys.

Before: WILKINS and KATSAS, Circuit Judges, and
SENTELLE, Senior Circuit Judge.

Opinion for the Court filed by Circuit Judge WILKINS.
 2
WILKINS, Circuit Judge. Appellant Francisco Carbajal-
Flores pleaded guilty to one count of conspiracy to conduct the
affairs of an enterprise through a pattern of racketeering
activity (“RICO conspiracy”), in violation of 18 U.S.C.
§ 1962(d); one count of accessory after the fact for the murder
of an officer or employee of the United States, in violation of
18 U.S.C. §§ 3, 1111, and 1114; and one count of accessory
after the fact to the attempted murder of an officer or employee
of the United States, in violation of 18 U.S.C. §§ 3, 1113, and
1114. He appeals his sentence, arguing that the District Court
erred when it considered his murder of a Mexican national in
Mexico when calculating his sentence under the Sentencing
Guidelines. We agree with Flores, and we vacate and remand
to the District Court for resentencing.

I.

The following facts are taken from the Stipulated
Statement of Facts attached to Flores’s Plea Agreement. Flores
does not dispute the facts on appeal.

Flores was a member of the Los Zetas Cartel (“the Cartel”)
– a violent and sophisticated criminal organization spanning
from Central America to the United States. The Cartel was
responsible for transporting multi-ton quantities of cocaine and
marijuana, on a monthly basis, from Mexico to the United
States. The Cartel’s hit squads patrolled Cartel-controlled
territory primarily by vehicle, providing 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,
kidnappings, carjackings, human smuggling, and assassinations.

In January 2011, while assigned to a hit squad located in
San Luis Potosí, Mexico, Flores and others kidnapped a person
 3
that they believed to be a rival cartel member. During the
kidnapping, Mexican authorities confronted Flores’s hit squad,
and a chase and gun battle ensued. Flores’s hit squad
eventually escaped. During the escape, Flores was ordered to
execute the kidnapping victim, and Flores did so by shooting
him.

On February 15, 2011, ICE Special Agents Jaime Zapata
(“SA Zapata”) and Victor Avila (“SA Avila”) were returning
to Mexico City after meeting with U.S. personnel in Matehuala,
Mexico. As the two ICE agents drove south on Mexican
Highway 57, outside of San Luis Potosí, they encountered two
vehicles, each occupied by an armed Cartel hit squad. The two
hit squads forced the ICE agents off the road and attempted to
steal their armored car. The hit men subsequently fired nearly
100 rounds at the Special Agents, with several rounds entering
the armored car through an open window. SA Zapata was
killed and SA Avila was seriously wounded. The hit squads
fled.

Flores was not present during the February 15, 2011,
attack on the ICE agents. The next day, Flores attempted to
rejoin his hit squad but was told not to return. Members of the
hit squad told Flores what had happened during the attack, and
they made several inculpatory statements about their
participation in that attack.

Law enforcement personnel from Mexico and the United
States worked together to identify the perpetrators. On
February 23, 2011, Mexican authorities arrested members of
the hit squad, including Flores, who was serving as the hit
squad’s lookout at the time of the arrest. Authorities recovered
various firearms the hit squad had stored, and ballistics testing
linked those weapons to the attack on the ICE agents.
 4
On May 28, 2011, Flores voluntarily surrendered to the
U.S. government. In connection with the February 15, 2011,
attack on the two ICE agents, Flores was charged by
Information with RICO conspiracy (Count One); accessory
after the fact for the murder of an officer or employee of the
United States (Count Two); and accessory after the fact to the
attempted murder of an officer or employee of the United
States (Count Three).

In January 2012, Flores pleaded guilty to all charges in the
Information. Pursuant to the Plea Agreement, the parties
agreed to a Sentencing Guidelines calculation, which Flores
now argues was legally incorrect. To calculate a Guidelines
sentence, a district court must first select the applicable offense
guideline and then select the base offense level within that
applicable offense guideline. See U.S.S.G. §§ 1B1.1(a)(1)-(2),
1B1.2(a). Here, under Count One, the parties agreed that

[t]he underlying racketeering activity conducted
by members of the criminal enterprise in this case
involved murder; distribution or importation of a
controlled substance; conspiracy to do the same;
and accessory after the fact to commit the murder
or the attempted murder of an officer or
employee of the United States.

J.A. 39. The parties agreed to U.S.S.G. § 2E1.1 as the
applicable offense guideline, and they agreed that the base
offense level for Count One would be 43 under U.S.S.G.
§ 2E1.1(a)(2), because the base offense level for murder is 43
under U.S.S.G. § 2A1.1(a).

The Plea Agreement calculated the base offense level for
Count Two as 30 under U.S.S.G. §§ 2A1.1 and 2X3.1(a)(3)(A),
and it calculated the base offense level for Count Three as 27
 5
under U.S.S.G. §§ 2A2.1 and 2X3.1. Under U.S.S.G.
§ 3D1.2(c), the parties agreed to treat the counts as closely
related because Count One embodied the conduct alleged in
Counts Two and Three. Therefore, the applicable offense level
to the group became that of the most serious of the counts
within the group, resulting in an overall offense level of 43.

Pursuant to the Plea Agreement, if Flores demonstrated an
acceptance of responsibility to the satisfaction of the
government, the government would agree to a two-level
reduction with respect to Count Two under U.S.S.G. § 3E1.1(a)
and a one-level reduction under U.S.S.G. § 3E1.1(b). With a
Criminal History Category of I and a base offense level of 40,
the parties agreed that the applicable Guidelines range would
be 292 to 365 months of incarceration. The parties also agreed
that the District Court would make any final Guidelines
determinations and that the agreed-upon calculation in the Plea
Agreement was not binding on the Court.

The presentence report (“PSR”) arrived at the same
Guidelines calculation as the Plea Agreement but calculated it
differently by grouping the counts pursuant to U.S.S.G.
§ 3D1.2(b) and determining the combined offense level
pursuant to U.S.S.G. § 3D1.4. The PSR identified four
separate overt acts of the RICO conspiracy described in Count
One: the murder of SA Zapata (Overt Act One); the attempted
murder of SA Avila (Overt Act Two); the murder of the kidnap
victim in January 2011 (Overt Act Three); and
distribution/importation of five kilograms or more of a mixture
and substance containing a detectable amount of cocaine and
1,000 kg or more of a mixture and substance containing a
detectable amount of marijuana (Overt Act Four).

Flores objected to the PSR’s analysis with respect to Overt
Act Three on the ground that the murder of the Mexican kidnap
 6
victim was not “racketeering activity” because it was not a
violation of U.S. law. The government also filed some
objections and comments to the PSR, but it did not object to
the PSR treating the murder of the kidnap victim as a separate
racketeering activity. The government did, however, urge the
PSR writer to treat the murder of SA Zapata as reasonably
foreseeable conduct.

The Probation Office did not change its calculation with
respect to the murder of the kidnap victim. It responded that

[Flores] would be held accountable for any
activities that were reasonably foreseeable in
connection with the criminal activity that
occurred during the commission of the offense of
conviction, in preparation for that offense, or in
the course of attempting to avoid detection or
responsibility for that offense, USSG
§ 1B1.3(a)(1)(B). The murder of the kidnap
victim in January of 2011, was also in
furtherance of the Zeta’s lucrative drug
trafficking operation and was included in the
RICO offense to which he pled. However,
should the Court determine the defendant’s
position is correct the total offense level would
be 27 (base offense level 30, reduced by three
levels for acceptance of responsibility) and his
advisory guideline range would be 70 to 87
months.

J.A. 118.

Before sentencing, both parties filed sentencing
memoranda. The government urged the District Court to adopt
the analysis of the PSR and moved for a downward departure
 7
of seven levels in light of Flores’s substantial assistance to the
government. This seven-level departure was based, in part, on
Flores’s testimony against his coconspirators, and it resulted in
a guideline range of 135 to 168 months. Flores’s sentencing
memorandum repeated his argument that the murder of the
Mexican kidnap victim could not be racketeering activity under
18 U.S.C. § 1961.

At the sentencing hearing, Flores’s counsel repeated his
argument about the Mexican kidnap victim and the government
repeated its argument that the murder of SA Zapata and “the
other murders were all certainly foreseeable.” J.A. 158-61.
The District Court did not specifically address Flores’s
argument and adopted the PSR as written. The District Court
sentenced Flores to a total of twelve years of incarceration, to
be followed by three years of supervised release. The District
Court entered judgment in November 2017. Flores timely filed
a notice of appeal.

II.

In reviewing the reasonableness of a sentence, we proceed
in two steps. United States v. Warren, 700 F.3d 528, 531 (D.C.
Cir. 2012). First, we look to whether the District Court
committed significant procedural error in determining the
Guidelines range. Id. Procedural errors include “failing to
calculate (or improperly calculating) the Guidelines range . . .
or failing to adequately explain the chosen sentence.” Gall v.
United States, 552 U.S. 38, 51 (2007). We review purely legal
questions de novo, review factual findings for clear error, and
give due deference to the District Court’s application of the
Guidelines to the facts. United States v. Jones, 744 F.3d 1362,
1366 (D.C. Cir. 2014). Second, we consider holistically
whether the sentence was objectively reasonable given the
sentencing factors outlined in 18 U.S.C. § 3553(a). Warren,
 8
700 F.3d at 531. If a procedural objection was timely made
before the District Court, we review it for abuse of discretion.
In re Sealed Case, 809 F.3d 672, 675 (D.C. Cir. 2016). If not,
we review the claim for plain error. Id.

A.

The government relies on several civil cases to argue that
because Flores expressly adopted the Guidelines calculation in
his Plea Agreement, he is judicially estopped from challenging
that calculation on appeal. Importantly, however, the
government conceded at oral argument that no court has ever
held that a defendant is estopped on appeal from making an
argument of law with respect to his or her plea agreement. See
Oral Arg. Recording 48:32-49:05. We find no reason to break
new ground by adopting the government’s judicial estoppel
argument here.

Even setting aside the questionable applicability of the
judicial estoppel doctrine to plea agreements, the government’s
judicial estoppel argument fails on the merits. “[J]udicial
estoppel is used to preclude a party from taking a position that
is inconsistent with one successfully asserted by the same party
in a prior proceeding.” United Mine Workers of Am. 1974
Pension v. Pittston Co., 984 F.2d 469, 477 (D.C. Cir. 1993).
While “the circumstances under which judicial estoppel may
appropriately be invoked are probably not reducible to any
general formulation of principle,” New Hampshire v. Maine,
532 U.S. 742, 750 (2001) (internal quotation marks, alterations,
and citation omitted), the Supreme Court has specified at least
three questions that should inform a court’s decision to apply
judicial estoppel:

(1) Is a party’s later position clearly inconsistent
with its earlier position? (2) Has the party succeeded
 9
in persuading a court to accept that party’s earlier
position, so that judicial acceptance of an
inconsistent position in a later proceeding would
create the perception that either the first or the
second court was misled? (3) Will the party seeking
to assert an inconsistent position derive an unfair
advantage or impose an unfair detriment on the
opposing party if not estopped?

Moses v. Howard Univ. Hosp., 606 F.3d 789, 798 (D.C. Cir.
2010) (citing Maine, 532 U.S. at 750-51).

Here, Flores initially agreed to a Guidelines calculation of
40 in his Plea Agreement but later challenged this calculation
in his objections to the PSR, again in his sentencing
memorandum, and again at the sentencing hearing. He does
not dispute that he committed the murder of the kidnap victim
as detailed in the Information and the Stipulated Statement of
Facts; instead, he objects to the District Court’s use of the
kidnap victim’s murder in arriving at his Guidelines
calculation, which is a legal question. Stipulations about legal
issues in plea agreements are not binding on the district court.
“While parties may enter into stipulations of fact that are
binding upon them unless they can show manifest injustice,
parties may not stipulate to the legal conclusions to be reached
by the court.” Weston v. Wash. Metro. Area Transit Auth., 78
F.3d 682, 685 (D.C. Cir. 1996) (internal quotation marks and
citations omitted).

Furthermore, the Plea Agreement specified that “the
failure of the Court or the Probation Office to determine the
guideline range in accordance with the above calculations will
not void this Plea Agreement,” and “the sentence to be imposed
is a matter solely within the discretion of the Court.” J.A. 40.
In light of these express statements, the government fails to
 10
establish how Flores succeeded in persuading the District Court
to accept the Plea Agreement’s Guidelines calculation. What
Flores received when he entered into the Plea Agreement was
a reservation by the District Court to determine the appropriate
sentence at sentencing – not a favorable judicial decision. We
refuse to accept the government’s argument that a defendant
prevails in obtaining a favorable judicial decision when a
district court accepts a plea agreement subject to determining
his or her sentence at sentencing. Accordingly, judicial
estoppel does not apply.

B.

Flores argues that the PSR and the District Court were
incorrect in considering his murder of the Mexican kidnap
victim as a “racketeering activity” in calculating his sentence.
The government argues that in calculating Flores’s offense
level, the District Court properly included Flores’s 2011
murder of the kidnap victim as “relevant conduct” under
U.S.S.G. § 1B1.3, and that by its plain language, the relevant
conduct provision includes extraterritorial conduct. Flores
argues that the government raises its relevant conduct argument
for the first time on appeal.

Before diving into the merits of Flores’s argument, we
must address whether the District Court properly calculated
Flores’s base offense level. The District Court did not explain
the basis of Flores’s sentence. Rather, after listening to the
parties’ arguments on the role the murder of the kidnap victim
should play at sentencing, the district court stated that it would
“adopt the [presentence] report as written.” J.A. 161. The Plea
 11
Agreement 1 and PSR do not mention “relevant conduct” under
U.S.S.G. § 1B1.3. The only mention of “relevant conduct”
appears in the PSR’s Addendum, in response to Flores’s
objection to the use of the kidnap victim murder in the
calculation of his base offense level. In response to Flores’s
objection, the Probation Office stated that “[a]s part of the
jointly undertaken criminal activity in furtherance of the
racketeering conspiracy, the murder of SA Zapata by the
coconspirators is relevant conduct and an act in furtherance of
the RICO conspiracy” for which Flores “would be held
accountable . . . [under] USSG § 1B1.3(a)(1)(B).” J.A. 118.
After discussing why the murder of SA Zapata is “relevant
conduct” under § 1B1.3(a)(1)(B), the Probation Office stated –
without citation – that “[t]he murder of the kidnap victim in
January of 2011, was also in furtherance of the Zeta’s lucrative
drug trafficking operation and was included in the RICO
offense to which [defendant] pled.” J.A. 118.

The problem with the Probation Office’s response is that
in discussing relevant conduct, it relied on § 1B1.3(a)(1)(B) –
the subsection that concerns “act and omissions of others” in a
jointly undertaken criminal activity, also known as the
accomplice attribution element of relevant conduct. U.S.S.G.
§ 1B1.3(a)(1)(B) (emphasis added). The subsection that would
address Flores’s murder of the kidnap victim is
§ 1B1.3(a)(1)(A), 2 which concerns the “acts and omissions

1
The Plea Agreement makes only one reference to U.S.S.G. § 1B1.3.
Specifically, it cites to § 1B1.3 and § 2A1.1 for the proposition that
the base offense level for Count One is 43.
2
U.S.S.G. § 1B1.3(a)(1)(A) states:

Unless otherwise specified, (i) the base offense level
where the guideline specifies more than one base
offense level, (ii) specific offense characteristics and
(iii) cross references in Chapter Two, and
 12
committed . . . by the defendant.” Id. § 1B1.3(a)(1)(A) (emphasis
added).

The record and the government’s briefing lack a single
citation to § 1B1.3(a)(1)(A). Similarly, the PSR and its
Addendum never assert that the murder of the Mexican kidnap
victim was included as “relevant conduct.” Indeed, in the
PSR’s Addendum, the Probation Office conceded that “should
the Court determine the defendant’s position is correct” with
respect to the murder of the Mexican kidnap victim, “the total
offense level would be 27 . . . and his advisory guideline range
would be 70 to 87 months” rather than 292 to 365 months. J.A.
118. By virtue of adopting the PSR as written, the District
Court appears to have conflated the relevant conduct
subsections and calculated Flores’s base offense level of 43
based on § 1B1.3(a)(1)(B). The government did not defend
this basis at oral argument and instead contended that we
should affirm based on the understanding that the District
Court relied on § 1B1.3(a)(1)(A). See Oral Arg. Recording
28:43-29:12. However, time and again, the Supreme Court
has stated that “[a] district court that ‘improperly calculat[es]’
a defendant’s Guidelines range . . . has committed a ‘significant
procedural error.’” Molina-Martinez v. United States, 136 S.
Ct. 1338, 1345-46 (2016) (quoting Gall v. United States, 552
U.S. 38, 51 (2007)). We cannot say as a matter of law that the
District Court relied on § 1B1.3(a)(1)(A) in calculating
Flores’s base offense level or that it would have relied on this
provision if it had the opportunity to do so. We therefore
cannot affirm in light of such uncertainty.

(iv) adjustments in Chapter Three, shall be
determined on the basis of . . . all acts and omissions
committed, aided, abetted, counseled, commanded,
induced, procured, or willfully caused by the
defendant.
 13

C.

Even if the District Court had intended to consider Flores’s
murder of the Mexican kidnap victim as relevant conduct under
U.S.S.G. § 1B1.3(a)(1)(A), it would not have been able to do
so. The PSR based its Guidelines calculation on the
assumption that the kidnap victim murder was “underlying
racketeering activity” under U.S.S.G. § 2E1.1. However, at
oral argument, the government conceded that the murder of the
Mexican kidnap victim in Mexico was not “racketeering
activity.” See Oral Arg. Recording 23:16-23:20. We agree
with the government’s concession and must reverse the District
Court because the relevant conduct Guidelines cannot be used
to calculate the base offense level of an act that does not qualify
as “racketeering activity.” To explain our holding – and
because “[t]he Guidelines are complex,” Molina-Martinez, 136
S. Ct. at 1342 – we explain the sequence of steps a district court
must follow in calculating a defendant’s sentence under the
Guidelines.

To arrive at a Guidelines sentence, a district court must
first determine the offense guideline section from Chapter Two
applicable to the offense of conviction, and it must do so by referring
to the Statutory Index. U.S.S.G. §§ 1B1.1(a)(1), 1B1.2(a). At the
second step, the district court must “[d]etermine the base
offense level and apply any appropriate specific offense
characteristics, cross references, and special instructions
contained in the particular guideline in Chapter Two in the
order listed.” Id. § 1B1.1(a)(2).

Here, the applicable Guidelines section for Flores’s
offense of conviction – 18 U.S.C. § 1962(d) – is U.S.S.G.
§ 2E1.1 (Unlawful Conduct Relating to Racketeer Influenced
and Corrupt Organizations). U.S.S.G. § 2E1.1 instructs the
 14
District Court to determine the defendant’s base offense level
by applying the greater of 19 or “the offense level applicable to
the underlying racketeering activity.” U.S.S.G. § 2E1.1(a).
This reference to “the offense level applicable to the underlying
racketeering activity” in § 2E1.1(a)(2) is a cross-reference that
triggers § 1B1.3, which in turn directs the district court to
consider relevant conduct in determining a defendant’s base
offense level. See United States v. Carrozza, 4 F.3d 70, 75 (1st
Cir. 1993); United States v. Masters, 978 F.2d 281, 284 (7th
Cir. 1992); see also U.S.S.G. § 1B1.5, application note 1
(“References to other offense guidelines . . . may be to a
specific guideline, or may be more general (e.g., to the
guideline for the ‘underlying offense’).”).

While “[c]onduct that is not formally charged or is not an
element of the offense of conviction may enter into the
determination of the applicable guideline sentencing range,”
U.S.S.G. § 1B1.3, Background; in RICO cases, the relevant
conduct that can be considered must also qualify as
“racketeering activity,” id. § 2E1.1(a)(2). Contrary to the
government’s argument that a district court can consider acts
that do not qualify as “racketeering activity” so long as such
activity is within the scope of the RICO conspiracy, § 2E1.1
lacks a textual hook to go beyond “racketeering activity.”

The government fails to cite a single case supporting its
proposition, and its argument contradicts the plain text of the
RICO statute and the RICO Guidelines provision, both of
which use the term of art “racketeering activity.” See Klehr v.
A.O. Smith Corp., 521 U.S. 179, 183 (1997) (“The phrase
‘racketeering activity’ is a term of art defined in terms of
activity that violates other laws.”). As the Supreme Court
recently explained:
 15
The [RICO] statute defines “racketeering activity”
to encompass dozens of state and federal offenses,
known in RICO parlance as predicates. These
predicates include any act “indictable” under
specified federal statutes, §§ 1961(1)(B)-(C), (E)-
(G), as well as certain crimes “chargeable” under
state law, § 1961(1)(A), and any offense involving
bankruptcy or securities fraud or drug-related
activity that is “punishable” under federal law,
§ 1961(1)(D).

RJR Nabisco, Inc. v. European Community, 136 S. Ct. 2090,
2097 (2016). Importantly, to qualify as “racketeering activity,”
an act must be “indictable,” “chargeable,” or “punishable”
under one of the statutes identified in § 1961(1). Id. at 2102.
Here, the government conceded that Flores’s murder of a
Mexican national in Mexico was not “racketeering activity,”
and we agree because it would not be indictable under any of
the statutes listed in § 1961(1). Accordingly, even if the
District Court concluded that the Mexican kidnap murder
constituted relevant conduct under § 1B1.3, it could not use
that murder to calculate Flores’s base offense level because
§ 2E1.1(a)(2) circumscribes relevant conduct to “underlying
racketeering activity.”

The prevailing case law supports our view. In United
States v. Carrozza, 4 F.3d 70 (1st Cir. 1993), defendant
Raymond J. Patriarca pleaded guilty to one count of conspiring
to violate RICO, one count of violating RICO, four counts of
interstate travel in aid of racketeering, and one count of
conspiring to violate the Travel Act. Id. at 72. The government
sought to include specific acts of relevant conduct under
U.S.S.G. § 1B1.3 in determining Patriarca’s base offense level,
but the district court limited relevant conduct to only those
predicate acts that were charged against the defendant. Id. at
 16
73-74. The government appealed, and the First Circuit
concluded that the district court erred when it limited relevant
conduct to conduct in furtherance of the predicate acts charged
against the defendant. The First Circuit held that “the term
‘underlying racketeering activity’ in § 2E1.1(a)(2) means
simply any act, whether or not charged against defendant
personally, that qualifies as a RICO predicate act under 18
U.S.C. § 1961(1) and is otherwise relevant conduct under
§ 1B1.3.” Id. at 77.

Contrary to the government’s current position, the
government in Carrozza argued before the First Circuit that

[a]n uncharged act might have been committed in
furtherance of the RICO conspiracy, but if that act
does not constitute “underlying racketeering
activity,” then there is no mechanism in § 2E1.1 for
quantifying that act, because the base offense level
for § 2E1.1 is equal to “the offense level applicable
to the underlying racketeering activity.”

Brief of Appellant United States of America at 18, United
States v. Carrozza, 4 F.3d 70 (1st Cir. 1993) (No. 92-2213),
1992 WL 12574203. And in its brief in opposition to certiorari
in the same case, the Solicitor General conceded that
“underlying racketeering activity” must be interpreted to mean
charged or uncharged conduct that would qualify as a predicate
act under 18 U.S.C. § 1961(1). Brief for the United States in
Opposition, Patriarca v. United States, 511 U.S. 1069 (1994)
(No. 93-1350), 1994 WL 16100403 at *9.

Similarly, in cases involving the relevant-conduct analysis
in the § 2E1.1 context, several other of our sister circuits have
considered as relevant conduct only acts that also qualified as
underlying RICO predicate acts. See, e.g., United States v.
 17
Barragan, 871 F.3d 689, 715-16 (9th Cir. 2017); United States
v. Massino, 546 F.3d 123, 135 (2d Cir. 2008); United States v.
Corrado, 304 F.3d 593, 608 (6th Cir. 2002). We are not aware
of any contrary holdings in the courts of appeal. We therefore
decline the government’s invitation to use § 1B1.3 to extend
the § 2E1.1 analysis beyond racketeering activity.

***

For these reasons, we conclude that the District Court
erred in calculating Flores’s applicable Guidelines range and
that this error sufficiently prejudices Flores to require
resentencing. See United States v. Tann, 532 F.3d 868, 875-76
(D.C. Cir. 2008).

So ordered.