United States of America v. Raul Flores -Hernandez, Also Known As El Tio

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued October 15, 2025 Decided May 29, 2026
No. 24-3007
UNITED S TATES OF A MERICA,
APPELLEE
v.
R AUL F LORES -HERNANDEZ, ALSO KNOWN AS EL T IO,
APPELLANT
Appeal from the United States District Court
for the District of Columbia
(No. 1:17-cr-00051-1)
Robert Allen Feitel argued the cause for appellant. With
him on the briefs was Sandi S. Rhee.
Thomas E. Booth, Attorney, U.S. Department of Justice,
argued the cause for appellee. With him on the brief was
Melanie Alsworth, Attorney. Jonathan R. Hornok, Attorney,
entered an appearance.
Before: M ILLETT, W ALKER , and P AN , Circuit Judges.
Opinion for the Court filed by Circuit Judge WALKER .

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WALKER , Circuit Judge: Raul Flores-Hernandez pleaded
guilty to engaging in a drug-trafficking conspiracy. He
appealed his sentence. We affirm.
I. Background
Raul Flores-Hernandez is a 73-year-old Mexican national
known as “El Tio.” JA 18. For decades, he trafficked drugs
from South America, through Mexico, to the United States.
He was arrested in 2017 and pleaded guilty in 2023 to
conspiring to “distribute” five kilograms or more of cocaine,
intending for it to “be unlawfully imported into the United
States.” See 21 U.S.C. §§ 959(a), 960(b)(1)(B),
960(b)(1)(H), 963; see also 18 U.S.C. § 2.
Flores submitted a “Statement of Facts” before his plea
hearing. JA 30. In it, he said he was responsible for as much
as 450 kilograms of cocaine involved in the conspiracy. Id.
Later, at his plea hearing, Flores confirmed the Statement of
Facts. JA 178–79.
The district court held a three-day sentencing hearing.
Several witnesses testified. They included Mario Pinedo
Alvarez Correa and Jack Sinuhe Almaguer-Ramirez.
Pinedo trafficked cocaine with Flores and later became a
source of intelligence for the FBI. He testified that he saw
“[a]bout 20 people” working for Flores. JA 408. They
included approximately five “bodyguards” who “protected
him.” Id.
Among the other “people that worked for” Flores,
according to Pinedo, were Chani, Cachoro, and Licenciado.
JA 403–04. Pinedo did not elaborate on Chani and Cachoro,
but he said Licenciado “was in charge of” work “at the ports,”

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including “all of the loads” of cocaine that “would arrive and
be delivered.” JA 405. Working “on behalf of” Flores,
Licenciado “would pay everybody at the ports” and “everyone”
in “government” who required payment. JA 405–06.
In addition, Pinedo testified that a man named Enriquito
“deliver[ed] . . . money” more than “ten times” to Pinedo “on
behalf of” Flores. JA 418–19. It totaled “[a]bout 20 million”
dollars. JA 419. Each time, Pinedo took the money “to a
contact in Colombia.” JA 418–19.
As for Sinuhe, he too helped Flores traffic cocaine before
becoming a U.S. government informant. For example, Sinuhe
once helped count and load around $14 million dollars onto a
pickup truck. JA 706–09. It was Flores’ “profit” from
“selling cocaine.” JA 709–10.
On that occasion, a man named “Chicklin was going to
pick up the truck and deliver it to Mr. Flores.” JA 709.
Chicklin was one of Flores’ “workers.” Id. He did “[a] little
bit of everything” for Flores. JA 711.
Sinuhe also testified about a man named Alfaro. Though
trained as “an attorney,” Alfaro worked as “an errand boy” for
Flores, fetching things like “food, beverage[s],” and “cigars.”
JA 695–96. Alfaro “was trying to make it through” the
“Flores organization” by “winning more important positions”
over time. JA 696–97.
Over Flores’ objection, the court used the preponderance-
of-the-evidence standard to make findings of fact for
sentencing. It found that Flores was responsible for
450 kilograms or more of cocaine. It also found that “there
were at least five people involved in the defendant’s

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organization; and the defendant was, in fact, the organizer or
leader. He was kind of the top-level person.” JA 242.
Based in part on those findings, the court calculated a
Sentencing Guidelines range from 21 years and 10 months to
27 years and 3 months. That calculation began with a base
offense level of 38, which applies when the defendant in a drug
conspiracy is responsible for “450 KG or more of Cocaine.”
U.S.S.G. § 2D1.1(c)(1). The calculation also included a four-
level enhancement per Sentencing Guideline § 3B1.1(a), which
applies when “the defendant was an organizer or leader of a
criminal activity that involved five or more participants or was
otherwise extensive.”
Flores argued for a zero-point-offender reduction. That
two-level reduction is available to certain defendants with zero
criminal-history points. U.S.S.G. § 4C1.1. But to qualify for
the reduction, Flores needed to show (among other things) that
he “did not receive an adjustment under § 3B1.1 (Aggravating
Role) and . . . was not engaged in a continuing criminal
enterprise, as defined in 21 U.S.C. § 848.” U.S.S.G.
§ 4C1.1(a)(10) (U.S. Sent’g Comm’n 2023). Because Flores
had received an adjustment under § 3B1.1 for his role as “an
organizer or leader” of extensive criminal activity, the court
found that Flores was ineligible for the reduction. U.S.S.G.
§ 3B1.1(a).
The court sentenced Flores to 21 years and 10 months in
prison and 5 years of supervised release.
He appealed.

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II. Standard of Review
“We review purely legal questions de novo and factual
findings for clear error, and we give due deference to the
district court’s application of the Guidelines to facts.” United
States v. Jones, 744 F.3d 1362, 1366 (D.C. Cir. 2014) (cleaned
up). We defer to a district court’s credibility determinations
unless the court credited “exceedingly improbable” testimony.
United States v. Evans, 98 F.4th 335, 338 (D.C. Cir. 2024)
(cleaned up).
III. Analysis
Flores argues that the district court erred when it (A) used
a preponderance-of-the-evidence standard to find facts at
sentencing, (B) found that Flores was the organizer or leader of
extensive criminal activity, and (C) determined that Flores was
ineligible for a zero-point-offender reduction.1
The district court did not err.
A. Preponderance Standard
Flores argues on appeal that a district court at sentencing
can find facts only when they are proven beyond a reasonable
doubt. Like previous panels, we find “no support for this
proposition.” United States v. Bras, 483 F.3d 103, 107 (D.C.
Cir. 2007). “At sentencing, the district court may make
findings of fact under a preponderance-of-the-evidence
1 In his opening brief, Flores also challenged his base offense level
of 38. But Flores conceded at oral argument that the range required
for a base offense level of 38 “was within the range that he agreed to
in his statement of facts.” Oral Arg. Tr. 20–21; see also id. at 21 (“I
did not make much in my rebuttal brief nor here . . . about
quantity.”).

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standard . . . .” United States v. Ventura, 650 F.3d 746, 749
(D.C. Cir. 2011).
B. Aggravating Role
Sentencing Guideline § 3B1.1 is entitled “Aggravating
Role.” It instructs a district court to increase the offense level
by 4 “[i]f the defendant was an organizer or leader of a criminal
activity that involved five or more participants or was
otherwise extensive.” U.S.S.G. § 3B1.1(a).
That sentencing enhancement has three elements. First,
the court must find that the defendant was “an organizer or
leader of a criminal activity,” id., which requires the “exercise”
of “some control over others,” United States v. Quigley, 373
F.3d 133, 139 (D.C. Cir. 2004) (cleaned up). Second, the
court must find that at least one of the people controlled by the
defendant was a “participant” within the meaning of
Sentencing Guideline § 3B1.1 — i.e., someone who was
criminally responsible for an offense. See United States v.
Vega, 826 F.3d 514, 539 (D.C. Cir. 2016). Third, the court
must find that the defendant’s criminal activity “involved five
or more participants or was otherwise extensive.” U.S.S.G.
§ 3B1.1(a).
Flores challenges the district court’s findings that he
exercised control over others and that his criminal activity
involved at least five participants. We are not persuaded.
Applying the “due deference” and “clear error” standards, we
affirm the district court’s application of the Sentencing
Guidelines to the facts that it found. United States v. Jones,
744 F.3d 1362, 1366 (D.C. Cir. 2014).

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1. Control Over Others
The testimony of Mario Pinedo Alvarez Correa was by
itself enough to support a finding that Flores “exercise[d] some
control over others.” Quigley, 373 F.3d at 139 (cleaned up).
Pinedo saw “[a]bout 20 people” working for Flores, including
approximately five “bodyguards.” JA 408. He identified
Chani and Cachoro as “people that worked for” Flores, as well
as Licenciado, who “would pay” government officials and
“everybody at the ports.” JA 408, 405. He also identified
Enriquito, who “deliver[ed] . . . money” more than “ten times”
to Pinedo “on behalf of” Flores. JA 419.
The testimony of Jack Sinuhe Almaguer-Ramirez was also
enough, by itself, to support a finding that Flores “exercise[d]
some control over others.” Quigley, 373 F.3d at 139 (cleaned
up). Sinuhe identified Chicklin as one of Flores’ “workers.”
JA 245. He said Chicklin did “[a] little bit of everything” for
Flores, like transporting millions of dollars in “profit” from
“selling cocaine.” JA 709–11. In addition, Sinuhe identified
Alfaro as “an errand boy” for Flores trying to “win[] more
important positions” in the “Flores organization.” JA 695–97.
The district court found Pinedo and Sinuhe “to be
credible,” JA 214, and we defer to that finding because their
testimony was not “exceedingly improbable,” United States v.
Evans, 98 F.4th 335, 338 (D.C. Cir. 2024) (cleaned up).
Pinedo and Sinuhe “largely owned up to” their “very extensive
criminal conduct . . . in narcotics cocaine trafficking on an
extraordinary scale,” even “at great personal risk to themselves
and their families.” JA 214. And “[n]owhere in the record is
there any suggestion that any of these cooperating witnesses
was lying about knowing this defendant who is critical of their
credibility but never denies knowing who each of them” is.
JA 214–15.

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2. Five or More Participants
We also defer to the district court’s credibility finding
when considering Pinedo’s testimony that he saw “[a]bout 20
people” working in Flores’ drug trafficking organization,
including about five bodyguards. JA 408. That testimony
was enough to support a finding that Flores’ “criminal
activity . . . involved five or more participants.” U.S.S.G.
§ 3B1.1(a).
C. Zero-Point-Offender Reduction
A Sentencing Guidelines range depends on the defendant’s
offense level and his criminal-history score. A defendant with
no prior convictions has a criminal-history score of zero.
Sentencing Guideline § 4C1.1 reduces the offense level for
certain defendants with zero criminal-history points. For that
reason, it is called a zero-point-offender reduction.
At the time of Flores’ sentencing, 2 a defendant was
eligible for the zero-point-offender reduction only “[i]f the
defendant me[t] all of the following criteria”:
(1) the defendant did not receive any criminal
history points from Chapter Four, Part A;
2 After Flores’ sentencing, the Sentencing Commission divided
§ 4C1.1(a)(10) into two sections. U.S.S.G. Amend. 831. The
Commission explained that “stakeholders ha[d] questioned whether
either condition in subsection (a)(10) is disqualifying or whether
only the combination of both conditions is disqualifying.” U.S.S.G.
Supplement to App. C, Amend. 831 (Nov. 1, 2024). The
Commission accordingly amended the Guidelines just “[t]o clarify
the Commission’s intention that a defendant is ineligible for the
adjustment if the defendant meets either of the disqualifying
conditions in the provision.” Id. (emphasis added)

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(2) the defendant did not receive an adjustment
under § 3A1.4 (Terrorism);
(3) the defendant did not use violence or credible
threats of violence in connection with the
offense;
(4) the offense did not result in death or serious
bodily injury;
(5) the instant offense of conviction is not a sex
offense;
(6) the defendant did not personally cause
substantial financial hardship;
(7) the defendant did not possess, receive, purchase,
transport, transfer, sell, or otherwise dispose of a
firearm or other dangerous weapon (or induce
another participant to do so) in connection with
the offense;
(8) the instant offense of conviction is not covered
by § 2H1.1 (Offenses Involving Individual
Rights);
(9) the defendant did not receive an adjustment
under § 3A1.1 (Hate Crime Motivation or
Vulnerable Victim) or § 3A1.5 (Serious Human
Rights Offense); and
(10) the defendant did not receive an adjustment
under § 3B1.1 (Aggravating Role) and was not

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engaged in a continuing criminal enterprise,
as defined in 21 U.S.C. § 848.
U.S.S.G. § 4C1.1(a) (emphasis added).
Flores argues that he meets those ten conditions if he
satisfies the first nine conditions and either did not receive an
aggravating-role adjustment or was not engaged in a
continuing criminal enterprise. But to satisfy the tenth
condition, Flores needed not to have received an aggravating-
role adjustment “and” not to have engaged in a continuing
criminal enterprise. Since Flores received an aggravating-role
adjustment, he does not qualify for the reduction regardless of
whether he engaged in a continuing criminal enterprise.3
The Supreme Court rejected an argument similar to Flores’
in Pulsifer v. United States, 601 U.S. 124 (2024). There, the
statute’s conditions required (among other things) that “the
defendant does not have — (A) more than 4 criminal history
points, . . . (B) a prior 3-point offense, . . . and (C) a prior 2-
point violent offense . . . .” 18 U.S.C. § 3553(f)(1); 601 U.S.
3 That holding aligns with the holding of every other circuit to
consider this question. See United States v. Robertson, 162 F.4th
209, 230–33 (1st Cir. 2025); United States v. Milchin, 128 F.4th 199,
201–03 (3d Cir. 2025); United States v. Shaw, No. 24-6638, 2024
WL 4824237, at *1 (4th Cir. Nov. 19, 2024) (per curiam); United
States v. Morales, 122 F.4th 590, 593–97 (5th Cir. 2024); United
States v. Ashrafkhan, 129 F.4th 980, 983–88 (6th Cir. 2025); United
States v. Cervantes, 109 F.4th 944, 946–47 (7th Cir. 2024); United
States v. de la Cruz, 135 F.4th 1127, 1129 (8th Cir. 2025) (per
curiam); United States v. Gonzalez-Loera, 135 F.4th 856, 859–60
(9th Cir. 2025); United States v. Herrera, No. 24-6236, 2025 WL
1005962, at *1–2 (10th Cir. Apr. 1, 2025); United States v. Alvarez,
No. 24-13391, 2025 WL 1450840, at *2 (11th Cir. May 14, 2025)
(per curiam).

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at 128–29. Pulsifer argued that a defendant meets the
conditions if he “does not have” A or “does not have” B or
“does not have” C. But the Supreme Court held that a
defendant meets the conditions only if he “does not have” A
and “does not have” B and “does not have” C. 601 U.S. at
149–53.
Pulsifer addressed a difficult interpretive question that
divided federal circuits and the Supreme Court. That question
was harder than the question in this case because there was only
one verb phrase in Pulsifer. The defendant satisfied that
statute’s condition when the defendant:
does not have [A], [B], and [C].
18 U.S.C. § 3553(f)(1).
But unlike in Pulsifer, the text in our case repeats the verb
phrases conjoined by “and” — a defendant satisfies the
condition when the defendant:
did not receive [A] . . . and was not engaged in [B].
U.S.S.G. § 4C1.1(a)(10). So “this is not a provision stating
‘You must not drink and drive,’ but a provision stating ‘You
must not drink and must not drive.’” Morales, 122 F.4th at
594.4
4 See also Ashrafkhan, 129 F.4th at 985 (U.S.S.G. § 4C1.1(a)(10)
“avoids the grammatical structure that created interpretive
challenges in Pulsifer” because “[e]ach negative phrase constitutes a
separate requirement.” (cleaned up)).

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IV. Conclusion
The district court correctly used the preponderance
standard to find facts at sentencing. It did not clearly err when
it found that Flores was a leader or organizer of extensive
criminal activity. Nor did it err in finding Flores ineligible for
a zero-point-offender reduction.
We therefore affirm the judgment of the district court.
So ordered.

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