United States v. Ladonta Tucker

U.S. Court of Appeals for the Seventh Circuit July 24, 2024

Kirschconcurs

Opinion

In the

United States Court of Appeals For the Seventh Circuit ____________________ Nos. 23-1781, 23-2201, & 23-2245 UNITED STATES OF AMERICA, ě-Appellee, v.

ANYCCO M. RIVERS and LADONTA A. TUCKER, Defendants-Appellants. ____________________

Appeals from the United States District Court for the Central District of Illinois. Nos. 16-CR-20017, 22-CR-20015 — Colin S. Bruce, Judge. ____________________

ARGUED MAY 30, 2024 — DECIDED JULY 24, 2024 ____________________

Before ST. EVE, KIRSCH, and KOLAR, Circuit Judges. ST. EVE, Circuit Judge. Anycco Rivers and Ladonta Tucker carjacked a BMW at gunpoint and led police on a high speed chase before crashing the vehicle into a guardrail and contin- ȱȱĚȱȱǯȱȱ¢ȱȱȱȱȱȬ ǯȱ ȱȱȱȱȱ¢ȱȱȱȱęȬ arm during and in relation to a crime of violence. Tucker, on the other hand, received a lesser conviction under the same 2 Nos. 23-1781, 23-2201, & 23-2245

statute only for carrying—not discharging—a ęȱȱ and in relation to the carjacking. Tucker contests ȱęȱ conviction on appeal, and we uphold that conviction today. Rivers, for his part, challenges only his sentence, arguing the district court erred by applying a reckless endangerment en- hancement. We reject this argument but nevertheless vacate Rivers’s carjacking sentence and remand to the district court in light of retroactive Guidelines amendments. I. Background A. Factual Background On March 17, 2022, Anycco Rivers and Ladonta Tucker carjacked a BMW on a residential street in Bourbonnais, Illi- nois. The car was parked at the side of the road with its engine idling when Rivers approached the front passenger-side win- dow. He pointed two guns at the car’s owner, who was seated in the driver’s seat, and told him to get out of the car. Tucker then searched the owner ȱ ȱ ȱ ȱ ȱ Ĵȱ him go. Ducking behind a nearby parked car, the owner heard Rivers yell at Tucker to unlock the car. Tucker and Rivers then got into the vehicle, Tucker in the driver’s seat and Rivers in the front passenger seat. Witnesses reported seeing Rivers shoot a gun into the air as Tucker drove away, but no one ob- ȱȱ ȱȱęǯ ȱ ȱ ȱ ǰȱ ȱ Ĵȱ ȱ ȱ speeding and weaving around other cars. During the ensuing seven- mile high speed chase, the BMW ignored Ĝȱǰȱdrove erratically, and weaved ȱ ȱ ȱ ȱ ĜǯȱĴ to slow the BMW, police Ĝ used a squad car to force the BMW toward the road’s right shoulder. Instead, the BMW col- lided with the squad car, then crossed into another lane of Nos. 23-1781, 23-2201, & 23-2245 3

Ĝǯ ȱĜȱ ȱȱȱȱȱȱȱȱ force the BMW into a guardrail, disabling it. Tucker then ex- ited the ȂȱǰȱĚ west into a wooded area. Rivers followed Tucker out the driver’s-ȱȱȱĚȱin the op- posite direction—ȱȱȱȱĜȱȱdown a ra- vine. ȱĜȱȱȱȱȱǯȱ ȱĜȱȬ sued Rivers across the busy road, down a steep embankment, and into a rocky creek bed where they struggled to subdue and ę¢ȱarrest him. In the woods to the west, ĜȱȬ larly managed to capture Tucker, discovering a latex glove in his pocket. ȱȱȱęȱȱȱǯȱȱęȬ arm, a loaded Cobray 9mm pistol with an extended magazine, lay on the ground next to the BMW’s front driver’s-side door. T ȱȱęǰȱȱ¢ȱǯŚśȱȱ ȱȱȱǯŚŖȱȬ ber Taurus (containing two rounds), were under the BMW’s front passenger seat where Rivers had sat. Police also found ten spent cartridges around the scene of the carjacking, which they later determined had all ȱęȱȱȱȱȬ tol. Testing revealed Tucker’s DNA on the Cobray pistol and Ȃȱęȱȱȱȱę. B. Procedural Background 1. Indictment and trial A grand jury in the Central District of Illinois indicted both Rivers and Tucker on one count of carjacking, in violation of 18 U.S.C. § 2119. The grand jury also indicted Rivers on one count of carrying and discharging the Taurus and Glock dur- ing and in relation to a crime of violence, in violation of 18 U.S.C. § 924(c)(1)(A)(iii). Finally, the indictment charged 4 Nos. 23-1781, 23-2201, & 23-2245

Tucker with carrying the Cobray during and in relation to a crime of violence, in violation of 18 U.S.C. § 924(c)(1)(A)(i). At trial, the government presented testimony from the car- ȱǰȱȱ ǰȱȱȱĜȱȱȱ the chase. The government also presented forensic evidence ȱ ȱ ęȱ ȱ ȱ . At the close of evi- dence, both Tucker and Rivers moved for a judgment of ac- Ĵǯȱ Ȃȱ ȱ ¢ȱ ¢ȱ ȱ ȱ ȱ Ȭ dence was inĜȱ ȱ ȱ ȱ ǯȱ ȱ Ȭ ȱȱĜ¢ȱȱȱȱȱȱȱȱȱ ȱ ȱȱȱȱȱęȱof the Taurus. The district court denied both motions. The defense did not submit proposed jury instructions, nor did it object to jury instruction 36: ȱȱȱȱęȱȃȱȱȄȱȱȱ if there is a connection between the use or carry- ȱȱȱęȱȱȱȱȱǯȱȱ ęȱ ȱ ȱ ȱ ȱ ȱ ěȱ ȱ respect to the crime; its presence or involvement cannot be the result of accident or coincidence. ȱ ęȱ ȱ ȱ ȱ ǰȱ ȱ ȱ ȱ potential of facilitating, the crime. The district court thus instructed the jury accordingly. After deliberations, the jury found both defendants guilty on each of their respective charges. Both defendants renewed their ȱȱȱȱȱĴǰȱ ȱȱȱȱ again denied. 2. Sentencing The district court sentenced Tucker to 100 months’ impris- onment for carjacking and added the mandatory consecutive Nos. 23-1781, 23-2201, & 23-2245 5

sentence, 60 months, for violating § 924(c). On top of that, the court revoked Tucker’s supervised release for a prior felon-in- possession conviction and added 24 months to his sentence, resulting in a total sentence of 184 months. Tucker does not challenge his sentence on appeal. Rivers’s Presentence Investigation Report recommended a two-level enhancement for reckless endangerment during Ě under U.S.S.G. § 3C1.2. Over Rivers’s objection, the dis- trict court agreed to apply the enhancement at the sentencing hearing. In support, it explained ȱȃȱȱȱȬ ǰȄȱ ȱ ȃǽǾȱ ȱ —ȱ ȱ ȱ ȱ ȱ ȱ ęȱ based on all the evidence that they were working together— ȱȱĚǯȄȱȱȱȱȱbased the enhancement ȱȂȱĚȱȱȱe was disabled, noting that ȱȃȱȱȱ¢ȱȱȱǰȱȱȱȂǯȄ He then led police on a chase through a ravine and continued to evade arrest—ȱȃȱ¢ȱȱȱǰȱȱȱȱ ȱȱ¢ȱ¢ǯȄ The court ultimately concluded that ȃȱ ¢ȱ ǰȱ ǰȱ ȱ ȱ ǯȱ Tucker to do activities related to the seizing of the vehicle, the carjacking, and then all of their subsequent conduct created a great risk of bodily injury to a lot ȱǯȄȱ Rivers had six criminal history points, to which the district court added two criminal history points because he commit- ȱ ȱ ȱ ěȱ ȱ ȱ ǯȱ The addition of these points resulted in a criminal history category of IV rather than III, with a Guidelines range of 77–96 months. The district court ultimately sentenced Rivers to 87 months for carjacking and a 120-month mandatory consecu- tive sentence for violating § 924(c). 6 Nos. 23-1781, 23-2201, & 23-2245

II. Analysis On appeal, Tucker objects to his conviction and Rivers his sentence. For his part, Tucker insists that the evidence was in- Ĝȱ ȱ ȱ his ęȱ ǯȱ ǰȱ Ȭ while, objects to the application of the reckless endangerment enhancement and asks that we vacate his sentence and re- mand to the district court for resentencing in view of recent amendments to the Guidelines. For the reasons explained be- ǰȱ ȱĜȱȂȱȱȱRivers’s enhancement, but we vacate and remand Rivers’s carjacking sentence to the district court to decide whether to resentence Rivers pursuant to the recent Guidelines amendments. A. Tucker A jury convicted Tucker of violating § 924(c)(1)(A)(i) by ¢ȱȱęȱȃȱȱȱȱȄȱȱȱȱȬ lence, which includes carjacking. Tucker admits that he car- ried the Cobray pistol during the carjacking, but he insists that because he never revealed the weapon in the course of the car- jacking or escape, it did not facilitate—and therefore was not carried in relation to—ȱěǯȱ Tucker’s problem is that our caselaw permits juries to con- ȱ ȱȱęȱȱhȱȃȱȱof facilitatingȄȱ ȱ¢ȱě. United States v. Mancillas, 183 F.3d 682, 707 (7th Cir. 1999); see also ȱȱĴȱȱ Jury Instructions (2023). Indeed, the jury in Tucker’s trial was given just such an instruction. Tucker did not object. He none- theless argues he can overcome this hurdle because ȱȃpo- tential-to-facilitateȄ standard departs from Supreme Court precedent and thus requires course correction. Nos. 23-1781, 23-2201, & 23-2245 7

Before wading into principles of stare decisis, we must consider the standard of review. Tucker presents his appeal as a challenge to the district court’s denial of his motion for ȱȱĴȱȱȱȱȱȱȬ dure 29. Below, Tucker made a general Rule 29 motion chal- lenging the Ĝ¢ȱȱȱǰȱȱ ȱȃǽǾȱȱ ȱ ȱ Řşȱ ȱ ȱ ęȱ ȱ ȱ ȱ ȱǰȱǳȱȱȱȱȱ¢ȱǯȄȱ United States v. Maez, 960 F.3d 949, 959 (7th Cir. 2020); see also United States v. Jones, 763 F.3d 777, 811–12 (7th Cir. 2014). Be- cause he made a general Rule 29 motion, Tucker contends, he has preserved his arguments on appeal. The government dis- agrees, arguing that Tucker’s appeal is really a challenge to the jury instructions—which he did not challenge below— ȱȱȱĜ¢ȱȱȱȱȱȱsecure a more favorable standard of review. We have at times applied de novo review to legal ques- ȱ ȱȱȱȱȱȱĜ¢ȱȱȱȬ ǰȱ ȱ ȱ ȱ ęȱ ȱ ȱ ȱ ȱ Ȭ sented to the district court. See, e.g., United States v. Harden, 893 F.3d 434, 445 (7th Cir. 2018) (citing ȱȱǯȱĴ, 245 F.3d 890, 904 (7th Cir. 2001)); United States v. Duran, 407 F.3d 828, 840 (7th Cir. 2005); cf. United States v. Castillo, 406 F.3d 806, 813–14 (7th Cir. 2005) (appearing to apply de novo review when evaluatiȱȱȱȱȃȱȱȄȱ ȱ ȱ Ĝ¢-of-the-evidence challenge). 1 A few other

1 ȱȱ ȱǰȱ ȱȱȱȱȱȱȃǽǾȱȱȱ ȱŘşȱȱȱęȱȱ ȱȱȱǰȱȱȱ ȱȱȱ¢ȱǯȄȱMaez, 960 F.3d at 959; see also United States v. Moore, 363 F.3d 631, 637 (7th Cir. 2004), vacated and remanded 8 Nos. 23-1781, 23-2201, & 23-2245

circuits, meanwhile, have come to the opposite conclusion, holding that if the legal argument is not presented to the dis- trict court, the circuit will only review it for plain error, even if the defendant made a general motion ȱĴ. See, e.g., United States v. Johnson, 979 F.3d 632, 636 (9th Cir. 2020) (ap- plying plain error review when a defendant purported to ap- ȱ ȱ Ĝ¢ȱ ȱ ȱ ȱ ȱ ȱ ȱ ȱ ȃȱ ȱ ȱ ȱ ȱ ȱ ȱ ȱ ȱ Ȭ ȱȱȄǼǲȱUnited States v. Fuertes, 805 F.3d 485, 497 (4th Cir. 2015) (same); United States v. Wesley, 417 F.3d 612, 617–18 (6th Cir. 2005) (same). We need not resolve which standard of review applies here. Whether Tucker preserved his argument and secured de novo review on appeal or failed to do so and must submit to

on other grounds, Jackson v. United StatesǰȱśŚřȱǯǯȱŗŗŖŖȱǻŘŖŖśǼȱǻȃȱȱ ȱȱȱȱĴȱȱȱȱȱȱȱȱȱ ȱȱȱȱĜ¢ȱȱȱǰȱ ȱȱȱȱȱ ęȱǰȱ¢ȱȱȱȱȱȱȱȱ ǯȄǼǲȱ United States v. HosseiniǰȱŜŝşȱǯřȱśŚŚǰȱśśŖȱǻŝȱǯȱŘŖŗŘǼȱǻȃȱȱȱ ȱ ȱȱȱȱȱĜ¢ȱȱȱȱ¢ȱȬ ȱȱȱȱĴȱȱȱęȱȱȱȱȱ ȱ ǰȱ ¢ȱ ȱ Ĵȱ ȱ ¢ȱ ǯȄǼǯȱ We have some doubts about this rule and the perverse incentives it sets up to dis- ȱȱȱȱ ęȱȱȱ ȱȱŘşȱǯȱ See ȱȱǯȱ ěer, 991 F.3d 630, 637–41 (5th Cir. 2021) (Oldham, J., ǼȱǻȱȱĴȱȱȱȱŘşȱȱȱȱ ȱĜ¢ȱȱȃȱȱȱ¢ȱȱĴȱȱȬ ble in the district court and to save their good arguments as ‘gotchas!’ for ȄǼǯȱȱȱȱȱȃ¢ȱȱȱȱjudge’s Ĵȱȱ ȱ ȱ ǰȄȱ ȱ ȱ ȱ ȱ ȱ ȱ ȱ ¢ȱ conceivable problem in the court of appeals. Id. at 640. But as with the ȱȱ ȱȱȂȱȱȱȱȱȱȱȃȱȬ ȱǰȄȱ ȱ¢ȱȱȱȱȱȱĴȱȱȱȱǯ Nos. 23-1781, 23-2201, & 23-2245 9

plain error review in accordance with Federal Rule of Crimi- nal Procedure 52(b), the outcome is the same. For the reasons we explain below, even under the more generous de novo re- ȱ ǰȱ ȱ Ĝȱ ȱ ȱ Ĵȱ § 924(c) convictions when a defendant carries a ęȱȬ ȱȱȱěȱ ȱȱȱȱȱȱȬ fense. Consequently, we ĜȱȂȱ. 1. Meaning of “in relation to” Tucker claims the district court used too loose a standard to judge the relationship between his gun and the carjacking. Yet he did not object to this § 924(c) Ĵȱ¢ instruction: ȱȱȱȱęȱȃȱȱȄȱȱȱ if there is a connection between the use or carry- ȱȱȱęȱȱȱȱȱǯȱȱ ęȱ ȱ ȱ ȱ ȱ ȱ ěȱ ȱ respect to the crime; its presence or involvement cannot be the result of accident or coincidence. ȱ ęȱ ȱ ȱ ȱ ǰȱ ȱ ȱ ȱ potential of facilitating, the crime. This instruction draws on language in Smith v. United States, 508 U.S. 223 (1993), and its progeny in this circuit. We have repeatedly stated that for a § 924(c) conviction for carrying a ęȱȱȱȱȱȱȱȱȱǰȱȃȱȬ ȱȄȱȱȱȱȱȱȱȱȱȱȱ facilitate the crime. See, e.g., Ĵ, 245 F.3d at 906; United States v. Pike, 211 F.3d 385, 389 (7th Cir. 2000); ȱȱǯȱĴ, 101 F.3d 52, 55–56 (7th Cir. 1996). Because our precedent is clearǰȱ ȱ ȱ ȱ ȃȱ ȱȱȱȄȱǯȱSantos v. United States, 461 F.3d 886, 891 (7th Cir. 2006) (quoting McClain v. Retail Food 10 Nos. 23-1781, 23-2201, & 23-2245

Emps. Joint Pension Plan, 413 F.3d 582, 586 (7th Cir. 2005)). Nei- ther simple disagreement with a rule nor the possibility that a rule is debatable constitutes a compelling reason. Id. at 893; see also United States v. Lamon, 893 F.3d 369, 371 (7th Cir. 2018). ȱȱȱȃȱȱȱȱǽǾ that we give considerable weight to prior decisions of this court un- less and until they have been overruled or undermined by the decisions of a higher court, or other supervening develop- ments, sucȱȱȱ¢ȱǯȄȱSantos, 461 F.3d at 891 (cleaned up). A decision from the Supreme Court need not be ¢ȱȱǯȱȱȱȃȱȱȱȬ ȱȱȱȱȱȱȱȄȱȱȱȱ compelling reason to overturn circuit precedent. Fed. Trade Comm’n v. Credit Bureau Ctr., LLC, 937 F.3d 764, 776 (7th Cir. 2019). Recognizing this high bar, Tucker lines up multiple Su- preme Court cases, arguing they compel us to trim back cir- ȱȱȱȱȱȱȃȱȱǯȄȱȱȱȱ those cases provide the basis to overturn our precedent. First, contrary to Tucker’s argument, the Supreme Court’s decision in Smith ȱȱęȱȱȃȱȱȄȱȱ includes the potential to facilitate ȱ ¢ȱ ěȱ ȱȱȱȱȱęȱȱȱȱȱȱ ȱęȱ¢ȱȗ 924(c). See 508 U.S. at 238. The statute estab- ȱ ȱ ȱ ȱ ȱ ȃȱ or ȱ ȱ ęǯȄȱ § 924(c)(1)(A) (emphasis added); see also Muscarello v. United States, 524 U.S. 125, 136 ǻŗşşŞǼȱǻȱȱȃȄȱȱȃȬ ȄȱȱȱǼǯȱSmith limited the meaning ȱȃȱȱȄȱ ȱȱȱȱȱ ȱusing a ęȱȱȱȱěȱȱȱȱȱȃȱȱ Ȅ that ěǯ śŖŞȱǯǯȱȱŘřŘǯȱȱȂȱĴȱȱ Nos. 23-1781, 23-2201, & 23-2245 11

ȱȱȱȱȱȱęȱȱȱȱȃȱ ȱȄȱȱǯȱSmith went ȱȱęȱȃȱȱȄȱ more broadly when the defendant is charged with merely car- rying, not using ȱę. In this context, Smith explained the ȱȱȱȱȱȃȱȱȱȱȱȁǽǾǰȱ ȱǽǾȱȱȱȱǰȂȄ ȱȱěǯ Id. at 238 (quoting United States v. Stewart, 779 F.2d 538, 540 (9th Cir. 1985)). Instead of disclaiming this standard, the Court simply noted ȱ ȱ ȱ ȱ ȃȱ ȱ ȱ ȄȱȱȃȱȱǰȄȱȱȱęȱȱȱ¢ȱ ȱȱȱȱȱȱȃȁ¢ȱȂȱȱȗ 924(c)(1), ȱ ȱȱȱ¢ȱȱȱěȱ¢ȱȱȱ ȱ ȱ ȱ ȱ ǯȄȱ Id. (quoting United States v. Phelps, 895 F.2d 1281, 1283 (9th Cir. 1990)). Even if we were to accept Tucker’s argument that, by quot- ing the Ninth Circuit, the Supreme Court was not endorsing a potential-to-facilitate standard, that concession does not constitute a compelling reason to overturn our precedent. The Court, at the very least, left the door open to the possibility that a potential-to-facilitate standard is appropriate when ȱȱȱęȱȱȱǯ Nor do Supreme Court decisions issued shortly after Smith compel a narrower reading of Smith. First, while Bailey v. United States ȱȱȱȃȱ¢ȄȱȱȱęȬ arm is necessary when a defendant is charged with using a ęȱȱȱ § 924(c), it distinguished between the ȱ¢ȱȱȱȱ¢ȱȱǰȱĴȱȱȬ quirements for a carrying charge aside. 516 U.S. 137, 143–45 (1995); see also Castillo, 406 F.3d at 812 (explaining that Bailey ȱȱȱȱȱȃȄǼ. And Bailey did not ęȱȃȱȱǯȄȱȱȱMuscarello, the other case 12 Nos. 23-1781, 23-2201, & 23-2245

Tucker points to as an indication that we have misinterpreted Smith. In fact, Muscarello read Bailey to mean that a § 924(c) ȱ ȱ ¢ȱ ȱ ęȱ ȱ ȱ ȱ ȃȱ Ȭ ¢Ȅȱȱȱ at all. 524 U.S. at 136. 2 Finally, Tucker argues that the Supreme Court’s recent de- cision in Dubin v. United States, 599 U.S. 110 (2023), compels us to revisit decisions resting on the potential to facilitate. Du- bin ęȱ ȃȱ ¢ȱ Ȅȱ ȱ ȱ ȱ ȱ ȃȱȱȄȱ 18 U.S.C. § 1028A(a)(1). Id. at 116–17. In do- ing so, it explicitly left § 924(c) caselaw undisturbed because ȱ ȱ ǰȱ ȱ ȃȄȱ ȱ ȃȱ ȱ Ȅȱ ȱ context dependent. Id. at 119 & n.4. Consequently, Dubin does not present the necessary reason to overcome stare decisis. Without a compelling reason to overturn circuit prece- ǰȱ ȱĜȱȱȂȱ ȱȱ ȱȱȱȱ ȱ ȱ¢ȱȱęȱȱȱ ȱȱǰȱ ȱęȱȱȱȱȱȱȱȱȱ the crime. 2. Application ȱ ęȱ ȱ ȱ ȱ ¢ȱ ȱ ȱ § 924(c) conviction, we turn to whether the evidence pre- ȱȱȱ ȱĜ for a reasonable jury to convict

2 Tucker mentions a few other Supreme Court cases to justify recon-

sideration. None are persuasive. See Dean v. United States, 556 U.S. 568, 573 (2009) (explaining that Smith ęȱ ȃȱ ȱ Ȅȱ ȱ ȱ ȃȱ ȱ ęȱȱȱȱȱȱěȱ ȱȱȱȱȱȬ ęȱǲȱȱȱȱȱȱȱȱȱȱȱ ȱȄȱǻȱSmith, 508 U.S. at 238)); Watson v. United States, śśŘȱǯǯȱŝśȱǻŘŖŖŝǼȱǻ¢£ȱȱȱȱȃǰȄȱȱȱęȱȃȱ ȱȄǼǯ Nos. 23-1781, 23-2201, & 23-2245 13

ǯȱȱȱȱĜ¢ȱȱȱǰȱ ȱ view that evidence in the light most favorable to the prosecu- ȱȱȃ ȱe only when the record contains no evi- dence, regardless of how it is weighed, from which the jury ȱęȱȱ¢ȱȱǯȄȱMaez, 960 F.3d at 966 (cleaned up). ȱ ȱ ȱ ȱ ȃ¢ȱ Ȭ ȱǯȄȱUnited States v. Johnson, 874 F.3d 990, 998 (7th Cir. 2017). Tucker does not dispute that he carried the Cobray pistol during the carjacking. So the only issue we must resolve is ȱȱȱ ȱĜȱȱęȱȱȱȱȱ ęȱin relation to the crime—ȱȱ ǰȱȱȱęȬ arm facilitated or had the potential to facilitate the carjacking. Tucker carried the Cobray while participating in a carjack- ing in which his co-defendant forced the driver out of the car at gunpoint. Tucker then drove the car—at dangerous speeds— ȱ Ě from police. A reasonable jury could ȱ ǰȱ ȱ ȱ ǰȱ ȱ ęȱ Ȭ ȱȱ ȱȃȱȱȱǰȄȱSmith, 508 U.S. at 238, or ȃȱ¢ȱȱȱ¢ǰȄȱȱȱǯȱĴȬ son, 348 F.3d 218, 227 (7th Cir. 2003), abrogated on other grounds by Simpson v. United States, 376 F.3d 679 (7th Cir. 2004). The jury could fairly reach the commonsense conclusion that a ęȱ during a carjacking—even if not revealed—at least had the potential to facilitate the carjacking and escape. Cf. Castillo, 406 F.3d at ŞŗśȱǻȱȱȃǽǾǰȱȱȱ regarding the underlying drug crime and the weapon will be so intertwined that establishing the link will be easy, at least ȱȱĜ¢ȱȱȱȱȄǼǯȱ ȱȱȱĜȱȱȱ ȱ a reasonable jury could conclude that Tucker carried the 14 Nos. 23-1781, 23-2201, & 23-2245

¢ȱȱȱȱȱǰȱȱ ȱĜȱȱȱ ȂȱȱȱȱȱȱĴǯ B. Rivers Unlike Tucker, Rivers takes aim at his sentence on appeal. He asks that we vacate his carjacking sentence under 18 U.S.C. § 2119 and remand to the district court for resentencing on two grounds. First, he contends the district court improperly applied the reckless endangerment enhancement under U.S.S.G. § 3C1.2. And second, he argues we should give the district court the opportunity to apply a retroactive Guide- lines amendment. Although ȱ ęȱ ȱ ȱ ȱ ȱ ȱ court’s application of the reckless endangerment enhance- ment, we agree with Rivers that, in light of a retroactive ad- justment in the method for calculating criminal history points under the Guidelines, his carjacking sentence merits vacatur and a remand to the district court. 1. Enhancement The district court applied U.S.S.G. § 3C1.2, Reckless En- dangerment During Flight, to Rivers’s carjacking sentence calculation. That enhancement adds two points to the total of- ȱȱȃǽǾȱȱȱ¢ȱȱȱȱ risk of death or serious bodily injury to another person in the ȱ ȱ Ěȱ ȱ ȱ ȱ ȱ ĜǯȄ U.S.S.G. § řŗǯŘȱǻŘŖŘřǼǯȱȱȱȱȃwhere the conduct ȱȱȱȱȱȱǯȄȱId., comment. (n.3). The endangerment must result ȱ ȃȱ Ȃȱ ȱ conduct and … ȱȱȱȱȱȱĴǰȱ counseled, commanded, induced, procured, or willfully ǯȄȱId., comment. (n.5)ǯȱȃǽǾȱȱȱȱȱȱ ȱ ȱ ¢ǰȄȱ United States v. Ĵ, 97 F.4th Nos. 23-1781, 23-2201, & 23-2245 15

477, 481 (7th Cir. 2024), and the district court must make fac- ȱęȱȱȱěǰȱUnited States v. Seals, 813 F.3d 1038, 1046 (7th Cir. 2016). ȱȱǰȱȱȱĴȱȱ ǰȱȱȱȱ do not support the enhancement, so we review the applica- tion of the enhancement de novo. United States v. House, 883 F.3d 720, 723 (7th Cir. 2018). The facts as determined by the district court need only support the enhancement by a pre- ponderance of the evidence. Ĵ, 97 F.4th at 480. ȱ ȱ ȱ ȱ ȱ ȱ ȱ ęȱ that Rivers actively participated in endangering others during ȱ ȱ ȱ ȱ ȱ Ĵǯȱ ȱ ȱ ȱ ȱ ȃȬ tainly induced, commanded, or directed Mr. Tucker to do ac- tivities related to the seizing of the vehicle, the carjacking, and then all of their subsequent conduct created a great risk of ¢ȱ ¢ȱ ȱ ȱ ȱ ȱ ǯȄȱ ȱ ȱ ȱ rested upon the district court’s view of the totality of the cir- cumstances and detailed fȱęȱȱȱȱ ȱĚǯȱȱȱȱȱȃȱȱȱȬ Ȅȱ¢ȱȱȱȱȱȱȱǰȱȱȱ ǰȱ ȃ ȱ ǽǰǾȱ ȱ ȱ ĚǯȄȱ ȱ ȱ got out of the stolen vehicle once it was no longer drivable and ¢ȱȱȱȱȱĴȱȱȱ ȱǰȱȱȱ ȱǰȱȃ ȱȱȱǰȱȱ ȱȱǽȱǾǰȄȱȱȱȱ th police Ĝ in the river. The district court was clear that, although it consid- ered facts from the underlying crime and high speed chase, Rivers’s escape on foot could alone support application of the ǯȱȱȱȱȱȃȱ¢ȱȱȱǰȱ things could have turned out very ¢ǰȄȱ ȱȱȱ car chase or the subsequent foot pursuit. Finally, the court 16 Nos. 23-1781, 23-2201, & 23-2245

stated it applied the enhancement ȱȱȃȱȱȬ ing, portions of the high-ȱȱǽȱȱȱȱ ȱ ȱ ȱ Ĵȱ ȱ ȱ ȱ Ǿǰȱ ȱ ȱ ȱ Ěȱȱȱȱȱthe ǯȄȱ Framing his argument as a legal challenge, Rivers con- tends ȱȱȱȱ¢ȱȱȱȃȱ ¢Ȅȱȱȱ¢ȱȱȱȱȬ ment rather than, as our precedent requires, active participa- tion. To the contrary, the district court explicitly found that Rivers himself created a danger when he continued his escape ȱǯȱȱȱęȱȱ¢ȱȱȱȱ Ȃȱ ¡ȱ ęȱ ȱ ȱ ȃ¢ȱ ǰȱ Ȭ ǰȱȱȄȱtivities that created a dangerous en- vironment, a conclusion reinforced by his own conduct, which ȃȱȱȱȱȱ¢ȱ¢ȱȱȱȱȱǯȄȱ Rivers’s own actions justify the enhancement under the guideline and our precedent. Yet Rivers argues that nonbinding caselaw from other cir- cuits shows his participation was not active enough to legally support the enhancement. He arrives at this conclusion by separating the car chase from the foot chase and arguing that each event in isolation is Ĝ to show active participa- tion. Here, too, Rivers’s argument fails. Unlike other cases re- jecting the application of the enhancement, the district court considered the totality of the circumstances and made exten- ȱȱęȱout Rivers’s active participation in en- dangering lives during the high speed chase and when ȱĚȱ from police on foot, viewing the escape as a single continuous event. See, e.g., United States v. Reggs, 909 F.3d 911, 913–14 (8th ǯȱŘŖŗŞǼȱǻęȱȱȱ ȱȱȱȱȱȬ ȱ ȱ ȱ ȱ ȱ ȱ ȱ Ěȱ ȱ ȱ ȱ ȱ Nos. 23-1781, 23-2201, & 23-2245 17

ǰȱ ȃȱ ȱ ȱ ȱ ȱ ȱ ȄǼǲȱ United States v. JohnsonǰȱŜşŚȱǯřȱŗŗşŘǰȱŗŗşŝȱǻŗŗȱǯȱŘŖŗŘǼȱǻęȱ that the defendant’s Ěȱ ȱ ȱ ȱ ȱ ¢ȱ ȱ crashed did not illuminate the question of the enhancement’s application ȱȱȱȱȱȱȃȱȱęȱ ęȱ ȱ ȱ ȱ ¢ȱ ȱ ȱ ȱ ȱ ȱȱȱȄǼǲȱUnited States v. Cespedes, 663 F.3d 685, 691 ǻřȱǯȱŘŖŗŗǼȱǻęȱȱȂȱȱ in planning the bank robbery and the district court’s general references to a foot pursuit after the defendant exited the get- ¢ȱȱĜȱȱȱȱǼǯȱ ȱȱȱȱȱȱĚǰȱȱȱȱȱ ȱȱȱȱȱȂȱĚȱȱȱȱ ȱȱ ȱȱȱȱȱȱȱĜ, through a wooded area, and into a rocky ravine. The details of the car- jacking, high speed chase, and subsequent foot chase draw this case closer to United States v. Byrd, 689 F.3d 636 (6th Cir. 2012), upon which the district court relied when applying the ǰȱ ȱ ȱ ȱ Ĵȱ ȱ ǯȱ ȱ that case, the Sixth Circuit found an inference of active partic- ȱȱ ȱȱ¢ȱěȱȱȱ bank robbery and the defendant urged co-conspirators to hurry up by honking the horn of the getaway car. Id. at 641. He later rode as a passenger in another getaway car, reck- lessly driven, before continuing ȱĚȱȱǯȱId. ȃȱȱ ȱ ǰȄȱ ȱ ȱ ǰȱ ȃ ȱ ¢Ȃȱ ȱ ȱ evade capture, from which one could infer that Byrd encour- ȱȱȱǽȱȱȂǾȱȱing, which ȱȱȱ¢ȱȱȱȱǯȄȱId. Here, too, Riv- ers’s own conduct indicates a desire to evade capture and a willingness to endanger others to achieve that goal. 18 Nos. 23-1781, 23-2201, & 23-2245

ȱȱȂȱȱȱȱȱęȱ adequately support the application of the reckless endanger- ment enhancement. 2. Guidelines amendments In keeping with the Guidelines ȱ ěȱ at the time, the Presentence Investigation Report added two criminal history points to Rivers’s carjacking sentence calculation because Riv- ȱ ȱȃȱǽaǾ ȱȱȄ—parole—when ȱĴȱȱěȱȱǯȱU.S.S.G. § 4A1.1(d) (2021). Without those two points, rather than a Guidelines range of 77–96 months, Rivers’s Guidelines range for carjacking would have been 63–78 months. The district court imposed a within- Guidelines sentence of 87 months for carjacking and did not expressly state that it would apply the same sentence regard- less of the suggested Guidelines range. While Rivers’s appeal was pending before this court, the United States Sentencing Commission proposed two amend- ments that ȱȱěȱȱȱŗǰȱŘŖŘřǯȱSee United States v. Claybron, 88 F.4th 1226, 1228 (7th Cir. 2023). Amend- ment 821 did away with additional criminal history points ȃ ȱ ȱ ěȱ ȱ ȱ ȱ Ĵȱ ¢ȱ ȱ Ȭ ȱ ȱ ȱ ¢ȱ ȱ ȱ ǯȄ Id. In- stead, district courts should only ȃǽǾȱŗȱȱȱȱȬ ȱǻŗǼȱȱŝȱȱȱȄȱȱȱǰȱȃȱǻŘǼȱ Ĵȱȱȱěȱ ȱȱ¢ȱȱȬ ȱǯȄȱU.S.S.G. § 4A1.1(e) (2023). The second amend- ment, Amendment 825, makes Amendment 821 retroactive, Ĵȱ ǻȱ ȱǼȱȱȱȃǽǾȱȱ reduction proceedings and enterǽǾ orders under 18 U.S.C. § řśŞŘǻǼǻŘǼȄȱȱȱ ȱěȱs prior to Febru- ary 1, 2024. Claybron, 88 F.4th at 1228. Nos. 23-1781, 23-2201, & 23-2245 19

In Claybronǰȱ ȱ ȱ ȱ ȱ ȱ ęȱ amendments to the Guidelines provide a pathway for people under criminal sentences to seek sentence reduction proceed- ings directly from the district court through 18 U.S.C. § 3582(c)(2), tȱ ȱ ȱ ȱ ěȱ ȱ § 3582(c)(2) and 28 U.S.C. § 2106, a statute authorizing us to ȱȱȱȱȱȱȱ¢ȱȱȃ Ȭ ¢ȱ ȱ ȱ ǽǾȱ ȱ ǯȄȱ Id. at 1229 (quoting § 2106)ǯȱ ǰȱĴȱȱȱȱȱ§ ŘŗŖŜȱȃȬ ȱȱ¢ǯȄ Id. at 1231. In light of these two amendments and our recent decision in Claybron, Rivers asks that we vacate his carjacking sentence and remand to the district court for resentencing. The govern- ment does not oppose this request. Accordingly, we vacate Rivers’s carjacking sentence under 18 U.S.C. § 2119 and re- mand to the district court for the opportunity to conduct a limited resentencing on that conviction in light of Amend- ments 821 and 825. On remand, the district court can reassess ȂȱȱȱȱȂȱěȱȱȱ Guidelines range and the 18 U.S.C. § 3553(a) factors. Such a reconsideration may, if the district court deems it appropriate, include a new hearing and opportunity for the parties to ar- gue the impact of the § 3553(a) factors. See id. III. Conclusion For these reasons, Tucker’s sentence is AFFIRMED. Riv- ers’s § 2119 carjacking sentence is VACATED and REMANDED to the district court for resentencing in light of Amendments 821 and 825. 20 Nos. 23-1781, 23-2201, & 23-2245

KIRSCH, Circuit Judge, concurring. I join the opinion but write separately to add to the majority’s discussion of our standard of review. At trial, Ladonta Tucker made a general ȱȱȱȱĴȱȱȱȱȱCrim- inal Procedure 29, ȱȱĜ¢ȱȱȱgovern- ment’s evidence. On appeal, however, Tucker’s argument ef- fectively challenges the jury instructions, which he did not ob- ject to at trial. Nevertheless, he claims de novo review applies because his general Rule 29 motion preserved all challenges, including his purely legal argument. The majority correctly notes that our cases “have at times applied de novo review to ȱȱ ȱȱȱȱȱȱĜ¢ȱȱ the evidence, eveȱ ȱȱęȱȱȱ ȱȱ presented to the district court.” Ante, at 7. However, the standard of review was not disputed in those cases, and the legal questions presented were directly tied to the Ĝ¢ȱ of the evidence, unlike the case here. See, e.g., United States v. HardenǰȱŞşřȱǯřȱŚřŚǰ 446 (7th Cir. 2018) (analyzing whether ȱȱĜ¢ȱ ȱȱȱȂȱȱ was the “but-for” cause of the victim’s death). The majority avoids deciding whether de novo or plain error review ap- plies in this case because, either way, Tucker loses. I write sep- arately to clarify our law and ¡ȱ ¢ȱȱęȱȱȬ gument like Tucker’s challenge was not preserved by his gen- eral Rule 29 motion and should be reviewed only for plain ǯȱǯȱǯȱǯȱǯȱśŘǻǼǯȱ ȱĜ¢ȱȱȱȱȱȱȱȱǯ Musacchio v. United States, 577 U.S. 237, 243 (2016) (“ȱĜȬ ciency review, a reviewing court makes a limited inquiry tai- lored to ensure that a defendant receives the minimum that due process requires: a ‘meaningful opportunity to defend’ ȱ ȱ ȱ ȱ ȱ ȱ ȱ ¢ȱ ęȱ ȱ ȱ Nos. 23-1781, 23-2201, & 23-2245 21

‘beyond a reasonable doubt.ȂȄǼȱ ǻȱ ĴǼǯ In re- viewing such a challenge, we only ask “whether, after view- ing the evidence in the light most favorable to the prosecu- tion, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” United States v. JacksonǰȱśȱǯŚȱŜŝŜǰȱŜŞŘȱǻŝȱǯȱŘŖŘŗǼ (emphasis in original) (cleaned up). In other words, a defendant brings his Ĝ¢ȱȱ¢ȱfocusing on the evidence presented by the government and arguing that it ȱ ȱ Ĝ¢ȱ prove one or more of the charged crime’s essential elements. ȱǯȱǯȱǯȱǯȱŘşǻǼȱǻȃǽǾhe court … must enter a judg- ȱȱĴȱȱ¢ȱěȱȱ ȱȱȱȱȬ Ĝȱȱȱȱǯ”). And as mentioned above, a defendant can ȱ ȱ ȱ ȱ Ĝ¢ȱ (for example, as to each separate element) with a general mo- ȱȱȱȱĴ under Rule 29. But a defendant who raises a new, purely legal argument on appeal regarding the meaning of an element of his crime ǻȱ ȱ ȱ ȱ Ĝ¢ȱ ȱ ȱ ȱ ȱ ȱ that element) ȱȱȱȱȱ¢ȱ¢ȱęȱ ȱ ȱ ȱ ȱ ȱ ȱ Ĵ. In that circum- stance, the defendant’s argument goes well beyond the scope ȱ ȱ ȱ Ĝ¢ȱ ȱ ȱ ȱ and instead presents a question of law. See United States v. Compian-Torres, ŝŗŘȱ ǯřȱ ŘŖřǰȱ ŘŖŝȱ ǻśȱ ǯȱ ŘŖŗ3) (“Compian’s appeal is ȱȱȱȱȱȱĜ¢ȱȱȱǰȱȱ it in fact presents a pure question of law.”); cf. Lexington Ins. Co. v. Horace Mann Ins. Co.ǰȱŞŜŗȱǯřȱŜŜŗǰȱŜŜşȱǻŝȱǯȱŘŖŗŝǼȱǻȱ the civil context, noting that “ȱȱȱĴǰȱȱȬ tions of law ought not to be included in a Rule 50(a) motion ȱȱęȱǰȱȱȱȱȱȱȱȱȱȬ ǰȱ ȱ ȱ ȱ ȱ ȱ Ĝ¢ȱ ȱ ȱ ”) 22 Nos. 23-1781, 23-2201, & 23-2245

(cleaned up). Such a challenge falls outside the narrow bounds of a Rule 29 motion. That is precisely the posture of Tucker’s appeal. Rather than bring a true Ĝ¢ȱȱȱevidence challenge, Tucker raises a purely legal question about the proper interpretation of “in relation to” within 18 U.S.C. § 924(c). Try as he might to convince us otherwise, his challenge has nothing to do with the evidentiary Ĝ¢ȱȱȱȂȱ against him, and it therefore ȱȱȱȱęȱȱȱ under our forgiving rule for general Rule 29 motions. Rather, Tucker’s argument is a belated objection to a jury instruction; it asks ȱȱě¢ȱȱȱȃl of facilitating” lan- ȱȱȱĴȱjury ȱęȱȱȃȱȬ tion to” element of § 924(c). No doubt, Tucker’s principal con- cern is that the jury convicted him based on erroneous law. But jury instructions are how parties and the court “provide fair and accurate summaries of the law” at trial. United States v. CurryǰȱśřŞȱǯřȱŝŗŞǰȱŝřŗȱǻŝȱǯȱŘŖŖŞǼǯ Therefore, the jury instruction conference, not a general Rule 29 motion for judg- ȱ ȱ Ĵǰ was Tucker’s opportunity to object to the “in relation to” ęȱȱȱ. He did not take that opportunity, so plain error review applies. ǯȱ ǯȱ ǯȱ ǯȱ 30(d) (“ȱ ȱ ȱ ǽȱ ¢ȱ Ǿȱ in accordance with this rule precludes appellate review, except ǽȱȱȬ ǾȱȱĴȱȱȱśŘǻǼǯ”). Other courts have come to the same conclusion in analo- gous contextsǯȱȱ¡ǰȱȱUnited States v. FuertesǰȱŞŖśȱǯřȱ 485 (4th Cir. 2015), ȱǰȱȱȱęȱȱȱǰȱ ȱ ȱ¡ȱĜȱęȱ a crime of vi- olence under § 924(c)(3). Id. at 497. He argued, like Tucker, ȱȱȱȱȱȱȱĴȱȱȱ Nos. 23-1781, 23-2201, & 23-2245 23

ȱ ȱ Ĝ¢ȱ ȱ ȱ ȱ ǯȱ Id. ȱ ȱ Circuit rejected that argument: The government, however, points out, correctly we think, that Ventura’s objection is not about ȱȱ¢ȱĜ¢ǲȱǰȱȱȬ gument is a purely legal one. … Ventura takes issue with the district court’s instruction … that ¡ȱĜȱ¢ȱǰȱǰȱȱȱȱȬ egorically a crime of violence. Id. The court then held that “Ventura’s motion for judgment ȱĴǰȱ ȱȱ¢ȱ ȱĜ¢ȱȱȱǰȱ did not preserve a purely legal challenge to the jury instruc- tion ….” Id. ȱȱȱȱUnited States v. BraceǰȱŗŚśȱǯřȱŘŚŝȱǻśȱ Cir. 2018) (en banc), reached a similar conclusion. There, the court held that the defendant’s general motion for judgment ȱ Ĵ preserved his Ĝ¢ȱ ȱ ȱ ȱ Ȭ lenge, but it did not preserve his novel argument that his charged crime required the proof of an additional element. Id. at 258 n.2. Thus, ȱȱȱ ȱȱĜ¢ȱȱ the evidence challenge de novo, it did so “under existing rel- evant precedent,” thereby disregarding the defendant’s new legal argument on appeal. Id. at 263; see also United States v. HaggertyǰȱşşŝȱǯřȱŘşŘǰȱŘşŜȱǻśȱǯȱŘŖŘŗǼȱǻȃRegardless, how- ǰȱ ȱ ȱ ¢ȱ ȱ ȱ ȱ ȱ ĜȬ ciency-of-the-evidence challenge, there are serious reasons to think that Haggerty has not preserved the underlying legal argument that a defendant’s Indian or non-Indian status is an ȱ ȱ ȱ ¢ȱ ěȱ ȱ ȱ ȱ § 1152.”) (emphasis in original). 24 Nos. 23-1781, 23-2201, & 23-2245

Reviewing newly raised legal arguments de novo as part ȱȱȱĜ¢ȱȱȱȱ contravenes our adversarial system, the Supreme Court’s guidance, and ȱȱȱȱȱǯȱSimply put, de novo review is not the default standard for arguments raised for the ęȱȱȱ. Rather, appellate courts “normally will not correct a legal error made in criminal trial court proceed- ings” at all “ȱȱȱęȱȱȱȱȱȱ trial court’ȱĴon.” Henderson v. United States, 568 U.S. 266, 268 (2013). The exception to that general principle is plain er- ror review under Rule 52(b). Id. But notably, the Supreme Court has “cautioned against any unwarranted expansion of Rule 52(b).” Johnson v. United States, 520 U.S. 461, 466 (1997). ȱȃǽǾen less appropriate than an unwarranted expansion of the Rule would be the creation out of whole cloth of an ex- ception to it, an exception which we have no authority to make.” Id.; see also United States v. Yijun ZhouǰȱŞřŞȱǯřȱŗŖŖŝǰȱ 1014–16 (9th Cir. 2016) (Graber, J., concurring) (noting that ȃǽǾȱȱȱȱȱ¢ȱĴȱ—if any at all— for the judicial creation of exceptions to Rule 52(b)” and em- phasizing that pure questions of law not raised in the district court should be reviewed, at most, for plain error). There is simply no reason to review de novo a legal argu- ment not previously raised before the district court. This is true even if the claimed error is as serious as a potentially in- ȱęȱȱȱȱȱȱ, like Tucker claims here. See JohnsonǰȱśŘŖȱǯǯȱȱŚŜŜȱǻȃǽǾhe seriousness of the er- ror claimed does not remove consideration of it from the am- ȱ ȱ ȱ ȱ ȱ ȱ ȱ ǯ”). Indeed, plain error review, on its own, ȱȱȱĜȱȱ for such a concern. or instance, if a jury instruction wholly Ĵȱ ȱ -established element of a crime, that error Nos. 23-1781, 23-2201, & 23-2245 25

would likely be plain and subject to reversal under Rule 52(b). But that is not Tucker’s case, as he asks us to overrule our ȱ ȱ ȱ ȱ Ĵȱ ¢ȱ ǯȱ ȱ United States v. FreedǰȱşŘŗȱǯřȱŝŗŜǰȱŝŘŗȱǻŝȱǯȱŘŖŗşǼȱǻȃĴȱ instructions are presumed to accurately state the law.”). In a case like this one, where a novel legal argument is raised, the argument needs to ęȱbe presented to the district court so that the court and the parties have a chance to adjudicate it; ¢ȱȱ ȱȱȱȱěȱthe argument de novo review. Because Tucker’s argument on appeal—a purely legal ȱȱȱęȱȱȱȱĴȱ¢ȱȬ tion—does not qualify ȱȱĜ¢ of the evidence chal- lenge under Rule 29, and because he did not otherwise raise the argument before the district court or object to the relevant jury instruction as required under Rule 30, it is forfeited. ǯȱ R. Crim. P. 51 (explaining the requirements for preserving a claim of error). Our review should therefore only be for plain error under Rule 52(b). United States v. LealǰȱŝŘȱǯŚȱŘŜŘǰȱŘŜ5 ǻŝȱǯȱŘŖŘřǼȱǻȃǽ Ǿf a defendant does not object to a jury in- struction, … he may only challenge the instruction for plain error on appeal.”).

Reference

Status: Published