Petition for Writ of Certiorari — Ladonta A. Tucker, Petitioner v. United States

Supreme Court briefDec 19, 2024

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APPENDIX

TABLE OF APPENDICES

APPENDIX A: Opinion, United States v. Tucker,

108 F.4th 973 (2024).........................................

In the

United States Court of Appeals

For the Seventh Circuit

____________________

Nos. 23-1781, 23-2201, & 23-2245

UNITED STATES OF AMERICA,

ě-Appellee,

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 continȱȱĚȱȱǯȱȱ¢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

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 enhancement. 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, Illinois. The car was parked at the side of the road with its engine

idling when Rivers approached the front passenger-side window. 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 obȱȱ ȱȱęǯ

ȱ ȱ ȱ ǰȱ ȱ Ĵȱ ȱ ȱ speeding

and weaving around other cars. During the ensuing sevenmile 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 collided with the squad car, then crossed into another lane of

Nos. 23-1781, 23-2201, & 23-2245

Ĝǯ ȱĜȱ ȱȱȱȱȱȱȱȱ

force the BMW into a guardrail, disabling it. Tucker then exited the ȂȱǰȱĚ west into a wooded area. Rivers

followed Tucker out the driver’s-ȱȱȱĚȱin the opposite direction—ȱȱȱȱĜȱȱdown a ravine.

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 during and in relation to a crime of violence, in violation of 18

U.S.C. § 924(c)(1)(A)(iii). Finally, the indictment charged

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 carȱǰȱȱ ǰȱȱȱĜȱȱȱ

the chase. The government also presented forensic evidence

ȱ ȱ ęȱ ȱ ȱ . At the close of evidence, both Tucker and Rivers moved for a judgment of acĴǯȱ 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 carryȱȱȱęȱȱȱȱȱǯȱȱ

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’ imprisonment for carjacking and added the mandatory consecutive

Nos. 23-1781, 23-2201, & 23-2245

sentence, 60 months, for violating § 924(c). On top of that, the

court revoked Tucker’s supervised release for a prior felon-inpossession 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 district 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 commitȱ 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 consecutive sentence for violating § 924(c).

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 inĜȱ 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 remand 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 carried the Cobray pistol during the carjacking, but he insists that

because he never revealed the weapon in the course of the carjacking 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 conȱ 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 nonetheless argues he can overcome this hurdle because ȱȃpotential-to-facilitateȄ standard departs from Supreme Court

precedent and thus requires course correction.

Nos. 23-1781, 23-2201, & 23-2245

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 challenging 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). Because he made a general Rule 29 motion, Tucker contends, he

has preserved his arguments on appeal. The government disagrees, 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 quesȱ 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

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 district 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) (applying plain error review when a defendant purported to apȱ 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 disȱȱȱȱ 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

plain error review in accordance with Federal Rule of Criminal 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 carryȱȱȱęȱȱȱȱȱǯȱȱ

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

Nos. 23-1781, 23-2201, & 23-2245

Emps. Joint Pension Plan, 413 F.3d 582, 586 (7th Cir. 2005)). Neither 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 unless and until they have been overruled or undermined by the

decisions of a higher court, or other supervening developments, 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 Supreme Court cases, arguing they compel us to trim back cirȱȱȱȱȱȱȃȱȱǯȄȱȱȱȱ

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 estabȱ 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

10a

Nos. 23-1781, 23-2201, & 23-2245

ȱȱȱȱȱȱęȱȱȱȱȃȱ

ȱȄȱȱǯȱSmith went ȱȱęȱȃȱȱȄȱ

more broadly when the defendant is charged with merely carrying, 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 quoting 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

11a

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 decision in Dubin v. United States, 599 U.S. 110 (2023), compels

us to revisit decisions resting on the potential to facilitate. Dubin ęȱ ȃȱ ¢ȱ Ȅȱ ȱ ȱ ȱ ȱ

ȃȱȱȄȱ 18 U.S.C. § 1028A(a)(1). Id. at 116–17. In doing 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 preceǰȱ 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 preȱȱȱ 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

12a

Nos. 23-1781, 23-2201, & 23-2245

ǯȱȱȱȱĜ¢ȱȱȱǰȱ ȱ

view that evidence in the light most favorable to the prosecuȱȱȃ ȱe only when the record contains no evidence, 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 carjacking 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

13a

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 Guidelines amendment. Although ȱ ęȱ ȱ ȱ ȱ ȱ ȱ

court’s application of the reckless endangerment enhancement, we agree with Rivers that, in light of a retroactive adjustment 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 Endangerment During Flight, to Rivers’s carjacking sentence

calculation. That enhancement adds two points to the total ofȱȱȃǽǾȱȱȱ¢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

14a

Nos. 23-1781, 23-2201, & 23-2245

477, 481 (7th Cir. 2024), and the district court must make facȱęȱȱȱěǰȱUnited States v. Seals, 813 F.3d 1038,

1046 (7th Cir. 2016).

ȱȱǰȱȱȱĴȱȱ ǰȱȱȱȱ

do not support the enhancement, so we review the application 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 preponderance 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 activities 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 circumstances 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 considered 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

15a

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 contends ȱȱȱȱ¢ȱȱȱȃȱ

¢Ȅȱȱȱ¢ȱȱȱȱȬ

ment rather than, as our precedent requires, active participation. 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 environment, 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 circuits 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 participation. Here, too, Rivers’s argument fails. Unlike other cases rejecting the application of the enhancement, the district court

considered the totality of the circumstances and made extenȱȱęȱout Rivers’s active participation in endangering 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

16a

Nos. 23-1781, 23-2201, & 23-2245

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 carjacking, 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 particȱȱ 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, recklessly driven, before continuing ȱĚȱȱǯȱId. ȃȱȱ

ȱ ǰȄȱ ȱ ȱ ǰȱ ȃ ȱ ¢Ȃȱ ȱ ȱ

evade capture, from which one could infer that Byrd encourȱȱȱǽȱȱȂǾȱȱing, which

ȱȱȱ¢ȱȱȱȱǯȄȱId. Here, too, Rivers’s own conduct indicates a desire to evade capture and a

willingness to endanger others to achieve that goal.

17a

Nos. 23-1781, 23-2201, & 23-2245

ȱȱȂȱȱȱȱȱęȱ

adequately support the application of the reckless endangerment 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 Rivȱ 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 withinGuidelines sentence of 87 months for carjacking and did not

expressly state that it would apply the same sentence regardless of the suggested Guidelines range.

While Rivers’s appeal was pending before this court, the

United States Sentencing Commission proposed two amendments that ȱȱěȱȱȱŗǰȱŘŖŘřǯȱSee United

States v. Claybron, 88 F.4th 1226, 1228 (7th Cir. 2023). Amendment 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. Instead, district courts should only ȃǽǾȱŗȱȱȱȱȬ

ȱǻŗǼȱȱŝȱȱȱȄȱȱȱǰȱȃȱǻŘǼȱ

Ĵȱȱȱěȱ ȱȱ¢ȱȱȬ

ȱǯȄȱU.S.S.G. § 4A1.1(e) (2023). The second amendment, Amendment 825, makes Amendment 821 retroactive,

Ĵȱ ǻȱ ȱǼȱȱȱȃǽǾȱȱ

reduction proceedings and enterǽǾ orders under 18 U.S.C.

§ řśŞŘǻǼǻŘǼȄȱȱȱ ȱěȱs prior to February 1, 2024. Claybron, 88 F.4th at 1228.

18a

Nos. 23-1781, 23-2201, & 23-2245

In Claybronǰȱ ȱ ȱ ȱ ȱ ȱ ęȱ

amendments to the Guidelines provide a pathway for people

under criminal sentences to seek sentence reduction proceedings 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 government does not oppose this request. Accordingly, we vacate

Rivers’s carjacking sentence under 18 U.S.C. § 2119 and remand to the district court for the opportunity to conduct a

limited resentencing on that conviction in light of Amendments 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 argue the impact of the § 3553(a) factors. See id.

III. Conclusion

For these reasons, Tucker’s sentence is AFFIRMED. Rivers’s § 2119 carjacking sentence is VACATED and

REMANDED to the district court for resentencing in light of

Amendments 821 and 825.

19a

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

ȱȱȱȱĴȱȱȱȱȱCriminal Procedure 29, ȱȱĜ¢ȱȱȱgovernment’s evidence. On appeal, however, Tucker’s argument effectively challenges the jury instructions, which he did not object 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 applies in this case because, either way, Tucker loses. I write separately to clarify our law and ¡ȱ ¢ȱȱęȱȱȬ

gument like Tucker’s challenge was not preserved by his general 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 tailored 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

20a

Nos. 23-1781, 23-2201, & 23-2245

‘beyond a reasonable doubt.ȂȄǼȱ ǻȱ ĴǼǯ In reviewing such a challenge, we only ask “whether, after viewing the evidence in the light most favorable to the prosecution, 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 judgȱȱĴȱȱ¢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 moȱȱȱȱĴ 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 circumstance, 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 ”)

21a

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” lanȱȱȱĴȱjury ȱęȱȱȃȱȬ

tion to” element of § 924(c). No doubt, Tucker’s principal concern 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 judgȱ 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 analogous contextsǯȱȱ¡ǰȱȱUnited States v. FuertesǰȱŞŖśȱǯřȱ

485 (4th Cir. 2015), ȱǰȱȱȱęȱȱȱǰȱ

ȱ ȱ¡ȱĜȱęȱ a crime of violence under § 924(c)(3). Id. at 497. He argued, like Tucker,

ȱȱȱȱȱȱȱĴȱȱȱ

22a

Nos. 23-1781, 23-2201, & 23-2245

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 instruction ….” 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 relevant precedent,” thereby disregarding the defendant’s new

legal argument on appeal. Id. at 263; see also United States v.

HaggertyǰȱşşŝȱǯřȱŘşŘǰȱŘşŜȱǻśȱǯȱŘŖŘŗǼȱǻȃRegardless, howǰȱ 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).

23a

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 proceedings” at all “ȱȱȱęȱȱȱȱȱȱ

trial court’ȱĴon.” Henderson v. United States, 568 U.S. 266,

268 (2013). The exception to that general principle is plain error 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 exception 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 emphasizing 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 argument not previously raised before the district court. This is

true even if the claimed error is as serious as a potentially inȱęȱȱȱȱȱȱ, like Tucker claims

here. See JohnsonǰȱśŘŖȱǯǯȱȱŚŜŜȱǻȃǽǾhe seriousness of the error claimed does not remove consideration of it from the amȱ 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

24a

Nos. 23-1781, 23-2201, & 23-2245

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 challenge 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 instruction, … he may only challenge the instruction for plain

error on appeal.”).

25a

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.