In the

United States Court of Appeals

For the Seventh Circuit ____________________

No. 15-1372

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

CHRISTOPHER R. SEALS,

Defendant-Appellant.

____________________

Appeal from the United States District Court for the

Northern District of Indiana, Fort Wayne Division.

No. 13-cr-46 — Hon. Theresa L. Springmann, Judge.

____________________

ARGUED DECEMBER 9, 2015—DECIDED FEBRUARY 23, 2016

____________________

Before EASTERBROOK and HAMILTON, Circuit Judges, and 

PALLMEYER, District Judge.* 

PALLMEYER, District Judge. Three armed men robbed a 

bank in Fort Wayne, Indiana on Valentine’s Day 2013. A jury 

determined that Christopher Seals was one of those men, 

convicting him in September 2014 of armed bank robbery, 

 

* The Honorable Rebecca R. Pallmeyer, United States District Court 

for the Northern District of Illinois, sitting by designation.
2 No. 15-1372

brandishing a firearm during a crime of violence, and possession of a firearm after a felony conviction. The district 

court sentenced Seals to 272 months in prison. On appeal, 

Seals argues that his conviction should be reversed because 

the government introduced improper propensity evidence. 

He also argues that his sentence should be vacated due to 

the district court’s allegedly erroneous application of two 

different sentencing enhancements. We affirm Seals’ conviction, but vacate his sentence, and remand for resentencing. 

I

At approximately 9:10 a.m. on February 14, 2013, three 

masked men walked into a PNC Bank in Fort Wayne, Indiana. They pointed their guns at bank employees, including a 

teller, Brittany Schweitzer; handcuffed the manager; and left 

the bank with approximately $100,000 and a bank employee’s cell phone in a floral case, which they placed in a “tannish” backpack. The entire episode took roughly four 

minutes. No one caught a glimpse of the getaway vehicle. 

When officers arrived on the scene, they discovered a 

loaded handgun that the robbers had left behind. Subsequent forensic analysis found Seals’ DNA on the ammunition inside the gun. The gun itself yielded no identifiable 

DNA.

That same morning, before the bank robbery took place, 

Deyante Stephens received a call from Charles Seals1, Defendant’s brother, asking Stephens to meet Charles in the 

parking lot of a grocery store down the street from the PNC 

 1 To avoid confusion, we refer to the Appellant as “Seals” or “Defendant,” while we will refer to his brother exclusively as “Charles.”
No. 15-1372 3

Bank. Stephens arrived in the parking lot just after 9:00 a.m. 

and Charles appeared shortly thereafter, driving a black Infiniti. Seals was seated in the passenger seat of the Infiniti, 

and a third man, unknown to Stephens, sat in the back. 

Charles got into Stephens’ car and gave Stephens a tan bag 

containing cash and a cell phone in a floral case, and the men 

parted ways. Stephens and Charles met again that night at 

Stephens’ mother’s house, and Stephens returned the bag to 

Charles. Charles gave Stephens $3,500 for his efforts.

Almost a month later, on March 13, 2013, a customer at a 

Fort Wayne credit union noticed two masked men in the 

woods nearby. The customer called the police, but the men 

fled the scene before officers arrived. A subsequent search of 

the woods turned up a black ski mask with hand-cut eye 

holes similar to the one that Schweitzer said the PNC robbers had worn. The mask contained Seals’ DNA. 

On March 20, 2013, a Fort Wayne police officer attempted 

to initiate a traffic stop of a black Infiniti, and a chase ensued 

at speeds “approaching a hundred miles an hour.” The chase 

ended only when the Infiniti crashed into parked cars, at 

which point two of its occupants, including the driver, fled 

on foot. They were not apprehended. A third man, Nadier 

Armour, remained in the vehicle, but he refused to cooperate 

with law enforcement officials. Officers searched the car and 

found a handgun, a cell phone, a traffic citation that had 

been issued to Seals, and Seals’ driver’s license. They also 

discovered a second black ski mask, four boxes of ammunition—some of which matched the caliber of the gun recovered from the bank—and $1,231 in $1 and $10 bills. 

Seals voluntarily met with the FBI on May 1, 2013. Seals 

initially denied any involvement with the PNC robbery, but 
4 No. 15-1372

when confronted with the fact that his DNA was recovered 

from the ammunition inside the gun left behind at the bank, 

his story changed. Seals told agents that he had loaded the 

gun for his brother, but that his participation ended there. 

A grand jury returned a three-count indictment2 against 

Seals on May 22, 2013. Prior to trial, the government notified 

Seals and the court that it planned to introduce the mask recovered from the woods in order to show Seals’ identity. The 

district court held an evidentiary hearing on the issue. Seals 

conceded that the mask itself was admissible, as would be a 

“simple description of when and where the mask was 

found.” The district court ruled that the mask was admissible, and that the government could elicit testimony about 

“the fact that police responded to the area of the [credit union] to investigate suspicious behavior, and recovered a 

mask with the Defendant’s DNA.” Such testimony was “necessary,” the court concluded, “to present a complete picture 

to the jury and this context is not so prejudicial, when 

weighed against the probative value, as to warrant its exclusion.” But the court prohibited the government from introducing any testimony regarding “the details of the masked 

individuals’ behavior prior to the arrival of the police” in order to “reduce the risk of unfair prejudice.”

At trial, the government called Stephens, Schweibert, and 

numerous law-enforcement officials as witnesses. The DNA 

evidence from the ammunition recovered from the bank and 

 2 Specifically, the indictment charged Seals with armed bank robbery, in violation of 18 U.S.C. §§ 2113(a) & (d); brandishing a firearm 

during a crime of violence, in violation of 18 U.S.C. § 924(c); and possessing a firearm while a felon, in violation of 18 U.S.C. § 922(g).
No. 15-1372 5

the ski mask recovered from the woods were also presented. 

Fort Wayne police officer Christine Armstead testified about 

the circumstances leading to the mask’s discovery. She recalled responding to a “suspicious person’s report” on the 

morning of March 20, 2013, specifically a report that “some 

individuals in the woods wearing masks” had been observed 

“crawling towards the bank ... .” Armstead continued, recounting that “[w]hen [she] arrived, [she] went to the bank 

to speak with the tellers to get more information.” The prosecutor cut off Armstead at this point, saying, “Let me stop 

you right there. I just want to cover the recovery of the evidence, okay?” The government also made the following reference to the mask as part of its closing argument: 

This is how we know who is under the mask. After 

the bank robbery, there were some circumstances—

and the circumstances aren’t particularly important—

but there were some circumstances where some guys 

were out milling around in the woods suspiciously, 

and that’s just how the officers get out there. So officers go out, Christine Armstead is the officer in particular who recovers the black mask that we held up or 

that I held up and we showed there at the trial. Saw 

what that thing was. It’s the same kind of mask that’s 

later found in the black Infiniti, and it’s the same thing 

you see in the surveillance video.

Seals mounted an alibi defense, calling two witnesses 

who testified that Seals was at their house on the day of the 

robbery. Only one of the alibi witnesses could definitely say 

that Seals was at the house during the robbery—the other 

was asleep at the time—and her testimony was inconsistent 
6 No. 15-1372

with Seals’ own statement to the FBI. The jury convicted 

Seals on all three counts. 

Seals’ crimes carried a base offense level of 20, and his 

criminal history category is III. The court imposed multiple 

sentencing enhancements, two of them related to the March 

20, 2013 car chase: (1) a two-level enhancement for reckless 

endangerment during flight, U.S.S.G. § 3C1.2, and (2) a fourlevel enhancement for the use of a firearm (i.e., the handgun 

recovered from the chase vehicle) “in connection with” another felony (i.e., the car chase), id. § 2K2.1(b)(6)(B). Seals argued that there was insufficient evidence to prove that he 

was in the black Infiniti during the chase, but the court disagreed, finding (1) that Seals occupied the passenger seat of 

the Infiniti as it fled from the police and (2) that Seals fled 

from the scene on foot after the Infiniti crashed. The court 

based its conclusion on the fact that “there were numerous 

items found in the car connecting the vehicle with [Seals].”

The court did not make any findings regarding Seals’ participation in the chase. In the end, the district court calculated 

Seals’ offense level as 34, yielding a Guideline range of 188 to 

235 months in prison on Count One, 84 months on Count 

Two, and 120 months on Count Three. The court imposed a 

sentence of 188 months on Count One, 84 months on Count 

Two to run consecutively to Count One, and 120 months on 

Count Three, running concurrent to Count One, for a total of 

272 months. 

II

Seals argues that a new trial is necessary due to the district court’s failure to “undertake any analysis of the probative value of [Officer Armstead’s testimony regarding the 

mask’s discovery] or its prejudicial effect.” Evidence of a de-
No. 15-1372 7

fendant’s prior bad acts is inadmissible to show propensity 

to commit a crime. FED. R. EVID. 404(b)(1). Such evidence 

may be introduced only “when its admission is supported 

by some propensity-free chain of reasoning.” United States v. 

Gomez, 763 F.3d 845, 856 (7th Cir. 2014) (en banc). This analysis requires the court to consider not just “whether the proposed other-act evidence is relevant to a non-propensity 

purpose but how exactly the evidence is relevant to that 

purpose.” Id. The probative value of other-act evidence must 

then be weighed against its potential prejudice. Id. at 8573; 

see also FED. R. EVID. 403 (authorizing district court to exclude 

“relevant evidence” if its probative value is “substantially 

out-weighed by a danger of ... unfair prejudice”). Evidence 

is “unduly prejudicial” if it creates a risk that invites an irrational emotional response from the jury. United States v. Miller, 688 F.3d 322, 327 (7th Cir. 2012).

We review the district court’s admission of evidence under Rule 404(b) for an abuse of discretion. United States v. 

Richards, 719 F.3d 746, 758 (7th Cir. 2013). Even when an 

abuse of discretion occurs, however, reversal follows only if 

admission of the evidence affected the defendant’s “substantial rights.” FED. R. CRIM. P. 52(a); United States v. Hicks, 

635 F.3d 1063, 1069 (7th Cir. 2011). In making that evaluation, 

we must “gauge what effect the error had or reasonably may 

be taken to have had upon the jury’s decision.” Hicks, 635 

 3 Although this court decided Gomez after Seals’ trial, other postGomez decisions have also applied the Gomez test in reviewing pre-Gomez 

cases. See, e.g., United States v. Stacy, 769 F.3d 969, 975–76 (7th Cir. 2014). 

In any event, the previous test in this circuit was functionally equivalent 

to the one identified in Gomez. See, e.g., United States v. Miller, 673 F.3d 

688, 702 (7th Cir. 2012).
8 No. 15-1372

F.3d at 1069 (citing United States v. Zapata, 871 F.2d 616, 622 

(7th Cir. 1989)). 

Seals complains that Officer Armstead’s reference to the 

“bank” and its “tellers” in her testimony about the discovery 

of the mask at the credit union should have been prohibited 

under Gomez because it had no purpose “other than to show 

that Christopher had a propensity to commit bank robberies.” Assuming the district court erred at all, we conclude 

that no new trial is warranted. 

Regarding Seals’ conviction for being a felon in possession of a firearm, there can be no doubt that any error regarding 404(b) evidence was harmless. Seals himself had 

admitted to loading the gun for his brother, and his DNA 

was discovered on the ammunition inside the gun recovered 

from the crime scene. That alone is sufficient to sustain his 

conviction under 18 U.S.C. § 922(g)(1). 

As to the two charges stemming from the robbery itself, 

Officer Armstead’s brief testimony likely had little impact on 

the jury’s determination, given the significant evidence 

against Seals: Three men robbed the PNC Bank at approximately 9:10 a.m. on February 14, 2013. Stephens identified 

Seals as one of three men in the car with Charles when 

Charles met Stephens just minutes after the robbery to hand 

off the spoils of the heist. Seals’ DNA was inside the gun 

used at the robbery. And Seals’ DNA was found inside a 

homemade ski mask like the ones used by the PNC robbers. 

Seals’ alibi defense was also makeweight. The testimony of 

the only witness who claimed to have seen Seals at the time 

of the robbery conflicted with Seals’ own statements to FBI 

agents. In short, because the record contained substantial evidence of Seals’ guilt, Officer Armstead’s brief testimony al-
No. 15-1372 9

most certainly had little, if any, impact on the jury’s deliberations. See United States v. Miller, 688 F.3d 322, 330 (7th Cir. 

2012) (finding that the “fleeting” admission of propensity 

evidence without conducting a Rule 403 analysis was harmless where “the unchallenged evidence introduced by the 

government clearly established [the defendant’s] guilt beyond a reasonable doubt”); cf. United States v. Byrd, 208 F.3d 

592, 594 (7th Cir. 2000) (“Exclusion of evidence which is the 

only or the primary evidence in support of a defense is 

deemed to have had a substantial effect on the jury.”). We, 

therefore, affirm Seals’ conviction.

III

Seals also argues that the district court erred in applying 

a pair of sentencing enhancements stemming from the highspeed car chase that occurred on March 20, 2013: (1) a twolevel enhancement for reckless endangerment during flight 

under U.S.S.G. § 3C1.2; and (2) a four-level enhancement for 

use of a firearm “in connection with” another felony under 

U.S.S.G. § 2K2.1(b)(6)(B). He asks this court to reverse the 

application of these enhancements and remand for resentencing. Seals claims that the district court erred by (1) applying both enhancements without making a finding that 

Seals participated in or encouraged the car chase and (2) applying § 2K2.1(b)(6)(B) in particular because he did not 

commit “another felony” and there was no firearm used or 

possessed “in connection with” the high-speed chase.

A

Generally speaking, we review a district court’s application of the Sentencing Guidelines de novo and any underlying factual findings for clear error. See United States v. Turner, 
10 No. 15-1372

400 F.3d 491, 500 (7th Cir. 2005). More deference is due, 

however, where an appellant failed to properly raise a claim 

below either by waiver or forfeiture. Waiver occurs when a 

defendant “intentionally relinquishes or abandons a known 

right.” United States v. Walton, 255 F.3d 437, 441 (7th Cir. 

2001) (internal quotation marks omitted). Forfeiture, on the 

other hand, occurs when a party fails to raise an argument 

due to accident or neglect. Id. Waived issues cannot be reviewed, while forfeited ones are reviewed for plain error. Id. 

Under plain-error review, the defendant must show that 

(1) there was error, (2) it was plain rather than subject to reasonable dispute, (3) it affected his substantial rights, and 

(4) the court should exercise its discretion to correct the error 

because it seriously affected the fairness, integrity, or public 

reputation of the judicial proceedings. See United States v. 

Olano, 507 U.S. 725, 732-35 (1993); United States v. JaimesJaimes, 406 F.3d 845, 847-49 (7th Cir. 2005).

The government contends that Seals affirmatively 

waived any sentencing-related arguments other than the 

sole objection he raised below: that he was not in the car 

during the chase. We do not read the record so narrowly, 

however. Although Seals’ objection to the enhancements at 

sentencing hinged on a single argument, he never actively 

disclaimed the positions he now raises. He therefore forfeited, but did not waive, the issues now before us. See JaimesJaimes, 406 F.3d at 848 (7th Cir. 2005) (“[W]e do not read our 

cases as establishing an inflexible rule that every objection 

not raised at a sentencing hearing is waived. The touchstone 

of waiver is a knowing and intentional decision.”) 
No. 15-1372 11

B

Section 1B1.3 of the Guidelines limits the application of 

certain sentencing enhancements to “relevant conduct” (i.e., 

conduct related to the offense(s) of conviction). This section 

reads, in pertinent part, as follows: 

Unless otherwise specified, ... cross references in 

Chapter Two [and] adjustments in Chapter Three, 

shall be determined on the basis of ... all acts and 

omissions committed, aided, abetted ... or willfully 

caused by the defendant [and] all reasonably foreseeable acts and omissions of others in furtherance of [a] 

jointly undertaken 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.

U.S.S.G. § 1B1.3(a).

This circuit has never explicitly reached the question of 

whether § 1B1.3(a) demands that either enhancement at issue here—U.S.S.G. §§ 2K2.1(b)(6)(B) and 3C1.2—be related 

to the offense of conviction. But the plain language of the 

Guidelines as well as decisions from numerous other circuits 

suggest that the answer is “yes.”

On its face, § 2K2.1(b)(6)(B) appears to be an exception to 

the relatedness required by § 1B1.3(a), given that it applies 

where a defendant “used or possessed a firearm ... in connection with another felony offense.” But the application 

notes to § 2K2.1(b)(6)(B) refer directly to § 1B1.3(a), making 

clear that the firearm in question must be “part of the same 

course of conduct or common scheme or plan” as the offense 
12 No. 15-1372

of conviction. U.S.S.G. § 2K2.1 cmt. n. 14(E)(ii) (citing id. 

§ 1B1.3(a)(2)). 

The connection between §§ 1B1.3(a) and 3C1.2 is similarly undeniable. The circuits that have considered the issue 

agree that the enhancement applies only to conduct related 

to the offense of convection. See United States v. Porter, 413 F. 

App’x 526, 531 (3d Cir. 2011) (“[F]or § 3C1.2 to apply, Porter’s [reckless flight from law enforcement] must have occurred during the course of attempting to avoid detection or 

responsibility for [his offense of conviction].”) (internal quotation marks omitted); United States v. Dial, 524 F.3d 783 (6th 

Cir. 2008) (“When applying § 3C1.2, the district court must 

find a nexus between the offense for which the defendant 

was convicted and the conduct that involved reckless endangerment during flight.”); United States v. Southerland, 405 

F.3d 263, 268 (5th Cir. 2005) (requiring that the government 

prove “that a sufficient nexus lie between the underlying offense and the reckless flight”); see also United States v. Gray, 

512 F. App’x 803, 808 (10th Cir. 2013) (assuming, without deciding, that a nexus is required); United States v. Duran, 37 

F.3d 557, 559-60 (9th Cir. 1994) (same), abrogated on other 

grounds by Tapia v. United States, 564 U.S. 319 (2011). We join 

our colleagues in concluding that U.S.S.G. § 1B1.3(a) limits 

the application of §§ 2K2.1(b)(6)(B) and 3C1.2 to conducted 

related to the offense of conviction.4

 4 The applicable standard is outlined in U.S.S.G. § 1B1.3 (and § 2K2.1

cmt. n. 14(E)(ii)). We see no need to adopt the five-part test developed by 

the Fifth Circuit in Southerland, 405 F.3d at 268, and later adopted by the 

Sixth Circuit in Dial, 524 F.3d at 787. 
No. 15-1372 13

In this case, the district court made no findings that 

would support the conclusion that the offenses of conviction—all of which stem from the robbery on February 14, 

20135—were connected to the behavior underlying the two 

enhancements applied here (i.e., the possession of a firearm 

and the reckless flight).6 Application of the enhancements 

without such a finding constitutes error. 

The district court’s application of §§ 2K2.1(b)(6)(B) and 

3C1.2 is also plagued by another misstep: the court made no 

factual findings regarding Seals’ participation in the March 

20 car chase. Under § 3C1.2, a defendant is responsible for 

only his “own conduct and for conduct that the defendant 

aided or abetted, counseled, commanded, induced, procured, or willfully caused.” U.S.S.G. § 3C1.2 cmt. n.5. Alt-

 

5 The government concedes that “the gun supporting [Seals’ felonin-possession conviction] was the one used during the robbery” and not 

the one discovered in the car following the March 20, 2013 chase. 

6 The government nevertheless argues that “a sufficient factual basis 

exists” to affirm Seals’ sentence. It points to “numerous links between 

the robbery and car chase (including the presence at both of Charles, a 

mask, a gun, .38-caliber ammunition, and robbery proceeds).” But the 

government misreads the Guidelines on this issue. The examples in the 

application notes to § 1B1.3 indicate that the facts listed by the government do not, standing alone, support a finding that the bank robbery and 

the car chase were part of a “common scheme or plan” or the “same 

course of conduct.” Rather, the drafters of the Guidelines intended for 

these concepts to connect, for sentencing purposes, criminal activity that 

otherwise might be considered separately, such as long-term conspiracies and “offenses ... sufficiently connected ... to each other as to warrant the conclusion that they are part of a single episode, spree, or ongoing series of offenses.” U.S.S.G. § 1B1.3 cmt. n. 5(B)(i)-(ii). In any event, 

such findings are better left to the district court, and we leave those determinations to be made in the first instance on remand.
14 No. 15-1372

hough this is a matter of first impression before this court, 

every circuit to consider the issue has concluded that, in the 

context of a car chase, “some form of direct or active participation ... is necessary for” the enhancement to apply to a 

passenger.7 United States v. McCrimon, 788 F.3d 75, 79 (2d 

Cir. 2015); see also United States v. Byrd, 689 F.3d 636, 640 (6th 

Cir. 2012) (“To apply this enhancement to a passenger based 

on the driver’s reckless conduct, the district court must specifically find that the passenger ‘was responsible for or 

brought about the driver’s conduct in some way.’“ (quoting 

United States v. Young, 33 F.3d 31, 32-33 (9th Cir. 1994))). The 

district court erred when it applied § 3C1.2 without making 

a finding that Seals either caused or otherwise aided and 

abetted in the chase.

This error affects the application of § 2K2.1(b)(6)(B), as 

well. That section, as discussed above, applies a four-level 

enhancement where a defendant “used or possessed any 

firearm ... in connection with another felony offense.” The 

court applied this enhancement to Seals based on the handgun discovered in the vehicle abandoned after the March 20, 

2013 chase. The “other offense” was Seals’ participation in 

the car chase, a felony under Indiana law. See Ind. Code 

 

7 The district court specifically found that Seals was the passenger of 

the Infiniti and not the driver during the March 20 chase based on the 

following exchange between Seals and a police officer from Seals’ May 1, 

2013 interview:

Officer: You were with [Charles Seals] in the crash?

Defendant: Yeah, cause that’s my car, that’s why.

Officer: You weren’t driving.

Defendant: I know.
No. 15-1372 15

§§ 35–44.1-3-1(a)(3) & 1(b)(1)(A). Yet, as discussed above, the 

district court failed to make any findings that support the 

notion that Seals was actively involved in the chase. As the 

government acknowledges, “[t]hat was error when Seals’

liability under Indiana law required that he assisted or encouraged the chase.” See Rosemond v. United States, 134 S. Ct. 

1240, 1245 (2014); Smith v. State, 809 N.E.2d 938, 944 (Ind. Ct. 

App. 2004)).

C

As the district court erred in applying these enhancements, only two questions remain: (1) were the court’s errors “plain”?; and (2) did its errors impact Seals’ substantial 

rights? As noted earlier, the issues before us related to 

§ 3C1.2 and 2k2.1(b)(6)(B) present matters of first impression 

for the court. The government is quick to point out that we 

“rarely find plain error on a matter of first impression” since 

such matters are “unlikely to be that obvious” even when 

“other circuits ... have addressed this issue.” But the fact 

that this court “rarely” finds plain error in such instances 

does not mean that such a conclusion is never warranted. 

And the circumstances of this case justify deviating from the 

general rule. 

First, the Guidelines themselves limit the application of 

these enhancements to situations where there is some connection between the defendant’s actions and the offense of 

conviction. See U.S.S.G. §§ 1B1.3(a); 2K2.1(b)(6)(B) cmt. n. 

14(E)(ii). In addition, this court has warned, on multiple occasions, that “Section 1B1.3 reflects the fact that the Sentencing Guidelines implement a charge-offense system rather 

than a real-offense system.” United States v. Allredge, 551 F.3d 

645, 647 (7th Cir. 2008); see also United States v. White, 888 
16 No. 15-1372

F.2d 490 (7th Cir. 1989); United States v. Talbott, 78 F.3d 1183 

(7th Cir. 1996). These cases, decided long before Seals’ sentencing, highlight the ways in which § 1B1.3 narrows the 

scope of behavior that is relevant under Chapters Two and 

Three of the Guidelines. That §§ 2K2.1(b)(6)(B) and 3C1.2 

should only apply to conduct related to the offense of conviction was not subject to reasonable dispute at the time of 

Seals’ sentencing. The court’s error in applying the enhancements was plain.

The notion that § 3C1.2 applies only where the defendant 

participated in the flight is no more controversial. In fact, the 

Second Circuit, also in a case of first impression, held that a 

district court committed plain error when it applied § 3C1.2 

without first finding that the defendant played some role in 

the flight from police. United States v. McCrimon, 788 F.3d 75 

(2015). The Second Circuit noted that “[e]very other circuit to 

consider the issue has held that some form of direct or active 

participation ... is necessary in order for § 3C1.2 to apply.”

788 F.3d at 79 (internal quotation marks omitted). Thus, it 

concluded, “[g]iven the plain meaning of the provision’s 

language and the widespread agreement among our sister 

circuits, the appropriate standard for applying Section 3C1.2 

is not ‘subject to reasonable dispute,’ and the district court’s 

error was clear.” Id. (quoting United States v. Marcus, 500 U.S. 

258, 262 (2010)). We agree with the Second Circuit’s analysis. 

In this case, as in McCrimon, the district court committed 

plain error when it applied § 3C1.2 without any factual findings regarding Appellant’s participation in the car chase. 

The second question—whether the court’s errors impacted Seals’ substantial rights—requires little analysis. The government concedes that, if the district court erred, “that error 
No. 15-1372 17

prejudiced Seals because it affected his sentence [and] this 

Court should remand for a full resentencing.”

We note, however, that the district court’s error may well 

have been harmless had the court not tied its sentencing decision so closely to the Guidelines. Post-Booker, district courts 

are free to move away from the details of the Guidelines and 

consider conduct, such as the car chase here, for the light it 

sheds on the defendant’s incorrigibility and dangerousness. 

For instance, remand would not be necessary had the district 

judge stated that she would have imposed the same sentence 

with or without the enhancements, because she deemed the 

car chase significant regardless of its effect on the Guidelines 

calculation. In this vein, the district court may well impose a 

reasonable sentence equal in length to the original sentence 

by exercising its judgment under 18 U.S.C. § 3553(a).

IV

For the foregoing reasons, Seals’ conviction is affirmed 

and his sentence is vacated and the case remanded for resentencing consistent with this opinion.