### In the 

# United States Court of Appeals For the Seventh Circuit

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

U NITED S TATES OF A MERICA , ě -Appellee

,

v.

A NYCCO M. R IVERS and L ADONTA A. T UCKER, 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

.

____________________

A RGUED M AY 30, 2024

— D ECIDED J ULY 24, 2024

____________________

Before S T

. E VE , K IRSCH , and K OLAR, Circuit Judges

. S T

. E VE , Circuit Judge . Anycco Rivers and Ladonta Tucker carjacked a BMW at gunpoint an d led police on a high speed chase before crashing the vehicl e into a guardrail and contin- ȱȱĚȱȱǯȱȱ¢ȱȱȱȱȱȬ ǯȱȱȱȱȱ ȱ¢ȱȱȱȱę

Ȭ arm during and in relation to a crime of violence. Tucker, on the other hand, received a lesser conviction under the same2 Nos. 23-1781, 23-2201, & 23-2245

statute only for carryi ng—not discharging—a ęȱȱ and in relation to the carjacking. Tucker contests ȱęȱ conviction on appeal, and we up hold that conviction today. Rivers, for his part, challenges only his sentence, arguing thedistrict 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 Rive rs and Ladonta Tucker carjacked a BMW on a residentia l 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 Tuck er 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 sevenmile high speed chase, the BMW ignored Ĝȱǰȱ drove erratically, and weaved ȱ ȱ ȱ ȱ ĜǯȱĴ to slow the BMW, police Ĝ used a squad car to force theBMW toward the road’s right shoulder. Instead, the BMW collided with the squad car, then crossed into another lane ofNos. 23-1781, 23-2201, & 23-2245 3

Ĝǯ ȱĜȱ ȱ ȱ ȱȱȱȱȱ ȱforce the BMW into a guardrail, disabling it. Tucker then exited the ȂȱǰȱĚ west into a wooded area. Rivers followed Tucker out the driver’s- ȱȱȱĚȱ in the opposite direction— ȱȱȱȱĜȱȱ down a ravine. ȱĜȱȱȱȱȱǯȱ ȱĜȱȬ sued Rivers across the busy ro ad, down a steep embankment, and into a rocky creek bed wher e they struggled to subdue and ę¢ȱ arrest 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 Ȃȱę ȱȱȱȱę

. 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 al so indicted Rivers on onecount 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 charged4 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 evidence, both Tucker and Rivers moved for a judgment of ac- ĴǯȱȂȱȱ ¢ȱ ¢ȱ ȱ ȱ ȱ Ȭ dence was in Ĝȱ ȱ ȱ ȱ ǯȱ ȱ Ȭ ȱȱĜ¢ȱȱȱȱȱȱȱȱȱ ȱ	ȱȱȱȱȱęȱ of the Taurus. The district court denied both motions. The defense did not submit pr oposed jury instructions, nor did it object to jury instruction 36: ȱȱȱȱęȱȃȱȱȄȱȱȱ if there is a connection between the use or carry- ȱȱȱęȱȱȱȱȱǯȱȱ ęȱȱ ȱ ȱ ȱ ȱ ěȱ ȱ respect to the crime; its presence or involvement cannot be the result of accident or coincidence. ȱ ęȱȱ ȱȱ 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 ȱȱȱȱȱĴ ǰȱ ȱȱȱȱ again denied. 2. Sentencing

The district court sentenced Tucker to 100 months’ imprisonment for carjacking and added the mandatory consecutiveNos. 23-1781, 23-2201, & 23-2245 5

sentence, 60 months, for violatin g § 924(c). On top of that, thecourt 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. Tu cker does not challenge his sentence on appeal. Rivers’s Presentence Investig ation 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 ȱȱ ȱ ȱ ęȱ based on all the evidence that they were working together— ȱȱĚǯȄȱȱȱȱȱ based the enhancement ȱȂȱĚȱȱ ȱ e 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 thei r 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 ȱǯȱ 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).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 endangermentenhancement 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 ȱĜȱȂȱȱȱ Rivers’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 we apon 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 con- ȱ ȱȱęȱȱ h ȱȃȱȱ of facilitating Ȅȱ 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 wasgiven just such an instruction. Tucker did not object. He nonetheless argues he can overcome this hurdle because ȱȃ potential-to-facilitate Ȅ standard departs from Supreme Court precedent and thus requir es 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 ȱȱĴȱȱ ȱȱȱȱȬdure 29. Below, Tucker made a general Rule 29 motion challenging the Ĝ¢ȱȱȱǰȱȱ ȱȃǽǾȱȱ ȱȱ Řşȱ ȱȱ  ęȱ ȱ ȱȱ ȱǰȱdzȱȱȱ ȱȱ¢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 Tu cker’s appeal is really a challenge to the jury instructions—which he did not challenge below— ȱȱȱĜ¢ȱȱȱȱȱȱ secure a more favorable standard of review. We have at times applied de novo review to legal ques- ȱ ȱȱȱȱȱȱĜ¢ȱȱȱȬ ǰȱ ȱ  ȱ ȱ ę ȱȱ 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) (a ppearing to apply de novo review when evaluati ȱ ȱȱȱ ȃȱ ȱȄȱ ȱ ȱ Ĝ¢ -of-the-evidence challenge). 1 A few other

1 ȱȱ ȱǰȱ ȱȱȱȱȱȱȃǽǾȱȱ ȱ ȱŘşȱȱȱęȱȱ ȱȱȱ ǰȱȱȱ ȱȱȱ¢ȱǯȄȱ Maez , 960 F.3d at 959; see also United States v. Moore , 363 F.3d 631, 637 (7th Cir. 2004), vacated and remanded8 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 ap- ȱ ȱ Ĝ¢ȱ ȱ ȱȱȱȱ ȱ ȱ ȃȱ ȱ ȱ ȱ ȱ  ȱ ȱ ȱ ȱ Ȭ ȱȱȄǼDzȱ United 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 States ǰȱśŚřȱǯǯȱŗŗŖŖȱǻŘŖŖśǼȱǻȃȱȱ ȱȱȱȱĴȱȱȱȱȱȱ ȱȱȱ ȱȱȱȱĜ¢ȱȱȱǰȱ ȱȱȱ ȱȱ ęȱǰȱ¢ȱȱȱȱȱȱȱȱ ǯȄǼDzȱ United States v. Hosseini ǰȱŜŝşȱǯřȱśŚŚǰȱśśŖȱǻŝȱǯȱŘŖŗŘǼȱǻȃȱȱȱ ȱ ȱȱȱȱȱĜ¢ȱȱȱȱ ¢ȱȬ ȱȱȱȱĴȱȱȱęȱȱȱ ȱȱ ȱ ǰȱ ¢ȱ ȱ Ĵȱ ȱ ¢ȱ ǯȄǼǯȱ We have some doubts about this rule and the perverse incentives it sets up to dis- ȱȱ ȱȱ ęȱȱȱ ȱȱŘşȱ ǯȱ See ȱȱǯȱ
ě er

, 991 F.3d 630, 637–41 (5th Cir. 2021) (Oldham, J., ǼȱǻȱȱĴȱȱȱȱŘşȱȱȱ ȱ ȱĜ¢ȱȱȃȱȱȱ¢ȱȱĴȱ ȱȬ ble in the district court and to save their good arguments as ‘gotchas!’ for ȄǼǯȱȱȱȱȱȃ¢ȱȱȱȱ judge’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 ȱȱȂȱȱȱȱȱȱ ȱȃȱȬ ȱǰȄȱ ȱ¢ȱȱȱ ȱȱȱĴȱȱȱ ȱǯNos. 23-1781, 23-2201, & 23-2245 9

plain error review in accordance with Federal Rule of Criminal Procedure 52(b), th e 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 ȱȱ ȱȱȱȱ

Ȭ 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 ęȱȱ ȱ ȱ ȱ ȱ ěȱ ȱ respect to the crime; its presence or involvement cannot be the result of accident or coincidence. ȱ ęȱȱ ȱȱ 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 ȱȄȱȱȱȱȱȱȱȱȱȱ 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 clear ǰȱ ȱ ȱ ȱ ȃȱ ȱȱȱȄȱǯȱ Santos v. United States , 461 F.3d 886, 891 (7th Cir. 2006) (quoting McClain v. Retail Food10 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 wegive considerable weight to prior decisions of this court unless and until they have been overruled or undermined by thedecisions of a higher court, or other supervening developments, suc ȱȱȱ¢ȱǯȄȱ Santos , 461 F.3d at 891 (cleaned up). A decision from the Supreme Court need not be ¢ȱȱǯȱȱȱȃȱȱȱȬ ȱȱȱȱȱȱȱȄȱȱȱ 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 cir- ȱȱȱȱȱȱȃȱȱǯȄȱȱȱȱ those cases provide the basis to overturn our precedent. First, contrary to Tucker’s argument, the Supreme Court’s decision in Smith ȱȱęȱ ȱȃȱȱȄȱȱ 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 ǻŗşşŞǼȱǻȱ ȱȃȄȱȱȃȬ ȄȱȱȱǼǯȱ Smith limited the meaning ȱȃȱȱȄȱ ȱȱȱȱȱ ȱ using a ęȱȱȱȱěȱȱȱȱȱȃȱȱ Ȅ that ěǯ śŖŞȱǯǯȱȱŘřŘǯȱȱȂȱĴȱȱNos. 23-1781, 23-2201, & 23-2245 11

ȱȱ ȱ ȱȱȱęȱȱȱȱȃȱ ȱȄȱȱǯȱ Smith went ȱȱęȱȃȱȱȄȱ more broadly when the defendant is charged with merely carrying, not using ȱę . In this context, Smith explained the ȱȱȱȱȱȃ ȱȱȱȱȱȁǽ Ǿǰȱ ȱǽǾȱȱȱȱǰȂȄ ȱȱěǯ Id. at 238 (quoting United States v. Stewart, 779 F.2d 538, 540 (9th Cir. 1985)). Instead of di sclaiming this standard, the Court simply noted ȱȱ ȱ ȱ ȃ ȱ ȱȱ ȄȱȱȃȱȱǰȄȱ ȱȱęȱȱȱ¢ ȱȱȱȱȱȱȃȁ¢ȱȂȱȱȗ 924(c)(1), ȱ ȱȱȱ¢ȱ ȱȱěȱ¢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 st andard is appropriate when ȱȱȱę ȱȱȱǯ 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 ęȱȃȱȱǯȄȱȱȱ Muscarello , the other case12 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 th e 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 ȱȱ ȱ ȃȱȱȄȱ 18 U.S.C. § 1028A(a)(1). Id. at 116–17. In doing so, it explicitly left § 924( c) caselaw undi sturbed because ȱ ȱ ǰȱȱ 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¢ȱȱęȱȱȱȱȱǰȱ ȱęȱȱȱȱ ȱȱȱȱ 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 reconsideration. None are persuasive. See Dean v. United States , 556 U.S. 568, 573 (2009) (explaining that Smith ęȱ ȃȱ ȱ Ȅȱ ȱȱ ȃȱ ȱ ęȱȱȱȱȱȱěȱ ȱȱ ȱ ȱ ȱ Ȭ ęȱDzȱȱȱȱȱȱȱȱȱ ȱȱ ȱȄȱǻȱ Smith , 508 U.S. at 238)); Watson v. United States

, śśŘȱǯǯȱŝśȱǻŘŖŖŝǼȱǻ¢£ȱȱȱȱȃǰȄȱȱȱę ȱȃȱ ȱȄǼǯNos. 23-1781, 23-2201, & 23-2245 13

ǯȱȱȱȱ Ĝ¢ȱȱȱǰȱ ȱ view that evidence in the light most favorable to the prosecu- ȱȱȃ ȱ e only when the record contains no evidence, regardless of how it is weighed, from which the jury ȱęȱȱ¢ȱȱǯȄȱ Maez , 960 F.3d at 966 (cleaned up). ȱ ȱ ȱ ȱ ȃ¢ȱ Ȭ ȱǯȄȱ United States v. Johnson , 874 F.3d 990, 998 (7th Cir. 2017). Tucker does not disp ute that he carried the Cobray pistol during the carjacking. So the only issue we must resolve is ȱȱȱ ȱĜȱȱęȱȱȱȱȱ ęȱ in relation to the crime— ȱȱ ǰȱȱȱęȬ arm facilitated or had the potentia l to facilitate the carjacking.Tucker carried the Cobray while participating in a carjacking in which his co-defendant fo rced 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 ȱȃȱ ȱȱǰȄȱ Smith , 508 U.S. at 238, or ȃȱ¢ȱȱȱ¢ǰȄȱ ȱȱǯȱĴȬ

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—e ven 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¢ȱȱ ȱȱȄǼǯȱ ȱȱȱĜȱȱȱ ȱ a reasonable jury could conclu de that Tucker carried the14 Nos. 23-1781, 23-2201, & 23-2245

¢ȱȱȱȱȱ ǰȱȱ ȱĜȱȱȱ Ȃȱȱȱȱ ȱȱĴǯ

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 endang erment enhancement under U.S.S.G. § 3C1.2. And second, he argues we should give thedistrict court the opportunity to apply a retroactive Guidelines amendment. Although ȱęȱ ȱ ȱȱ ȱȱcourt’s application of the reckless endangerment enhancement, we agree with Rivers that , in light of a retroactive adjustment in the method for calc ulating 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 of- ȱȱȃǽǾȱȱȱ¢ȱȱȱ ȱ risk of death or serious bodily injury to another person in the ȱ ȱ Ěȱ ȱ ȱ  ȱ ȱ ĜǯȄ U.S.S.G. § řŗǯŘȱǻŘŖŘřǼǯȱȱȱȱȃ where the conduct ȱȱ ȱȱȱȱǯȄȱ Id. , comment. (n.3). The endangerment must result ȱ ȃȱ Ȃȱ  ȱ conduct and ... ȱȱȱȱȱȱĴǰȱ counseled, commanded, induced, procured, or willfully ǯȄȱ Id. , comment. (n.5) ǯȱȃǽǾȱȱȱȱȱȱ ȱȱ ¢ǰȄȱ United States v. Ĵ, 97 F.4thNos. 23-1781, 23-2201, & 23-2245 15

477, 481 (7th Cir. 2024), and the di strict court mu st make fac- ȱęȱȱȱěǰȱ United 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 supp ort 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 ȱȱ ȃȬtainly 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 ȱrested upon the district court’s view of the totality of the circumstances and detailed f ȱęȱȱȱȱ ȱĚǯȱȱȱȱȱȃȱȱȱȬ Ȅȱ¢ȱȱȱȱȱȱȱǰȱȱȱ ǰȱ ȃ ȱ ǽ ǰǾȱ ȱ ȱ ĚǯȄȱ ȱ ȱ got out of the stolen vehicle once it was no longer drivable and ¢ȱȱȱȱȱĴȱȱȱ ȱǰȱȱȱ ȱ ǰȱȃ ȱȱȱ ǰȱȱ ȱȱǽȱǾǰȄȱȱȱȱ  th police Ĝ inthe 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 court16 Nos. 23-1781, 23-2201, & 23-2245

stated it applied the enhancement ȱȱȃȱȱȬ ing, portions of the high- ȱȱǽȱȱȱȱ ȱȱ ȱ Ĵȱ ȱ ȱ ȱ Ǿǰȱ ȱ ȱ ȱ Ěȱȱȱȱȱ the ǯȄȱ Framing his argument as a le gal challenge, Rivers contends ȱȱȱȱ¢ȱȱȱȃȱ ¢Ȅȱ ȱȱ¢ȱ ȱȱȱȬ ment rather than, as our preced ent requires, active participation. To the contrary, the district court explicitly found that Rivers himself created a danger when he continued his escape ȱǯȱȱȱęȱȱ¢ȱȱȱ Ȃȱ¡ȱęȱ ȱȱ ȃ¢ȱǰȱ Ȭ ǰȱȱȄȱ tivities 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 ou r precedent. Yet Rivers argues that nonbin ding 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 exten- ȱȱęȱ out 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 ȱNos. 23-1781, 23-2201, & 23-2245 17

ǰȱ ȃȱ ȱ ȱ ȱ ȱ ȱ ȄǼDzȱ United States v. Johnson ǰȱŜşŚȱǯřȱŗŗşŘǰȱŗŗşŝȱǻŗŗȱǯȱŘŖŗŘǼȱǻęȱ that the defendant’s Ěȱ ȱ ȱ ȱ ȱ  ¢ȱ ȱ crashed did not illuminate the qu estion of the enhancement’s application ȱȱȱȱȱȱȃȱȱęȱ ęȱ ȱ ȱ ȱ ¢ȱ ȱ ȱ ȱ ȱ ȱȱȱȄǼDzȱ United 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-  ¢ȱȱĜȱ ȱȱȱǼǯȱ ȱȱȱȱȱȱĚǰȱȱȱȱȱ ȱ ȱȱȱȱȂȱĚȱȱȱȱ ȱȱ ȱȱȱȱȱȱȱĜ , through a wooded area, and into a rocky ravine. The details of the carjacking, high speed chase, an d subsequent foot chase draw this case closer to United States v. Byrd , 689 F.3d 636 (6th Cir. 2012), upon which the district co urt relied when applying the ǰȱ ȱ  ȱ ȱ Ĵȱ ȱ ǯȱ ȱ that case, the Sixth Circuit found an inference of active partic- ȱȱ ȱ ȱ¢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 ȱĚȱȱǯȱ Id

. ȃȱȱ ȱ ǰȄȱ ȱ ȱ ǰȱ ȃ ȱ ¢Ȃȱ ȱ ȱ evade capture, from which one could infer that Byrd encour- ȱȱȱǽȱȱȂǾȱȱ ing, which ȱȱȱ¢ȱȱȱȱǯȄȱ Id. Here, too, Rivers’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

ȱȱȂȱȱ ȱȱȱęȱ adequately support the applicat ion of the reckless endangerment enhancement.

2. Guidelines amendments In keeping with the Guidelines ȱ ěȱ at the time, the Presentence Investigat ion Report added two criminal history points to Rivers’s carjacking sentence calculation because Riv- ȱ ȱȃȱǽ a Ǿ ȱȱȄ —parole—when ȱĴȱȱěȱȱǯȱ U.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 dist rict court imposed a withinGuidelines sentence of 87 months for carjacking and did notexpressly 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 Co mmission proposed two amendments that ȱȱěȱȱȱŗǰȱŘŖŘřǯȱ See United States v. Claybron , 88 F.4th 1226, 1228 (7th Cir. 2023). Amendment 821 did away with addition al 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 ȱǻŗǼȱȱŝȱȱȱȄȱȱȱǰȱȃȱǻŘ Ǽȱ Ĵȱȱȱěȱ ȱȱ¢ȱȱȬ ȱǯȄȱ U.S.S.G. § 4A1.1(e) (2023). The second amendment, Amendment 825, makes Am endment 821 retroactive, Ĵȱ ǻȱȱǼȱȱ ȱ ȃǽǾȱȱ reduction proceedings and enter ǽǾ orders under 18 U.S.C. § řśŞŘǻǼǻŘǼȄȱȱȱ ȱěȱ s prior to February 1, 2024. Claybron , 88 F.4th at 1228.Nos. 23-1781, 23-2201, & 23-2245 19

In Claybron ǰȱ  ȱ ȱ ȱ ȱ ȱ ęȱ amendments to the Guidelines provide a pathway for peopleunder criminal sentences to seek sentence reduction proceedings directly from the district court through 18 U.S.C. § 3582(c)(2), t ȱ 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) ǯȱǰȱĴȱȱȱȱȱ § ŘŗŖŜȱȃȬ ȱȱ¢ǯȄ Id . at 1231. In light of these tw o amendments and our recent decision in Claybron , Rivers asks that we vacate his carjacking sentenceand 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 Ȃȱȱ ȱȱȂȱěȱȱȱ 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 opport unity 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 se ntence 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

K IRSCH , 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 ȱȱȱȱĴȱȱȱȱȱ Criminal Procedure 29, ȱȱĜ¢ȱȱȱ government’s evidence. On appeal, ho wever, Tucker’s argument effectively challenges the jury in structions, 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, eve ȱ 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. Harden ǰȱŞşřȱǯřȱŚřŚǰ 446 (7th Cir. 2018) (analyzing whether ȱȱĜ¢ȱ ȱȱȱȂȱȱ was the “but-for” cause of the victim’s death). The majorityavoids 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 ¢ȱȱęȱȱȬgument 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) (“ ȱĜȬciency 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 ȱNos. 23-1781, 23-2201, & 23-2245 21

‘beyond a reasonable doubt. ȂȄǼȱ ǻȱ ĴǼǯ In reviewing such a challenge, we only ask “wheth er, 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 beyo nd a reasonable doubt.” United States v. Jackson ǰȱśȱǯŚȱŜŝŜǰȱŜŞŘȱǻŝȱǯȱŘŖŘŗǼ (emphasis in original) (cleaned up). In other words, a defendant brings his Ĝ¢ȱȱ¢ȱ focusing on the evidence presented by the government and arguing that it ȱ ȱ Ĝ¢ȱ prove one or more of the char ged crime’s essential elements. ȱǯȱǯȱǯȱǯȱŘşǻǼȱǻȃǽǾ he 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 separa te element) with a general mo- ȱȱ ȱȱĴ under Rule 29. But a defendant who raises a new, purely legal argument on appeal regarding the meanin g of an element of his crime ǻȱ ȱ ȱ ȱ Ĝ¢ȱ ȱ ȱ ȱ ȱ ȱ that element) ȱȱȱȱȱ¢ȱ¢ȱęȱ ȱ ȱȱ ȱ ȱ ȱ Ĵ . In that circumstance, the defendant’s argument goes well beyond the scope ȱ ȱȱ Ĝ¢ȱ ȱ ȱ ȱ  and instead presents a questi on of law. See United States v. Compian-Torres

, ŝŗŘȱ ǯřȱ ŘŖřǰȱ ŘŖŝȱ ǻśȱ ǯȱ ŘŖŗ 3) (“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 ȱȱ 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 th e posture of Tucker’s appeal. Rather than bring a true Ĝ¢ȱȱȱ evidence 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¢ȱȱ ȱȂȱ 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¢ȱ ȱȱȃ l of facilitating” lan- ȱȱȱĴȱ jury 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. Curry ǰȱśřŞȱǯřȱŝŗŞǰȱŝřŗȱǻŝȱǯȱŘŖŖŞǼǯ 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. ǯȱǯȱǯȱǯȱ 30(d) (“ ȱ ȱ ȱ ǽȱ ¢ȱǾȱ in accordance with this rule precludes appellate review, except ǽȱȱȬ ǾȱȱĴȱȱȱśŘǻǼǯ ”).

Other courts have come to the same conclusion in analogous contexts ǯȱȱ¡ǰȱȱ United States v. Fuertes ǰȱŞŖśȱǯřȱ 485 (4th Cir. 2015), ȱǰȱȱȱęȱȱȱǰȱ ȱ ȱ¡ȱĜȱęȱ a crime of violence under § 924(c)(3). Id. at 497. He argued, like Tucker, ȱȱȱȱȱȱȱĴȱȱȱNos. 23-1781, 23-2201, & 23-2245 23

ȱȱ Ĝ¢ȱ ȱ ȱȱǯȱ Id. ȱȱ 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¢ȱȱȱǰȱdid not preserve a purely legal challenge to the jury instruction ....” Id.

ȱȱȱȱ United States v. Brace ǰȱŗŚśȱǯřȱŘŚŝȱǻśȱ 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 proo f of an additional element. Id. at 258 n.2. Thus, ȱȱȱ ȱȱĜ¢ȱȱthe evidence challenge de novo, it did so “under existing relevant precedent,” thereby disr egarding the defendant’s new legal argument on appeal. Id. at 263; see also United States v. Haggerty ǰȱşşŝȱǯřȱŘşŘǰȱŘşŜȱǻśȱǯȱŘŖŘŗǼȱǻȃ Regardless, 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 ě ȱ 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 Su preme Court’s guidance, and ȱȱȱȱȱǯȱ Simply put, de novo review is not the default standard for arguments raised for the ęȱȱȱ . Rather, appellate courts “normally willnot correct a legal error made in criminal trial court proceedings” at all “ ȱȱȱęȱȱȱȱȱȱ trial court’ ȱĴ on.” 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). ȱȃǽǾ en less appropriate than an unwarranted expansionof 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 Zhou ǰȱŞřŞȱǯřȱŗŖŖŝǰȱ 1014–16 (9th Cir. 2016) (Graber, J., concurring) (noting that ȃǽǾȱȱȱ ȱȱ¢ȱĴȱ —if any at all— for the judicial creation of ex ceptions 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 in- ȱęȱȱ ȱȱȱȱ , like Tucker claims here. See Johnson ǰȱśŘŖȱǯǯȱȱŚŜŜȱǻȃǽǾ he seriousness of the error claimed does not remove cons ideration 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 errorNos. 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. Freed ǰȱşŘŗȱǯřȱŝŗŜǰȱŝŘŗȱǻŝȱǯȱŘŖŗşǼȱǻȃĴȱ instructions are presum ed to accurately state the law.”). In a case like this one, where a nove l legal argument is raised, the argument needs to ęȱ be presented to the district court so that the court and the parties have a chance to adjudicate it; ¢ȱȱ ȱȱȱȱěȱ the 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 becaus e he did not otherwise raise the argument before the district court or object to the relevant jury instruction as required un der Rule 30, it is forfeited. ǯȱ R. Crim. P. 51 (explaining the requirements for preserving a claim of error). Our review shou ld therefore only be for plain error under Rule 52(b). United States v. Leal ǰȱŝŘȱǯŚȱŘŜŘǰȱŘŜ 5 ǻŝȱǯȱŘŖŘřǼȱǻȃǽǾ f a defendant does not object to a jury instruction, ... he may only cha llenge the instruction for plain error on appeal.”).