1 The Honorable David S. Doty, United Stat es District Judge for the District of Minnesota, sitting by designation. 

## United States Court of Appeals FOR THE EIGHTH CIRCUIT

___________ No. 08-1589

___________ United States of America, *
* Appellee, * * Appeal from the United States v. * District Court for the * Eastern District of Missouri. Rickey Bates, *
* Appellant. *

___________ Submitted: December 9, 2008 Filed: April 3, 2009

___________ Before MELLOY and BENTON, Circuit Judges, and DOTY, 1 District Judge.

___________ MELLOY, Circuit Judge. A jury convicted Rickey Bates of being a felon in unlawful possession of a firearm, in violation of 18 U.S.C. § 922(g)(1 ). The district court sentenced Bates to 110 months’ imprisonment. Bates appeals his sentence. We affirm in part, reverse in part, and remand for further proceedings.-2- I.

At approximately 12:30 a.m. on December 8, 2006, law enforcement officers observed a stolen vehicle with two occupants driving on a street in St. Louis. Police later identified the driver as Demetri ce Thomas and the passenger as Bates.

The officers contacted other members of law enforcement for assistance and surveilled the vehicle until the other offi cers arrived. When Thomas stopped the vehicle in the middle of a city block, two officers activated their emergency lights and drove up behind him. Thomas sped off with Bates still in the passenger seat.

Within approximately one block, Thomas, while driving at a high rate of speed, ran over a set of spike strips that officers had placed in the vicin ity. The spike strips deflated three of the stolen vehicle’s tires . Thomas continued to flee from police in the stolen vehicle for several blocks until he lost control. Thomas and Bates then jumped from the moving vehicle just before it struck a light pole.

After Thomas and Bates jumped from the vehicle, officers wearing raid jackets marked “police” ordered them to stop. Thomas and Bates ignored the officers’ commands and attempted to flee on foot. An officer pursued Bat es between private homes and through private backyards before tackling him in the front yard of a private residence. Bates then struggledon the ground with the officer, continually attempting to reach toward his own waistb and until the officer handcuffed him. Once Bates was handcuffed, officers discovered a loaded and operable .22-caliber pistol in Bates’s waistband. The officers arrestedBates and subsequently found .38 grams of cocaine base in a plastic baggie in Bates’s coat pocket.

Because Bates was a felon, a federal grand jury indicted Bates for being a felon in unlawful possession of a firearm. Bates pr oceeded to trial and a jury convicted him of that charge.-3- Following Bates’s conviction, the U.S. Probation Office prepared a Presentence Investigation Report (“PSR”). Applying th e U.S. Sentencing Guidelines (“USSG”), the PSR stated that Bates’s base offense level was 20. It recommended a four-level enhancement under USSG § 2K2.1(b)(6) becau se Bates had possessed the firearm “in connection with another felony offens e”—possessing cocaine base. It also recommended a two-level enhancement under USSG § 3C1.2 because Bates had recklessly endangered others in the courseof fleeing from law enforcement officers. These enhancements made Bates’s reco mmended total offense level 26. Because Bates had a category-V criminal history, his advisory sentenci ng range was 110 to 137 months.

Bates objected to the recommended enhan cements in the PSR. At sentencing, the district court overruled Bates’s objections, adopted the recommendations contained in the PSR, and sentenced Bates to 110 months’ imprisonment.

II.

On appeal, Bates, through counsel, argued that the district court erred by applying § 3C1.2’s reckless-endangerm ent enhancement. Bates, however, subsequently filed a pro se brief also c ontesting the district court’s application of § 2K2.1(b)(6). After receiving Bates’s pro sebrief, we determin ed that his argument had possible merit and directed supplementa l briefing on § 2K2.1(b)(6)’s application to his sentence. With the issues fully brie fed, we address the arguments in the order in which they were presented.

A.

Bates’s first argument is that the distri ct court erred in applying § 3C1.2’s twolevel enhancement for recklessly endangering others in the course of fleeing from law enforcement officers. “[A district court] is allowed to make findings of facts under-4- a preponderance of the eviden ce standard to support an e nhancement to the guideline range so long as it treats the Guidelines as advisory.” United States v. Perry , 548 F.3d 688, 693 (8th Cir. 2008). “We review for cl ear error a district court’s findings with respect to reckless endangerment during flight.” United States v. Bazaldua , 506 F.3d 671, 674 (8th Cir. 2007) (quotation omitted).

Section 3C1.2 provides, “ If the defendant recklessly created a substantial risk of death or serious bodily injury to anothe r person in the course of fleeing from a law enforcement officer, increase by 2 levels .” U.S. Sentencing Guidelines Manual § 3C1.2 (2007). For this provision, “reckless” means a “‘situation in which the defendant was aware of the risk created by his conduct and the risk was of such a nature and degree that to disregard that risk constituted a gross deviation from the standard of care that a reasonable person would exercise in such a situation.’” Bazaldua , 506 F.3d at 674 (quoting USSG § 2A1.4, cmt. (n.1)). For purposes of § 3C1.2, “reckless” also “‘includes any higher level of culpability.’” Id. (quoting USSG § 3C1.2 cmt. (n.2)). “The term ‘during flight’ should be ‘construed broadly’ and includes conduct ‘in the course of resis ting arrest.’” United States v. McDonald , 521 F.3d 975, 979 (8th Cir. 2008) (quoti ng USSG § 3C1.2, cmt. (n.3)).

At sentencing, the district court cite d evidence of Bates’s flight from and struggle with officers as sufficient factua l grounds to apply § 3C1.2’s enhancement. Bates argues this was error because he had no control over the stolen vehicle, did not aid or abet Thomas in fleeing with the vehi cle, and did not brandish his weapon during the chase.

There is sufficient eviden ce in the record to support the district court’s application of § 3C1. 2. It is undisputed that Bates, while armed with a loaded weapon, knowingly jumped from a moving vehi cle that police, with emergency lights activated, were pursuing. See Bazaldua , 506 F.3d at 674 (holding that a district court did not clearly err in concluding that a de fendant had “knowledge that he was being2Although Bates now claims he was mere ly trying to use his hands to get up, the district court credited the officer’s te stimony that Bates repeatedly attempted to reach for his own waistband during the struggl e. Our standard of review requires us to credit the district court’s finding. See United States v. St. James , 415 F.3d 800, 806 (8th Cir. 2005) (“When evidence may be vi ewed in two or more ways, a district court’s choice of one view over another view cannot be deemed clearly erroneous.”). Also, the PSR—which the district court adopted at sentencing—notes that Bates continually reached for his waistband during the struggle with the officer. Bates did not object to that statement in the PSR. Thus, we deem that fact admitted. See Bazaldua , 506 F.3d at 674 n.3 (stating that fact s in a PSR are deemed admitted when a defendant does not object to them and the district court adopts the PSR).
-5- pursued by and fled from law enforcement” where officers “identified themselves” and pursued the defendant “in and out of traffic with emergency lights activated”). It is also undisputed that Bates then intentionally ignored commands of officers wearing raid jackets marked “police” to stop, fled from officers on foot through a residential neighborhood in the middle of th e night, and, while armed with a loaded weapon, created a situation that caused a pursu ing officer to tackle him to prevent his escape. See United States v. Moore , 242 F.3d 1080, 1082 (8th Cir. 2001) (holding that a district court did not clearly err infinding that a defendant knew “he was being pursued by the police as he fled,” as the enhancement requires, when police officers identified themselves, wore raid vests mark ed “police,” and activ ated their emergency lights when pursuing the defendant in their vehicle).

Finally, there is sufficient evidence in the record to support the district court’s conclusion that Bates, while armed with a loaded weapon, intentionally struggled on the ground with the officer and continually reached toward his waistband during the altercation. 2See United States v. Williams , 278 F. App’x 279, 281 (4th Cir. 2008) (per curium) (unpublished) (“A struggle in which all the parties are armed carries an obvious risk that the struggle might escalate to the point that a firearm is used, or discharges accidentally.”); see also McDonald , 521 F.3d at 980 (applying § 3C1.2’s reckless-endangerment enhancem ent where officers had to use force to arrest the-6- defendant and faced “a heightened risk of physical injury”); United States v. Lee , 199 F.3d 16, 17 (1st Cir. 1999) (“[W]hatever [thedefendant’s] purpose, his efforts to seize his gun did create a substantial risk of bodily injury, whether from accidental discharge or the threat of fire from the po lice.”). These facts sufficiently support the district court’s conclusion that a preponde rance of the evidence demonstrated that Bates recklessly created a substantial risk of serious harm to others while fleeing from police. Thus, we affirm the district c ourt’s decision to enhance Bates’s advisorysentence calculation under § 3C1.2.

B.

Bates’s second argument is that the district court erred by applying § 2K2.1(b)(6)’s four-point enhancement for possessing a firearm in connection with another felony offense. As st ated above, Bates did not raise this issue in his original appeal. Nevertheless, he filed a pro se brief arguing that this enhancement did not apply and, based on the poten tial merit to his argument, we ordered supplemental briefing on this issue.

Section § 2K2.1(b)(6) provides, “If the defendant used or possessed any firearm or ammunition in connection withanother felony offe nse; or possessed or transferred any firearm or ammunition withknowledge, intent, or reason to believe that it would be used or possessed in conn ection with another felony offense, increase by 4 levels.” USSG § 2K2.1(b)(6). The district court assessed this enhancement because it found that Bates’s firearm possession was connected to another felony offense—Bates’s possession of cocaine base. “The district court’s determination that the defendant possessed the firearm[] in c onnection with another felony is a factual finding that we review for clear error.” United States v. Smith , 535 F.3d 883, 885 (8th Cir. 2008).3 The Government asserts that Bates wa ived this argument because he did not specifically raise it in his pro se brief. Bates, however, raised this argument below as his sole objection to the court’s application of § 2K2.1(b)(6). Construing Bates’s pro se brief liberally, we therefore found his brie f sufficient to raise this issue such that supplemental briefing was necessary. See Fed. Express Corp. v. Holowecki , 128 S. Ct. 1147, 1158 (2008) (“Even in th e formal litigation context, pro se litigants are held to a lesser pleading standard than other parties.”).

4 We note that the district court did not have the benefit of our decision in Blankenship at the time of Bates’s sentencing.
-7- Bates argues that because simple posse ssion of less than one gram of cocaine base is not a felony under fede ral law, the district court erred in finding he possessed the firearm in relation to “another felony offe nse.” This claim is meritless. “‘Another felony offense’, for purposes of [§ 2K2.1](b)(6), means a ny federal, state, or local offense, other than the explosive or fi rearms possession or trafficking offense, punishable by imprisonment for a term exceed ing one year, regardless of whether a criminal charge was brought, or a convicti on obtained.” USSG § 2K2.1(b)(6), cmt. (n.14(C)). Under Missouri law, Bates’s posse ssion of cocaine base is a class C felony, punishable by up to seven years’ impris onment. Mo. Rev. Stat. §§ 195.202, 558.011. Therefore, it qualifies as “another fe lony offense” under § 2K2.1(b)(6).

Bates’s supplemental brief further argues th at the district court erred in applying § 2K2.1(b)(6) because it did not find that the firearm and drug felonies were adequately connected. 3 We find merit to this claim.

In United States v. Blankenship , 552 F.3d 703 (8th Cir. 2009), we recently addressed § 2K2.1(b)(6)’s application when the “other felony offense” in question is simple drug possession rather than drug trafficking. 4 Id. at 704–05. We stated, “If the underlying drug offense is for simple possessi on, the district court may still apply the [§ 2K2.1(b)(6)] adjustment, but only after making a finding that the firearm facilitated the drug offense.” Id. at 705.-8- Here, the parties agree that Bates’s other felony offense involved possessing only a “user” quantity of drugs. The distri ct court, however, did not find that Bates’s firearm facilitated his drug-possession offens e, apparently acceptin g the Government’s argument that the firearm and drugs were c onnected because “[b]oth the guns [sic] and drugs were found on [Bates’s] person.” Sent. Tr. 6–7. Under Blankenship , these findings are insufficient to warrant § 2K2.1(b)(6)’s application. The Government counters that the district court implicitly found an adequate connection between Bates’s firearm and drug felonies because the court rejected Bates’s argument on this point. An implicit finding, however, does not satisfy Blankenship ’s command that:

when the defendant subject to a 2K 2.1(b)(6) adjustment possesses a user amount of drugs and is not a traffick er, instead of automatically applying the adjustment when both drugs and weapons are involved in the offense, the district court must affirmativ ely make a finding that the weapon or weapons facilitated the drug offense before applying the adjustment.
Blankenship , 552 F.3d at 705. We discern no such finding in the record.

Finally, we reject the Government’s a lternative contention that any error at sentencing was harmless. The district court’s application of § 2K2.1(b)(6) added four levels to Bates’s total-offense-level calcu lation, increasing his advisory sentencing range from 77 to 96 months to 110 to 137 months. Therefore, as in Blankenship , we reverse the district court’s ruling and rema nd the case for further proceedings to allow the district court to make appropriate fi ndings regarding § 2K2.1(b)(6)’s applicability.-9- III.

For the foregoing reasons, we affirm the district court in part, reverse the district court in part, and remand for further proceedings.

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