1

 The Honorable David S. Doty, United States District Judge for the District of

Minnesota, sitting by designation. 

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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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. *

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Submitted: December 9, 2008

Filed: April 3, 2009 

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Before MELLOY and BENTON, Circuit Judges, and DOTY,1

 District Judge.

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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 Demetrice Thomas and the passenger as Bates. 

The officers contacted other members of law enforcement for assistance and

surveilled the vehicle until the other officers 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 vicinity. 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 Bates between private

homes and through private back yards before tackling him in the front yard of a

private residence. Bates then struggled on the ground with the officer, continually

attempting to reach toward his own waistband until the officer handcuffed him. Once

Bates was handcuffed, officers discovered a loaded and operable .22-caliber pistol in

Bates’s waistband. The officers arrested Bates 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 proceeded to trial and a jury convicted him

of that charge. 
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Following Bates’s conviction, the U.S. Probation Office prepared a Presentence

Investigation Report (“PSR”). Applying the 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) because Bates had possessed the firearm “in

connection with another felony offense”—possessing cocaine base. It also

recommended a two-level enhancement under USSG § 3C1.2 because Bates had

recklessly endangered others in the course of fleeing from law enforcement officers.

These enhancements made Bates’s recommended total offense level 26. Because

Bates had a category-V criminal history, his advisory sentencing range was 110 to 137

months. 

Bates objected to the recommended enhancements 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-endangerment enhancement. Bates, however,

subsequently filed a pro se brief also contesting the district court’s application of

§ 2K2.1(b)(6). After receiving Bates’s pro se brief, we determined that his argument

had possible merit and directed supplemental briefing on § 2K2.1(b)(6)’s application

to his sentence. With the issues fully briefed, we address the arguments in the order

in which they were presented.

A.

Bates’s first argument is that the district 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
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a preponderance of the evidence standard to support an enhancement 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 clear 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 another 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 resisting arrest.’” United States v. McDonald,

521 F.3d 975, 979 (8th Cir. 2008) (quoting USSG § 3C1.2, cmt. (n.3)). 

At sentencing, the district court cited evidence of Bates’s flight from and

struggle with officers as sufficient factual 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 vehicle, and did not brandish his weapon during

the chase. 

There is sufficient evidence 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 vehicle 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 defendant had “knowledge that he was being
2

 Although Bates now claims he was merely trying to use his hands to get up,

the district court credited the officer’s testimony that Bates repeatedly attempted to

reach for his own waistband during the struggle. 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 viewed 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 facts in a PSR are deemed admitted when

a defendant does not object to them and the district court adopts the PSR). 

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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 the night, and, while armed with a loaded

weapon, created a situation that caused a pursuing 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 in finding 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 marked “police,” and activated 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.2

 See 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 enhancement where officers had to use force to arrest the
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defendant and faced “a heightened risk of physical injury”); United States v. Lee, 199

F.3d 16, 17 (1st Cir. 1999) (“[W]hatever [the defendant’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 police.”). These facts sufficiently support the

district court’s conclusion that a preponderance 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 court’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 stated 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 potential 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 with another felony offense; or possessed or

transferred any firearm or ammunition with knowledge, intent, or reason to believe

that it would be used or possessed in connection 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 connection 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 waived 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 brief 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 the 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. 

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Bates argues that because simple possession of less than one gram of cocaine

base is not a felony under federal law, the district court erred in finding he possessed

the firearm in relation to “another felony offense.” This claim is meritless. “‘Another

felony offense’, for purposes of [§ 2K2.1](b)(6), means any federal, state, or local

offense, other than the explosive or firearms possession or trafficking offense,

punishable by imprisonment for a term exceeding one year, regardless of whether a

criminal charge was brought, or a conviction obtained.” USSG § 2K2.1(b)(6), cmt.

(n.14(C)). Under Missouri law, Bates’s possession of cocaine base is a class C felony,

punishable by up to seven years’ imprisonment. Mo. Rev. Stat. §§ 195.202, 558.011.

Therefore, it qualifies as “another felony offense” under § 2K2.1(b)(6). 

Bates’s supplemental brief further argues that 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 possession, 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.
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Here, the parties agree that Bates’s other felony offense involved possessing

only a “user” quantity of drugs. The district court, however, did not find that Bates’s

firearm facilitated his drug-possession offense, apparently accepting the Government’s

argument that the firearm and drugs were connected 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 2K2.1(b)(6) adjustment possesses a user

amount of drugs and is not a trafficker, instead of automatically applying

the adjustment when both drugs and weapons are involved in the offense,

the district court must affirmatively 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 alternative 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 calculation, 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 remand the case for further proceedings to allow

the district court to make appropriate findings regarding § 2K2.1(b)(6)’s applicability.
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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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