United States v. Rivers

108 F.4th 973

UNITED STATES of America, Plaintiff-Appellee, v. Anycco M. RIVERS and Ladonta A. Tucker, Defendants-Appellants.

No. 23-1781

No. 23-2201

No. 23-2245

United States Court of Appeals, Seventh Circuit

Argued May 30, 2024

Decided July 24, 2024

Appeals from the United States District Court for the Central District of Illinois. Nos. 16-CR-20017, 22-CR-20015 — Colin S. Bruce, Judge.

W. Scott Simpson, Attorney, Office of the United States Attorney, Springfield, IL, for Plaintiff-Appellee.

Vanessa K. Eisenmann, Justin J. Dreikosen, Michelle L. Jacobs, Attorneys, Biskupic & Jacobs, S.C., Mequon, WI, for Defendant-Appellant in No. 23-1781.

Elliot J. Louthen, Attorney, Office of the Federal Public Defender, Urbana, IL, Thomas W. Patton, Attorney, Office of the Federal Public Defender, Peoria, IL, for Defendant-Appellant in Nos. 23-2201, 23-2245.

Before St. Eve, Kirsch, and Kolar, Circuit Judges.

St. Eve, Circuit Judge.

Anycco Rivers and Ladonta Tucker carjacked a BMW at gunpoint and led police on a high speed chase before crashing the vehicle into a guardrail and continuing their flight on foot. A jury convicted both men of carjacking. It also convicted Rivers of carrying and discharging a firearm during and in relation to a crime of violence. Tucker, on the other hand, received a lesser conviction under the same statute only for carrying—not discharging—a firearm during and in relation to the carjacking. Tucker contests that firearm conviction on appeal, and we uphold that conviction today. Rivers, for his part, challenges only his sentence, arguing the district court erred by applying a reckless endangerment enhancement. We reject this argument but nevertheless vacate Rivers's carjacking sentence and remand to the district court in light of retroactive Guidelines amendments.

I. Background

A. Factual Background

On March 17, 2022, Anycco Rivers and Ladonta Tucker carjacked a BMW on a residential street in Bourbonnais, Illinois. The car was parked at the side of the road with its engine idling when Rivers approached the front passenger-side window. He pointed two guns at the car's owner, who was seated in the driver's seat, and told him to get out of the car. Tucker then searched the owner and took his wallet before letting him go. Ducking behind a nearby parked car, the owner heard Rivers yell at Tucker to unlock the car. Tucker and Rivers then got into the vehicle, Tucker in the driver's seat and Rivers in the front passenger seat. Witnesses reported seeing Rivers shoot a gun into the air as Tucker drove away, but no one observed Tucker with a firearm.

A few minutes later, police spotted the BMW speeding and weaving around other cars. During the ensuing seven-mile high speed chase, the BMW ignored traffic signs, drove erratically, and weaved in and out of traffic. Attempting to slow the BMW, police officers used a squad car to force the BMW toward the road's right shoulder. Instead, the BMW collided with the squad car, then crossed into another lane of traffic. Another officer was able to position his squad car to force the BMW into a guardrail, disabling it. Tucker then exited the driver's seat, fleeing west into a wooded area. Rivers followed Tucker out the driver's-side door and fled in the opposite direction—across three lanes of traffic and down a ravine.

Police officers chased both men on foot. Two officers pursued Rivers across the busy road, down a steep embankment, and into a rocky creek bed where they struggled to subdue and finally arrest him. In the woods to the west, officers similarly managed to capture Tucker, discovering a latex glove in his pocket.

Police recovered three firearms from the scene. One firearm, a loaded Cobray 9mm pistol with an extended magazine, lay on the ground next to the BMW's front driver's-side door. Two other firearms, an empty .45 caliber Glock and a .40 caliber 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 been fired from the Taurus pistol. Testing revealed Tucker's DNA on the Cobray pistol and Rivers's fingerprints on all three firearms.

B. Procedural Background

1. Indictment and trial

A grand jury in the Central District of Illinois indicted both Rivers and Tucker on one count of carjacking, in violation of 18 U.S.C. § 2119. The grand jury also indicted Rivers on one count of carrying and discharging the Taurus and Glock during and in relation to a crime of violence, in violation of 18 U.S.C. § 924(c)(1)(A)(iii). Finally, the indictment charged 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 carjacking victim, other witnesses, and police officers involved in the chase. The government also presented forensic evidence from the firearms and spent cartridges. At the close of evidence, both Tucker and Rivers moved for a judgment of acquittal. Tucker's motion only generally argued that the evidence was insufficient to support a conviction. Rivers contested the sufficiency of the evidence as to his possession of the Glock and Taurus and his firing of the Taurus. The district court denied both motions.

The defense did not submit proposed jury instructions, nor did it object to jury instruction 36:

A person carries a firearm "in relation to" a crime if there is a connection between the use or carrying of the firearm and the crime of violence. The firearm must have some purpose or effect with respect to the crime; its presence or involvement cannot be the result of accident or coincidence. The firearm must at least facilitate, or have the 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 motions for a judgment of acquittal, which the district court again denied.

2. Sentencing

The district court sentenced Tucker to 100 months' imprisonment for carjacking and added the mandatory consecutive sentence, 60 months, for violating § 924(c). On top of that, the court revoked Tucker's supervised release for a prior felon-in-possession conviction and added 24 months to his sentence, resulting in a total sentence of 184 months. Tucker does not challenge his sentence on appeal.

Rivers's Presentence Investigation Report recommended a two-level enhancement for reckless endangerment during flight 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 that "Rivers initiated the carjacking," and "[b]oth of them—it appears to me and I find based on all the evidence that they were working together—tried to flee." The district court also based the enhancement on Rivers's flight once the vehicle was disabled, noting that Rivers "could have just stayed in the vehicle, but he didn't." He then led police on a chase through a ravine and continued to evade arrest—and "at any point in there, things could have turned out very badly." The court ultimately concluded that "Rivers certainly 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 bodily injury to a lot of people."

Rivers had six criminal history points, to which the district court added two criminal history points because he committed this new offense while on parole. 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).

II. Analysis

On appeal, Tucker objects to his conviction and Rivers his sentence. For his part, Tucker insists that the evidence was insufficient to support his firearm conviction. Rivers, meanwhile, objects to the application of the reckless endangerment enhancement and asks that we vacate his sentence and remand to the district court for resentencing in view of recent amendments to the Guidelines. For the reasons explained below, we affirm Tucker's conviction and 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 carrying a firearm "during and in relation to" a crime of violence, which includes carjacking. Tucker admits that he carried the Cobray pistol during the carjacking, but he insists that because he never revealed the weapon in the course of the carjacking or escape, it did not facilitate—and therefore was not carried in relation to—the offense.

Tucker's problem is that our caselaw permits juries to convict when the firearm carried has "the potential of facilitating" the underlying offense. United States v. Mancillas, 183 F.3d 682, 707 (7th Cir. 1999); see also Seventh Circuit Pattern Criminal Jury Instructions (2023). Indeed, the jury in Tucker's trial was given just such an instruction. Tucker did not object. He nonetheless argues he can overcome this hurdle because our "potential-to-facilitate" standard departs from Supreme Court precedent and thus requires course correction.

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 judgment of acquittal under Federal Rule of Criminal Procedure 29. Below, Tucker made a general Rule 29 motion challenging the sufficiency of the evidence, and while "[a] motion under Rule 29 that makes specific arguments waives issues not presented, . . . a general motion preserves every...