United States of America v. Remberto Rivera

United States Court of Appeals
For the Eighth Circuit
___________________________
No. 22-1295
___________________________
United States of America
Plaintiff - Appellee
v.
Remberto Rivera
Defendant - Appellant
____________
Appeal from United States District Court
for the Western District of Arkansas - Fayetteville
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Submitted: January 13, 2023
Filed: August 10, 2023
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Before KELLY, ERICKSON, and STRAS, Circuit Judges.
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ERICKSON, Circuit Judge.
Remberto Rivera pled guilty to possession of methamphetamine with intent
to distribute. The district court sentenced him as a career offender to 168 months’
imprisonment. Rivera appeals, claiming the district court1 committed three
1 The Honorable Timothy L. Brooks, United States District Judge for the
Western District of Arkansas.

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reversible errors: (1) designating him as a career offender; (2) applying a two-level
enhancement for possession of a dangerous weapon; and (3) applying a two-level
enhancement for reckless endangerment in the course of fleeing from law
enforcement. We affirm.
I. BACKGROUND
In February 2020, a northwest Arkansas Drug Task Force (“Task Force”)
received a tip that Rivera was selling methamphetamine in northwest Arkansas. The
Task Force also learned that Rivera was on parole and his conditions allowed
warrantless searches. While conducting surveillance on March 3, 2020, at a motel
known for drug activity, the Task Force observed Rivera, carrying a backpack, enter
the parking lot. Task Force investigators approached Rivera, identified themselves,
and asked for his identification. When Rivera refused to identify himself, claiming
to have no identification, investigators informed him that they knew who he was,
that he was on parole, that he had signed a warrantless search waiver, and that they
suspected him of trafficking methamphetamine. After arresting Rivera for
obstruction based on his refusal to provide his name, investigators recovered his
driver’s license from his pocket.
Investigators searched Rivera’s backpack and found 15.9 grams of marijuana,
114.4 grams of methamphetamine, a digital scale, a pipe with suspected
methamphetamine residue, clear plastic baggies, and more than $3,000 in cash. The
investigators also seized two phones from Rivera that contained text messages
indicating Rivera was engaged in drug trafficking. Rivera was taken into custody
and later released on bond.
On May 16, 2020, members of the Fayetteville Police Department (“FPD”)
observed Rivera at a residence under surveillance because of suspected drug activity.
FPD officers followed Rivera’s vehicle and, after multiple turns onto different
streets, Rivera parked and exited the car with a companion. Rivera’s companion

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eventually admitted that they had spoken to a known drug distributor at the drug
house.
Rivera told law enforcement that he owned the car but when the police asked
for permission to search the car, Rivera claimed he was not the owner. Even though
Rivera refused to give permission to search the vehicle, officers informed him they
were going to search the vehicle without his consent because he had signed a parole
search waiver. Rivera was initially agitated and became more visibly upset as
contact with the officers progressed. Rivera questioned why he was being stopped,
and exhibited signs that he might flee, such as looking around and scanning the area.
When an officer attempted to handcuff him, Rivera, who had been seated on
the curb, stood up and attempted to run. Officers grabbed Rivera and took him to
the ground. A chaotic struggle ensued during which Rivera attempted to strike one
officer with his fist, attempted to choke another officer, grabbed at the handcuffs,
and eventually succeeded in taking a taser off one of the officers. Rivera then
grabbed at another officer’s duty weapon. Eventually, two bystanders came to the
aid of the officers and Rivera was subdued and taken into custody.
When officers searched Rivera’s car, they found a loaded handgun and a
backpack containing a locked safe. Inside the safe, officers discovered a second
firearm, ammunition, plastic baggies, and two digital scales. Another backpack
contained a glass pipe with suspected methamphetamine residue and more small
plastic baggies.
Rivera pled guilty to possession of methamphetamine with intent to distribute.
Because Rivera had prior Arkansas convictions for Accomplice to Robbery and
Possession of Methamphetamine with Purpose to Deliver, he was found to be a
career offender. In calculating Rivera’s advisory Sentencing Guidelines range, the
district court applied a two-level increase for possession of a firearm in connection
with another felony offense and a two-level increase for reckless endangerment
during flight. He challenges each of those conclusions on appeal.

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II. DISCUSSION
We review a district court’s application of the Sentencing Guidelines de novo,
and its factual findings for clear error. United States v. Anderson, 618 F.3d 873, 879
(8th Cir. 2010) (citation omitted).
A. Career Offender Status
Rivera asserts the district court erred when it classified him as a career
offender within the meaning of § 4B1.1 of the United States Sentencing Guidelines.
Under § 4B1.1(a), a defendant qualifies as a “career offender” if he has at least two
prior felony convictions for either a crime of violence or a controlled substance
offense, is at least eighteen years old at the time of the offense, and the instant felony
offense is a crime of violence or controlled substance offense. Section 4B1.2(a)
defines a “crime of violence” as:
[A]ny offense under federal or state law, punishable by imprisonment
for a term exceeding one year, that-
(1) has as an element the use, attempted use, or threatened use of
physical force against the person of another, or
(2) is murder, voluntary manslaughter, kidnapping, aggravated assault,
a forcible sex offense, robbery, arson, extortion, or the use or unlawful
possession of a firearm described in 26 U.S.C. § 5845(a) or explosive
material as defined in 18 U.S.C. § 841(c).
Rivera acknowledges that we have found Arkansas robbery to fit within the
generic federal definition of robbery and to qualify as a “crime of violence” under
the enumerated offenses clause of § 4B1.2(a)(2). See United States v. Stovall, 921
F.3d 758, 761 (8th Cir. 2019). He contends, however, that his prior Arkansas
conviction for Accomplice to Robbery does not qualify as a predicate to support the
career offender enhancement because it is an inchoate offense not listed in the
Guidelines. Rivera claims that because the Guidelines fail to include aiding and
abetting offenses, the commentary impermissibly expands the definition of “crime
of violence” beyond what the text allows. See U.S.S.G. § 4.B1.2 cmt. n. 1.

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In Stinson v. United States, 508 U.S. 36 (1993), the Supreme Court held that
the Guidelines commentary was to “be treated as an agency’s interpretation of its
own legislative rule.” Id. at 44. Based on Stinson, this Court decided the
commentary was a reasonable interpretation of the Guidelines and was within the
Sentencing Commission’s statutory authority. United States v. Mendoza-Figueroa,
65 F.3d 691, 693-94 (8th Cir. 1995) (en banc).
The law has undergone significant developments since Stinson was decided,
some of which may cast doubt on our precedent in Mendoza-Figueroa. For instance,
in 2019, the Supreme Court, in Kisor v. Wilkie, 139 S. Ct. 2400 (2019), held that
deference to an agency’s own interpretation is to be afforded only when (1) the law
is “genuinely ambiguous”; (2) the agency’s proposed interpretation is reasonable;
(3) the interpretation is the agency’s “authoritative” or “official position”; (4) the
regulatory interpretation implicates the agency’s substantive expertise; and (5) the
agency’s regulatory interpretation reflects “fair and considered judgment.” Id. at
2415-17 (citations omitted). The Kisor Court cautioned lower courts to “carefully
consider the text, structure, history, and purpose of a regulation, in all the ways it
would if it had no agency to fall back on.” Id. at 2415 (cleaned up).
After Kisor, several of our sister circuits revisited the deference to be given to
the Guidelines commentary and overruled their prior precedents, concluding the
definition of controlled substance offenses in § 4B1.2(b) does not include inchoate
crimes. See, e.g., United States v. Dupree, 57 F.4th 1269, 1279 (11th Cir. 2023) (en
banc); United States v. Nasir, 17 F.4th 459, 472 (3d Cir. 2021) (en banc); United
States v. Castillo, 69 F.4th 648, 664 (9th Cir. 2023). Recently, the Fifth Circuit,
applying Stinson deference, reaffirmed its “longstanding precedent that inchoate
offenses like conspiracy are included in the definition of ‘controlled substance
offense’ while explaining, in the alternative, it would also defer to the commentary
under Kisor. United States v. Vargas, __ F.4th __, 2023 WL 4702277, *19 (5th Cir.
July 24, 2023) (en banc). A few weeks before Kisor was decided, the Sixth Circuit
abrogated its precedent and found the Sentencing Commission had no power to add

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attempt crimes to the list of offenses in § 4B1.2(b) through commentary. United
States v. Havis, 927 F.3d 382, 386-87 (6th Cir. 2019). In reaching this conclusion,
the Sixth Circuit asserted that, unlike the Guidelines, the “commentary to the
Guidelines never passes through the gauntlets of congressional review or notice and
comment.” Id. at 386. Similar reasoning has been employed by our sister circuits
that have determined Kisor applies to the Guidelines’ commentary. But there are
grounds for questioning this reasoning.
The United States Sentencing Commission routinely publishes notice of its
intention to amend the commentary and application notes to the Guidelines. See
e.g., U.S. Sent. Comm., Notice of Submission to Congress of Amendments to the
Sentencing Guidelines Effective November 1, 2023, and Request for Comment, 88
Fed. Reg. 28254 et seq. (May 3, 2023). Nor is there a basis to believe Congress has
treated the commentary differently than the black-letter Guidelines. History reflects
that Congress has actively overseen the substance of the commentary to the
Guidelines. By way of example, in 2003, Congress amended certain commentary
provisions as part of the Prosecutorial Remedies and Other Tools to end the
Exploitation of Children Today Act of 2003 (“PROTECT Act”), Pub. L. No. 108-
21, 117 Stat. 650. Section 401(g) of the PROTECT Act directly amended
Application Note 6 and the background commentary to U.S.S.G. § 3E1.1
(Acceptance of Responsibility), and Section 401(i)(1)(A) of the PROTECT Act
directly amended Application Note 4(b)(i) to U.S.S.G. § 4B1.5 (Repeat and
Dangerous Sex Offender Against Minors).
On other occasions, Congress has instructed the Sentencing Commission to
reevaluate commentary in light of various policy concerns. See Artists’ Rights and
Theft Prevention Act of 2005, Pub. L. No. 109-9, § 105(c)(3), 119 Stat. 218 (2005)
(instructing the Sentencing Commission to, among other things, “determine whether
the scope of ‘uploading’ set forth in application note 3 of section 2B5.3 of the
Federal sentencing guidelines is adequate to address the loss attributable to people
who, without authorization, broadly distribute copyrighted works over the
Internet”); see also Stop Counterfeiting in Manufactured Goods Act, Pub. L. No.

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109-181, § 1(c)(3), 120 Stat. 285 (2006) (instructing the Sentencing Commission to
“determine whether the definition of ‘infringement amount’ set forth in application
note 2 of section 2B5.3 of the Federal sentencing guidelines is adequate to address”
certain situations).
The First and Second Circuits have expressed a desire to follow the lead of
these circuits but found themselves bound by their precedent. See United States v.
Lewis, 963 F.3d 16, 24-25 (1st Cir. 2020); United States v. Tabb, 949 F.3d 81, 87
(2d Cir. 2020). Still other circuits have declined to find that Kisor alters the standard
for the deference owed to the Guidelines commentary. See, e.g., United States v.
Maloid, 71 F.4th 795, 803-817 (10th Cir. 2023) (concluding Kisor did not change
the standard of deference given to the Guidelines’ commentary, and the district court
did not plainly err in applying a modern definition of conspiracy in defining generic
conspiracy under the Guidelines); United States v. Moses, 23 F.4th 347, 357 (4th
Cir. 2022) (stating since Kisor did not purport to overrule Stinson, it is not the court’s
role to find that it did), cert. denied, 143 S. Ct. 640, 640 (2023), contra United States
v. Campbell, 22 F.4th 438, 445 (4th Cir. 2022) (noting the traditional tools for
statutory construction do not support the government’s contention that the court
should defer to the commentary); United States v. Smith, 989 F.3d 575, 585-86 (7th
Cir. 2021) (reaffirming its precedent that the Guidelines commentary is
authoritative); United States v. Babcock, 40 F.4th 1172, 1185 (10th Cir. 2022)
(acknowledging its precedent that the Guidelines commentary is authoritative).
With that background, Rivera contends Kisor renders our holding in
Mendoza-Figueroa no longer controlling. Since Kisor, we have followed Mendoza-
Figueroa in several cases, though none of our post-Kisor precedent has substantively
reviewed Mendoza-Figueroa. See United States v. Jefferson, 975 F.3d 700, 708 (8th
Cir. 2020) (rejecting challenge that inchoate offenses were not controlled substance
offenses on the ground that Court was bound by Mendoza-Figueroa); United States
v. Broadway, 815 F. App’x 95, 96 n.2 (8th Cir. 2020) (per curiam) (noting that even
if the law had evolved since 1995, the panel was unable to overrule Mendoza-
Figueroa); United States v. Merritt, 934 F.3d 809, 811 (8th Cir. 2019) (concluding

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argument that drug conspiracy convictions do not fall within the definition of a
controlled substance offense because the commentary cannot add conspiracy
offenses to the Guidelines was foreclosed by Mendoza-Figueroa); United States v.
Miller, 857 F. App’x 877, 878 (8th Cir. 2021) (per curiam) (noting the Sentencing
Commission has published a proposed amendment to § 4B1.2 that would resolve
circuit split and summarily stating Kisor has not undermined Mendoza-Figueroa).
While there is circuit disagreement on the deference to be afforded the
Guidelines’ commentary, the weight of authority may suggest that Kisor undermines
the Court’s decision in Mendoza-Figueroa. The question, though interesting, is not
one we are empowered to resolve today, as we are obligated to follow our precedent
until it is overruled by the Court sitting en banc. United States v. Manning, 786 F.3d
684, 686 (8th Cir. 2015) (citation omitted). Since Rivera’s claim is foreclosed by
Eighth Circuit precedent, the ultimate answer to this question awaits another day.2
B. Dangerous Weapons Enhancement
Rivera contends the district court erred in applying the dangerous weapons
enhancement under U.S.S.G. § 2D1.1(b)(1), asserting there was no spatial and
temporal nexus between when he was found with drugs and when he was found with
firearms. This enhancement applies if the government proves, by a preponderance
of the evidence: (1) the gun was possessed, and (2) it was not clearly improbable
that the weapon was connected to the drug offense. See Anderson, 618 F.3d at 880.
2 There may be another potential argument for not reaching the Kisor question
in this particular case. Rivera was convicted of robbery using an accomplice-
liability theory rather than as a principal. See United States v. Baca-Valenzuela, 118
F.3d 1223, 1232 (8th Cir. 1997) (“A fundamental theory of American criminal law
is that there is no offense of aiding and abetting or accomplice liability as such.”).
Because we find Rivera’s claim foreclosed by precedent, we need not determine the
significance of the commentary to U.S.S.G. § 4B1.2 expressly including “crimes of
violence” or “controlled substance” offenses involving aiding and abetting,
conspiracy, and attempting to commit such offenses, while the Guideline at issue in
Baca-Valenzuela, § 2L1.1, did not.

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The first prong (possession) does not require proof of ownership of either the
weapon or of the premises where the gun was found. Id. at 879 (citation omitted).
In addition, the defendant need not be observed using the weapon; it is sufficient if
the government demonstrates the defendant “exercised ownership, dominion, or
control” of either the firearm or the premises where the firearm is located. Id. at 880
(citing United States v. Payne, 81 F.3d 759 (8th Cir. 1996)).
The district court found Rivera possessed two weapons on May 16, as they
were seized from a vehicle he was driving, and he admittedly owned them. “Once
a district court has found that a gun was possessed during commission of the offense,
the court must impose the § 2D1.1(b)(1) enhancement unless it is clearly improbable
that the weapon was connected to the offense.” Id. (citing United States v. Peroceski,
520 F.3d 886, 889 (8th Cir. 2008)).
Rivera argues that the evidence is insufficient to conclude his activities on
May 16 were part of the same course of conduct as his activities at the motel on
March 3. The dangerous weapon enhancement is applicable if the firearm is found
during “relevant conduct,” as defined in U.S.S.G. § 1B1.3(a)(2) and is not limited to
the offense of conviction. United States v. Ault, 446 F.3d 821, 824 (8th Cir. 2006)
(citations omitted). As the district court pointed out, both instances involved drug
trafficking related conduct, with the only difference being the seizure of a
distributable quantity of methamphetamine in March while there was no seizure of
drugs but evidence of drug trafficking at the time of Rivera’s arrest in May.
Specifically, the district court noted the discovery of two scales, one with
methamphetamine residue, a pipe with residue, baggies, and two firearms. Notably,
Rivera was out on bond for the March possession offense when he was observed at
a known drug house and his companion acknowledged that she and Rivera had met
with a known drug trafficker.
On this record, the district court did not clearly err in finding the events
surrounding the May arrest and seizure of evidence was relevant conduct under the

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Guidelines because they were part of Rivera’s course of conduct—his ongoing drug
trafficking activities—during this three-month period. See id. (citation omitted).
The two-level enhancement under U.S.S.G. § 2D1.1(b)(1) applies.
C. Reckless Endangerment Enhancement
Finally, Rivera asserts the district court erred when it applied a two-level
enhancement for reckless endangerment during flight pursuant to U.S.S.G. § 3C1.2.
We have previously applied the reckless endangerment adjustment to a defendant
fleeing on foot as well as by car. See United States v. Bates, 561 F.3d 754, 757 (8th
Cir. 2009) (citation omitted). Our precedent provides that “during flight should be
broadly construed and includes conduct in the course of resisting arrest.” United
States v. McDonald, 521 F.3d 975, 979 (8th Cir. 2008) (cleaned up). In this case,
Rivera fought with two officers and successfully grabbed an officer’s taser. He then
attempted to grab the other officer’s duty weapon and was only finally subdued when
two bystanders rushed to the aid of the officers. Rivera’s conduct undoubtedly
created a substantial risk of injury or death to the officers and bystanders, even
though Rivera was tackled the moment he attempted to flee. And as we previously
noted, Rivera’s actions that day were relevant conduct under the Guidelines. The
district court did not err in imposing a two-level enhancement for reckless
endangerment.
III. CONCLUSION
The judgment of the district court is affirmed.
STRAS, Circuit Judge, concurring in part and concurring in the judgment.
A robbery is a robbery no matter how it is committed. Rivera happened to do
it as an accomplice rather than as a principal. See Ark. Code Ann. §§ 5-2-403, 5-
12-102. But that does not change “the crime of which he is guilty.” United States
v. Baca-Valenzuela, 118 F.3d 1223, 1232 (8th Cir. 1997); see Cook v. State, 86

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S.W.3d 916, 923 (Ark. 2002) (explaining that, under Arkansas law, “[w]hen two
persons assist one another in the commission of a crime, each is an accomplice and
criminally liable for the conduct of both”). No separate crime of aiding and abetting
exists, no matter the “underlying offense.” Baca-Valenzuela, 118 F.3d at 1232.
We have already held that an Arkansas robbery conviction counts as a “crime
of violence” because it meets the generic definition of robbery under the
enumerated-offenses clause. United States v. Stovall, 921 F.3d 758, 761 (8th Cir.
2019). Stovall, which interprets the career-offender provision, tells us everything
we need to know. There is no need to consult the commentary to understand that
“aiding and abetting” robbery—one way of committing it—qualifies as a “crime of
violence.” U.S.S.G. § 4B1.2 cmt. n.1. Deference is beside the point.
I have no doubt that we will need to address the impact of Kisor at some point.
Compare United States v. Dupree, 57 F.4th 1269, 1279 (11th Cir. 2023) (en banc)
(declining to defer to the commentary accompanying the career-offender provision
after Kisor), with United States v. Smith, 989 F.3d 575, 584–86 (7th Cir. 2021)
(reaffirming that the Guidelines commentary is authoritative). But the circuit split
that has developed in its wake focuses on how to treat inchoate offenses like
conspiracy and attempt, not crimes committed as an accomplice. See, e.g., Dupree,
57 F.4th at 1277–79 (concluding that “the plain language . . . in § 4B1.2
unambiguously excludes inchoate offenses” (emphasis added)); see also United
States v. Castillo, 69 F.4th 648, 652 (9th Cir. 2023) (explaining that “inchoate
offenses” include “attempt, conspiracy, and solicitation” (quoting Inchoate Offenses,
Black’s Law Dictionary (11th ed. 2019))). The court’s discussion of deference is
better left for a case in which it matters.

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