                                In the

     United States Court of Appeals
                  For the Seventh Circuit
                      ____________________
No. 15-1372
UNITED STATES OF AMERICA,
                                                    Plaintiff-Appellee,
                                  v.

CHRISTOPHER R. SEALS,
                                                Defendant-Appellant.
                      ____________________

          Appeal from the United States District Court for the
          Northern District of Indiana, Fort Wayne Division.
          No. 13-cr-46 — Hon. Theresa L. Springmann, Judge.
                      ____________________

   ARGUED DECEMBER 9, 2015—DECIDED FEBRUARY 23, 2016
                ____________________

   Before EASTERBROOK and HAMILTON, Circuit Judges, and
PALLMEYER, District Judge. *
   PALLMEYER, District Judge. Three armed men robbed a
bank in Fort Wayne, Indiana on Valentine’s Day 2013. A jury
determined that Christopher Seals was one of those men,
convicting him in September 2014 of armed bank robbery,


     * The Honorable Rebecca R. Pallmeyer, United States District Court
for the Northern District of Illinois, sitting by designation.
2                                                       No. 15-1372

brandishing a firearm during a crime of violence, and pos-
session of a firearm after a felony conviction. The district
court sentenced Seals to 272 months in prison. On appeal,
Seals argues that his conviction should be reversed because
the government introduced improper propensity evidence.
He also argues that his sentence should be vacated due to
the district court’s allegedly erroneous application of two
different sentencing enhancements. We affirm Seals’ convic-
tion, but vacate his sentence, and remand for resentencing.
                                  I
    At approximately 9:10 a.m. on February 14, 2013, three
masked men walked into a PNC Bank in Fort Wayne, Indi-
ana. They pointed their guns at bank employees, including a
teller, Brittany Schweitzer; handcuffed the manager; and left
the bank with approximately $100,000 and a bank employ-
ee’s cell phone in a floral case, which they placed in a “tan-
nish” backpack. The entire episode took roughly four
minutes. No one caught a glimpse of the getaway vehicle.
    When officers arrived on the scene, they discovered a
loaded handgun that the robbers had left behind. Subse-
quent forensic analysis found Seals’ DNA on the ammuni-
tion inside the gun. The gun itself yielded no identifiable
DNA.
   That same morning, before the bank robbery took place,
Deyante Stephens received a call from Charles Seals 1, De-
fendant’s brother, asking Stephens to meet Charles in the
parking lot of a grocery store down the street from the PNC


    1 To avoid confusion, we refer to the Appellant as “Seals” or “De-
fendant,” while we will refer to his brother exclusively as “Charles.”
No. 15-1372                                                     3

Bank. Stephens arrived in the parking lot just after 9:00 a.m.
and Charles appeared shortly thereafter, driving a black In-
finiti. Seals was seated in the passenger seat of the Infiniti,
and a third man, unknown to Stephens, sat in the back.
Charles got into Stephens’ car and gave Stephens a tan bag
containing cash and a cell phone in a floral case, and the men
parted ways. Stephens and Charles met again that night at
Stephens’ mother’s house, and Stephens returned the bag to
Charles. Charles gave Stephens $3,500 for his efforts.
    Almost a month later, on March 13, 2013, a customer at a
Fort Wayne credit union noticed two masked men in the
woods nearby. The customer called the police, but the men
fled the scene before officers arrived. A subsequent search of
the woods turned up a black ski mask with hand-cut eye
holes similar to the one that Schweitzer said the PNC rob-
bers had worn. The mask contained Seals’ DNA.
    On March 20, 2013, a Fort Wayne police officer attempted
to initiate a traffic stop of a black Infiniti, and a chase ensued
at speeds “approaching a hundred miles an hour.” The chase
ended only when the Infiniti crashed into parked cars, at
which point two of its occupants, including the driver, fled
on foot. They were not apprehended. A third man, Nadier
Armour, remained in the vehicle, but he refused to cooperate
with law enforcement officials. Officers searched the car and
found a handgun, a cell phone, a traffic citation that had
been issued to Seals, and Seals’ driver’s license. They also
discovered a second black ski mask, four boxes of ammuni-
tion—some of which matched the caliber of the gun recov-
ered from the bank—and $1,231 in $1 and $10 bills.
    Seals voluntarily met with the FBI on May 1, 2013. Seals
initially denied any involvement with the PNC robbery, but
4                                                         No. 15-1372

when confronted with the fact that his DNA was recovered
from the ammunition inside the gun left behind at the bank,
his story changed. Seals told agents that he had loaded the
gun for his brother, but that his participation ended there.
    A grand jury returned a three-count indictment 2 against
Seals on May 22, 2013. Prior to trial, the government notified
Seals and the court that it planned to introduce the mask re-
covered from the woods in order to show Seals’ identity. The
district court held an evidentiary hearing on the issue. Seals
conceded that the mask itself was admissible, as would be a
“simple description of when and where the mask was
found.” The district court ruled that the mask was admissi-
ble, and that the government could elicit testimony about
“the fact that police responded to the area of the [credit un-
ion] to investigate suspicious behavior, and recovered a
mask with the Defendant’s DNA.” Such testimony was “nec-
essary,” the court concluded, “to present a complete picture
to the jury and this context is not so prejudicial, when
weighed against the probative value, as to warrant its exclu-
sion.” But the court prohibited the government from intro-
ducing any testimony regarding “the details of the masked
individuals’ behavior prior to the arrival of the police” in or-
der to “reduce the risk of unfair prejudice.”
   At trial, the government called Stephens, Schweibert, and
numerous law-enforcement officials as witnesses. The DNA
evidence from the ammunition recovered from the bank and


    2  Specifically, the indictment charged Seals with armed bank rob-
bery, in violation of 18 U.S.C. §§ 2113(a) & (d); brandishing a firearm
during a crime of violence, in violation of 18 U.S.C. § 924(c); and pos-
sessing a firearm while a felon, in violation of 18 U.S.C. § 922(g).
No. 15-1372                                                     5

the ski mask recovered from the woods were also presented.
Fort Wayne police officer Christine Armstead testified about
the circumstances leading to the mask’s discovery. She re-
called responding to a “suspicious person’s report” on the
morning of March 20, 2013, specifically a report that “some
individuals in the woods wearing masks” had been observed
“crawling towards the bank … .” Armstead continued, re-
counting that “[w]hen [she] arrived, [she] went to the bank
to speak with the tellers to get more information.” The pros-
ecutor cut off Armstead at this point, saying, “Let me stop
you right there. I just want to cover the recovery of the evi-
dence, okay?” The government also made the following ref-
erence to the mask as part of its closing argument:
   This is how we know who is under the mask. After
   the bank robbery, there were some circumstances—
   and the circumstances aren’t particularly important—
   but there were some circumstances where some guys
   were out milling around in the woods suspiciously,
   and that’s just how the officers get out there. So offic-
   ers go out, Christine Armstead is the officer in partic-
   ular who recovers the black mask that we held up or
   that I held up and we showed there at the trial. Saw
   what that thing was. It’s the same kind of mask that’s
   later found in the black Infiniti, and it’s the same thing
   you see in the surveillance video.
   Seals mounted an alibi defense, calling two witnesses
who testified that Seals was at their house on the day of the
robbery. Only one of the alibi witnesses could definitely say
that Seals was at the house during the robbery—the other
was asleep at the time—and her testimony was inconsistent
6                                                     No. 15-1372

with Seals’ own statement to the FBI. The jury convicted
Seals on all three counts.
    Seals’ crimes carried a base offense level of 20, and his
criminal history category is III. The court imposed multiple
sentencing enhancements, two of them related to the March
20, 2013 car chase: (1) a two-level enhancement for reckless
endangerment during flight, U.S.S.G. § 3C1.2, and (2) a four-
level enhancement for the use of a firearm (i.e., the handgun
recovered from the chase vehicle) “in connection with” an-
other felony (i.e., the car chase), id. § 2K2.1(b)(6)(B). Seals ar-
gued that there was insufficient evidence to prove that he
was in the black Infiniti during the chase, but the court disa-
greed, finding (1) that Seals occupied the passenger seat of
the Infiniti as it fled from the police and (2) that Seals fled
from the scene on foot after the Infiniti crashed. The court
based its conclusion on the fact that “there were numerous
items found in the car connecting the vehicle with [Seals].”
The court did not make any findings regarding Seals’ partic-
ipation in the chase. In the end, the district court calculated
Seals’ offense level as 34, yielding a Guideline range of 188 to
235 months in prison on Count One, 84 months on Count
Two, and 120 months on Count Three. The court imposed a
sentence of 188 months on Count One, 84 months on Count
Two to run consecutively to Count One, and 120 months on
Count Three, running concurrent to Count One, for a total of
272 months.
                                II
    Seals argues that a new trial is necessary due to the dis-
trict court’s failure to “undertake any analysis of the proba-
tive value of [Officer Armstead’s testimony regarding the
mask’s discovery] or its prejudicial effect.” Evidence of a de-
No. 15-1372                                                                  7

fendant’s prior bad acts is inadmissible to show propensity
to commit a crime. FED. R. EVID. 404(b)(1). Such evidence
may be introduced only “when its admission is supported
by some propensity-free chain of reasoning.” United States v.
Gomez, 763 F.3d 845, 856 (7th Cir. 2014) (en banc). This analy-
sis requires the court to consider not just “whether the pro-
posed other-act evidence is relevant to a non-propensity
purpose but how exactly the evidence is relevant to that
purpose.” Id. The probative value of other-act evidence must
then be weighed against its potential prejudice. Id. at 857 3;
see also FED. R. EVID. 403 (authorizing district court to exclude
“relevant evidence” if its probative value is “substantially
out-weighed by a danger of … unfair prejudice”). Evidence
is “unduly prejudicial” if it creates a risk that invites an irra-
tional emotional response from the jury. United States v. Mil-
ler, 688 F.3d 322, 327 (7th Cir. 2012).
    We review the district court’s admission of evidence un-
der Rule 404(b) for an abuse of discretion. United States v.
Richards, 719 F.3d 746, 758 (7th Cir. 2013). Even when an
abuse of discretion occurs, however, reversal follows only if
admission of the evidence affected the defendant’s “substan-
tial rights.” FED. R. CRIM. P. 52(a); United States v. Hicks,
635 F.3d 1063, 1069 (7th Cir. 2011). In making that evaluation,
we must “gauge what effect the error had or reasonably may
be taken to have had upon the jury’s decision.” Hicks, 635


    3  Although this court decided Gomez after Seals’ trial, other post-
Gomez decisions have also applied the Gomez test in reviewing pre-Gomez
cases. See, e.g., United States v. Stacy, 769 F.3d 969, 975–76 (7th Cir. 2014).
In any event, the previous test in this circuit was functionally equivalent
to the one identified in Gomez. See, e.g., United States v. Miller, 673 F.3d
688, 702 (7th Cir. 2012).
8                                                 No. 15-1372

F.3d at 1069 (citing United States v. Zapata, 871 F.2d 616, 622
(7th Cir. 1989)).
    Seals complains that Officer Armstead’s reference to the
“bank” and its “tellers” in her testimony about the discovery
of the mask at the credit union should have been prohibited
under Gomez because it had no purpose “other than to show
that Christopher had a propensity to commit bank rob-
beries.” Assuming the district court erred at all, we conclude
that no new trial is warranted.
   Regarding Seals’ conviction for being a felon in posses-
sion of a firearm, there can be no doubt that any error re-
garding 404(b) evidence was harmless. Seals himself had
admitted to loading the gun for his brother, and his DNA
was discovered on the ammunition inside the gun recovered
from the crime scene. That alone is sufficient to sustain his
conviction under 18 U.S.C. § 922(g)(1).
    As to the two charges stemming from the robbery itself,
Officer Armstead’s brief testimony likely had little impact on
the jury’s determination, given the significant evidence
against Seals: Three men robbed the PNC Bank at approxi-
mately 9:10 a.m. on February 14, 2013. Stephens identified
Seals as one of three men in the car with Charles when
Charles met Stephens just minutes after the robbery to hand
off the spoils of the heist. Seals’ DNA was inside the gun
used at the robbery. And Seals’ DNA was found inside a
homemade ski mask like the ones used by the PNC robbers.
Seals’ alibi defense was also makeweight. The testimony of
the only witness who claimed to have seen Seals at the time
of the robbery conflicted with Seals’ own statements to FBI
agents. In short, because the record contained substantial ev-
idence of Seals’ guilt, Officer Armstead’s brief testimony al-
No. 15-1372                                                     9

most certainly had little, if any, impact on the jury’s delibera-
tions. See United States v. Miller, 688 F.3d 322, 330 (7th Cir.
2012) (finding that the “fleeting” admission of propensity
evidence without conducting a Rule 403 analysis was harm-
less where “the unchallenged evidence introduced by the
government clearly established [the defendant’s] guilt be-
yond a reasonable doubt”); cf. United States v. Byrd, 208 F.3d
592, 594 (7th Cir. 2000) (“Exclusion of evidence which is the
only or the primary evidence in support of a defense is
deemed to have had a substantial effect on the jury.”). We,
therefore, affirm Seals’ conviction.
                               III
   Seals also argues that the district court erred in applying
a pair of sentencing enhancements stemming from the high-
speed car chase that occurred on March 20, 2013: (1) a two-
level enhancement for reckless endangerment during flight
under U.S.S.G. § 3C1.2; and (2) a four-level enhancement for
use of a firearm “in connection with” another felony under
U.S.S.G. § 2K2.1(b)(6)(B). He asks this court to reverse the
application of these enhancements and remand for resen-
tencing. Seals claims that the district court erred by (1) ap-
plying both enhancements without making a finding that
Seals participated in or encouraged the car chase and (2) ap-
plying § 2K2.1(b)(6)(B) in particular because he did not
commit “another felony” and there was no firearm used or
possessed “in connection with” the high-speed chase.
                                A
    Generally speaking, we review a district court’s applica-
tion of the Sentencing Guidelines de novo and any underly-
ing factual findings for clear error. See United States v. Turner,
10                                                  No. 15-1372

400 F.3d 491, 500 (7th Cir. 2005). More deference is due,
however, where an appellant failed to properly raise a claim
below either by waiver or forfeiture. Waiver occurs when a
defendant “intentionally relinquishes or abandons a known
right.” United States v. Walton, 255 F.3d 437, 441 (7th Cir.
2001) (internal quotation marks omitted). Forfeiture, on the
other hand, occurs when a party fails to raise an argument
due to accident or neglect. Id. Waived issues cannot be re-
viewed, while forfeited ones are reviewed for plain error. Id.
Under plain-error review, the defendant must show that
(1) there was error, (2) it was plain rather than subject to rea-
sonable dispute, (3) it affected his substantial rights, and
(4) the court should exercise its discretion to correct the error
because it seriously affected the fairness, integrity, or public
reputation of the judicial proceedings. See United States v.
Olano, 507 U.S. 725, 732-35 (1993); United States v. Jaimes-
Jaimes, 406 F.3d 845, 847-49 (7th Cir. 2005).
    The government contends that Seals affirmatively
waived any sentencing-related arguments other than the
sole objection he raised below: that he was not in the car
during the chase. We do not read the record so narrowly,
however. Although Seals’ objection to the enhancements at
sentencing hinged on a single argument, he never actively
disclaimed the positions he now raises. He therefore forfeit-
ed, but did not waive, the issues now before us. See Jaimes-
Jaimes, 406 F.3d at 848 (7th Cir. 2005) (“[W]e do not read our
cases as establishing an inflexible rule that every objection
not raised at a sentencing hearing is waived. The touchstone
of waiver is a knowing and intentional decision.”)
No. 15-1372                                                  11

                              B
    Section 1B1.3 of the Guidelines limits the application of
certain sentencing enhancements to “relevant conduct” (i.e.,
conduct related to the offense(s) of conviction). This section
reads, in pertinent part, as follows:
   Unless otherwise specified, … cross references in
   Chapter Two [and] adjustments in Chapter Three,
   shall be determined on the basis of … all acts and
   omissions committed, aided, abetted … or willfully
   caused by the defendant [and] all reasonably foresee-
   able acts and omissions of others in furtherance of [a]
   jointly undertaken criminal activity that occurred
   during the commission of the offense of conviction, in
   preparation for that offense, or in the course of at-
   tempting to avoid detection or responsibility for that
   offense.
U.S.S.G. § 1B1.3(a).
    This circuit has never explicitly reached the question of
whether § 1B1.3(a) demands that either enhancement at is-
sue here—U.S.S.G. §§ 2K2.1(b)(6)(B) and 3C1.2—be related
to the offense of conviction. But the plain language of the
Guidelines as well as decisions from numerous other circuits
suggest that the answer is “yes.”
    On its face, § 2K2.1(b)(6)(B) appears to be an exception to
the relatedness required by § 1B1.3(a), given that it applies
where a defendant “used or possessed a firearm … in con-
nection with another felony offense.” But the application
notes to § 2K2.1(b)(6)(B) refer directly to § 1B1.3(a), making
clear that the firearm in question must be “part of the same
course of conduct or common scheme or plan” as the offense
12                                                          No. 15-1372

of conviction. U.S.S.G. § 2K2.1 cmt. n. 14(E)(ii) (citing id.
§ 1B1.3(a)(2)).
    The connection between §§ 1B1.3(a) and 3C1.2 is similar-
ly undeniable. The circuits that have considered the issue
agree that the enhancement applies only to conduct related
to the offense of convection. See United States v. Porter, 413 F.
App’x 526, 531 (3d Cir. 2011) (“[F]or § 3C1.2 to apply, Por-
ter’s [reckless flight from law enforcement] must have oc-
curred during the course of attempting to avoid detection or
responsibility for [his offense of conviction].”) (internal quo-
tation marks omitted); United States v. Dial, 524 F.3d 783 (6th
Cir. 2008) (“When applying § 3C1.2, the district court must
find a nexus between the offense for which the defendant
was convicted and the conduct that involved reckless en-
dangerment during flight.”); United States v. Southerland, 405
F.3d 263, 268 (5th Cir. 2005) (requiring that the government
prove “that a sufficient nexus lie between the underlying of-
fense and the reckless flight”); see also United States v. Gray,
512 F. App’x 803, 808 (10th Cir. 2013) (assuming, without de-
ciding, that a nexus is required); United States v. Duran, 37
F.3d 557, 559-60 (9th Cir. 1994) (same), abrogated on other
grounds by Tapia v. United States, 564 U.S. 319 (2011). We join
our colleagues in concluding that U.S.S.G. § 1B1.3(a) limits
the application of §§ 2K2.1(b)(6)(B) and 3C1.2 to conducted
related to the offense of conviction. 4




     4The applicable standard is outlined in U.S.S.G. § 1B1.3 (and § 2K2.1
cmt. n. 14(E)(ii)). We see no need to adopt the five-part test developed by
the Fifth Circuit in Southerland, 405 F.3d at 268, and later adopted by the
Sixth Circuit in Dial, 524 F.3d at 787.
No. 15-1372                                                               13

    In this case, the district court made no findings that
would support the conclusion that the offenses of convic-
tion—all of which stem from the robbery on February 14,
2013 5—were connected to the behavior underlying the two
enhancements applied here (i.e., the possession of a firearm
and the reckless flight). 6 Application of the enhancements
without such a finding constitutes error.
    The district court’s application of §§ 2K2.1(b)(6)(B) and
3C1.2 is also plagued by another misstep: the court made no
factual findings regarding Seals’ participation in the March
20 car chase. Under § 3C1.2, a defendant is responsible for
only his “own conduct and for conduct that the defendant
aided or abetted, counseled, commanded, induced, pro-
cured, or willfully caused.” U.S.S.G. § 3C1.2 cmt. n.5. Alt-

    5 The government concedes that “the gun supporting [Seals’ felon-
in-possession conviction] was the one used during the robbery” and not
the one discovered in the car following the March 20, 2013 chase.
    6  The government nevertheless argues that “a sufficient factual basis
exists” to affirm Seals’ sentence. It points to “numerous links between
the robbery and car chase (including the presence at both of Charles, a
mask, a gun, .38-caliber ammunition, and robbery proceeds).” But the
government misreads the Guidelines on this issue. The examples in the
application notes to § 1B1.3 indicate that the facts listed by the govern-
ment do not, standing alone, support a finding that the bank robbery and
the car chase were part of a “common scheme or plan” or the “same
course of conduct.” Rather, the drafters of the Guidelines intended for
these concepts to connect, for sentencing purposes, criminal activity that
otherwise might be considered separately, such as long-term conspira-
cies and “offenses … sufficiently connected … to each other as to war-
rant the conclusion that they are part of a single episode, spree, or ongo-
ing series of offenses.” U.S.S.G. § 1B1.3 cmt. n. 5(B)(i)-(ii). In any event,
such findings are better left to the district court, and we leave those de-
terminations to be made in the first instance on remand.
14                                                          No. 15-1372

hough this is a matter of first impression before this court,
every circuit to consider the issue has concluded that, in the
context of a car chase, “some form of direct or active partici-
pation … is necessary for” the enhancement to apply to a
passenger. 7 United States v. McCrimon, 788 F.3d 75, 79 (2d
Cir. 2015); see also United States v. Byrd, 689 F.3d 636, 640 (6th
Cir. 2012) (“To apply this enhancement to a passenger based
on the driver’s reckless conduct, the district court must spe-
cifically find that the passenger ‘was responsible for or
brought about the driver’s conduct in some way.’“ (quoting
United States v. Young, 33 F.3d 31, 32-33 (9th Cir. 1994))). The
district court erred when it applied § 3C1.2 without making
a finding that Seals either caused or otherwise aided and
abetted in the chase.
    This error affects the application of § 2K2.1(b)(6)(B), as
well. That section, as discussed above, applies a four-level
enhancement where a defendant “used or possessed any
firearm … in connection with another felony offense.” The
court applied this enhancement to Seals based on the hand-
gun discovered in the vehicle abandoned after the March 20,
2013 chase. The “other offense” was Seals’ participation in
the car chase, a felony under Indiana law. See Ind. Code


     7The district court specifically found that Seals was the passenger of
the Infiniti and not the driver during the March 20 chase based on the
following exchange between Seals and a police officer from Seals’ May 1,
2013 interview:
     Officer:    You were with [Charles Seals] in the crash?
     Defendant: Yeah, cause that’s my car, that’s why.
     Officer:    You weren’t driving.
     Defendant: I know.
No. 15-1372                                                  15

§§ 35–44.1-3-1(a)(3) & 1(b)(1)(A). Yet, as discussed above, the
district court failed to make any findings that support the
notion that Seals was actively involved in the chase. As the
government acknowledges, “[t]hat was error when Seals’
liability under Indiana law required that he assisted or en-
couraged the chase.” See Rosemond v. United States, 134 S. Ct.
1240, 1245 (2014); Smith v. State, 809 N.E.2d 938, 944 (Ind. Ct.
App. 2004)).
                               C
    As the district court erred in applying these enhance-
ments, only two questions remain: (1) were the court’s er-
rors “plain”?; and (2) did its errors impact Seals’ substantial
rights? As noted earlier, the issues before us related to
§ 3C1.2 and 2k2.1(b)(6)(B) present matters of first impression
for the court. The government is quick to point out that we
“rarely find plain error on a matter of first impression” since
such matters are “unlikely to be that obvious” even when
“other circuits … have addressed this issue.” But the fact
that this court “rarely” finds plain error in such instances
does not mean that such a conclusion is never warranted.
And the circumstances of this case justify deviating from the
general rule.
   First, the Guidelines themselves limit the application of
these enhancements to situations where there is some con-
nection between the defendant’s actions and the offense of
conviction. See U.S.S.G. §§ 1B1.3(a); 2K2.1(b)(6)(B) cmt. n.
14(E)(ii). In addition, this court has warned, on multiple oc-
casions, that “Section 1B1.3 reflects the fact that the Sentenc-
ing Guidelines implement a charge-offense system rather
than a real-offense system.” United States v. Allredge, 551 F.3d
645, 647 (7th Cir. 2008); see also United States v. White, 888
16                                                  No. 15-1372

F.2d 490 (7th Cir. 1989); United States v. Talbott, 78 F.3d 1183
(7th Cir. 1996). These cases, decided long before Seals’ sen-
tencing, highlight the ways in which § 1B1.3 narrows the
scope of behavior that is relevant under Chapters Two and
Three of the Guidelines. That §§ 2K2.1(b)(6)(B) and 3C1.2
should only apply to conduct related to the offense of con-
viction was not subject to reasonable dispute at the time of
Seals’ sentencing. The court’s error in applying the en-
hancements was plain.
    The notion that § 3C1.2 applies only where the defendant
participated in the flight is no more controversial. In fact, the
Second Circuit, also in a case of first impression, held that a
district court committed plain error when it applied § 3C1.2
without first finding that the defendant played some role in
the flight from police. United States v. McCrimon, 788 F.3d 75
(2015). The Second Circuit noted that “[e]very other circuit to
consider the issue has held that some form of direct or active
participation … is necessary in order for § 3C1.2 to apply.”
788 F.3d at 79 (internal quotation marks omitted). Thus, it
concluded, “[g]iven the plain meaning of the provision’s
language and the widespread agreement among our sister
circuits, the appropriate standard for applying Section 3C1.2
is not ‘subject to reasonable dispute,’ and the district court’s
error was clear.” Id. (quoting United States v. Marcus, 500 U.S.
258, 262 (2010)). We agree with the Second Circuit’s analysis.
In this case, as in McCrimon, the district court committed
plain error when it applied § 3C1.2 without any factual find-
ings regarding Appellant’s participation in the car chase.
   The second question—whether the court’s errors impact-
ed Seals’ substantial rights—requires little analysis. The gov-
ernment concedes that, if the district court erred, “that error
No. 15-1372                                                   17

prejudiced Seals because it affected his sentence [and] this
Court should remand for a full resentencing.”
    We note, however, that the district court’s error may well
have been harmless had the court not tied its sentencing de-
cision so closely to the Guidelines. Post-Booker, district courts
are free to move away from the details of the Guidelines and
consider conduct, such as the car chase here, for the light it
sheds on the defendant’s incorrigibility and dangerousness.
For instance, remand would not be necessary had the district
judge stated that she would have imposed the same sentence
with or without the enhancements, because she deemed the
car chase significant regardless of its effect on the Guidelines
calculation. In this vein, the district court may well impose a
reasonable sentence equal in length to the original sentence
by exercising its judgment under 18 U.S.C. § 3553(a).
                               IV
   For the foregoing reasons, Seals’ conviction is affirmed
and his sentence is vacated and the case remanded for resen-
tencing consistent with this opinion.
