                  United States Court of Appeals
                              For the Eighth Circuit
                         ___________________________

                                 No. 19-3177
                         ___________________________

                              United States of America

                          lllllllllllllllllllllPlaintiff - Appellee

                                             v.

                               Brandon Leigh Esquibel

                        lllllllllllllllllllllDefendant - Appellant
                                        ____________

                     Appeal from United States District Court
                   for the Northern District of Iowa - Sioux City
                                  ____________

                              Submitted: April 17, 2020
                                Filed: July 10, 2020
                                     [Published]
                                   ____________

Before SMITH, Chief Judge, BENTON and KOBES, Circuit Judges.
                              ____________

PER CURIAM.

      Brandon Esquibel pleaded guilty to being a felon in possession of a firearm. 18
U.S.C. §§ 922(g)(1) & 924(a)(2). The district court1 sentenced him to 110 months in


      1
        The Honorable Leonard T. Strand, Chief Judge, United States District Court
for the Northern District of Iowa.
prison and three years of supervised release. Esquibel appeals his sentence, arguing
that the district court erred in applying sentencing enhancements and calculating his
base offense level. We affirm.

                                           I.

      Officers discovered Esquibel in possession of a firearm during their response to
an unrelated tip that a federal fugitive was at a house in Sioux City, Iowa. Although
the fugitive was not present, officers found Esquibel in the detached garage and
ordered him to put his hands above his head. Esquibel did not obey but instead fled
on foot toward the front of the house. Officers pursued Esquibel and observed him
discard a firearm. After a brief chase and a struggle with one of the officers, Esquibel
was subdued. During a search incident to arrest, officers found 4.79 grams of
methamphetamine on him.

       Esquibel’s base offense level was 20 due to a prior conviction for a controlled
substance offense. The court applied a four-level enhancement because Esquibel
possessed the firearm in connection with another felony offense, a two-level
enhancement because he recklessly created a substantial risk of death or serious bodily
injury to another person in the course of fleeing from a law enforcement officer, and
a two-level enhancement because the firearm was stolen. After factoring in a reduction
for acceptance of responsibility, the court arrived at a Guidelines range of between 110
and 120 months in prison and sentenced Esquibel at the bottom of that range. On
appeal, Esquibel challenges the first two enhancements and the court’s finding that his
previous Iowa drug conviction qualified as a predicate controlled substance offense.

       We review the district court’s legal conclusions, including its determinations as
to whether a prior offense qualifies as a sentence enhancing predicate, de novo and its
factual findings for clear error. See United States v. Dixon, 822 F.3d 464, 465 (8th
Cir. 2016); United States v. Boleyn, 929 F.3d 932, 936 (8th Cir. 2019).




                                          -2-
                                            II.

       The Guidelines prescribe a four-level enhancement where a defendant “used or
possessed [a] firearm . . . in connection with another felony offense,” which is “any
federal, state, or local offense, other than the explosive or firearms possession or
trafficking offenses, punishable by imprisonment for a term exceeding one year . . . .”
United States v. Walker, 771 F.3d 449, 451 (8th Cir. 2014) (quoting U.S.S.G.
§ 2K2.1(b)(6)(B) & cmt. n.14(c)).

       Esquibel concedes that the four-level enhancement properly applies solely
because his possession of a firearm was “in connection with” an Iowa carrying
weapons offense under Walker, but he argues that the court erred in finding that his
possession of a firearm was also “in connection with” his possession of
methamphetamine. This error, he says, directly affected his sentence because the
district court stated that if the carrying weapons offense “was the only felony at issue,
I typically make a three-level downward adjustment by way of a variance because I
find the four-level increase . . . is too harsh in many cases.” Although the court did not
legally err in applying the enhancement due to Esquibel’s Iowa carrying weapons
offense, we may review the argument that an erroneous factual finding affected a
sentence. See United States v. Adkins, 557 F. App’x 637, 638 (8th Cir. 2014).

        “[A] firearm is possessed ‘in connection with’ a drug possession felony if it
‘facilitated, or had the potential of facilitating’ that other felony.” United States v.
Holm, 745 F.3d 938, 940 (8th Cir. 2014) (quoting U.S.S.G. § 2K2.1 cmt. n.14(A)).
Esquibel contends that the district court applied the enhancement based on a temporal
and spatial nexus between the drugs and firearm without applying the “facilitate”
standard found in note 14(A) of § 2K2.1. The district court did not make an explicit
“facilitate” finding, but it “is not required to do so.” United States v. Fuentes Torres,
529 F.3d 825, 827 (8th Cir. 2008); see also United States v. Sneed, 742 F.3d 341, 344
(8th Cir. 2014) (“Although we again strongly encourage district courts to make clear
they are applying the proper § 2K2.1(b)(6)(B) standard with an explicit ‘facilitate’
finding, there was no error of law”). Esquibel was arrested with 4.79 grams of

                                           -3-
methamphetamine, an amount greater than residue. See United States v. Gentry, 555
F.3d 659, 668 (8th Cir. 2009). If the district court finds that a firearm is “in
connection with” a drug possession felony “it will rarely be clearly erroneous.”
Fuentes Torres, 529 F.3d at 827; see also United States v. Swanson, 610 F.3d 1005,
1008 (8th Cir. 2010) (“The inference that a firearm is for protection of drugs is
allowable when the amount of drugs is more than residue”). The record shows that the
district court was familiar with the law and gives no indication that it did not
understand the facilitate standard. Its finding that the firearm was in connection to
drug possession was warranted, and so, the court did not clearly err.

                                           III.

       Esquibel next argues that the court erred in applying the two-level enhancement
for “recklessly creat[ing] a substantial risk of death or serious bodily injury to another
person in the course of fleeing from a law enforcement officer.” Esquibel claims that
he did not create an actual risk of bodily injury or death when he fled or, alternatively,
that the risk was not substantial and that he was not reckless because he did not try to
gain control of an officer’s firearm.

       When he fled, Esquibel ran directly at an armed officer and grabbed the barrel
of his rifle. In attempting to escape arrest, he caused another officer’s rifle to fall on
the ground unsecured, and he discarded his own firearm as he fled, creating the risk
that one of the guns could accidentally discharge. United States v. Davidson, 933 F.3d
912, 914–15 (8th Cir. 2019). The district court did not clearly err in finding that
Esquibel created a substantial risk of serious bodily injury or death while fleeing. Nor
was it error for the court to find that Esquibel was reckless in doing so. See U.S.S.G.
§ 2A1.4 cmt. n.1 (defining “reckless” as to be “aware of the risk created by his conduct
and . . . to disregard that risk constituted a gross deviation from the standard of care
that a reasonable person would exercise in such a situation”). Esquibel’s conduct
deviated from the standard of care a reasonable person would exercise in this situation,




                                           -4-
which is peaceful surrender, Davidson, 933 F.3d at 915, so there was no clear error in
applying the two-level enhancement for reckless endangerment during flight.2

                                          IV.

       Finally, Esquibel argues that his prior Iowa controlled substance conviction does
not qualify as an enhancing predicate under U.S.S.G. § 4B1.2(b) because Iowa’s
aiding and abetting doctrine is categorically overbroad. As he acknowledges, we
rejected this argument in United States v. Boleyn, 929 F.3d 932, 940 (8th Cir. 2019)
(“[T]he Iowa law of aiding and abetting liability is substantially equivalent to, not
meaningfully broader than, the standard adopted by federal courts . . . .”). We are
bound by an earlier panel opinion of this court. United States v. Wilson, 315 F.3d 982,
973–74 (8th Cir. 2003). The district court did not err in finding Esquibel’s prior Iowa
controlled substance conviction was an enhancing predicate.

      Esquibel’s sentence is affirmed.
                       ______________________________




      2
        Esquibel suggests that the enhancement does not apply because he was on
foot, but the enhancement applies to foot chases. Davidson, 933 F.3d at 914.

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