PUBLISH

UNITED STATES COURT OF APPEALS 

FOR THE TENTH CIRCUIT 

_________________________________ 

UNITED STATES OF AMERICA, 

 Plaintiff – Appellee, 

v. 

KEVIN ALONSO ZAMORA, 

 Defendant – Appellant. 

No. 22-4096 

_________________________________ 

Appeal from the United States District Court 

for the District of Utah 

(D.C. No. 2:21-CR-00526-JNP-1) 

_________________________________ 

Bretta Pirie, Assistant Federal Public Defender (Scott Keith Wilson, Federal 

Public Defender, with her on the briefs), Salt Lake City, Utah for DefendantAppellant. 

Briggs J. Matheson, Assistant United States Attorney (Trina A. Higgins, 

United States Attorney, and Elizabethanne C. Stevens, Assistant United 

States Attorney, with him on the brief), Salt Lake City, Utah, for PlaintiffAppellee. 

_________________________________ 

Before PHILLIPS, KELLY, and ROSSMAN, Circuit Judges. 

_________________________________ 

ROSSMAN, Circuit Judge. 

_________________________________ 

FILED 

United States Court of Appeals 

Tenth Circuit 

April 5, 2024

Christopher M. Wolpert 

Clerk of Court

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Appellant Kevin Alonso Zamora challenges the procedural 

reasonableness of his sentence. He contends the district court erroneously 

applied a two-level sentencing enhancement for reckless endangerment 

during flight under § 3C1.2 of the United States Sentencing Guidelines. 

Exercising jurisdiction under 28 U.S.C. § 1291, we affirm. 

I1

A 

In mid-December 2021, at approximately 1:00 a.m., local law 

enforcement in Taylorsville, Utah, discovered a car reported stolen the day 

before. The unoccupied car was parked outside an apartment building. As 

five people approached the vehicle, officers moved in, some in their squad 

cars and others on foot. All the suspects except Mr. Zamora got inside the 

stolen vehicle and drove off, backing into a police car in the process. Mr. 

Zamora fled on foot. 

With law enforcement in pursuit, Mr. Zamora ran through the empty 

streets of a residential neighborhood. He then crossed an intersection into 

a commercial area, heading toward a Taco Bell. Mr. Zamora cut across the 

1 The facts recited here derive from the appellate record, including the 

district court filings, body camera footage, the sentencing hearing transcripts, 

and the undisputed description of Mr. Zamora’s offense conduct in the 

Presentence Investigation Report. 

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Taco Bell’s drive-thru lane. The restaurant was still open, and an occupied 

car sat in the drive-thru next to the menu board. Mr. Zamora cut in front of 

the car and collapsed face first on the sidewalk next to the drive-thru. 

Officers approached Mr. Zamora and ordered him to show his hands. Mr. 

Zamora appeared to comply. He remained on the sidewalk and was arrested. 

An officer at the scene searched Mr. Zamora, lifting him up in the 

process to rest against the base of a streetlight. Mr. Zamora was bleeding 

from somewhere on his lower body. One officer stated he heard a “pop” as 

Mr. Zamora ran around the Taco Bell, and another officer asked Mr. Zamora 

“did you shoot yourself?” Body Camera Footage at 02:50-03:10. The officer 

conducting the search emptied Mr. Zamora’s front pockets but did not find 

a gun. He then cut Mr. Zamora’s right pant leg and saw a gun tucked inside 

Mr. Zamora’s pants—between the waistband and his underwear. The officer 

removed the gun and unloaded the magazine onto the sidewalk. 

Mr. Zamora received medical assistance at the scene. An ambulance 

transported him to a local hospital, and he underwent surgery. As it turned 

out, the gun found on Mr. Zamora had fired, and the bullet shot through his 

groin area, fracturing his tibia. 

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B 

1 

On December 22, 2021, a federal grand jury returned a one-count 

indictment charging Mr. Zamora with being a felon in possession of a 

firearm in violation of 18 U.S.C. § 922(g)(1). The indictment specified, on 

December 11, Mr. Zamora unlawfully possessed a Glock 19 handgun. 

Mr. Zamora was convicted after pleading guilty pursuant to a plea 

agreement. 

The United States Probation Office prepared a Presentence 

Investigation Report (PSR) with a recommended Guidelines calculation. 

Mr. Zamora was assigned a base offense level of 20, under U.S.S.G. 

§ 2K2.1(a)(4)(A). The PSR included a two-level enhancement under 

§ 2K2.1(b)(4) because Mr. Zamora possessed a stolen gun. As relevant here, 

the PSR then added another two-level enhancement under § 3C1.2 because 

Mr. Zamora “recklessly created a substantial risk of death or serious bodily 

injury to another person during his flight from a law enforcement officer.” 

App. III at 52, ¶ 19. To account for Mr. Zamora’s acceptance of 

responsibility, the PSR calculated a three-level reduction under § 3E1.1. 

The resulting total offense level was 21. The PSR assigned Mr. Zamora a 

criminal history score of 17, placing him in category VI. Probation 

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determined Mr. Zamora’s advisory Guidelines range was 77 to 96 months’ 

imprisonment. 

Mr. Zamora filed a written objection to the § 3C1.2 enhancement. He 

emphasized the streets were deserted when he fled from police, and he was 

the only one injured when the gun went off. Mr. Zamora contended, under 

these circumstances, his armed flight did not recklessly create a substantial 

risk, as the Guideline requires. In its sentencing memorandum, the 

government urged the district court to apply the § 3C1.2 enhancement. 

“Running from officers with a firearm that is capable [of] discharging 

grossly deviates from the standard of care that a reasonable person would 

exercise,” the government explained. App. I at 22. The addendum to the 

PSR echoed the government’s position, stating “[t]he probation office 

believes the defendant engaged in reckless behavior that created 

substantial risk to another person given the unintentional discharge of the 

firearm.” App. III at 33. 

At the sentencing hearing, Mr. Zamora asserted this case involved 

only armed flight and “simply running [from law enforcement] with a gun 

in your pants” was not a sufficient factual basis for applying the recklessendangerment enhancement. App. II at 38. The government responded that 

Mr. Zamora “was not fleeing law enforcement with just a gun in his pocket.” 

App. II at 40. “The gun was cocked. It was ready to fire.” App. II at 40–41. 

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“The only way this gun went off,” the government said, “is because the 

defendant reached in his pocket to pull the gun out.” App. II at 41. The 

prosecutor based this assertion on her “conversation[s] with . . . law 

enforcement officers[] who are very experienced with firearms.” App. II at 

41. 

The district court began with the undisputed facts. Mr. Zamora was 

“evading law enforcement with a loaded weapon,” the district court found, 

and “the weapon went off.” App. II at 36. The district court then asked 

defense counsel “was the gun in such a position that just running caused it 

to fire or did your client actually reach for the weapon which caused it to 

fire?” App. II at 36. “[E]ither [Mr. Zamora] reached for it,” the district court 

reasoned, “or it was being carried in such a manner that it created the risk 

of going off.” App. II at 37–38. Mr. Zamora said “we have no idea how this 

[gun] actually fired” and maintained “as an evidentiary matter” it was 

inappropriate for the district court to “fill in the gaps to conclude how this 

gun went off.” App. II at 37. According to the district court, “when you’re 

being pursued by law enforcement, if you have a gun that is in a position to 

go off, particularly if you’re reaching for the weapon, that is a serious risk 

to law enforcement.” App. II at 36. 

The district court asked if the government was going “to bring in 

testimony” to support its assertion that Mr. Zamora’s finger was on the 

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trigger. App. II at 42–43. The prosecutor said no testimony was needed. 

App. II at 43. The district court disagreed, reasoning that if the government 

wished “to make a proffer about [Mr. Zamora’s] gun being cocked and the 

enhancement, then [it] need[ed] testimony here.” App. II at 52. 

Mr. Zamora’s sentencing hearing was continued for approximately a month. 

App. II at 54–55. 

2 

At the second sentencing hearing, the government called Special 

Agent Kent Owens of the Bureau of Alcohol, Tobacco, Firearms, and 

Explosives.2 Agent Owens was familiar with a Glock’s “specific trigger 

safety mechanisms” and explained the Glock has “three safety 

mechanisms that have to come into play for the firearm to fire.” App. II at 

68–69. Agent Owens testified that even according to Glock’s “own 

website . . . the trigger has to be deliberately pressed for [the gun] to fire.” 

App. II at 69. 

The district court asked Agent Owens if a set of keys in the same pant 

pocket as a Glock could inadvertently “push the trigger and the safety 

2 Earlier, the government filed notice that Agent Owens would “testify 

about discharge of [Mr. Zamora’s] firearm.” App. I at 42. 

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mechanism simultaneously,” causing the weapon to discharge.3 App. II at 

70. Agent Owens did not believe that could happen. App. II at 71. Rather, 

the trigger would need “between five and seven pounds of pressure . . . to be 

activated,” he testified, and would “have to move between a quarter inch to 

a half inch for it to engage the safety mechanism.” App. II at 71. When asked 

by the district court if “there would have to be ammunition in the gun” for 

it to fire, Agent Owens replied “yes.” App. II at 71. The district court then 

queried whether “there need[ed] to be something done to the ammunition 

to get a bullet into the chamber.” App. II at 71. A Glock requires a magazine 

containing ammunition to first be loaded into the bottom of the gun, Agent 

Owens said, and then “you would rack the slide and that would put a round 

into the chamber.” App. II at 71–72. On cross-examination, Agent Owens 

agreed it was “possible” a Glock could fire “if you had the trigger stationary 

and the gun went forward[.]” App. II at 77. 

In rebuttal, defense counsel called David Bahde, a former police 

officer and tactical consultant. App. II at 80–81.4 Mr. Bahde testified a 

3 As the government correctly notes, “There is no evidence that Zamora 

had any keys in his pocket and the firearm was loose in his pants and not in 

his pocket.” Aplee. Br. at 15 n.3. 

4 Mr. Zamora filed notice that Mr. Bahde would testify as “a firearms 

expert, to rebut evidence offered by the Government about the firearm in this 

case.” App. I at 62. 

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Glock “does not know the difference between a finger or anything else,” so 

the gun could go off if something other than a finger put enough pressure 

on the trigger. App. II at 81. The “most common example” is clothing getting 

caught between the trigger guard and the holster. App. II at 82. He 

explained, what “will often happen is if [the clothing] gets stuck in the 

holster and you go to push the holster down and the clothing is preventing 

the trigger from moving and you’re pushing down . . . that will actually 

cause a discharge.” App. II at 82. Mr. Bahde testified he had not seen a 

Glock fire “when it was just loose in somebody’s jeans pocket,” but a Glock 

could fire in that manner, he believed, if it caught on a belt or other clothing 

with enough force to exert five to seven pounds of pressure on the trigger. 

App. II at 83. He also testified it was “not particularly safe” to carry a Glock 

unholstered in a pocket while running and “possibly” could create a danger 

to other people but was “more likely” a “danger to yourself.” App. II at 87. 

At the close of the testimony, the parties reprised their arguments, 

focusing on whether Mr. Zamora’s conduct during his armed flight 

warranted application of the enhancement. Though it was not “advisable to 

run with a gun in your pants,” Mr. Zamora maintained, “we have a very 

plausible explanation of how this gun could have gone off without any 

reaching, any touching whatsoever.” App. II at 90–91. The government took 

a different view of the evidence, claiming Mr. Zamora “was reaching for the 

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gun and caused the gun to fire.” App. II at 88. The prosecutor explained 

Mr. Zamora’s case presented armed flight “plus him touching the trigger 

which is what made the gun go off.” App. II at 92–93. 

The district court overruled Mr. Zamora’s objection and applied the 

two-level enhancement under § 3C1.2. The district court acknowledged 

there “has to be something more than just flight” and “more than armed 

flight” to justify § 3C1.2. App. II at 121. The district court did not accept the 

government’s theory that Mr. Zamora was reaching for the gun, with his 

finger on the trigger, when it fired. Based on the testimony, “it [was] 

possible for that gun to fire if it [was] not properly holstered and if there 

[was] a round in the chamber,” the district court reasoned, “and if there 

[was] a lot of physical activity and exertion going on that could cause the 

gun to be forced down against an object.” App. II at 121–22. 

Still, the district court determined Mr. Zamora engaged in conduct 

that supported the enhancement: “what we have is armed flight with a fully 

loaded Glock, with a round in the chamber, not being carried in a holster, 

where it discharged.” App. II at 121. The district court admitted “we don’t 

know exactly what happened.” App. II at 122. But Mr. Zamora’s gun fired, 

“which would be either the result of the fact that it was not stored in a safe 

way or that [Mr. Zamora] reached for the gun.” App. II at 122. The district 

court further explained, 

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[E]ither way, the absence of a holster plus the cocked gun with 

a round in the chamber and running from law enforcement, 

where the gun discharged . . . does show reckless behavior, and 

the fact that [Mr. Zamora] was shot, and I think could have 

easily, depending on where law enforcement was, if they were 

trying to pat him down to figure out if there was a weapon, there 

could have been many ways that gun could have misfired and 

created a serious risk of bodily injury to law enforcement . . . . 

App. II at 122. 

 The district court then adopted the advisory Guidelines range 

recommended in the PSR—77 to 96 months’ imprisonment. After granting 

a downward variance, the district court sentenced Mr. Zamora to 60 months 

in prison, followed by three years of supervised release. This timely appeal 

followed. 

II 

The only issue on appeal is whether the district court erroneously 

applied the two-level enhancement under § 3C1.2. The government always 

has to prove the applicability of a sentencing enhancement by a 

preponderance of the evidence. United States v. Conley, 131 F.3d 1387, 1389 

(10th Cir. 1997). “A challenge to the application of a sentencing 

enhancement tests the ‘procedural reasonableness’ of a sentence, ‘which 

requires, among other things, a properly calculated Guidelines range.’” 

United States v. Mollner, 643 F.3d 713, 714 (10th Cir. 2011) (quoting United 

States v. Cook, 550 F.3d 1292, 1295 (10th Cir. 2008)). “When evaluating the 

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district court’s interpretation and application of the Sentencing Guidelines, 

we review legal questions de novo and factual findings for clear error, giving 

due deference to the district court’s application of the guidelines to the 

facts.” Id. (quoting United States v. Munoz-Tello, 531 F.3d 1174, 1181 (10th 

Cir. 2008)). “We review for clear error both the district court’s determination 

that [defendants’] . . . flight constituted reckless endangerment [under 

§ 3C1.2], and its determination that [defendants] were responsible for that 

recklessness.” Conley, 131 F.3d at 1389. 

Mr. Zamora urges reversal, contending “[t]he district court’s factual 

findings do not permit its conclusion that the way [he] carried the gun 

constituted reckless endangerment.” Aplt. Br. at 15. He insists the district 

court clearly erred in finding his armed flight was reckless and that he created 

a substantial risk of death or bodily injury to another person.5 

5 Mr. Zamora and the government agree the standard of review is clear 

error. Aplt. Br. at 15; Aplee. Br. at 27. But “to the extent the defendant asks 

us to interpret the Guidelines or hold that the facts found by the district court 

are insufficient as a matter of law to warrant an enhancement, we must 

conduct a de novo review.” United States v. Hamilton, 587 F.3d 1199, 1222 

(10th Cir. 2009) (quoting United States v. Scott, 529 F.3d 1290, 1300 (10th Cir. 

2008)); see also United States v. Young, 893 F.3d 777, 779 (10th Cir. 2018) 

(applying de novo review because “[i]n his briefing and at oral argument, Mr. 

Young stressed that he is not challenging any of the district court’s factual 

findings; instead, he accepts the findings of fact and argues solely that the facts 

are insufficient as a matter of law to warrant the enhancement”). Mr. Zamora 

has not asked us to engage in de novo review and, in any event, our disposition 

in this appeal does not turn on the standard of review. 

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We first describe the applicable law and then consider each of Mr. 

Zamora’s challenges. As we explain, we discern no error in the district court’s 

conclusion that Mr. Zamora engaged in conduct during flight rising to the level 

of reckless endangerment under the § 3C1.2 enhancement. 

A 

Section 3C1.2 of the United States Sentencing Guidelines states “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 [the defendant’s offense level] by 2 levels.” U.S.S.G. 

§ 3C1.2. The word “recklessly” in § 3C1.2 is defined by reference to the 

definition of recklessness in § 2A1.4, which sets the base offense level for 

involuntary manslaughter. Id. § 3C1.2 cmt. n.2. For purposes of § 3C1.2, 

recklessness means “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.” Id. § 2A1.4 cmt. n.1. 

By its terms, § 3C1.2 “applies only when a defendant actually creates a 

substantial risk.” Young, 893 F.3d at 780. 

In United States v. Conley, a key precedent in our circuit concerning 

§ 3C1.2, we acknowledged “[n]ot every flight from a crime scene . . . will 

constitute reckless endangerment under § 3C1.2. There are situations in 

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which a defendant might flee from law enforcement officers in a manner 

that does not recklessly endanger others.” 131 F.3d at 1390. In Conley, the 

defendants robbed a credit union at gun point and fled in a getaway vehicle. 

Id. at 1388. The ensuing chase “reach[ed] speeds of up to 100 m.p.h., along 

a road that was both icy and damp.” Id. at 1389. The defendants ran through 

two roadblocks and, at one point, “drove toward [an] officer’s car, forcing 

him to move out of the way to avoid collision.” Id. We affirmed the 

application of the § 3C1.2 enhancement, focusing on “the facts of this flight” 

and agreeing with the district court that the defendant’s “actions involve[d] 

a known risk of danger to others, and constituted a gross deviation from the 

standard of care that a reasonable person would have exercised in that same 

situation.” Id. at 1389–90. In so holding, we emphasized “[m]ere reasonable 

foreseeability of the reckless behavior at issue is not enough by itself to 

support a § 3C1.2 enhancement.” Id. at 1390. 

There is no dispute Mr. Zamora was fleeing from law enforcement, that 

he was armed during flight, and that his gun actually went off. In the district 

court, the government did not attempt to base the enhancement solely on 

these facts but focused on proving additional conduct by Mr. Zamora during 

his armed flight to support reckless endangerment.6 The district court, 

6 The government agreed at oral argument that the application of 

§ 3C1.2 requires “armed flight plus more” and took the same position before 

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Probation, and Mr. Zamora likewise understood that mere possession of a 

firearm during flight will not automatically warrant the application of 

§ 3C1.2. This is a readily discernable premise from the text of the Guideline 

and cases interpreting it. Unlike some of our sister circuits, we have never 

explicitly held that mere possession of a firearm during flight is insufficient 

to support application of § 3C1.2. We do so now. 

United States v. Brown is instructive. 314 F.3d 1216, 1221 (10th Cir. 

2003). Brown involved the application of the § 3C1.2 enhancement where an 

armed suspect, while fleeing law enforcement, disposed of a gun near a school 

bus stop. Id. at 1220. The district court found the defendant’s conduct made 

the gun “accessible to children that are in grade school,” which clearly placed 

the children in danger. Id. at 1221. On appeal, we rejected the defendant’s 

argument that his conduct constituted “mere flight” that did not justify the 

enhancement. Id. In affirming the district court’s finding that the defendant 

recklessly created a risk, we focused on the defendant’s disposal of the weapon 

near a school bus stop, which, we reasoned, “undoubtedly created a substantial 

risk of death or serious bodily injury to those children and to the other 

the district court. Oral Arg. at 15:00-08, 18:47-59, 21:07-14; App. II at 40, 92–

93. This is unsurprising. The government’s litigation strategy concerning the 

application of § 3C1.2 did not rest on a showing that Mr. Zamora possessed a 

firearm while running from law enforcement—which he inarguably did—but 

on proving, through expert testimony, he recklessly created a risk by having 

his finger on the trigger of a loaded gun during the flight. 

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bystanders” and “was certainly a gross deviation from the standard of care that 

a reasonable person would exercise in such a situation.” Id. Brown proceeded 

from the premise that the defendant possessed a firearm during flight, but 

there was no indication the § 3C1.2 enhancement could have applied simply 

because the defendant was armed. The analysis in Brown thus focused on the 

additional conduct engaged in by the armed defendant during flight to discern 

if he recklessly endangered others. See id.7 

In United States v. Shivers, the Fourth Circuit persuasively held what 

we have long assumed—that the facts must show “‘something more’ than 

mere instinctive armed flight” to support § 3C1.2. 56 F.4th 320, 323 (4th 

Cir. 2022) (quoting United States v. Dennings, 922 F.3d 232, 237 (4th Cir. 

2019)). In Shivers, an armed suspect fled from police on foot, and during the 

flight, threw a revolver in the street. Id. at 323. The district court applied 

the § 3C1.2 enhancement, reasoning the defendant had to reach for the 

7 Our unpublished decisions since Brown have continued to proceed from 

the premise that mere firearm possession during flight will not satisfy the 

§ 3C1.2 enhancement. See United States v. Porter, 643 F. App’x 758, 760 (10th 

Cir. 2016) (affirming application of § 3C1.2 enhancement because armed 

defendant fled from officers on foot and dropped a “fully-loaded, Glock 

40-caliber semiautomatic pistol with a live chambered round”); United States 

v. Hampton, 100 F. App’x 792, 794 (10th Cir. 2004) (affirming application of 

§ 3C1.2 enhancement because armed defendant fled from officers on a bicycle, 

riding at high speeds in an apartment complex, and crashed while carrying a 

loaded gun), overruled on other grounds by Hampton v. United States, 543 U.S. 

1109 (2005). 

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revolver to throw it and throwing the revolver could have caused it to 

accidentally discharge. Id. at 323–24. The Fourth Circuit reversed. “[N]o 

evidence support[ed] the district court’s finding that [the defendant] 

reached for the gun,” and “the [g]overnment ha[d] not identified any 

evidence from which the district court could have concluded that there was 

a substantial risk of the firearm discharging when it hit the ground.” Id. at 

325. The Fourth Circuit rejected the government’s contention that the 

“imposition of the § 3C1.2 enhancement was warranted because [the 

defendant] fled while holding a loaded firearm.” Id. at 326. That approach 

was not consistent with the “plain language of § 3C1.2.” Id. “Had the 

Sentencing Commission wanted this enhancement to apply to mere armed 

flight instead of to flight plus a specific finding of reckless creation of risk,” 

the Fourth Circuit reasoned, “it could have written the Guideline in that 

way.” Id.8 

Other circuits considering the § 3C1.2 enhancement in the context of 

firearm possession during flight have reached similar conclusions. See

United States v. Mukes, 980 F.3d 526, 538 (6th Cir. 2020) (reversing 

8 The Fourth Circuit recently reaffirmed its holding in Shivers, stating 

again “flight-plus-something more” must support the application of § 3C1.2. 

United States v. Henderson, 88 F.4th 534, 538 (4th Cir. 2023) (quoting

Dennings, 922 F.3d at 237). 

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application of § 3C1.2 when defendant dropped a loaded firearm during 

flight because evidence did not show the firearm was “actually cocked” or 

otherwise “capable of discharging in its condition”); see also United States 

v. Brown, 31 F.4th 39, 47–49 (1st Cir. 2022) (affirming application of 

§ 3C1.2 because “something more” than possessing a firearm during flight 

is required and evidence showed that a loaded firearm fell out of defendant’s 

pocket while he struggled with an officer); United States v. Matchett, 802 

F.3d 1185, 1197–98 (11th Cir. 2015) (affirming application of § 3C1.2 

because armed flight “alone is insufficient” but evidence showed defendant 

possessed a loaded firearm in his pocket that “could have accidentally 

discharged” while resisting arrest).9

With these principles in mind, we consider the arguments before us. 

B 

Mr. Zamora argues his armed flight did not recklessly create a 

substantial risk of death or bodily injury to another person. The district 

court rejected this argument, and so do we. 

1 

Mr. Zamora first contends the district court clearly erred in finding his 

armed flight was reckless. As Mr. Zamora sees it, the district court did not 

9 We are aware of no circuit decision holding otherwise. 

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accept the government’s theory that the Glock necessarily fired because his 

finger was on the trigger, and no other evidence suggests he carried the Glock 

in a manner that so deviated from the standard of care “that a reasonable 

person would not undertake it.” Aplt. Br. at 22. We are not persuaded. 

Here, the district court reasoned Mr. Zamora acted recklessly by fleeing 

from law enforcement with “a fully loaded Glock, with a round in the chamber, 

not being carried in a holster, where it discharged.” App. II at 121. The district 

court further found, based on the testimony at the second sentencing hearing, 

“the absence of a holster plus the cocked gun with a round in the chamber 

and running from law enforcement, where the gun discharged . . . does show 

reckless behavior.” App. II at 122. The record amply supports the district 

court’s findings. 

First, the record shows Mr. Zamora was carrying a Glock with a live 

round in the chamber. Special Agent Owens described the difference between 

a loaded Glock and a Glock with a chambered bullet. He testified that to place 

a live round in the chamber, “[y]ou would load the ammunition . . . into the 

bottom . . . then you would rack the slide and that would put a round in the 

chamber.” App. II at 71–72. Without a chambered bullet, Special Agent Owens 

explained, a Glock simply will not fire. App. II at 72. And the district court 

focused on the conditions required for a Glock to fire during Agent Owens’s 

testimony. It asked Agent Owens “[s]o in order for the gun to fire someone 

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would have to first put a live round into the chamber?” App. II at 72. Agent 

Owens replied “[y]es, ma’am.” App. II at 72. 

Second, both firearms witnesses agreed a Glock loaded with a bullet in 

the chamber can discharge accidentally even if the trigger is not pressed 

intentionally. Special Agent Owens testified five to seven pounds of pressure 

on the trigger was all that was needed for the Glock to go off, and Mr. Bahde 

endorsed that view. App. II at 71, 81–83. Mr. Bahde also testified that any 

object exerting that amount of pressure on the trigger—not just a finger—could 

cause a Glock to fire. App. II at 81–82; see also id. at 77–78. 

Third, the record speaks specifically to the risks of carrying an 

unholstered Glock. The district court asked Mr. Bahde, the defense expert, 

whether guns should be carried in a holster “for safety reasons,” and Mr. Bahde 

responded “[a]bsolutely.” App. II at 83. He then explained that a gun in a 

holster has the “trigger guard . . . covered” and once a gun is in a holster “it is 

very difficult for anything to get in between [the trigger and holster].” App. II 

at 83–84. According to Mr. Bahde, it was atypical for someone to carry a gun 

like Mr. Zamora did that night—between the waistband of his pants and his 

underwear. He testified he did not know “of anybody that teaches for a living 

that would recommend you put a pistol in your pants without a holster.” App. 

II at 84. Mr. Bahde also emphasized the risk to both Mr. Zamora and others of 

carrying a gun in such a manner. He testified it was “not particularly safe” to 

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carry a gun unholstered with a round in the chamber while running and that 

he would not recommend it because “that trigger is not protected.” App. II at 

87. 

Under these circumstances, the district court did not clearly err in 

finding the manner in which Mr. Zamora carried the Glock while fleeing law 

enforcement was reckless. Mr. Zamora resists this conclusion, however. He 

insists the Glock’s safety features made the risk of an accidental discharge 

exceedingly low, which shows his conduct was not a gross deviation from the 

standard of care. It is true Agent Owens testified generally that Glocks have 

several safety mechanisms designed to prevent against accidental discharges. 

But § 3C1.2 applies the standard of care of a reasonable person, “not the 

reasonable fleeing criminal suspect.” Conley, 131 F.3d at 1389. Here, the 

experts testified a reasonable person would not have carried a loaded Glock 

like Mr. Zamora.10 

10 To the extent Mr. Zamora argues on appeal the government did not 

produce evidence about the reasonable standard of care for carrying a Glock, 

he did not raise that argument before the district court, and we decline to 

address it now on appeal. See Simpson v. Carpenter, 912 F.3d 542, 565 (10th 

Cir. 2018) (“To properly raise an argument below, a litigant must present the 

argument ‘with sufficient clarity and specificity.’”(quoting Folks v. State Farm 

Mut. Auto. Ins. Co., 784 F.3d 730, 741 (10th Cir. 2015))). Even considering that 

argument, it would not advance Mr. Zamora’s appellate position. The only 

meaningful evidence on the standard of care came from Mr. Zamora’s expert 

witness, who testified he would not recommend carrying a Glock unholstered 

because of the safety risks it posed. 

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The testimony at the second sentencing hearing confirmed having a 

chambered bullet in the Glock heightened the risk of an accidental discharge. 

Mr. Zamora does not dwell on this testimony, which further supports the 

recklessness finding. U.S.S.G. § 2A1.4 cmt. n.1 (defining “reckless” for 

application of § 3C1.2); App. II at 71–72, 122. United States v. Lard, a case 

relied on by Mr. Zamora, helps make our point. There, the Seventh Circuit 

affirmed application of the § 3C1.2 enhancement when an armed defendant 

fled from law enforcement officers and tossed to the ground a loaded gun with 

a round in the chamber. 327 F.3d 551, 554 (7th Cir. 2003). Throwing a gun 

“fully capable of firing,” the court of appeals reasoned, created a risk of serious 

injury to the pursuing officers. Id.; see also Brown, 31 F.4th at 49 n.13 (§ 3C1.2 

applied because it is “reasonable to conclude that a gun that contains a bullet 

possesses a probability of accidental firing”); Matchett, 802 F.3d at 1198 

(§ 3C1.2 applied because the evidence showed “there was a significant chance 

that [a] firearm could have accidentally discharged”); United States v. Kelley, 

40 F.4th 276, 285 (5th Cir. 2022) (§ 3C1.2 applied because running from officers 

while carrying a gun “capable of discharging grossly deviates from the 

standard of care” of a reasonable person); United States v. Gray, 942 F.3d 627, 

632 (3d Cir. 2019) (§ 3C1.2 applied because “a loaded firearm” thrown “in the 

vicinity of a police officer and at least one civilian” could have “discharged when 

thrown”). 

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So too here. The record established the Glock carried by Mr. Zamora was 

loaded and ready to fire such that accidental or intentional discharge was a 

factual possibility. That the district court could not determine exactly why Mr. 

Zamora’s gun discharged is not dispositive. As the district court correctly put 

it, “either way,” Mr. Zamora’s conduct satisfied the standard for recklessness 

to warrant application of the enhancement. App. II at 122. 

2 

Mr. Zamora next insists his armed flight, even if reckless, created no 

substantial risk of death or bodily injury to another person. According to 

Mr. Zamora, he was the only person actually injured when the Glock went 

off. Mr. Zamora maintains the streets were empty when he fled from law 

enforcement that night, Aplt. Br. at 2, 14–15, 34–35, and says “there were 

no cars and no officers and no risk for § 3C1.2 to punish.” Aplt. Br. at 35. 

He further claims the “district court made no finding that there was any 

traffic at the time or that [his] flight endangered anyone.” Aplt. Br. at 35. 

Mr. Zamora is correct that only he sustained an injury when the gun 

discharged. To the extent Mr. Zamora argues the § 3C1.2 enhancement does 

not apply to a risk of injury to the defendant, we agree. The plain text of the 

Guidelines requires a defendant to create a substantial risk of harm “to 

another person.” U.S.S.G. § 3C1.2 (emphasis added). And the Guidelines 

commentary defines “[a]nother person” to include “any person, except a 

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participant in the offense who willingly participated in the flight.” Id. cmt. 

n.4. That principle does not help Mr. Zamora because the district court did 

not rely on the harm to him to apply the enhancement. The district court 

found Mr. Zamora’s actions “created a serious risk of bodily injury to law 

enforcement.” App. II at 122 (emphasis added). This finding is not clearly 

erroneous. Mr. Zamora has not meaningfully attempted to argue otherwise, 

and we doubt such an argument would succeed. See, e.g., Young, 893 F.3d 

at 780 (affirming application of the reckless-endangerment enhancement 

where the district court focused only on the danger to pursuing officers). 

Mr. Zamora’s argument also ignores a critical fact: the presence of an 

occupied car in the Taco Bell drive-thru, parked in immediate proximity to 

where Mr. Zamora’s gun went off.11 The government brings this aspect of 

the record to our attention in its Answer Brief, but Mr. Zamora replies—

correctly—the district court never mentioned it. That is no matter. “[I]t is 

axiomatic that ordinarily we may affirm ‘on any ground that finds support 

in the record.’” United States v. Garcia, 946 F.3d 1191, 1207 (10th Cir. 2020) 

(quoting United States v. Richards, 27 F.3d 465, 468 (10th Cir. 1994)); see 

also Safe Streets All. v. Hickenlooper, 859 F.3d 865, 879 (10th Cir. 2017) (We 

11 Although the government on appeal relies on the presence of the car 

in the Taco Bell drive-thru, it did not meaningfully emphasize that fact before 

the district court. This might help explain why the district court did not make 

more of this fact in its analysis. 

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“can affirm a lower court’s ruling on any grounds adequately supported by the 

record, even grounds not relied upon by the district court.” (quoting Elwell v.

Byers, 699 F.3d 1208, 1213 (10th Cir. 2012))). 

Here, we will not turn a blind eye to what the body camera footage 

obviously establishes—Mr. Zamora running directly in front of an occupied 

vehicle while fleeing from law enforcement moments before the loaded gun 

he is carrying goes off. 

Mr. Zamora collapsed almost immediately after the gun went off, falling to 

the sidewalk a few feet away. Under these circumstances, we have no 

trouble concluding Mr. Zamora’s armed flight created a substantial risk of 

serious bodily injury to another person. 

We thus affirm the district court’s decision to apply the two-level 

enhancement in § 3C1.2. 

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III 

Mr. Zamora’s sentence is AFFIRMED. 

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