PUBLISH UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

________________ _________________ UNITED STATES OF AMERIC A , 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 Fe deral Public Defender (S cott Keith Wilson, Federal Public Defender, with her on the briefs), Salt Lake City, Utah for DefendantAppellant. Briggs J. Matheson, Assi stant United States Atto rney (Trina A. Higgins, United States Attorney, and Elizabet hanne 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 Appellate Case: 22-4096 Document: 010111027443 Date Filed: 04/05/2024 Page: 12 Appellant Kevin Alonso Zamora challenges the procedural reasonableness of his sentence. He co ntends the district court erroneously applied a two-level sentencing enha ncement for reckless endangerment during flight under § 3C1.2 of the Un ited States Sentencing Guidelines. Exercising jurisdiction under 28 U.S.C. § 1291, we affirm. I 1 A In mid-December 2021, at approximately 1:00 a.m., local law enforcement in Taylorsville, Utah, disc overed a car reported stolen the day before. The unoccupied ca r was parked outside an apartment building. As five people approached the vehicle, o fficers 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 in to 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 Ta co Bell. Mr. Zamora cut across the

1 The facts recited here derive from the appellate reco rd, including the district court filings, body camera footag e, the sentencing he aring transcripts, and the undisputed descri ption of Mr. Zamora’s offense conduct in the Presentence Investigation Report. Appellate Case: 22-4096 Document: 010111027443 Date Filed: 04/05/2024 Page: 23 Taco Bell’s drive-thru la ne. The restaurant was stil l open, and an occupied car sat in the drive-thru ne xt 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 Came ra Footage at 02:50-03:10. The officer conducting the search emptied Mr. Zamo ra’s front pockets but did not find a gun. He then cut Mr. Za mora’s right pant leg an d saw a gun tucked inside Mr. Zamora’s pants—between the wai stband and his underwear. The officer removed the gun and unloaded the magazine onto the sidewalk. Mr. Zamora received medical assist ance 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 fi red, and the bullet shot through his groin area, fracturing his tibia. Appellate Case: 22-4096 Document: 010111027443 Date Filed: 04/05/2024 Page: 34 B
1 On December 22, 2021, a federal gr and 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 in dictment specified, on December 11, Mr. Zamora unlawfu lly possessed a Glock 19 handgun. Mr. Zamora was convicted after pl eading guilty pursuant to a plea agreement. The United States Probation O ffice prepared a Presentence Investigation Report (PSR) with a re commended Guidelines calculation. Mr. Zamora was assigned a base offe nse 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 posse ssed a stolen gun. As relevant here, the PSR then added another two-level enhancement under § 3C1.2 because Mr. Zamora “recklessly created a substant ial 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 wa s 21. The PSR assigned Mr. Zamora a criminal history score of 17, placing him in category VI. Probation Appellate Case: 22-4096 Document: 010111027443 Date Filed: 04/05/2024 Page: 45 determined Mr. Zamora’s advisory Gu idelines range was 77 to 96 months’ imprisonment. Mr. Zamora filed a written objectio n to the § 3C1.2 enhancement. He emphasized the streets were deserted wh en 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 di d 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 firear m 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 positi on, stating “[t]he probation office believes the defendant engaged in reckless be havior that created substantial risk to anothe r person given the uninte ntional discharge of the firearm.” App. III at 33. At the sentencing hearing, Mr. Zamo ra asserted this case involved only armed flight and “simply runni ng [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 enforcem ent 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. Appellate Case: 22-4096 Document: 010111027443 Date Filed: 04/05/2024 Page: 56 “The only way this gun went off,” th e 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 load ed 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 we apon which caused it to fire?” App. II at 36. “[E]ither [Mr. Za mora] reached for it,” the district court reasoned, “or it was being carried in su ch a manner that it created the risk of going off.” App. II at 37–38. Mr. Zamo ra said “we have no idea how this [gun] actually fired” and maintained “as an evidentiary matter” it was inappropriate for the district court to “f ill in the gaps to conclude how this gun went off.” App. II at 37. Accordi ng to the district court, “when you’re being pursued by law enforce ment, if you have a gun th at 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 go vernment was goin g “to bring in testimony” to support its assertion th at Mr. Zamora’s finger was on the Appellate Case: 22-4096 Document: 010111027443 Date Filed: 04/05/2024 Page: 67 trigger. App. II at 42–43. The prosec utor said no testimony was needed. App. II at 43. The district court disagr eed, 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 co ntinued for approximately a month. App. II at 54–55.
2 At the second sentencing heari ng, 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 explaine d the Glock has “three safety mechanisms that have to co me into play for the fire arm to fire.” App. II at 68–69. Agent Owens testified that even according to Glock’s “own website . . . the trigger has to be delibe rately pressed for [t he 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 inadvertentl y “push the trigger and the safety

2 Earlier, the government filed notice that Ag ent Owens would “testify about discharge of [Mr. Zamora ’s] firearm.” App. I at 42. Appellate Case: 22-4096 Document: 010111027443 Date Filed: 04/05/2024 Page: 78 mechanism simultaneously,” caus ing the weapon to discharge. 3 App. II at 70. Agent Owens did not believe that co uld happen. App. II at 71. Rather, the trigger would need “betw een five and seven pounds of pressure . . . to be activated,” he testified, and would “hav e to move between a quarter inch to a half inch for it to enga ge the safety mech anism.” App. II at 71. When asked by the district court if “there would ha ve to be ammunition in the gun” for it to fire, Agent Owens re plied “yes.” App. II at 71. The district court then queried whether “there need [ed] to be something do ne to the ammunition to get a bullet into the ch amber.” App. II at 71. A Glock requires a magazine containing ammunition to first be lo aded 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 forwar d[.]” App. II at 77. In rebuttal, defense counsel calle d 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 fire arm 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 evid ence offered by the Government about th e firearm in this case.” App. I at 62. Appellate Case: 22-4096 Document: 010111027443 Date Filed: 04/05/2024 Page: 89 Glock “does not know the difference betw een a finger or anything else,” so the gun could go off if something othe r than a finger put enough pressure on the trigger. App. II at 81. The “m ost 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 pu sh the holster down and the clothing is preventing the trigger from moving and you’re pu shing 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 po cket,” but a Glock could fire in that manner, he believed, if it caught on a be lt or other clothing with enough force to exert five to seve n 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 an d “possibly” could create a danger to other people but was “more likely” a “d anger 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 enhancemen t. Though it was not “advisable to run with a gun in your pants,” Mr. Za mora maintained, “we have a very plausible explanation of how this g un could have gone off without any reaching, any touching whatsoever.” A pp. II at 90–91. The government took a different view of the evidence, clai ming Mr. Zamora “was reaching for the Appellate Case: 22-4096 Document: 010111027443 Date Filed: 04/05/2024 Page: 910 gun and caused the gun to fire.” App. II at 88. The pros ecutor explained Mr. Zamora’s case presented armed f light “plus him touc hing the trigger which is what made the gun go off.” App. II at 92–93. The district court overruled Mr. Za mora’s objection and applied the two-level enhancement under § 3C1.2. The district court acknowledged there “has to be someth ing more than just fli ght” 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 fire d. 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 di strict court reasoned, “and if there [was] a lot of physical activity and ex ertion 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 f light with a fully loaded Glock, with a round in the cham ber, not being carri ed 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 th e 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, Appellate Case: 22-4096 Document: 010111027443 Date Filed: 04/05/2024 Page: 1011 [E]ither way, the absence of a ho lster 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] wa s shot, and I think could have easily, depending on where law en forcement 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 in jury to law enfo rcement . . . . App. II at 122. The district court then adopte d the advisory Guidelines range recommended in the PSR—77 to 96 mo nths’ imprisonment. After granting a downward variance, the district cour t sentenced Mr. Zamora to 60 months in prison, followed by three years of su pervised release. This timely appeal followed. II The only issue on appeal is whet her the district court erroneously applied the two-level enhancement unde r § 3C1.2. The government always has to prove the applicability of a sentencing e nhancement 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 ‘pro cedural reasonableness’ of a sentence, ‘which requires, among other thi ngs, 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 Appellate Case: 22-4096 Document: 010111027443 Date Filed: 04/05/2024 Page: 1112 district court’s interpretation and app lication of the Sent encing 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 con stituted reckless endangerment [under § 3C1.2], and its determination that [d efendants] were responsible for that recklessness.” Conley , 131 F.3d at 1389. Mr. Zamora urges reversal, contendi ng “[t]he district court’s factual findings do not permit its conclusion that the way [he] carried the gun constituted reckless enda ngerment.” 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 bo dily injury to another person. 5

5 Mr. Zamora and the government agr ee 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 Guidelin es 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 brie fing and at oral argument, Mr. Young stressed that he is not challeng ing any of the district court’s factual findings; instead, he accepts the findings of fact and ar gues solely that the facts are insufficient as a matte r 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. Appellate Case: 22-4096 Document: 010111027443 Date Filed: 04/05/2024 Page: 1213 We first describe the applicable la w 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 creat ed a substantial risk of death or serious bodily injury to another person in the course of fleei ng from a law enforcement officer, increase [the de fendant’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 de fendant was aware of th e risk created by his conduct and the risk was of such a natu re and degree that to disregard that risk constituted a gross deviation fr om the standard of care that a reasonable person would exe rcise 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 unde r § 3C1.2. There are situations in Appellate Case: 22-4096 Document: 010111027443 Date Filed: 04/05/2024 Page: 1314 which a defendant might flee from la w 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 po int 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, “dro ve toward [an] offi cer’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 “th e 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 attemp t to base the enhancement solely on these facts but focused on proving addi tional conduct by Mr. Zamora during his armed flight to suppo rt reckless endangerment. 6 The district court,

6 The government agreed at oral argument that the application of § 3C1.2 requires “armed flight plus mo re” and took the same position before Appellate Case: 22-4096 Document: 010111027443 Date Filed: 04/05/2024 Page: 1415 Probation, and Mr. Zamora likewise und erstood that mere possession of a firearm during flight will not automa tically 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 fleein g law enforcement, disposed of a gun near a school bus stop. Id. at 1220. The district court foun d the defendant’s conduct made the gun “accessible to childre n 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 cour t’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 reas oned, “undoubtedly created a substantial risk of death or serious bodily inju ry 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 governme nt’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. Appellate Case: 22-4096 Document: 010111027443 Date Filed: 04/05/2024 Page: 1516 bystanders” and “was certainl y a gross deviation from th e standard of care that a reasonable person would exer cise 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 en hancement 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 pe rsuasively held what we have long assumed—that the fact s must show “‘some thing more’ than mere instinctive armed f light” 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 possessi on 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 offi cers on foot and droppe d a “fully-loaded, Glock 40-caliber semiautomatic pistol wi th a live chambered round”); United States v. Hampton , 100 F. App’x 792, 79 4 (10th Cir. 2004) (affi rming application of § 3C1.2 enhancement because armed defendan t fled from office rs 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). Appellate Case: 22-4096 Document: 010111027443 Date Filed: 04/05/2024 Page: 1617 revolver to throw it and throwing the revolver co uld have caused it to accidentally discharge. Id. at 323–24. The Fourth Circuit reversed. “[N]o evidence support[ed] the district co urt’s finding that [the defendant] reached for the gun,” and “the [g]ove rnment ha[d] not identified any evidence from which the district court could have concluded that there was a substantial risk of the firearm di scharging when it hit the ground.” Id. at 325. The Fourth Circuit rejected the government’s contention that the “imposition of the § 3C1.2 enhanc ement was warranted because [the defendant] fled while ho lding a loaded firearm.” Id. at 326. That approach was not consistent with the “plain language of § 3C1.2.” Id. “Had the Sentencing Commission want ed 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 Gu ideline in that way.” Id

. 8 Other circuits considering the § 3C 1.2 enhancement in the context of firearm possession during flight ha ve 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). Appellate Case: 22-4096 Document: 010111027443 Date Filed: 04/05/2024 Page: 1718 application of § 3C1.2 when defendan t dropped a loaded firearm during flight because evidence did not show the firearm was “actually cocked” or otherwise “capable of discha rging 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 Ci r. 2015) (affirming application of § 3C1.2 because armed flight “alone is insuffi cient” but evidence showed defendant possessed a loaded firearm in his pock et 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 ar gument, and so do we.
1 Mr. Zamora first contends the distric t court clearly erred in finding his armed flight was reckless. As Mr. Zamo ra sees it, the di strict court did not

9 We are aware of no circuit decision holding otherwise. Appellate Case: 22-4096 Document: 010111027443 Date Filed: 04/05/2024 Page: 1819 accept the government’s theory that the Glock nece ssarily fired because his finger was on the trigger, and no othe r evidence su ggests he carried the Glock in a manner that so deviated from th e standard of care “that a reasonable person would not undertak e it.” Aplt. Br. at 22. We are not persuaded. Here, the district court reasoned Mr. Zamora acted reck lessly 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 se cond sentencing hearing, “the absence of a holster plus the co cked gun with a round in the chamber and running from law enforcement, wher e the gun discharged . . . does show reckless behavior.” App. II at 122. Th e 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 chambe red bullet. He testifi ed that to place a live round in the chamber, “[y]ou woul d load the ammunition . . . into the bottom . . . then you would rack the s lide and that would put a round in the chamber.” App. II at 71–72. Without a chambered bullet, Sp ecial 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 Appellate Case: 22-4096 Document: 010111027443 Date Filed: 04/05/2024 Page: 1920 would have to first put a live round in to the chamber?” App. II at 72. Agent Owens replied “[y]es, ma ’am.” App. II at 72. Second, both firearms wi tnesses agreed a Glock loaded with a bullet in the chamber can discharge accidentally even if th e trigger is not pressed intentionally. Special Agent Owens testified five to seven pounds of pressure on the trigger was a ll that was needed for the Gloc k 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 specifica lly to the risks of carrying an unholstered Glock. The district court asked Mr. Bahde, the defense expert, whether guns should be carri ed in a holster “for safe ty reasons,” and Mr. Bahde responded “[a]bsolutely.” App. II at 83 . He then explaine d 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 tri gger and holster].” App. II at 83–84. According to Mr. Bahde, it wa s atypical for someone to carry a gun like Mr. Zamora did that night—betwee n 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 emph asized the risk to both Mr. Zamora and others of carrying a gun in such a manner. He testifi ed it was “not particularly safe” to Appellate Case: 22-4096 Document: 010111027443 Date Filed: 04/05/2024 Page: 2021 carry a gun unholstered wi th a round in the chambe r while running and that he would not recommend it because “that trigger is not protected.” App. II at
87. Under these circumstances, the distr ict court did not clearly err in finding the manner in which Mr. Zamo ra carried the Glock while fleeing law enforcement was reckless. Mr. Zamora re sists this conclusion, however. He insists the Glock’s safety features made the risk of an accidental discharge exceedingly low, which shows his conduc t was not a gross deviation from the standard of care. It is tr ue Agent Owens testified ge nerally that Glocks have several safety mechanisms designed to prevent again st 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 argu ment below, a litig ant must present the argument ‘with sufficient clar ity 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. Za mora’s appellate position. The only meaningful evidence on th e 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. Appellate Case: 22-4096 Document: 010111027443 Date Filed: 04/05/2024 Page: 2122 The testimony at the se cond sentencing hearing confirmed having a chambered bullet in the Glock heightened the risk of an acci dental 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 ap peals reasoned, create d a risk of serious injury to the pu rsuing officers. Id. ; see also Brown , 31 F.4th at 49 n.13 (§ 3C1.2 applied because it is “reasonable to conc lude that a gun that contains a bullet possesses a probability of accidental firing”); Matchett , 802 F.3d at 1198 (§ 3C1.2 applied because th e evidence showed “there was a signific ant 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 di scharging grossly deviates from the standard of care” of a reasonable person); United States v. Gray , 942 F.3d 627, 632 (3d Cir. 2019) (§ 3C 1.2 applied because “a loaded firearm” thrown “in the vicinity of a police officer and at least one civilian” co uld have “discharged when thrown”). Appellate Case: 22-4096 Document: 010111027443 Date Filed: 04/05/2024 Page: 2223 So too here. The record established the Glock carried by Mr. Zamora was loaded and ready to fire such that ac cidental or intentional discharge was a factual possibility. That the district co urt could not determ ine 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 standar d for recklessness to warrant application of the enhancement. App. II at 122.
2 Mr. Zamora next insists his armed fl ight, even if reck less, created no substantial risk of death or bodily in jury to another person. According to Mr. Zamora, he was the only person ac tually injured when the Glock went off. Mr. Zamora maintain s 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 fo r § 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.” Ap lt. Br. at 35. Mr. Zamora is correct that only he sustained an inju ry 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 de fendant to create a substa ntial risk of harm “to another person.” U.S.S.G. § 3C1.2 (emp hasis added). And the Guidelines commentary defines “[a]nother person” to include “any person, except a Appellate Case: 22-4096 Document: 010111027443 Date Filed: 04/05/2024 Page: 2324 participant in the offense who willi ngly 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 appl y 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 adde d). This finding is not clearly erroneous. Mr. Zamora has not meaningf ully 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 bri ngs this aspect of the record to our attent ion 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 affi rm ‘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 driv e-thru, it did not meaningfully emphasize that fact before the district court. This might help expl ain why the district court did not make more of this fact in its analysis. Appellate Case: 22-4096 Document: 010111027443 Date Filed: 04/05/2024 Page: 2425 “can affirm a lower court’ s ruling on any grounds adequately supported by the record, even grounds no t relied upon by the di strict 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 fron t of an occupied vehicle while fleeing from law enforcem ent moments before the loaded gun he is carrying goes off.

Mr. Zamora collapsed almost immediatel y after the gun went off, falling to the sidewalk a few feet away. Unde r these circumstances, we have no trouble concluding Mr. Zamora’s armed f light 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. Appellate Case: 22-4096 Document: 010111027443 Date Filed: 04/05/2024 Page: 2526 III Mr. Zamora’s sentence is AFFIRMED

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