UNITED STATES OF AMERICA, Plaintiff - Appellee, v. KEVIN ALONSO ZAMORA, Defendant - Appellant.
No. 22-4096
UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT
April 5, 2024
ROSSMAN, Circuit Judge.
PUBLISH. FILED United States Court of Appeals Tenth Circuit April 5, 2024. Christopher M. Wolpert Clerk of Court.
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 Plaintiff-Appellee.
Before PHILLIPS, KELLY, and ROSSMAN, Circuit Judges.
ROSSMAN, Circuit Judge.
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
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 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.
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
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
Mr. Zamora filed a written objection to the
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 reckless-endangerment 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. “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 trigger. App. II at 42–43.
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 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 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
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 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
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,
[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
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
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
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.”
In United States v. Conley, a key precedent in our circuit concerning
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, Probation, and Mr. Zamora likewise understood that mere possession of a firearm during flight will not automatically warrant the application of
United States v. Brown is instructive. 314 F.3d 1216, 1221 (10th Cir. 2003). Brown involved the application of the
Other circuits considering the
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 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
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 would have to first put a live round into the chamber?” App. II at 72. Agent Owens replied “[y]es, maʼam.” 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 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
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
Mr. Zamora is correct that only he sustained an injury when the gun discharged. To the extent Mr. Zamora argues the
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
“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
Mr. Zamora‘s sentence is AFFIRMED.