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United States v. Zamora.

No. 22-4096. 4/5/2024. D.Utah. Judge Rossman. Fleeing Felon—Recklessly Subjecting Another Person to Substantial Risk of Death or Serious Bodily Injury—US Sentencing Guidelines—Two-Level Sentence Enhancement—Procedural Reasonableness of Sentence.

April 5, 2024

Law enforcement discovered a stolen car parked outside an apartment building. As five people approached the car, officers moved in, and all the suspects except Zamora got inside the car and drove off, backing into a police car in the process. Zamora fled on foot. During the chase, an officer heard a pop, and when Zamora was apprehended, officers found that he was bleeding from his lower body. An officer searched Zamora and discovered a gun tucked into his pants, which had fired and fractured Zamora’s tibia. Zamora was charged with being a felon in possession of a firearm in violation of 18 USC § 922(g)(1) for his unlawful possession of a Glock 19 handgun. Zamora was convicted after pleading guilty pursuant to a plea agreement. His presentence investigation report assigned a base offense level of 20 under US Sentencing Guideline (USSG) § 2K2.1(a)(4)(A) and included (1) a two-level enhancement under § 2K2.1(b)(4), because Zamora possessed a stolen gun; and (2) another two-level enhancement under § 3C1.2, because Zamora recklessly subjected another person to a substantial risk of death or serious bodily injury during his flight from law enforcement. Zamora objected to the § 3C1.2 enhancement, but the district court overruled Zamora’s objection and applied the two-level enhancement under § 3C1.2. The district court adopted the advisory USSG range recommended in the PSR, granted a downward variance, and sentenced Zamora to 60 months in prison followed by three years of supervised release.

On appeal, Zamora challenged the procedural reasonableness of his sentence, arguing that the district court erroneously applied the USSG § 3C1.2 two-level sentencing enhancement. He maintained that the district court clearly erred in finding that his armed flight was reckless and that he created a substantial risk of death or bodily injury to another person. It is undisputed that Zamora was fleeing from law enforcement, that he was armed during flight, and that his gun actually went off. The record shows that Zamora was carrying an unholstered Glock with a live round in the chamber while running that was able to discharge accidentally even without the trigger being pressed intentionally. This conduct satisfied the standard for recklessness to warrant application of the § 3C1.2 enhancement. Further, while only Zamora sustained an injury when the gun discharged, body camera footage established that Zamora ran directly in front of an occupied vehicle while fleeing from law enforcement moments before the loaded gun he was carrying went off. It follows from these circumstances that Zamora’s armed flight created a substantial risk of serious bodily injury to another person that also justified the district court’s decision to apply the two-level enhancement.

The sentence was affirmed.

Official US Court of Appeals for the Tenth Circuit proceedings can be found at the US Court of Appeals for the Tenth Circuit website.

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