Whether defendant’s conviction for FIP of a firearm under 18 USC § 922(g)(1) violated the Second Amendment; New York State Rifle & Pistol Ass’n v Bruen; Sentencing; Application of a four-level enhancement for “reckless endangerment” under USSG § 2K2.1(b); Sufficiency of the evidence to support the enhancement; Harmless error

The court affirmed defendant-Alvarado’s FIP conviction, holding that because the law as to whether the conviction violates the Second Amendment is “unsettled,” it would not reverse under “plain error” review. But it concluded the district court erred in applying a reckless endangerment sentencing enhancement. Alvarado was convicted of FIP of a firearm and sentenced to 104 months. He first challenged his conviction, arguing that it violated the Second Amendment as applied to his prior state convictions, an argument he raised for the first time on appeal. This required application of the plain error standard of review. The court considered the seminal Supreme Court cases, the most recent of which is Bruen, which held that “when ‘the Second Amendment’s plain text covers an individual’s conduct, the Constitution’ protects that conduct unless the government can ‘justify its regulation by demonstrating that it is consistent with the Nation’s historical tradition of firearm regulation.’” The court noted that the circuits are split over the issue. Because “the extent of § 922(g)(1)’s constitutionality under Bruen is for now ‘unsettled[,]’” the court would “not disturb Alvarado’s conviction on plain error review.” He also challenged the validity of his sentence, arguing that the district court erred by applying a four-level enhancement for reckless endangerment under USSG § 2K2.1(b) based on conduct it found “amounted to reckless endangerment under" a Tennessee statute. The court vacated Alvarado’s sentence, holding that the government could not “satisfy Tennessee’s zone of danger requirement.”