UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

┐ UNITED STATES OF AMERICA, │ Plaintiff-Appellee, │ > No. 22-5459 │ v. │ │ RICARDO ALVARADO, │ Defendant-Appellant. │ ┘ Appeal from the United States District Court for the Eastern District of Tennessee at Knoxville. No. 3:20-cr-00114-1—Katherine A. Crytzer, District Judge.

Argued: December 7, 2023

Decided and Filed: March 18, 2024

Before: SUTTON, Chief Judge; STRANCH and MATHIS, Circuit Judges.

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COUNSEL ARGUED: Tess A. Chaffee, Patrick Maney, UNIVERSITY OF CINCINNATI, Cincinnati, Ohio, for Appellant. Samuel R. Fitzpatrick, UNITED STATES ATTORNEY’S OFFICE, Knoxville, Tennessee, for Appellee. ON BRIEF: Nathan L. Colvin, UNIVERSITY OF CINCINNATI, Cincinnati, Ohio, Colter L. Paulson, SQUIRE PATTON BOGGS (US) LLP, Cincinnati, Ohio, for Appellant. Samuel R. Fitzpatrick, UNITED STATES ATTORNEY’S OFFICE, Knoxville, Tennessee, for Appellee. _________________

OPINION _________________

JANE B. STRANCH, Circuit Judge. Ricardo Alvarado was convicted of possessing a firearm as an individual with a felony conviction under 18 U.S.C. § 922(g)(1). The district court No. 22-5459 United States v. Alvarado Page 2

sentenced him to 104 months’ imprisonment after applying a four-level sentencing enhancement for reckless endangerment. Alvarado appeals both the conviction and sentence. He argues that his conviction violates the Second Amendment under the standard articulated in New York State Rifle & Pistol Ass’n v. Bruen, 597 U.S. 1 (2022), an issue he raises for the first time on appeal, and that the evidence did not support a sentencing enhancement for reckless endangerment. We AFFIRM Alvarado’s conviction but VACATE his sentence and REMAND to the district court for resentencing.

I. BACKGROUND

Officers with the Blount County Sheriff’s Office arrested Ricardo Alvarado in the mobile home park where he lived on April 20, 2020, after responding to reports that a man on the property was carrying what appeared to be a machine gun. Upon arrival, officers spotted Alvarado with a Ruger AR-556 semi-automatic rifle and ordered him to drop the weapon and drop to the ground. Alvarado complied with both orders and the officers handcuffed him and placed him under arrest.

After securing Alvarado, officers surveyed the scene, searching for evidence and interviewing witnesses. They found two .233 millimeter shell casings and two live rounds at the back door of Alvarado’s mobile home where the unit opened on to a patio. They also identified three witnesses who would later testify at trial: Alvarado’s wife, Maria Martinez, and his neighbors, Caleb Smith and Angela Hufflin. Officers eventually learned that Alvarado had two prior felony-level convictions, one for drunk driving and one for possession of marijuana.

The Government indicted Alvarado on a charge of felon-in-possession under § 922(g)(1). At trial, the Government called Smith and Hufflin as witnesses. Smith testified that on the day o