Non‑Precedential Guidance on Inconclusive DNA Evidence, Constructive Possession, and the § 2K2.1(b)(6)(B) “In-Connection-With” Enhancement: Commentary on United States v. Fable (2d Cir. 2025)

Non‑Precedential Guidance on Inconclusive DNA Evidence, Constructive Possession, and the § 2K2.1(b)(6)(B) “In-Connection-With” Enhancement: Commentary on United States v. Fable (2d Cir. 2025)

Introduction

This commentary examines the Second Circuit’s October 2, 2025 summary order in United States v. Fable, No. 24-614-cr, affirming a felon-in-possession conviction and sentence imposed by the United States District Court for the District of Connecticut (Williams, J.). Although the order is non-precedential under the Second Circuit’s Local Rule 32.1.1, it offers practical guidance on four recurring issues:

  • Admission of inconclusive DNA evidence under Federal Rule of Evidence 403;
  • Sufficiency of evidence to prove “possession” under 18 U.S.C. § 922(g)(1);
  • Facial constitutional challenges to § 922(g)(1) post-Bruen;
  • Application of the four-level “in-connection-with” enhancement under U.S.S.G. § 2K2.1(b)(6)(B).

The panel (Judges Raggi, Lohier, and Park) affirmed the judgment, rejecting the defendant’s evidentiary and sufficiency challenges, holding that any error was harmless given “overwhelming” proof, and concluding that existing circuit authority forecloses a Bruen-based challenge to § 922(g)(1). On the Guidelines, the court upheld a § 2K2.1(b)(6)(B) enhancement based on a preponderance finding that the defendant participated in drug trafficking and kept a firearm in close proximity to drugs and packaging/processing materials.

Background

Defendant-Appellant Denroy Fable was convicted by a jury of being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). He was sentenced principally to 78 months’ imprisonment. On appeal, Fable (represented by Elizabeth A. Latif) challenged evidentiary rulings, the sufficiency of the trial evidence, the constitutionality of § 922(g)(1), and a four-level sentencing enhancement under U.S.S.G. § 2K2.1(b)(6)(B). The United States (represented by the Acting U.S. Attorney for the District of Connecticut, through AUSA Reed Durham and AUSA Conor M. Reardon) defended the conviction and sentence.

As a procedural note, the order clarifies that while Fable was sentenced on February 28, 2024, the judgment was entered on February 29, 2024, in the district court case United States v. Manson, No. 22-cr-211 (D. Conn.).

Summary of the Opinion

  • Rule 403 and Inconclusive DNA Evidence: The panel held that admitting an inconclusive DNA result drawn from the firearm’s magazine was not an abuse of discretion because the government’s expert repeatedly told the jury no conclusion could be drawn from it, minimizing risk of unfair prejudice. In any event, any error was harmless given overwhelming evidence, including unchallenged DNA tying Fable to the trigger area.
  • Sufficiency of the Evidence of Possession: Viewing the evidence in the light most favorable to the government, a rational jury could find possession beyond a reasonable doubt based on DNA at the trigger, the firearm’s location in the breast pocket of a distinctive black bomber-style jacket Fable was seen wearing, and the presence in the same pocket of a cellphone linked to Fable.
  • Constitutionality of § 922(g)(1): A plain-error challenge to § 922(g)(1) under New York State Rifle & Pistol Ass’n v. Bruen was foreclosed by binding Second Circuit precedent, namely United States v. Bogle and Zherka v. Bondi.
  • Sentencing Enhancement (§ 2K2.1(b)(6)(B)): The district court did not clearly err in finding, by a preponderance, that Fable participated in drug trafficking and possessed the firearm “in connection with” that felony. The firearm’s close proximity to drugs and packaging/processing materials satisfied the guideline’s facilitation potential standard. The panel left open whether a third party’s conduct alone can supply the “other felony offense.”

Detailed Analysis

I. Precedents Cited and Their Influence

1. Evidentiary Standards and Harmless Error

  • United States v. Contorinis, 692 F.3d 136 (2d Cir. 2012): Confirms abuse-of-discretion review for evidentiary rulings. This frames the appellate lens—deference to the district court unless a ruling is “arbitrary and irrational.”
  • United States v. Coppola, 671 F.3d 220 (2d Cir. 2012): Guides Rule 403 analysis to maximize probative value and minimize unfair prejudice. The panel applied this to the inconclusive DNA testimony, noting expert clarifications mitigated prejudice.
  • United States v. Gupta, 747 F.3d 111 (2d Cir. 2014): Provides the harmless error standard. Even if the inconclusive DNA’s admission were error, Gupta allowed affirmance because other evidence was overwhelming.
  • United States v. Paulino, 445 F.3d 211 (2d Cir. 2006): Emphasizes that an error is harmless if the challenged item is “unimportant in relation to everything else the jury considered.” The panel deemed the inconclusive DNA unimportant compared to conclusive DNA on the trigger and other linking evidence.

2. Sufficiency of the Evidence and Possession

  • United States v. Cuti, 720 F.3d 453 (2d Cir. 2013): States the deferential sufficiency standard—any rational trier of fact could find the elements beyond a reasonable doubt when viewing the evidence in the government’s favor.
  • United States v. Gaines, 295 F.3d 293 (2d Cir. 2002): Defines actual versus constructive possession for § 922(g). The panel recited these categories to assess whether the jury had an adequate basis to find possession.
  • United States v. Bullock, 550 F.3d 247 (2d Cir. 2008): Upholds a conviction on a similar “quantum of evidence” for constructive possession, reinforcing that circumstantial links—like dominion over clothing or containers—can suffice.

3. Second Amendment Challenges Post-Bruen

  • New York State Rifle & Pistol Ass’n v. Bruen, 597 U.S. 1 (2022): Established the text-and-history test for Second Amendment restrictions. Fable argued § 922(g)(1) is unconstitutional under Bruen; the panel reviewed for plain error.
  • United States v. Bogle, 717 F.3d 281 (2d Cir. 2013): Earlier post-Heller Second Circuit decision upholding § 922(g)(1). It remains binding unless abrogated.
  • Zherka v. Bondi, 140 F.4th 68 (2d Cir. 2025): Recent circuit authority (post-Bruen) foreclosing facial challenges to § 922(g)(1). Together with Bogle, Zherka defeats plain error and forecloses Fable’s constitutional attack.

4. The Guidelines “In-Connection-With” Enhancement

  • United States v. Ortega, 385 F.3d 120 (2d Cir. 2004): Affirms clear-error review for factual findings and recognizes that close proximity of a firearm to drug materials supports the enhancement.
  • United States v. Ryan, 935 F.3d 40 (2d Cir. 2019): Clarifies that the “in connection with” requirement is satisfied if the firearm has the potential to facilitate felonious conduct.
  • U.S.S.G. § 2K2.1 cmt. n.14(A)-(B): The commentary states the enhancement applies when the gun “facilitated, or had the potential of facilitating” another felony, and in drug trafficking cases, is satisfied if the gun is in “close proximity” to drugs or drug paraphernalia.

II. The Court’s Legal Reasoning

1. Rule 403 and Inconclusive DNA

The defense argued the jury might improperly infer that Fable’s DNA was on the gun from an inconclusive magazine DNA result. The court emphasized the government’s expert repeatedly told the jury the result was inconclusive and could not establish the presence of Fable’s DNA. That testimony reduced the risk of unfair prejudice, tipping the Rule 403 balance toward admissibility. Moreover, because the government also introduced unchallenged, conclusive DNA evidence tying Fable to the trigger area, any marginal prejudice from the inconclusive magazine sample was harmless in light of the “overwhelming” proof.

2. Sufficiency of the Evidence of Possession

Applying the deferential Cuti standard, the panel highlighted three key facts from which a rational jury could find possession beyond a reasonable doubt:

  • Conclusive DNA tying Fable to the trigger area (strong evidence of actual handling);
  • The firearm’s location in the breast pocket of a distinctive black bomber-style jacket seen on Fable near the time of seizure (evidence of dominion over the container holding the weapon);
  • The presence in that same pocket of a cellphone containing texts, contacts, and communications attributable to Fable (further linking Fable to the jacket and the firearm).

These facts supplied more than adequate circumstantial proof of possession under Gaines, and the panel analogized the strength of this evidence to Bullock’s sufficiency holding.

3. Second Amendment Challenge to § 922(g)(1)

Because Fable did not raise the constitutional argument below, the court reviewed only for plain error. It found no “clear or obvious” error, as binding circuit law—Bogle and Zherka—foreclosed a facial challenge to § 922(g)(1) even after Bruen. In other words, absent intervening Supreme Court authority overruling those decisions, the panel could not find plain error in upholding the felon-in-possession statute.

4. § 2K2.1(b)(6)(B): Firearm “In Connection With” Another Felony

The panel affirmed the four-level enhancement, holding that the district court did not clearly err in finding by a preponderance that:

  • Fable participated in drug trafficking (even though he was not charged with that offense); and
  • His firearm possession facilitated, or had the potential to facilitate, that felony, as evidenced by the firearm’s “close proximity” to drugs and drug packaging/processing materials.

Invoking Ryan and U.S.S.G. § 2K2.1 cmt. n.14(A)-(B), the court emphasized that the enhancement applies when the gun has the potential to serve a purpose in the felony, and that in drug cases, close proximity itself suffices to establish the requisite nexus. Importantly, the panel expressly declined to decide whether “another felony offense” may be supplied solely by third-party conduct, because the record supported the district court’s finding that Fable himself was engaged in drug trafficking.

III. Impact and Practical Implications

1. Evidentiary Practice: Inconclusive Forensics

  • Even though this is a non-precedential order, it illustrates how courts may admit inconclusive DNA results when expert testimony squarely instructs the jury that no affirmative inference can be drawn. Clear, repeated expert caveats reduce unfair prejudice under Rule 403.
  • Harmless error remains a potent backstop: If the government has conclusive forensic links (e.g., DNA on the trigger) and strong corroboration (clothing, phone, location), an evidentiary misstep concerning marginal forensic material is unlikely to warrant reversal.

2. Possession under § 922(g)(1)

  • The case demonstrates how overlapping circumstantial strands—DNA, distinctive clothing that houses the gun, and personal effects (a cellphone) in the same pocket—can readily satisfy either actual or constructive possession.
  • Bullock’s “quantum of evidence” framing continues to guide sufficiency analysis in constructive possession cases. The linkage between a defendant and the container or garment concealing the weapon remains crucial.

3. Second Amendment Landscape

  • In the Second Circuit, facial challenges to § 922(g)(1) are foreclosed by Bogle and Zherka. Litigants should not expect relief on such claims, particularly when raised for the first time on appeal.
  • The panel’s approach underscores a conservative appellate posture: absent clear abrogation by the Supreme Court, existing circuit authority controls.

4. Sentencing: § 2K2.1(b)(6)(B)

  • Close proximity between a gun and drug trafficking materials continues to be an evidentiary lodestar for the “in connection with” enhancement in the Second Circuit, consistent with Ryan, Ortega, and Guideline commentary n.14.
  • The government need only prove, by a preponderance, the defendant’s participation in the other felony (even if uncharged). The panel’s reliance on proximity evidence and functional nexus highlights how readily the enhancement can apply in narcotics-related contexts.
  • Unresolved question flagged: Whether § 2K2.1(b)(6)(B) can be triggered solely by third-party conduct remains undecided in this circuit because the record supported the defendant’s own involvement. Future cases that isolate this issue may prompt a definitive holding.

Complex Concepts Simplified

  • Rule 403 (Unfair Prejudice vs. Probative Value): Courts balance the evidence’s usefulness against the risk it will mislead or inflame the jury. If experts make clear that DNA results are inconclusive, that blunts the danger that jurors will overvalue them.
  • Harmless Error: Even if the judge admits evidence that should have been excluded, an appellate court will affirm if the remaining, properly admitted evidence would have led any reasonable jury to the same verdict.
  • Actual vs. Constructive Possession: Actual possession means physically holding or carrying the item. Constructive possession means having both the power and the intent to control it, demonstrated through circumstantial proof (e.g., the gun is in your jacket pocket, alongside your phone).
  • Plain Error Review: When an issue is not raised in the trial court, the appellate court will reverse only if there is an error that is clear or obvious, affects substantial rights, and seriously undermines the fairness or integrity of the proceedings.
  • § 2K2.1(b)(6)(B) “In Connection With”: This enhancement applies if a firearm facilitated—or could have facilitated—another felony. In drug cases, merely finding the gun close to drugs or drug paraphernalia usually suffices to show potential facilitation.
  • Preponderance of the Evidence at Sentencing: Unlike trial, where proof beyond a reasonable doubt is required, guideline enhancements are generally applied if the judge finds it more likely than not that the facts justifying the enhancement are true.

Conclusion

United States v. Fable is a non-precedential yet instructive decision. It affirms that:

  • Inconclusive DNA evidence may be admissible when expert testimony candidly conveys its limitations, and any marginal prejudice is likely harmless in the face of overwhelming proof;
  • Practical, circumstantial linkages—DNA on the trigger, distinctive clothing, and a phone in the same pocket as the gun—comfortably sustain a jury’s finding of possession under § 922(g)(1);
  • In the Second Circuit, Bruen-based facial attacks on § 922(g)(1) are foreclosed by binding precedent (Bogle and Zherka), particularly on plain-error review;
  • The § 2K2.1(b)(6)(B) enhancement remains broadly applicable in narcotics contexts, with close proximity between a firearm and drug materials supplying the requisite facilitative nexus under circuit law and guideline commentary.

Although the panel deliberately left unresolved whether third-party felonious conduct alone can satisfy the “another felony offense” element of § 2K2.1(b)(6)(B), its approach illustrates a pragmatic sentencing paradigm: where the record supports the defendant’s own involvement and the firearm’s functional relationship to narcotics trafficking, the enhancement will stand. As a practical matter, the order offers valuable guidance to trial courts and practitioners on the careful presentation of forensic evidence, the proof contours of possession, and the evidentiary pathways by which a firearm’s proximity to drug activity supports significant guideline increases.

Note: This is a Second Circuit summary order. Under FRAP 32.1 and Local Rule 32.1.1, it is citable as persuasive authority but does not have precedential effect.

Case Details

Year: 2025
Court: Court of Appeals for the Second Circuit

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