Waiver of New Factual Theories on Appeal in U.S.S.G. § 2D1.1(b)(1) Firearm-Enhancement Litigation

I. Introduction

In United States v. Tommie L. Haney (7th Cir. Mar. 23, 2026) (nonprecedential), the Seventh Circuit affirmed a two-level firearm enhancement under U.S.S.G. § 2D1.1(b)(1) in a large methamphetamine-and-cocaine conspiracy. The key dispute was not whether firearms appeared in the broader conspiracy, but whether a particular Taurus 9mm handgun found in a co-conspirator’s residence could be attributed to Haney as “possessed” in connection with the drug offense—especially where Haney’s DNA was detected on the weapon.

The appeal raised two principal issues: (1) whether the district court clearly erred in finding possession and a drug nexus sufficient for § 2D1.1(b)(1); and (2) whether Haney could, for the first time on appeal, advance a new factual explanation for the DNA evidence (“secondary transfer”) to undermine possession after having effectively conceded possession below.

II. Summary of the Opinion

The Seventh Circuit affirmed. Applying clear-error review to the district court’s factual findings and the established § 2D1.1(b)(1) burden-shifting framework, the court held:

  • The government met its burden to show firearm possession by a preponderance of the evidence, supported by intercepted communications and DNA on a handgun found near drugs.
  • Haney’s “middleman” theory did not defeat the district court’s finding because other communications suggested personal possession of firearms, including a Taurus.
  • Haney’s “secondary transfer” theory was waived because it was not raised in PSR objections or at sentencing and would undo a factual concession within the burden-shifting scheme.
  • Even absent waiver, the secondary-transfer theory did not establish clear error given the district court’s reasonable inferences (including the absence of Haney’s DNA on other firearms at the same location).
  • Haney failed to show it was “clearly improbable” that the firearm was connected to the offense, especially because it was found in “close proximity” to drugs.
  • Although the district court briefly misspoke about the “relationship” to the drug offense, its reasoning as a whole correctly applied the enhancement’s nexus requirement.

III. Analysis

A. Precedents Cited

1. Standards of review and deference

The panel grounded its appellate posture in United States v. Taylor, 160 F.4th 874, 880 (7th Cir. 2025), emphasizing that Guidelines application is reviewed de novo, but factual determinations (like possession and inferences from DNA and proximity evidence) are reviewed only for clear error. That framing mattered: Haney’s theories required the court to reweigh competing inferences, a task the clear-error standard generally forbids unless a “definite and firm conviction” of mistake exists.

2. The § 2D1.1(b)(1) burden-shifting framework

The court relied on United States v. Sanchez, 989 F.3d 523, 544 (7th Cir. 2021), for the “twofold burden”: the government must first prove possession (actual or constructive) by a preponderance; then the defendant must show it is “clearly improbable” the weapon was connected with the offense. This structure shaped the waiver analysis: Haney’s sentencing objection challenged only the second step (nexus), effectively conceding the first step (possession).

3. The “close proximity” presumption

The presumption that a firearm found in “close proximity” to drugs is connected to the trafficking offense came from United States v. Zamudio, 18 F.4th 557, 561–62 (7th Cir. 2021). That presumption significantly narrowed what Haney needed to do on appeal: it was not enough to argue there was no proof he carried a gun during a specific deal. Under Zamudio and Sanchez, once proximity is shown, the defendant must affirmatively rebut the connection as “clearly improbable.”

4. Waiver doctrine in sentencing appeals

To reject the newly raised “secondary transfer” theory, the court cited United States v. Jackson, 103 F.4th 483, 488 (7th Cir. 2024), which in turn cited United States v. Payne, 102 F.3d 289, 293 (7th Cir. 1996), for the proposition that arguments not pressed below are waived on appeal. The panel treated Haney’s new DNA theory not as a refined legal argument, but as an attempt to relitigate an unpreserved factual dispute central to the government’s step-one burden (possession).

5. The scope of “new arguments” supporting preserved claims

Haney invoked Yee v. City of Escondido, 503 U.S. 519, 534–35 (1992), and the Seventh Circuit’s application in Bew v. City of Chicago, 252 F.3d 891, 895–96 (7th Cir. 2001), to argue that once a claim is preserved, new supporting arguments are allowed on appeal. He also cited United States v. Billups, 536 F.3d 574, 578 (7th Cir. 2008), and United States v. Otradovec, 72 F.4th 794, 796 (7th Cir. 2023), for the idea that parties may elaborate textual/statutory arguments on appeal.

The panel distinguished these authorities by characterizing Haney’s move as neither (a) a new legal theory supporting the same preserved claim, nor (b) additional statutory interpretation. Instead, it was a new factual theory aimed at reversing an implicit concession under a burden-shifting regime—i.e., asking the appellate court to decide in the first instance whether the DNA could have been secondarily transferred. That distinction—between preserved legal argumentation and unpreserved factual contest—does the main doctrinal work of the decision.

B. Legal Reasoning

1. Possession: communications + DNA + proximity

On step one, the government offered (i) intercepted messages suggesting Haney personally had firearms (“I just got… 2 40s and a 9” including a “Taurus g2”), (ii) the later discovery of a Taurus 9mm at Lewis’s residence near drugs and trafficking tools, and (iii) testing showing Haney’s DNA on that Taurus. Under clear-error review, these facts permitted an inference of actual or constructive possession. The court rejected Haney’s “middleman” theory because it selectively relied on some messages (“my people got poles for sale”) while ignoring others indicating personal possession.

2. Waiver: the key procedural holding

The panel’s most practically significant move was procedural: Haney’s “secondary transfer” story attacked possession itself, but his PSR objection had already accepted DNA on the gun and focused only on the lack of connection to drug trafficking. Within the Sanchez framework, that meant the parties litigated the case as if the government’s possession showing was satisfied and only the nexus rebuttal remained. On appeal, Haney sought to reopen the step-one factual record by proposing a new causal account of the DNA.

The court treated this as waiver because it would require the appellate court to resolve a contested factual matter without district-court findings. In effect, the panel reinforced a functional line: Yee-style latitude does not extend to new factual theories that reverse a litigated factual posture—especially where burden shifting makes that posture outcome-determinative.

3. Merits backstop: why secondary transfer did not show clear error anyway

Even if preserved, the court held the secondary-transfer inference did not compel reversal. A central point was comparative: if Haney’s DNA plausibly transferred readily from shared drugs/cash onto items in the residence, it did not explain why Haney’s DNA appeared on the Taurus but not on the other two guns recovered there. The panel acknowledged other possible explanations, but under clear-error review, equipoise favors affirmance because the district court’s inference was permissible.

4. Nexus: the “clearly improbable” rebuttal fails

On step two, the panel emphasized the Zamudio presumption: a gun found in close proximity to drugs is presumed connected to trafficking. Haney’s rebuttal arguments—that he was selling guns unrelated to drugs, that no evidence showed he carried a gun during deals, and that the government could not prove he sold the specific Taurus to Lewis—did not meet the “clearly improbable” standard. Critically, the court clarified that the government need not tie the gun to a specific drug transaction once proximity and possession are shown; the defendant must affirmatively negate the connection.

5. Alleged misstatement of the legal standard

Haney challenged the district court’s remark that the firearm’s “relationship to the drug offense… has no bearing.” The panel treated this as an imprecise statement cured by the court’s actual reasoning, which did connect the firearm to drug trafficking via intercepted communications and close proximity to controlled substances and trafficking paraphernalia.

C. Impact

Although designated nonprecedential, the decision is likely to be persuasive in three recurring sentencing contexts in the Seventh Circuit:

  1. Preservation strategy for PSR objections: Defendants contesting § 2D1.1(b)(1) should explicitly dispute step-one possession facts (including forensic evidence) if they intend to do so on appeal; focusing only on nexus may be treated as conceding possession under Sanchez.
  2. Limits of “new argument” doctrine: The case draws a pragmatic boundary around Yee v. City of Escondido in the sentencing setting: new legal arguments may be permitted, but new factual theories—especially those requiring new findings—risk being deemed waived.
  3. Firearm enhancement proof patterns: The combination of intercepted communications, DNA evidence, and “close proximity” will often suffice to sustain the enhancement on clear-error review, even absent evidence that the defendant carried a firearm at a specific deal.

IV. Complex Concepts Simplified

  • U.S.S.G. § 2D1.1(b)(1) enhancement: Adds two offense levels if a firearm was “possessed” during a drug offense, reflecting increased risk of violence.
  • Actual vs. constructive possession: Actual means physically holding; constructive means having the power and intent to control the firearm, even if not in hand.
  • Preponderance of the evidence: “More likely than not”—the standard the government uses at sentencing for most factual showings.
  • Close proximity presumption: If a gun is found near drugs or trafficking tools, courts often presume it is connected to drug trafficking unless convincingly rebutted.
  • Clearly improbable: A demanding rebuttal standard; it requires more than “maybe unrelated”—it requires a strong showing that a connection to the offense is very unlikely.
  • Clear-error review: Appellate courts defer to the district judge’s factfinding and reverse only when firmly convinced a mistake was made.
  • Waiver (in this opinion’s usage): Losing the right to raise an argument on appeal because it was not presented to the district court, particularly when it would require new factual determinations.

V. Conclusion

United States v. Tommie L. Haney reinforces two practical rules for § 2D1.1(b)(1) litigation: (1) once the government shows possession and close proximity, the defendant bears a heavy burden to prove the firearm-offense connection is “clearly improbable”; and (2) defendants cannot reframe the case on appeal with a new factual theory (here, “secondary DNA transfer”) that contests possession after having litigated the sentencing as a nexus-only dispute. Even as a nonprecedential disposition, the opinion provides a disciplined roadmap for how preservation, burden shifting, and deference interact in firearm-enhancement appeals.