“Proximity-and-Accessibility” as the Determinative Nexus & Plain-Error Limits on Predicate Switching:
A Comprehensive Commentary on United States v. Prawl (2d Cir. 2025)

Introduction

United States v. Prawl, decided by the Second Circuit on 18 August 2025, tackles two recurrent but unsettled questions in federal criminal practice:

1. Under 18 U.S.C. § 924(c), what quantum and quality of evidence establishes that a firearm was possessed “in furtherance of” a drug-trafficking crime?
2. When an indictment specifies one drug-trafficking predicate for a § 924(c) charge but the case is tried and submitted to the jury on another predicate also charged elsewhere, does that divergence constitute a constructive amendment violating the Grand Jury Clause—and, if unpreserved, is the error “plain”?

The appeal grew out of Brandon Prawl’s conviction for four September 2019 heroin sales (Counts 1-4), possession with intent to distribute heroin found during an October 4 search (Count 6), and possession of a firearm “in furtherance” of a drug-trafficking crime (Count 5). The indictment tethered Count 5 to the September sales; at trial, however, the government and the district court treated Count 6 (the October stash) as the operative predicate. Prawl challenged only Count 5 on appeal, asserting (1) evidentiary insufficiency and (2) constructive amendment.

Summary of the Judgment

• Evidence sufficiency: Affirmed. The court held that the handgun’s ready accessibility, close physical proximity to heroin and cutting agents, and its illicit, concealable character created a “specific nexus” between the firearm and the ongoing drug activity, satisfying § 924(c).
• Constructive amendment: Claim abandoned. Because Prawl omitted the argument from his opening brief, the panel deemed it abandoned. Even if considered, the mismatch was not “plain error” given the absence of controlling precedent and the defendant’s lack of surprise.
• Consequently, the convictions and 84-month sentence were affirmed in full; a related bail appeal was dismissed as moot.

Detailed Analysis

1. Precedents Cited and Their Influence

• United States v. Willis, 14 F.4th 170 (2d Cir. 2021) – reaffirmed that constructive possession suffices under § 924(c). Prawl leveraged Willis to attack his possession, but the panel relied on it to uphold constructive possession based on ID documents, residence ties, and dominion over the bedroom.
• United States v. Snow, 462 F.3d 55 (2d Cir. 2006) – sets out the eight “nexus factors.” The panel methodically walked through each factor, signalling that Snow remains the template for “in furtherance” analysis.
• United States v. Lewis, 62 F.4th 733 (2d Cir. 2023) – articulated that the gun must afford an “actual or potential” advantage in drug trafficking. The court used Lewis to reject Prawl’s “mere presence” theory.
• United States v. Rosario, 792 F. App’x 76 (2d Cir. 2019) – the sole authority vacating a § 924(c) plea on nexus grounds. The panel distinguished it: Prawl’s gun was co-located with drugs, unlike the locked van in Rosario.
• Out-of-Circuit constructive-amendment cases – Randall (4th Cir.), Willoughby (7th Cir.), Reyes (5th Cir.) each condemn predicate switching. The panel acknowledged them but found no Second-Circuit precedent and therefore no obvious error.
• United States v. D’Amelio, 683 F.3d 412 (2d Cir. 2012) – “core of criminality” doctrine; used to show the changed predicate did not alter the essential facts of the firearm possession.
• United States v. Bastian, 770 F.3d 212 (2d Cir. 2014) – clarified plain-error review of constructive amendments; cited to hold any error not “plain”.

2. The Court’s Legal Reasoning

a. Sufficiency/“In Furtherance”

1. Constructive Possession: Documents listing the apartment as Prawl’s address, his physical presence on the bed mid-dress, and prior use of the apartment as a stash spot together created dominion.
2. Nexus Factors Applied:
   • Type of drug activity – retail heroin distribution.
   • Accessibility – unlocked drawer; magazine adjacent; loadable in seconds.
   • Weapon type – concealable handgun.
   • Illegality – no license.
   • Proximity – dresser directly in front of heroin-filled closet.
   • Temporal context – gun found contemporaneously with stash after weeks of sales from same location.
   Collectively, these facts transcended “mere presence” and demonstrated that the firearm offered protective leverage.

b. Constructive Amendment/Plain Error

Key move: the panel treated the claim as abandoned because it appeared nowhere in Prawl’s opening brief. Under Second-Circuit practice, abandonment is a prudential doctrine, but the court declined to overlook it given total silence by appellant after the government raised the point.

Even assuming review, the court found no “clear or obvious” error—prong 2 of plain-error analysis—because:

• The Second Circuit has never resolved whether § 924(c) requires the predicate specified in the indictment to match the trial theory when both predicates were themselves charged.
• Prawl was not “surprised”: his own proposed charge covered both sets of drug counts.
• Divergent out-of-circuit authority is insufficient to render the error plain under Bastian.

3. Anticipated Impact

• Re-invigoration of “Proximity-and-Accessibility” Nexus: The ruling emphasizes that physical closeness of a ready-to-fire weapon and illicit drugs remains potent evidence of furtherance even absent additional facts (e.g., loaded gun, large cash stash). Prosecutors will cite Prawl to satisfy nexus where handgun, magazine, and drugs are co-located.
• Constraint on Unpreserved Predicate-Switch Appeals: Defense counsel must object contemporaneously and preserve any constructive-amendment claim when a § 924(c) predicate shifts; otherwise, Prawl shows courts likely to find no plain error.
• Strategic Drafting of Indictments: U.S. Attorneys may respond by broadly alleging § 924(c) “in furtherance of ‘a’ drug-trafficking crime, namely Counts 1-6,” to avoid later predicate disputes.
• Potential Circuit Split: The Second Circuit’s reluctance to find plain error, juxtaposed with Fourth, Fifth and Seventh Circuit precedents finding predicate switching unconstitutional, deepens inter-circuit tension and could invite Supreme Court clarification.

Complex Concepts Simplified

“Constructive Possession”

A legal fiction: even if the accused never physically touched the gun, he “possesses” it when he has the power and intent to control it—keys, documents, or exclusive room occupancy suffice.

“In Furtherance of”

More than being near drugs; the gun must advance, protect, or facilitate the drug crime. Think of it as a tool in the drug-dealer’s toolkit, not mere household clutter.

“Constructive Amendment”

Occurs when the trial departs so far from the indictment that the jury may convict on a factual or legal basis not approved by the grand jury. It is forbidden because the Fifth Amendment guarantees the charging power rests with the grand jury, not prosecutors or judges.

“Plain Error Review”

An appellate safety-valve. If the defense did not object below, reversal requires (1) an error, (2) that is obvious, (3) affects substantial rights, and (4) undermines the integrity of the judicial process. High bar, rarely cleared.

Conclusion

United States v. Prawl crystallizes two doctrinal points. First, the court reinforced a fact-intensive, proximity-and-accessibility approach for determining whether a gun furthers drug trafficking. Second, it set a pragmatic boundary on unpreserved claims that the government impermissibly “switched” the § 924(c) predicate offense: without timely objection and clear Second-Circuit precedent, such claims will not succeed under plain-error review and may even be treated as abandoned.

Practitioners should heed Prawl both as a roadmap for proving (or attacking) “in furtherance” and as a cautionary tale about meticulous issue preservation. Meanwhile, the case contributes to a growing inter-circuit dialogue on the constitutional stakes of predicate specificity under § 924(c)—a dialogue the Supreme Court may soon need to join.