United States of America v. Tommie L. Haney

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Argued January 30, 2026
Decided March 23, 2026
Before
MICHAEL B. BRENNAN, Chief Judge
ILANA DIAMOND ROVNER, Circuit Judge
DAVID F. HAMILTON, Circuit Judge
No. 25-1302
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
TOMMIE L. HANEY,
Defendant-Appellant.
Appeal from the United States District
Court for the Western District of
Wisconsin.
No. 3:23-cr-00123-wmc-1
William M. Conley,
Judge.
O R D E R
Tommie L. Haney pleaded guilty to conspiring to distribute and possessing with
intent to distribute methamphetamine and cocaine in violation of 21 U.S.C. §§ 841(a)(1)
and 846. In calculating Haney’s total adjusted offense level at sentencing, the district
court applied a 2-level enhancement under U.S.S.G. § 2D1.1(b)(1) for possessing a
firearm in furtherance of the drug conspiracy. Because the district court did not clearly
err in applying that enhancement, we affirm.
NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with F ED. R. APP . P. 32.1

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No. 25-1302 Page 2
I.
Haney and a co-defendant, Quo Vadis Lewis, led a drug conspiracy involving
several co-conspirators and spanning from August 2021 to June 2023. The two
coordinated shipments of narcotics, traveled together to pick up drugs, and frequently
discussed their drug business over the phone. Law enforcement officers observed
Haney at Lewis’s residence. In March 2022, Haney attempted to pick up a large quantity
of methamphetamine from Lewis’s residence. In March 2023, Haney was seen at that
residence following a controlled sale of methamphetamine, and in May 2023, Haney
was seen after he completed a cocaine deal there. As part of the conspiracy, Haney also
completed several other controlled sales of methamphetamine and cocaine.
In April 2023, Haney’s cocaine supplier was arrested and three guns were found
in the supplier’s residence. Haney spoke with his co-conspirators about this arrest. In
May 2023, co-conspirator Samuel Teague was arrested. A search of his house yielded
cocaine, cash, and a firearm. Haney told a family member, “[M]y homeboy just got
caught with 9 and half ounces … half pound of weed and a pistol … that’s where all my
muckin [sic] money went.”
Throughout the conspiracy, Haney spoke with Lewis and other individuals
about firearms. In June 2023, Haney messaged a customer, “I just got a few hand
joints … 2 40s and a 9.” He said one of the guns was a “sig/9” they had previously
discussed, and the other a “Taurus g2.” In May 2023, Haney asked Lewis about guns,
learning that Lewis possessed a Taurus G2C and a “rusty Smith & Wesson .40.” Based
on this information, Haney then offered to sell these guns. He told another associate
about a “9 Sig,” who agreed to buy it. He also told an unknown customer, “[M]y people
got poles for sale … he got a few 9 sigs right now.”
Later in June 2023, officers arrested Haney in a motel room in Wausau,
Wisconsin where they found cocaine and cash. After executing a search warrant at
Lewis’s residence (also in Wausau), officers found quantities of cocaine and marijuana,
a digital scale, a money counter, and cash. In addition, the search at Lewis’s home
yielded 9mm ammunition and a Taurus 9mm handgun. Officers further found two .40
caliber handguns—a Glock 23 and a Llama—along with .40 caliber ammunition.
Lewis’s DNA was detected on all three firearms. Haney’s DNA was later detected on
the Taurus 9mm handgun that became the subject of the 2-level enhancement for
Haney.

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No. 25-1302 Page 3
II.
Haney was indicted for, among other things, conspiring to distribute or possess
with intent to distribute controlled substances in violation of 21 U.S.C. § 841(a)(1) and
21 U.S.C. § 846. Because the controlled substances included 500 grams or more of
mixtures or substances containing detectable amounts of methamphetamine and
cocaine, the minimum imprisonment term was 10 years with 5 years of supervised
release, and the maximum term was life imprisonment, among other penalties. 21
U.S.C. § 841(b)(1)(A); 21 U.S.C. § 841(b)(1)(B)(ii).
With the assistance of counsel, Haney pleaded guilty. A Presentence Report
(PSR) was prepared in which, based on the quantity of drugs involved, Haney’s base
offense level was 38 for the drug conspiracy. U.S.S.G. § 2D1.1(a)(5) (referencing Drug
Quantity Table in (c)), (c)(1) (“90,000 KG or more of Converted Drug Weight”). Relevant
here, the PSR included a 2-level enhancement for possessing a firearm. U.S.S.G.
§ 2D1.1(b)(1). Combined with other enhancements, Haney’s total adjusted offense level
was 43, and his criminal history category was VI. The advisory Guidelines
recommended life imprisonment. Haney filed written objections to portions of the PSR,
including the 2-level U.S.S.G. § 2D1.1(b)(1) enhancement:
Guideline Calculation: The defendant objects to the application of
§2D1.1(b)(1) because the defendant’s firearms sales were not connected to his
drug trafficking. The defendant admits that his DNA was found on a firearm
in Quo Vadis Lewis’s residence. In addition, there is no evidence suggesting
the defendant carried a firearm during drug transactions or kept one within
reach during drug-related activities.
Dkt. 321, at 2–3.
At Haney’s sentencing hearing, the district court reviewed these written
objections and overruled his objection to the 2-level enhancement. The court explained
it was “more likely than not that the defendant possessed firearms for sales to others.”
To support its conclusion, the district court considered (1) communications which
indicated Haney trafficked in the sale of firearms, (2) a firearm referenced during
intercepted communications pertaining to drug sales contained Haney’s DNA, and (3)
the firearm was found in “close proximity” to multiple controlled substances and other
items used in drug trafficking at co-defendant Quo Vadis Lewis’s apartment.
After overruling Haney’s other objections, the district court adopted the PSR’s
guidelines determination. The government sought a 180-month sentence. Haney

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requested between 120 and 150 months in prison. After considering 18 U.S.C. § 3553(a)’s
sentencing factors and the parties’ arguments, the court imposed a sentence of 168
months in prison, with 5 years of supervised release. Haney timely appeals.
III.
We review the district court’s application of the Sentencing Guidelines de novo.
United States v. Taylor, 160 F.4th 874, 880 (7th Cir. 2025). Challenges to the underlying
factual determinations are reviewed for clear error. Id. The clear-error standard is
deferential. We do not disturb the district court’s findings unless, after examining the
evidence and the reasonable inferences, “we are left with the definite and firm
conviction that a mistake has been made.” Id. (quotation omitted).
Under U.S.S.G. § 2D1.1(b)(1), a two-level enhancement applies “[i]f a dangerous
weapon (including a firearm) was possessed.” Application Note 11 of § 2D1.1(b)(1)
explains that the enhancement “reflects the increased danger of violence when drug
traffickers possess weapons.” That note also states, “[t]he enhancement should be
applied if the weapon was present, unless it is clearly improbable that the weapon was
connected with the offense.” U.S.S.G. § 2D1.1(b)(1) (Application Note 11).
This imposes a “twofold burden.” United States v. Sanchez, 989 F.3d 523, 544 (7th
Cir. 2021). First, the government must prove by a preponderance of the evidence that
the defendant possessed a weapon either actually or constructively, meaning he had the
power and intention to control the weapon. Id.. And a firearm is presumed to have been
used in furtherance of the conspiracy when it is found in “close proximity” to the illegal
drugs. See United States v. Zamudio, 18 F.4th 557, 561–62 (7th Cir. 2021) (quotations
omitted). Second, if the government satisfies this burden, the defendant must show a
clear improbability that he possessed the weapon in connection with the offense.
Sanchez, 989 F.3d at 544.
A.
The government presented evidence to show that Haney possessed a firearm in
furtherance of the drug conspiracy. This included intercepted communications in which
Haney and his co-conspirators discussed firearms they possessed. One of the messages
specifically referred to his possession of a Taurus handgun for sale. A Taurus 9mm
handgun was later found at Lewis’s house in close proximity to drugs. Tests revealed
Haney’s DNA on that handgun. Based on the government’s evidence, the district court

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No. 25-1302 Page 5
found that Haney possessed a firearm in furtherance of the drug conspiracy. We must
decide whether that finding was clear error.
Haney challenges the district court’s finding by advancing a “middleman”
theory and a “secondary transfer” theory.
1.
Arguing he acted only as a middleman, Haney contends he communicated about
firearms others possessed—he did not claim to possess a Taurus himself. He could later
acquire those firearms for sale to an interested buyer. Per Haney, the potential to
possess at some future point is not possession for purposes of the enhancement.
It is true that in some of these intercepted communications, Haney is heard
discussing firearms others possessed. “[M]y people got poles for sale … he got a few 9
sigs right now.” But Haney’s argument overlooks other intercepted communications
showing he personally possessed various firearms, including a Taurus. “I just got a few
hand joints … 2 40s and a 9,” one being a “sig/9” and another a “Taurus g2.” Based on
these communications, Haney’s middleman theory falls short of clear error.
2.
Haney next submits that his DNA was found on the gun, not because he touched
it, but because Lewis transferred Haney’s DNA onto the firearm. The two men
frequently touched the same cash and drugs in furtherance of the conspiracy. So, in his
view, it is possible that Lewis transferred Haney’s DNA from these shared items onto
the Taurus 9 mm handgun.
Before addressing this contention, we consider whether, as the government says,
Haney waived this argument by failing to raise it in his objections to the PSR or at
sentencing. Indeed, in his objection to the enhancement, Haney “admit[ted] that his
DNA was found on a firearm in Lewis’s residence.” He only contested that the firearm
had a nexus to the drug transactions or related activity. To support its waiver argument,
the government cites United States v. Jackson, 103 F.4th 483, 488 (7th Cir. 2024) (“The
argument was not raised below and is thus waived.”) (citing United States v. Payne, 102
F.3d 289, 293 (7th Cir. 1996) (“We have repeatedly held that a party that fails to press an
argument before the district court waives the right to present that argument on
appeal.”) (citation omitted)).

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Haney counters that under Yee v. City of Escondido, “[o]nce a federal claim is
properly presented, a party can make any argument in support of that claim; parties are
not limited to the precise arguments they made below.” 503 U.S. 519, 534–35 (1992).
There, although the Court deemed a newly asserted due process claim waived on
appeal, it found a new theory of the plaintiffs’ Fifth Amendment taking claim
preserved. Id. The plaintiffs, the Court explained, “unquestionably raised a taking claim
in the state courts,” so the Court could consider both the physical and regulatory taking
theory on appeal. Id.
Haney also relies on our court’s cases applying Yee. In Bew v. City of Chicago,
probationary police officers alleged that a certification exam they failed, which resulted
in their discharge, violated Title VII as administered. 252 F.3d 891, 892, 896 (7th Cir.
2001). Plaintiffs challenged the exam’s “cut-off score” requirement in the district court.
Id. at 895. On appeal, this court, citing Yee, allowed them to bring a new challenge to the
“three strikes rule,” which limited the number of attempts to pass the exam, because it
supported their Title VII claim. Id. at 895–96. Haney also cites to United States v. Billups
and United States v. Otradovec, in which this court allowed the parties to fill out their
interpretation of a statute with new textual arguments on appeal. United States v. Billups,
536 F.3d 574, 578 (7th Cir. 2008); United States v. Otradovec, 72 F.4th 794, 796 (7th Cir.
2023).
But Yee, Bew, Billups, and Otradovec are distinguishable. In objecting to the PSR’s
application of the two-level enhancement, Haney did not contest his possession of the
firearm. He challenged only its connection to the conspiracy. Under the burden-shifting
framework in our caselaw, Sanchez, 989 F.3d at 544, Haney effectively conceded the
government met its burden to prove possession. His objection went solely to his burden
to show a “clear improbability” that the gun possession was in furtherance of his
underlying offense.
Yet Haney’s secondary transfer argument, which he raises for the first time on
appeal, challenges possession qua possession. It is not merely an alternative legal
argument, like those preserved in Yee and Bew. Rather, it attempts to undo a factual
concession within a legal burden-shifting framework. And unlike the defendants in
Billups and Otradovec, Haney does not simply buttress his interpretation of a statute. He
asks us as an appellate court to resolve a fact question—whether, by a preponderance of
the evidence, his DNA was transferred onto the firearm by Lewis—and to do so in the
first instance. That is like the argument waived in Jackson, in which we declined to
decide in the first instance whether unburnt marijuana smelled enough like legal hemp

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to reverse a finding of probable cause. 103 F.4th at 488. We thus conclude that Haney’s
secondary transfer argument has been waived.
3.
Even if not waived, this argument fails on its merits. The district court made
reasonable inferences that Haney possessed the firearm. Secondary transfer supposes
that Haney’s DNA was easily transferrable from shared items to non-shared items. If so,
this explains how Haney’s DNA was transferred to the Taurus firearm. But it fails to
explain why his DNA was not transferred to the other two guns found at Lewis’s
residence, on which only Lewis’s DNA was found.
Now, other inferences could be drawn in Haney’s favor. Perhaps the two guns
that contained only Lewis’s DNA were recently cleaned. Or perhaps they were recently
purchased and only handled with clean hands, or only after touching bills or drugs not
containing Haney’s DNA. And it is conceivable that the Taurus 9 mm handgun is not
the same firearm mentioned in the communications that show Haney possessed a
Taurus at some point.
Even if inferences on both sides are in equipoise, the tiebreaker goes to the
district court’s decision. That court’s factual finding that Haney possessed the firearm is
reviewed for clear error, Taylor, 160 F.4th 874 at 880, and the arguments under Haney’s
theory of secondary transfer do not leave us with a definite and firm conviction that a
mistake has been made. Id.
B.
The burden then shifts to Haney to show it was clearly improbable that he
possessed the firearm in furtherance of the conspiracy. Sanchez, 989 F.3d 523, 544. To do
so, he must rebut the presumption that, because the firearm was found in “close
proximity” to drugs, it was used in furtherance of the drug trafficking conspiracy.
Zamudio, 18 F.4th at 561–62.
Haney contends the PSR applied § 2D1.1(b)(1)’s two-level enhancement because
he was “engaged in selling firearms.” But these “firearms sales,” he says, “were not
connected to his drug trafficking.” Similarly, he points out that no evidence shows he
carried a firearm during the drug transactions, or that he had one within reach during
drug-related activity.

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No. 25-1302 Page 8
Haney’s arguments do not engage with his burden. In applying the
enhancement, the district court did not rely solely on the fact that Haney sold firearms.
Instead, the court emphasized that a firearm with his DNA on it, referenced in
intercepted communications, was found in “close proximity” to drugs in his co-
conspirator’s house during the conspiracy. The burden does not rest on the government
to prove that Haney possessed a gun during a specific transaction or drug-related
activity. The burden to rebut the established presumption rests on Haney, which he has
failed to carry.
Haney next posits there is no evidence showing that he sold the firearm in
question to Lewis. There are many Taurus 9mm handguns in circulation. So, to him, it is
more likely that Lewis acquired that gun from someone other than Haney. But this too
misses the mark. The government carries no burden to prove that Haney sold this
firearm to Lewis. The Taurus 9 mm handgun had Haney’s DNA on it, no matter where
it came from. And it was found in close proximity to drugs in Lewis’s house, where
Haney had visited. All this gives rise to a presumption that Haney possessed it in
furtherance of the drug conspiracy. Because Haney’s arguments fail to rebut that
presumption, the district court did not err by applying the 2-level § 2D1.1(b)(1)
enhancement.
C.
Failing to show clear error, Haney argues the PSR and district court misstated the
legal standard for the § 2D1.1(b)(1) enhancement. The PSR focused on the fact that
Haney was “selling firearms.” The district court said the firearm’s “relationship to the
drug offense … has no bearing on the guideline calculation.” As Haney points out,
§ 2D1.1(b)(1) focuses on possessing, not selling firearms, and caselaw requires some
connection to the underlying offense. Though the district court misspoke and said “no
bearing,” it properly connected possession of the firearm to the underlying offense
when it explained that Haney’s DNA was found on a firearm “referenced during
intercepted communications pertaining to drug sales, and the firearm was found in
close proximity to multiple controlled substances and other items used in drug
trafficking at co-defendant Quo Vadis Lewis’s apartment.” Viewed in context, the
district court applied the correct legal standard for the § 2D1.1(b)(1) enhancement and
gave accurate reasoning for its conclusion and sentencing decisions.

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* * *
For these reasons, the district court did not err in imposing a 2-level
enhancement under § 2D1.1(b)(1).
A FFIRMED.

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