United States v. Prawl

23-6313(L)
United States v. Prawl
In the
United States Court of Appeals
For the Second Circuit
________
A UGUST TERM 2024
ARGUED: APRIL 7, 2025
D ECIDED: AUGUST 18, 2025
Nos. 23-6313(L), 23-6314(CON), 25-400(CON)
U NITED S TATES OF AMERICA,
Appellee,
v.
BRANDON PRAWL ,
Defendant-Appellant.
________
Appeal from the United States District Court
for Northern District of New York.
________
Before: W ALKER , PARK , and MENASHI , Circuit Judges.
________
Defendant-Appellant Brandon Prawl appeals a judgment of the
United States District Court for the Northern District of New York
(Suddaby, J.), entered March 31, 2023, convicting him after trial of
distribution of heroin in violation of 21 U.S.C. § 841(b)(1)(C)
(Counts 1-4), possession of a firearm in furtherance of a drug
trafficking crime in violation of 18 U.S.C. § 924(c)(1)(A) (Count 5), and
possession with intent to distribute heroin in violation of 21 U.S.C.

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No. 23-6313(L)
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§ 841(b)(1)(C) (Count 6). On appeal, Prawl does not contest his
substantive drug distribution and drug possession convictions in
Counts 1-4 and 6. He confines his argument to Count 5. He first
argues that the evidence was insufficient. Next, he argues that the
district court and government constructively amended the
indictment, in violation of the Fifth Amendment, by causing the jury
to convict him of gun possession in furtherance of a different drug
trafficking offense than the one specified in the indictment in Count 5.
We conclude that the evidence was sufficient to support
Prawl’s § 924(c) conviction on Count 5 and that he abandoned any
claim of constructive amendment as to Count 5 on appeal. Also,
reviewing Prawl’s unpreserved constructive amendment claim for
plain error, we conclude that Prawl has not established that his
conviction plainly constituted a constructive amendment of his
indictment. We therefore AFFIRM the judgment of the district court.
________
JOSHUA D. ROTHENBERG (Thomas R. Sutcliffe, on
the brief), Assistant U.S. Attorneys, for Carla B.
Freedman, United States Attorney for the
Northern District of New York, Syracuse, New
York, for Appellee United States of America.
MURRAY E. SINGER , Port Washington, New York,
for Defendant-Appellant Brandon Prawl.
________
J OHN M. WALKER , J R ., Circuit Judge:
Defendant-Appellant Brandon Prawl appeals a judgment of the
United States District Court for the Northern District of New York

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No. 23-6313(L)
3
(Suddaby, J.), entered March 31, 2023, convicting him after trial of
distribution of heroin in violation of 21 U.S.C. § 841(b)(1)(C)
(Counts 1-4), possession of a firearm in furtherance of a drug
trafficking crime in violation of 18 U.S.C. § 924(c)(1)(A) (Count 5), and
possession with intent to distribute heroin in violation of 21 U.S.C.
§ 841(b)(1)(C) (Count 6). On appeal, Prawl does not contest his
substantive drug distribution and drug possession convictions in
Counts 1-4 and 6. He confines his argument to Count 5. He first
argues that the evidence was insufficient. Next, he argues that the
district court and government constructively amended the
indictment, in violation of the Fifth Amendment, by causing the jury
to convict him of gun possession in furtherance of a different drug
trafficking offense than the one specified in the indictment in Count 5.
We conclude that the evidence was sufficient to support
Prawl’s § 924(c) conviction on Count 5 and that he abandoned any
claim of constructive amendment as to Count 5 on appeal. Also,
reviewing Prawl’s unpreserved constructive amendment claim for
plain error, we conclude that Prawl has not established that his
conviction plainly constituted a constructive amendment of his
indictment. We therefore AFFIRM the judgment of the district court.
BACKGROUND
The facts, taken from the evidence presented at trial, are as
follows. Prawl made four heroin sales to an undercover state
investigator on September 5, 9, 11, and 30, 2019. The September 5 sale
occurred on the front porch of an apartment building at 1526 Devine
Street in Schenectady, New York. The other three sales occurred in
the building’s common entrance. During each of these three sales,
Prawl went into an apartment on the same floor of the building to
retrieve the heroin. The investigator testified that he never saw Prawl

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No. 23-6313(L)
4
with a firearm during any of the four transactions, nor received
information that Prawl possessed one.
On October 4, 2019, state police raided the apartment. Sergeant
Erik Mendelsohn, who testified at trial, entered the apartment after
officers had already detained its occupants. Mendelsohn observed
that two officers had detained Prawl in a bedroom approximately “15
or 20 steps” away from the building’s front porch. App’x 268. Prawl
was sitting on a bed with a shirt pulled partially over his head. Four
other people were also found in the apartment and detained in a
different room. Mendelsohn testified that Prawl had already been
detained when he entered the apartment. Mendelsohn did not recall
seeing officers move occupants between rooms and explained that
moving detainees was not generally his team’s practice.
In a closet in the room where Prawl was detained, investigators
found a shoebox containing 21 grams of heroin, glassine envelopes, a
spoon, and a digital scale. A drawer in a dresser located in front of
the closet’s entrance contained quinine and procaine, which a
detective testified are commonly used to cut heroin before its sale. An
adjacent unlocked drawer in the same dresser contained an unloaded
semiautomatic handgun wrapped in a sweater and placed next to a
loaded magazine. Prawl had no license for the gun. A firearms
examiner testified that it would have taken seconds to insert the
magazine into the gun and fire. DNA samples from the gun were not
suitable for testing. Investigators also found in the bedroom Prawl’s
identification card, which listed the apartment as his address.
Prawl was indicted on October 29, 2020. Counts 1-4 charged
Prawl under § 841(b)(1)(C) with distributing a controlled substance,
heroin, on September 5, 9, 11, and 30, 2019. Count 6 charged Prawl
with possessing with the intent to distribute the heroin found in the
closet searched on October 4, also under § 841(b)(1)(C). Count 5

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No. 23-6313(L)
5
charged Prawl under § 924(c)(1)(A) with possessing the gun found in
the dresser searched on October 4 in furtherance of the September
heroin sales alleged in Counts 1-4. Specifically, Count 5 alleged that
Prawl possessed a firearm “[o]n or about October 4, 2019 . . . in
furtherance of a drug trafficking crime for which he may be
prosecuted in a court of the United States, that is Distribution of a
Controlled Substance.” App’x 24-25.
The prosecutor argued in summation as to Count 5 that the
only drug trafficking crime Prawl’s October 4 gun possession
furthered was his possession with intent to distribute heroin on
October 4 rather than the September heroin sales as alleged in the
indictment:
[T]he government must prove two elements beyond a
reasonable doubt: first, that the defendant committed a
drug trafficking crime for which he might be prosecuted
in a court of the United States. That is the crime charged
[in] Count 6 of the indictment, possession with intent to
distribute a controlled substance. . . . And second, that the
defendant knowingly possessed the charged firearm in
furtherance of the drug trafficking crime charged in Count [6]1
of the indictment, possession with intent to distribute a
controlled substance.
App’x 422-23 (emphases added). The government’s proposed jury
instruction specified that Count 6 was the predicate for the gun
charge in Count 5. Prawl’s proposed jury instruction, in turn, stated
that the jury could convict him under Count 5 if it found that he
“knowingly used or carried a firearm during and in relation to or that
1 The government concedes that the prosecutor at trial misspoke in identifying
Count 5, which is the § 924(c) offense, and instead meant Count 6.

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No. 23-6313(L)
6
[he] knowingly possessed a firearm in furtherance of the commission
of the crimes charged in Counts 1 – 4 & 6.” App’x 28.
The district court instructed the jury to convict Prawl on
Count 5 if it found that Prawl (1) “committed a drug trafficking
crime . . . , specifically, the crime charged in Count 6 of the
indictment; and” (2) “knowingly possessed the charged firearm in
furtherance of the drug trafficking crime charged in Count 6 of the
indictment.” App’x 475. Regarding the first element, the district
court explained that Prawl was “charged in Count 6” with
“possession with intent to distribute a controlled substance,” and
instructed “that the possession with intent to distribute a controlled
substance as charged in Count 6 of the indictment is a drug trafficking
crime.” App’x 475.
Prawl did not object to the prosecutor’s summation or the
district court’s instruction as to Count 5. The jury convicted him on
all counts on November 9, 2022. The district court sentenced Prawl
to concurrent prison terms of 24 months on Counts 1-4 and 6 and to a
consecutive 60-month prison term on Count 5, for a total of 84
months’ imprisonment. Prawl timely appealed.
D ISCUSSION
On appeal, Prawl does not challenge his drug trafficking
convictions for distributing and possessing with intent to distribute
heroin as alleged in Counts 1-4 and 6 of the indictment. He instead
raises two challenges to his § 924(c) conviction under Count 5. First,
he argues that the government’s evidence was insufficient. Second,
he contends that the district court and government constructively
amended his indictment by allowing the jury to convict him for
firearm possession in furtherance of the offense specified in Count 6.

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No. 23-6313(L)
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I. Sufficiency of the Evidence on Count 5
We review Prawl’s sufficiency challenge de novo, giving no
deference to the district court’s rejection of Prawl’s Rule 29 motion
that raised similar arguments. United States v. Snow, 462 F.3d 55, 61
(2d Cir. 2006). “To convict for possession of a firearm in furtherance
of a drug trafficking offense under 18 U.S.C. § 924(c), the government
must prove that the defendant possessed the firearm and that the
possession occurred in furtherance of a drug trafficking crime.”
United States v. Willis, 14 F.4th 170, 184 (2d Cir. 2021).2 “In evaluating
the sufficiency of the evidence, we ask whether, after viewing the
evidence in the light most favorable to the prosecution, any rational
trier of fact could have found the essential elements of the crime
beyond a reasonable doubt.” Id. at 181. We “draw all permissible
inferences in favor of the government and resolve all issues of
credibility in favor of the jury’s verdict.” Id. We “consider the
evidence presented in its totality, not in isolation.” Id.
A. Firearm Possession
Prawl first argues that there was insufficient evidence that he
possessed the handgun in question. “In order to establish that a
defendant possessed a firearm” under § 924(c), “the government need
not prove that he physically possessed it; proof of constructive
possession is sufficient.” United States v. Chavez, 549 F.3d 119, 129 (2d
Cir. 2008). “Constructive possession exists when a person has the
power and intention to exercise dominion and control over the
contraband in question and may be shown by direct or circumstantial
evidence.” Willis, 14 F.4th at 181. Relevant factors include
2 Unless otherwise indicated, in quoting cases, all internal quotation marks,
alterations, and citations are omitted.

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No. 23-6313(L)
8
“documents pertaining to a defendant found in the same location” as
the firearm, “possession of a key to the location” where the firearm
was found, and whether the firearm is “in plain view.” Id. A
defendant’s “[m]ere presence” at the gun’s location is not enough, but
“presence under a particular set of circumstances from which a
reasonable jury could conclude that the defendant constructively
possessed [the firearm] is sufficient.” Id.
Here, circumstantial evidence supported the jury’s conclusion
that Prawl possessed the firearm found in the apartment because the
evidence indicated that he occupied the bedroom where the gun was
found and controlled the items found there. Sergeant Mendelsohn
observed that Prawl, after having been detained, was seated on a bed
in the room with a shirt partially pulled over his head, suggesting that
he had been getting dressed. Police also found in the room Prawl’s
identification card, which listed the apartment’s address at 1526
Devine Street, Apartment 1 as his residence. See id. (the presence of
“documents pertaining to a defendant found in the same location”
supports constructive possession). Finally, at trial, Prawl’s counsel
stated that “we’re really not contesting the drug charges,” effectively
conceding that the heroin found in the same room was his. App’x 170.
Prawl points out that there were other people in the apartment
at the time of the raid and that Mendelsohn did not see which room
each occupant was in when they were detained. But Mendelsohn
testified that it was his team’s practice to keep a residence’s occupants
in the rooms where they are found and did not recall that any
individual had been moved. Further, even if the other occupants
“were involved in the drug trafficking at that location” and shared
control of the gun, “the government was not required to prove that
the contraband was not subject to the control of others, because

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No. 23-6313(L)
9
possession need not be exclusive.” Willis, 14 F.4th at 182. Finally,
Prawl’s possession of the items found in the bedroom on October 4 is
further supported by his having retrieved heroin from the same
apartment during the sales to an undercover witness on September 9,
11, and 30.
Taken together, these circumstances supported an inference
that Prawl exercised dominion over the items in the bedroom,
including the gun found there. See United States v. Rios, 856 F.2d 493,
496 (2d Cir. 1988) (per curiam) (constructive possession supported by
evidence that defendant “lived in the apartment and was not a mere
visitor” and was found in “the same bedroom as the suitcase of
cocaine and the scales”). Prawl points out that the government did
not link him to the sweater in which the gun was wrapped, the DNA
on the gun, or the mail found in the same dresser. But the government
did not need to prove possession through these specific means. Cf.
United States v. Saldarriaga, 204 F.3d 50, 53 (2d Cir. 2000) (per curiam)
(“The government has no duty to employ in the course of a single
investigation all of the many weapons at its disposal, and . . . the
failure to utilize some particular technique or techniques does not
tend to show that a defendant is not guilty of the crime with which he
has been charged.”). Evidence of Prawl’s control over the room’s
contents was sufficient.
B. Possession in Furtherance of Drug Trafficking
Prawl argues that even if he possessed the gun, the government
failed to show that this possession furthered his possession with
intent to distribute the heroin found in the same room. To prove
“furtherance,” the government must show a “specific nexus between
the charged firearm and the charged drug selling operation.” Snow,
462 F.3d at 62. It cannot rely “on the generalization that any time a

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No. 23-6313(L)
10
drug dealer possesses a gun, that possession is in furtherance, because
drug dealers generally use guns to protect themselves and their
drugs.” Id. Nor is “the mere presence of a weapon at the scene of a
drug crime” sufficient. Id. Instead, the gun must have “afforded
some advantage (actual or potential, real or contingent) relevant to
the vicissitudes of drug trafficking, including protection of the drugs,
proceeds, or traffickers.” United States v. Lewis, 62 F.4th 733, 746 (2d
Cir. 2023). Relevant factors include (1) “the type of drug activity”;
(2) the “accessibility of the firearm”; (3) “the type of the weapon”;
(4) “whether the weapon is stolen”; (5) “the status of the possession
(legitimate or illegal)”; (6) whether the gun is loaded”; (7) “proximity
to drugs or drug profits”; and (8) “the time and circumstances under
which the gun is found.” Snow, 462 F.3d at 62 n.6.
Prawl contends that these standards conflict and cannot be
applied here. He argues that a weapon’s “mere presence” near drugs,
which we have described as insufficient to show a nexus, id. at 62, will
always demonstrate that the weapon provided “protection of the
drugs, proceeds, or traffickers,” which we have described as
sufficient, Lewis, 62 F.4th at 746, thereby “eviscerat[ing] the
requirement of a specific nexus,” Prawl Br. at 25. But we take pains
to “distinguish between a gun on the premises which has no
reasonable relationship to the drug possession and future distribution
and a weapon that is present to further that possession,” including by
applying the above-listed factors. Snow, 462 F.3d at 62. Further,
Prawl is wrong that a weapon’s presence near to-be-sold drugs will
always satisfy the nexus requirement. While we have not yet vacated
a conviction where the gun in question was found with a drug stash,
this does not mean that such a scenario can never exist. For instance,
there would be no sufficient nexus where the gun is “a wall-mounted

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No. 23-6313(L)
11
antique or an unloaded hunting rifle locked in a cupboard.” United
States v. Brown, 732 F.3d 569, 576 (6th Cir. 2013).
Applying the relevant factors here reveals a sufficient nexus
between the handgun found in the dresser and the heroin in the
closet. First, the type of drug activity that was allegedly furthered by
Prawl’s gun possession was retail drug sales, specifically, possession
with intent to distribute heroin on October 4, 2019. Three of the next
four factors weigh solidly in the government’s favor. The gun was
readily accessible, wrapped in a sweater and placed in an unlocked,
unobstructed dresser, suggesting that Prawl wanted quick access to
protect the heroin in the adjacent closet. See Willis, 14 F.4th at 184
(Section 924(c) “applies where the charged weapon is readily
accessible to protect drugs . . . or the dealer himself”). Next, a
detective testified that the type of firearm—a handgun—is
advantageous for drug dealers due to its ease of concealment. See
United States v. Amaya, 828 F.3d 518, 526 (7th Cir. 2016) (affirming
§ 924(c) conviction in part because the “gun was a handgun, which
easily could be concealed and carried to drug transactions”). And
while the gun was not stolen, Prawl possessed it illegally because he
lacked a license for it.
The sixth factor also tips in the government’s favor. Although
the gun itself was not loaded, it was found together with a fully
loaded magazine, and a firearms expert testified that the gun could
thus be loaded and made operable within seconds. See United States v.
Barnes, 822 F.3d 914, 919-20 (6th Cir. 2016) (evidence that a firearm
“was unloaded, but stored with a loaded magazine,” supported the
defendant’s § 924(c) conviction).
Next, the gun’s proximity to the heroin and the circumstances
under which the gun was found each weigh in favor of the jury’s
verdict. The gun was found in a drawer within a dresser that was

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No. 23-6313(L)
12
directly in front of the closet containing the heroin and drug
paraphernalia. Cutting agents were found in an adjacent drawer.
And Prawl had sold heroin near to or in the building four times in the
month prior to the raid, retrieving the heroin he sold from the same
apartment adjacent to the common area of the building three times.
Even though Prawl is not alleged to have possessed a gun during his
September heroin sales, the fact that Prawl had been publicly dealing
heroin out of the same building increased the risk of robbery and the
need to use a gun as protection.
Overall, the Snow factors support Prawl’s § 924(c) conviction.
While other cases in which we affirmed § 924(c) convictions may have
shown a somewhat tighter nexus between the drugs and guns at
issue, details in these cases vary.3 And the nexus here is stronger than
3 Other cases featured either a similar proximity between the gun and drugs paired
with other strong inculpatory factors not present here, see United States v. McCoy,
303 F. App’x 45, 47 (2d Cir. 2008) (summary order) (loaded firearm with hollow
point bullets and disabled safety found in same room as drugs and distribution
paraphernalia); United States v. Arterberry, 75 F. App’x 858, 860 (2d Cir. 2003)
(summary order) (four guns found “in reasonable proximity” to large stash of
drugs and distribution paraphernalia; “[a]t least one” was “next to the night
stand” and “readily accessible for his use”); United States v. Long, 678 F. App’x 31,
35 (2d Cir. 2017) (summary order) (“loaded AK-47 firearm containing 29 rounds
and a stolen handgun” found in same home as drugs and distribution
paraphernalia); Willis, 14 F.4th at 185 (loaded handgun found “near” drug stash in
“apartment that served as a stash house”); United States v. Holley, 638 F. App’x 93,
99 (2d Cir. 2016) (summary order) (loaded handgun found in sweatshirt pocket in
same room as drugs and distribution paraphernalia; additional drugs, unloaded
handgun, and bulletproof vest found in separate rooms), or both a closer
proximity and additional inculpatory factors, see Lewis, 62 F.4th at 746 (loaded gun
found inside a laundry basket alongside drugs packaged for sale on porch of
apartment containing more drugs and cash); United States v. Johnson, 300 F. App’x
44, 46 (2d Cir. 2008) (summary order) (loaded handgun stashed together with
drugs under a heating vent within arm’s reach of the vent cover). At least two
cases featured gun and drugs that may have been farther apart physically, paired
with inculpatory factors not present here. See Willis, 14 F.4th at 184-85 (semi-
automatic rifle found concealed in box by front door of drug stash house;

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cases in which we have vacated § 924(c) convictions. In United
States v. Rosario, on which Prawl relies, we vacated a guilty plea under
§ 924(c) where the evidence demonstrated only that the defendant
“possessed the gun during the time that he was engaged in a drug-
trafficking conspiracy,” because he “stored [the gun] in a locked van
parked near his home” and “the same van had also been parked . . .
near the site of” a drug sale a month earlier. 792 F. App’x 76, 78-79
(2d Cir. 2019) (summary order). Rosario is inapposite, as the gun at
issue here was found in the same location as a stash of drugs, among
other inculpatory circumstances. Here, (1) Prawl’s ability to quickly
open the unlocked drawer and load the gun; (2) his illegal possession
of the gun; (3) the gun’s ease of concealment; (4) its close proximity to
the heroin; and (5) its location in the apartment where Prawl had kept
the heroin that he had sold in the past, when taken together, provide
a sufficient specific nexus between the gun and the heroin he
possessed and intended to sell.
II. Constructive Amendment of Count 5
Prawl next argues that by indicting him for possessing a
firearm in furtherance of one drug trafficking offense, distribution in
Counts 1-4, and convicting him of possessing a firearm in furtherance
of a different predicate offense, possession with intent to distribute in
Count 6, the government and district court violated his Fifth
Amendment right to indictment by grand jury. The Grand Jury
Clause of the Fifth Amendment guarantees that “[n]o person shall be
held to answer for a capital, or otherwise infamous crime, unless on a
presentment or indictment of a grand jury.” U.S. Const. amend. V,
additional loaded pistol found in couch cushion); Snow, 462 F.3d at 63 (two
illegally owned, loaded handguns found in bedroom dresser next to $6,000 in cash,
same room as packaging paraphernalia).

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cl. 1. Indictments must (1) “contain[] the elements of the offense
charged and fairly inform[] a defendant of the charge against which
he must defend”; and (2) “enable[] him to plead an acquittal or
conviction in bar of future prosecutions for the same offense.” United
States v. Resendiz–Ponce, 549 U.S. 102, 108 (2007). Accordingly, “a
court cannot permit a defendant to be tried on charges that are not
made in the indictment against him.” United States v. Miller, 471 U.S.
130, 143 (1985).
An indictment has been constructively amended in violation of
the Grand Jury Clause when either the trial evidence or jury charge
“broaden[s] the possible bases for conviction from that which
appeared in the indictment,” id. at 138, such that “it is uncertain
whether the defendant was convicted of conduct that was the subject
of the grand jury’s indictment,” United States v. Bastian, 770 F.3d 212,
220 (2d Cir. 2014). This occurs where either “(1) an additional
element, sufficient for conviction, is added, or (2) an element essential
to the crime charged is altered.” United States v. Dove, 884 F.3d 138,
146 (2d Cir. 2018).
At the outset, we consider the government’s argument that
Prawl abandoned appellate review of his constructive amendment
claim by failing to raise it in his opening brief on appeal. To the extent
we reach that claim, because Prawl did not raise it before the district
court, it can be reviewed only for plain error under Federal Rule of
Criminal Procedure 52(b). Bastian, 770 F.3d at 216.
A. Abandonment
There is no dispute that Prawl failed to raise his constructive
amendment challenge in his opening appellate brief. The first time
the issue was mentioned was when the government’s appellate
response brief noticed the discrepancy between the § 924(c) drug

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No. 23-6313(L)
15
trafficking distribution predicate specified in the indictment (Counts
1-4) and the possession with intent to distribute predicate targeted by
the evidence, the government’s summation, and the district court’s
jury charge (Count 6). The government then argued in its response
brief that Prawl’s challenge relating to this discrepancy was
abandoned on appeal.4
After receiving the government’s appellate brief, Prawl moved
for supplemental briefing on the constructive amendment issue, but
filed a reply brief three days later that did not address the issue. The
government opposed supplemental briefing, again arguing that the
claim was abandoned. We granted Prawl’s motion for supplemental
briefing, reserving the abandonment question.
“An argument not raised on appeal is generally deemed
abandoned.” Tarpon Bay Partners v. Zerez Holdings, 79 F.4th 206, 232
n.25 (2d Cir. 2023). Because Prawl failed to raise the constructive
amendment issue in his opening brief, this could mark the end of our
analysis. However, the abandonment rule is “prudential, not
jurisdictional, and we have exercised our discretion to review waived
or abandoned arguments where the argument presents a question of
law and there is no need for additional fact-finding” or where
“manifest injustice otherwise would result.” Id.
4 Though the government styles its argument primarily as one of “waiver,” its
contention is actually that the issue was abandoned on appeal. Waiver and
forfeiture govern “when a court may subtract from the arguments raised on
appeal” because of a party’s failure to preserve an argument or intentional
disclaimer of an argument before the district court, while the question of whether a
party has abandoned an argument by failing to timely raise it on appeal “sounds
in the party-presentation rule,” which limits the appellate court to “questions
presented by the parties” on appeal. United States v. Graham, 51 F.4th 67, 79–81 (2d
Cir. 2022).

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Regardless of whether these conditions obtain here, we decline
to exercise our discretion to address Prawl’s constructive amendment
claim. Not only did Prawl fail to raise the constructive amendment
issue in his appellate brief, he also never made an argument in
opposition to the government’s abandonment contention. After the
government provided ample support for its abandonment argument
in its opening response brief, its opposition to Prawl’s motion for
supplemental briefing, and its supplemental brief, Prawl failed to
even mention the abandonment issue in any of his filings, much less
respond to the government’s abandonment argument. He thereby
effectively conceded that the issue was abandoned.
B. Plain Error
Even if Prawl’s constructive amendment claim had not been
abandoned, it would have failed on plain error review. Plain error
review applies a heightened standard to correcting errors that were
not raised before the district court, which is generally in a better
position to correct any error or mitigate its damages. Plain error
generally requires that “(1) there is an error; (2) the error is clear or
obvious, rather than subject to reasonable dispute; (3) the error
affected the appellant’s substantial rights; and (4) the error seriously
affects the fairness, integrity or public reputation of judicial
proceedings.” Bastian, 770 F.3d at 219-20. We modify this standard
in the context of unpreserved constructive amendment claims.
“[C]onstructive amendments are per se prejudicial even in the context
of plain error review, thus automatically satisfying the third prong.”
Id. at 220 n.4. Here, we decline to determine whether the district court
erred under the first prong, because, under the second prong, any
error could not have been clear or obvious in light of our
jurisprudence.

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We typically do not find that an error is clear or obvious “where
the operative legal question is unsettled, including where there is no
binding precedent from the Supreme Court or this Court.” United
States v. Esteras, 102 F.4th 98, 108 (2d Cir. 2024). However, “the
plainness of the error can depend on well-settled legal principles as
much as well-settled legal precedents.” United States v. Brown, 352 F.3d
654, 664 (2d Cir. 2003). “[W]e can,” therefore, “notice plain error that
does not contravene clearly established precedent, where such error
is so egregious and obvious as to make the trial judge and prosecutor
derelict in permitting it,” which may occur “where other circuits have
uniformly taken a position on an issue that has never been squarely
presented to this Court.” United States v. Whab, 355 F.3d 155, 158 (2d
Cir. 2004). “We emphasize, however, that such cases are bound to be
exceedingly rare,” id., and “will typically involve review of a potential
constitutional error,” Brown, 352 F.3d at 665. Finally, “we will be more
inclined to deem an error ‘plain’ where it is clear from the record that
failure to object below was not the result of a strategic decision;” and,
conversely, less inclined to do so if it was. Id.5
The operative legal question here is one of first impression for
this court: whether a § 924(c)(1)(A) indictment that specifies which
trafficking offense the defendant’s firearm possession furthered is
constructively amended when the defendant is convicted for
possession in furtherance of a different trafficking predicate charged
elsewhere in the indictment. Other circuits have found a constructive
amendment on similar facts.6 But even if we were to agree with these
5 While there is no reason to suspect a strategic motive behind Prawl’s failure to
raise the question before the district court, as he also failed to raise it in his opening
appellate brief, he still cannot prevail under plain review for the reasons outlined
below. Brown, 352 F.3d at 665.
6 See United States v. Randall, 171 F.3d 195, 205 (4th Cir. 1999) (“[I]f the government
specifies in the indictment the § 924(c) predicate offense on which it is relying, a

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No. 23-6313(L)
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circuits, this conclusion is far from certain under our constructive
amendment caselaw, meaning that any error cannot be “so egregious
and obvious” as to warrant a finding of plain error in the absence of
controlling precedent. Esteras, 102 F.4th at 108; cf. Bastian, 770 F.3d at
221-23 (declining to find plain error where Second Circuit caselaw
suggested that the circumstances at issue did not amount to a
constructive amendment; given this uncertainty, “[a] handful of”
conflicting out-of-Circuit cases addressing the issue could not
establish plain error).
We have used different approaches to assess whether an
altered portion of an indictment is an essential element, and therefore
whether a constructive amendment occurred, which “sometimes
appear to reach divergent results.” United States v. Milstein, 401 F.3d
53, 65 (2d Cir. 2005) (per curiam). We generally allow significant
flexibility in proof “provided that the defendant was given notice of
the core of criminality to be proven at trial.” United States v. D’Amelio,
683 F.3d 412, 417 (2d Cir. 2012). This test looks to “whether the jury
convicted based on a complex of facts distinctly different from that
which the grand jury set forth in the indictment,” id. at 419 (emphasis
added), including “the time, place, people, and object” of the
defendant’s conduct, United States v. Wozniak, 126 F.3d 105, 111 (2d
Cir. 1997). We also look to any showing that the defendant was
surprised by the evidence used against him at trial; evidence that he
was not surprised can weigh against finding a constructive
amendment. Id. However, we will reverse a conviction that rests on
a different legal theory of liability than that charged in the indictment.
conviction that rests, no matter how comfortably, on proof of another predicate
offense cannot stand.”); United States v. Willoughby, 27 F.3d 263, 266-67 (7th Cir.
1994) (holding same); United States v. Reyes, 102 F.3d 1361, 1364-68 (5th Cir. 1996)
(holding same, but affirming conviction based on other considerations).

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No. 23-6313(L)
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See Milstein, 401 F.3d at 64-65 (holding that indictment had been
constructively amended where it charged defendant with
fraudulently distributing misbranded drugs on the theory that the
drugs’ packaging materials had been forged; but the government
presented trial evidence establishing guilt based on a different theory
of misbranding—that the drugs were misbranded because they were
falsely said to be sterile).
Any changes that occurred in relation to Count 5 between
Prawl’s indictment and conviction do not amount to an “egregious
and obvious” constructive amendment in light of this circuit’s
caselaw. Esteras, 102 F.4th at 108. As previously indicted, Count 5
charged Prawl under § 924(c) with possessing a firearm on October 4,
2019 in furtherance of heroin sales occurring on September 5, 9, 11,
and 30, 2019, while the evidence and jury charge led to Prawl’s
conviction for possessing a firearm on October 4 in furtherance of his
possession of heroin found near the gun on the same day. See
D’Amelio, 683 F.3d at 420 (the constructive amendment inquiry
focuses on whether the “the time, place, people, and object proved at
trial” varies from that alleged in the indictment). However, both the
indictment and jury charge made clear that the most important aspect
of Prawl’s § 924(c) offense—his gun possession—occurred on
October 4, so even if there were error, that error was not egregious
and obvious.
We also see no indication that Prawl was surprised by the
discrepancy between the § 924(c) predicate charged in the indictment
and the one specified in the evidence and jury instruction. See
D’Amelio, 683 F.3d at 421-22 (providing that a defendant’s lack of
surprise at the evidence presented at trial is a non-dispositive
indication that the trial evidence was “encompassed in the core of
criminality charged in the indictment”). In fact, his proposed jury

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No. 23-6313(L)
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charge anticipated the government’s reliance on Count 6 as the
relevant trafficking predicate, suggesting that the jury could convict
him if it found that he “used or carried a firearm during and in
relation to or that [he] knowingly possessed a firearm in furtherance
of the commission of the crimes charged in Counts 1 – 4 & 6.” App’x
at 28.
* * *
In sum, we affirm Prawl’s conviction on all six counts based on
the following grounds: (1) there was sufficient evidence to support
Prawl’s conviction on Count 5 under § 924(c) for possessing a firearm
in furtherance of his possession with intent to distribute heroin, as
alleged in Count 6; (2) Prawl’s constructive amendment claim with
respect to Count 5 was abandoned on appeal; (3) even if the
constructive amendment claim had not been abandoned on appeal,
any error was not objected to at trial and was not “so egregious and
obvious” as to warrant a finding of plain error in the absence of
binding precedent; and (4) Prawl’s convictions in Counts 1-4 and 6
are not contested.
C ONCLUSION
For the foregoing reasons, we AFFIRM the judgment of
conviction.7
7 Also before us is the government’s motion to consolidate with this case a separate
related appeal (Case No. 25-400) filed by Prawl seeking bail pending the outcome
of the present appeal (Case No. 23-6313(L)). We GRANT the government’s motion
to consolidate and DENY Prawl’s motion for bail pending appeal as moot.

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