21-838 United States v. Lewis

United States Court of Appeals For the Second Circuit

August Term 2022

Argued: October 28, 2022 Decided: March 21, 2023

No. 21-838

UNITED STATES OF AMERICA,

Appellee,

v.

VASHUN LEWIS, AKA V-LOVE,

Defendant-Appellant.

Appeal from the United States District Court for the District of Connecticut No. 18-cr-220, Janet C. Hall, Judge.

Before: LOHIER, CARNEY, and NATHAN, Circuit Judges.

Defendant-Appellant Vashun Lewis was found guilty of gun possession in furtherance of drug trafficking under

(c)(1)(A)(i), and being a felon in possession of a firearm under

(g)(1) and 924(a)(2). Lewis now appeals, arguing that evidence regarding a firearm and marijuana should have been suppressed because the warrant pursuant to which the search of his second- floor apartment in a triplex was conducted did not authorize a search of the shared back porch where this evidence was found. He also challenges the sufficiency of the government’s evidence of his possession in furtherance of drug trafficking, and the application of a sentencing enhancement for obstruction of justice. As to all issues, we AFFIRM.

________

JOCELYN COURTNEY KAOUTZANIS (Sandra S. Glover, on the brief) for Vanessa Roberts Avery, United States Attorney for the District of Connecticut, New Haven, CT, for Appellee. BRIAN SPEARS, Spears Manning & Martini LLC, Southport, CT, for Defendant-Appellant. ________

NATHAN, Circuit Judge:

Defendant-Appellant Vashun Lewis was convicted by a jury of one count of

possession of a firearm in furtherance of marijuana trafficking and one count of

possession of a firearm by a convicted felon. On appeal, Lewis challenges the

district court’s denial of his motion to suppress the firearm and marijuana, which

were found during a search of the ground-floor back porch of the triplex where he

lived. Lewis also challenges the sufficiency of the evidence of his possession of a

firearm in furtherance of drug trafficking. He further contends that the district

court erred in applying a two-point enhancement in the guidelines calculation for

2 obstruction of justice based on Lewis’s statements in an affidavit in support of his

motion to suppress.

As to the suppression issue, although we reject any categorical rule that the

Fourth Amendment always allows warrantless searches of all shared areas in

multi-unit buildings, we affirm the district court’s denial of Lewis’s motion

because Lewis failed to carry his burden to show that his Fourth Amendment

rights extended to the shared back porch of the triplex where he lived. Because

we also conclude the evidence was sufficient to convict him of possession of a

firearm in furtherance of marijuana trafficking, and the application of the

obstruction enhancement was appropriate, we affirm the judgment of the district

court.

BACKGROUND

I. Pre-Trial

In the spring of 2017, the New Haven Police Department was investigating

Lewis because it suspected he was engaged in a large-scale, illegal cigarette

trafficking enterprise. On May 30, 2017, the New Haven Police secured a search

warrant based on a confidential informant’s statement that the informant had

recently seen large quantities of cigarettes, heroin, and marijuana in Lewis’s

3 bedroom located in a second-floor apartment at 200 Winthrop Avenue in New

Haven. The statement also indicated that the informant saw Lewis in possession

of a .40 caliber handgun while in the apartment and in the basement of 200

Winthrop Avenue.

The warrant authorized a search at 200 Winthrop, which it described as “a

three-family house” in which “[t]he front entrance doors lead to a common

entrance with two interior apartment doors. . . . Inside the left door there is a

staircase that leads into the 2nd floor apartment and the 3rd floor which are

separate.” App. at 91. The warrant stated that “[t]he 2nd floor apartment, as well

as the basement, is the target location.”

The New Haven Police executed the

search warrant and seized—in addition to several cartons of cigarettes, marijuana,

and drug paraphernalia––a 9mm handgun. The handgun, however, was found

neither in the apartment nor in the basement. Instead, police found it, along with

more marijuana, inside a sock in a laundry basket located on the small back porch

(or landing area) off the ground-floor rear door of the three-story building. That

rear back door of the building opened into a common stairwell that led up to the

second- and third-floor apartments.

4 Based on this evidence, in state court, Lewis was charged with, and pled

guilty to, possession of and intent to distribute the marijuana found on the porch.

Lewis was then charged in a two-count federal indictment with gun possession in

furtherance of drug trafficking, in violation of

(c)(1)(A)(i), and being

a felon in possession of a firearm, in violation of

(g)(1) and

924(a)(2).

In the district court, Lewis filed a motion to suppress, challenging the

warrant and search on various grounds. As relevant to this appeal, he argued that

the search of the back porch was illegal because it was “beyond the scope of the

description of the place to be searched in the search warrant.” D. Conn. No. 18-cr-

220 doc. 51 at 8. The Government responded that Lewis was not entitled to Fourth

Amendment protection over the items on the back porch because he had no

expectation of privacy in a common area in a multi-unit building.

At a hearing on the motion, Lewis’s counsel reiterated his argument

regarding the scope of the warrant but did not meaningfully address the

Government’s argument regarding Lewis’s lack of Fourth Amendment interest in

the porch. Lewis conceded that the porch where the search took place was a

shared area of the triplex with a door that “enters into a nonapartment portion of

5 the house” in which a hallway leads to both the first- and second-floor apartments.

App. at 140. Moreover, Lewis failed to proffer or point to any evidence that he

had a protected Fourth Amendment interest in the porch. Based on Lewis’s

concessions and his failure to rebut the Government’s argument, the court denied

Lewis’s motion as to the search of the back porch, concluding he “does not have

standing to suppress any evidence found in the area.” App. at 145. In its oral

ruling, the district court noted both that the defendant bears the burden of proving

he has a legitimate expectation of privacy in the area intruded upon and that “[i]t

is well-settled in the Second Circuit that because an individual has no power to

exclude another from a common area, a defendant has no legitimate expectation

of privacy in [] ‘a common area that’s accessible to the other tenants in [a]

multifamily apartment building.’” App. at 143–44 (quoting United States v. Jones,

(2d Cir. 2018)).

II. Trial

A bifurcated trial was held, in which a separate phase for Count One (the

felon in possession count) followed the verdict on Count Two (the possession in

furtherance of drug trafficking count). During the first phase of the trial, New

Haven Police Detective Mark DeCarvalho testified that he executed a search

6 warrant of Lewis’s second-floor apartment on June 1, 2017, and found Lewis there

with a woman (Lewis’s girlfriend) and her juvenile daughter. Detective

DeCarvalho testified that the police found marijuana, about $1,300 in small

bundles of cash, plastic Ziploc bags with an apple-shaped logo, and smaller bags

with marijuana residue on them. He also testified that the officers found the

laundry basket on the back porch containing, among other things, the gun in a

sock, a shoebox containing other plastic bags bearing the apple logo and more

marijuana. Other New Haven Police detectives testified consistently with

Detective DeCarvalho regarding the search and the items found on the back porch.

Detective Omaida Nieves also testified that there were five bullets in the magazine

of the gun. The jury was shown physical evidence recovered from Lewis’s house

and photographs depicting some of the evidence as it was found.

Next, a New Haven Police Department forensic examiner, Dr. Jillian Echard,

testified that she conducted a DNA analysis of swabs taken by the detectives from

the handle and trigger of the gun as well as the interior and exterior of the sock.

Dr. Echard testified that the DNA recovered from the gun handle and the sock

included DNA from Lewis and three other individuals and that it was “at least 100

billion times more likely” that Lewis, rather than an unknown person, was one of

7 the contributors. App. at 555, 561. She also testified that the “DNA profile” from

the trigger included DNA from Lewis and two other individuals.

Finally, the jury learned of Lewis’s guilty plea in state court to possessing

with intent to distribute the marijuana found on the porch. The jury also heard a

recorded phone call made by Lewis while he was incarcerated in which Lewis said,

“I’m not sure where they found that gun at or, or where was that gun, or how did

they get it. But, I know for a fact I have some marijuana back there in a bag.” App.

at 458, 749. The parties stipulated this statement referred to the marijuana found

during the June 1 search.

The jury returned a verdict of guilty as to Count One. The Government then

introduced a stipulation that Lewis “was a convicted felon and knew that he was

a convicted felon prior to June 1, 2017,” App. at 715, and the jury returned a guilty

verdict as to Count Two.

Lewis timely moved the district court for a judgment of acquittal or,

alternatively, for a new trial, based on insufficiency of the evidence. The district

court denied this motion in a written opinion.

8 III. Sentencing

Lewis was sentenced in a two-phase proceeding via videoconference on

March 8 and 25, 2021. He was subject to a mandatory minimum sentence of 60

months’ imprisonment for possession of a gun in furtherance of a narcotics

conspiracy. See

(c). The Government sought—and the

presentencing report recommended—an enhancement for obstruction of justice

based on two grounds: first, Lewis’s statements to federal investigators in a

November 15, 2017 interview, when he asserted the firearm found on the porch

belonged to another man and Lewis had only touched it; second, Lewis’s

statements in an affidavit offered in support of his argument that the search

warrant was premised on erroneous information provided by the confidential

informant. The district court concluded the enhancement was not justified on the

first ground, but was justified based on the second. The affidavit stated: “During

the last week of May 2017, I did not occupy nor stay at my place of residence

located at 200 Winthrop Avenue, Second Floor . . . . I had no visitors that were

present at that location during the last week of May 2017.” App. at 104. The

district court found that this statement was offered in an intentional effort to

discredit the informant and persuade the court to suppress the evidence based on

9 an invalid warrant, which would have led to the dismissal of the charges.

Accordingly, the district court determined that a two-level obstruction of justice

enhancement was appropriate.

The parties agreed that Lewis’s initial base offense level under the

sentencing guidelines was 14 and that two levels should be added because the

firearm was stolen. Thus, with the addition of the two-level obstruction

enhancements, Lewis’s final offense level was calculated at 18. Combined with

Lewis’s Criminal History Category of VI, the resulting guidelines range was 57 to

71 months for the felon in possession charge, in addition to the mandatory

minimum of 60 months for the possession in furtherance of drug trafficking

conviction. The court stated that adding the guidelines range to the 60-month

minimum would result in a sentence of 117 to 131 months, which was “far in excess

of what is necessary to address” the conduct and factors at issue. App. at 935. The

court sentenced Lewis to 30 months on the felon in possession count for a total

sentence of 90 months’ imprisonment.

10 DISCUSSION

I. The Porch Search

Lewis argues that the New Haven Police Department’s search and seizure

on the porch violated the Fourth Amendment because the warrant authorized a

search of only his apartment and the basement. In the alternative, he argues that

the district court should have held an evidentiary hearing to determine whether

his rights were violated by the search. The Government argues, as the district

court concluded, that Lewis lacked “standing” to object to the porch search, which

is to say that he failed to show that his Fourth Amendment rights were violated

by the search of a common area of his triplex. As explained below, while we do

not conclude that the Fourth Amendment always permits warrantless searches of

shared areas in multi-unit buildings, we affirm because Lewis failed to carry his

burden to show that his Fourth Amendment rights extended to the porch.

“In reviewing the denial of a suppression motion, this Court reviews the

district court’s factual findings for clear error, and its application of law to fact de

novo.” United States v. Williams,

(2d Cir. 2019) (cleaned up).

Factual findings include determinations about the “use, privacy, and the physical

characteristics of a property.” United States v. McKenzie,

(2d Cir.

11 2021). The denial of an evidentiary hearing is reviewed for abuse of discretion.

United States v. Bonventre,

(2d Cir. 2013).

Because the “rights assured by the Fourth Amendment are personal,” courts

suppress evidence only “at the instance of one whose own protection was

infringed by the search and seizure.” Rakas v. Illinois,

(1978)

(cleaned up). Thus, to suppress the evidence found on the porch, the district court

needed to find that Lewis’s Fourth Amendment rights were infringed by the porch

search. We often refer to this principle as the requirement that a defendant have

“standing” to bring a suppression motion. See, e.g., Rawlings v. Kentucky,

(1980); McKenzie,

. A defendant can establish that their

Fourth Amendment rights were violated by showing they had a “reasonable

expectation of privacy” in the area searched, Katz v. United States,

(1967) (Harlan, J., concurring), or that the Government has “physically intrud[ed]

on constitutionally protected areas” to which they have a property entitlement,

Florida v. Jardines,

(2013).

As the proponent of the motion to suppress, it was Lewis’s burden to

establish that the search violated his Fourth Amendment rights. See Rakas,

n.1. And his entitlement to an evidentiary hearing on his motion likewise

12 turned on whether he established that there were disputed factual issues going to

the validity of the search. See In re Terrorist Bombings of U.S. Embassies in E. Afr.,

(2d Cir. 2008). The Government’s response to Lewis’s

suppression motion made clear that it was disputing that Lewis had a reasonable

expectation of privacy over the shared porch. Lewis therefore needed to articulate

specific facts regarding the porch and his use of it in order to respond to the

Government’s argument.

Lewis failed to meet this burden. He neither pointed to any relevant

evidence nor made any arguments pertinent to his reasonable expectation of

privacy over the porch in his motion papers or during the motion hearing.

Although Lewis now argues on appeal that he had a privacy interest because

(assertedly) the triplex was owned by his aunt and that all the other residents were

his family members, Lewis did not bring this argument to the district court’s

attention when it was deciding whether he had a protected privacy expectation

over the porch. Nor did Lewis offer evidence of the particular uses he made of the

porch, point to its proximity to his living area, argue that it was inaccessible to

visitors of the triplex, or testify regarding any steps he took to maintain his privacy

while using it, as he does on appeal. To the contrary, Lewis conceded during the

13 hearing on the suppression motion that the porch was a shared area of the triplex

with a door that “enters into a nonapartment portion of the house.” App. at 140. 1

On this record, we cannot conclude that the district court erred when it

concluded that “the back porch was . . . a common area as that phrase is used in

the case law,” and that, as a result, “Lewis does not have standing to suppress any

evidence found in the area.” App. at 145. Lewis’s failure to adduce before the

district court any facts pertinent to his reasonable expectation of privacy over the

porch, such as those described above, prevented a conclusion that the challenged

search violated his Fourth Amendment rights.

We do not reach this conclusion by applying a categorical rule regarding

shared spaces in multi-unit buildings, because we do not understand our

precedents to hold that the Fourth Amendment never protects a tenant’s rights in

1 Although Lewis makes an extended argument on appeal rooted in recent Fourth Amendment precedent concerning curtilage, he did not raise any such argument below. Therefore, we review this argument, if at all, for plain error. See United States v. Cacace,

(2d Cir. 2015) (explaining that “under plain error standard, we may act only if there is error, that is clear or obvious, that affects substantial rights, and that seriously affects the fairness, integrity, or public reputation of judicial proceedings”). The district court did not err in failing to sua sponte consider a curtilage-based argument on the suppression motion, let alone commit clear or obvious error. As in the expectation of privacy context, a curtilage analysis is fact-specific and often requires the defendant to bring forward facts establishing that his or her curtilage extended to a given area— a record that Lewis failed to develop. See United States v. Alexander,

(2d Cir. 2018).

14 such shared spaces. Although Lewis argues on appeal that the district court relied

on a categorical rule that the Fourth Amendment allows warrantless searches of

shared areas in multi-unit buildings over which a claimant lacks exclusive control,

we disagree with his characterization of the district court’s ruling. While the

district court stated that Lewis’s suppression motion failed because he did not

have exclusive control over the porch in the multi-unit dwelling, the court also

went on to engage in a fact-specific, individualized assessment, noting that the

porch was not “locked or closed off” and could “be easily used by other

individuals . . . visiting the building.” App. at 144–45. Moreover, the Government

itself disclaimed any such categorical rule and conceded at oral argument that

“there are factual circumstances that can permit” a finding of Fourth Amendment

protection in shared areas in multi-unit dwellings. Oral Arg. at 14:35–15:00.

We agree with this concession because an individualized approach is

consistent with our precedents. To be sure, we have sometimes used broad

language in this context. We first concluded in United States v. Miguel that the

“lobby of a multi-tenanted apartment house” is not “within the ‘curtilage’ of each

tenant.”

(2d Cir. 1965). Subsequent cases also rejected curtilage-

and privacy-based suppression arguments regarding arrests and eventually

15 warrantless searches conducted in some shared areas of multi-unit buildings. See,

e.g., United States v. Holland,

(2d Cir. 1985); United States v. Fields,

(2d Cir. 1997); United States v. Jones,

(2d Cir. 2018).

But in concluding that the defendants lacked a protected interest in the shared

spaces at issue, these decisions analyzed to some extent the nature of the space and

the defendant’s relationship to it. Most recently, in Jones, we noted that the car

that was searched was parked in a lot shared by tenants of two different buildings,

and therefore we concluded that “Jones could not reasonably expect that the

driveway should be treated as part of his private home.”

; see also,

e.g., Holland,

(explaining defendant lacked reasonable expectation

of privacy over common hallway because, in part, “there is no indication that he

ever tried to” exclude others); Fields,

(reaching same conclusion

about activities conducted “in plain view of a bedroom window facing onto the

side yard,” a common area “where others were free to come and go,” after

considering factors such as who was entitled to use the space, and whether notice

or permission of the other tenants was required). And this fact-specific analysis

was warranted because, as detailed below, a categorical rule hinging Fourth

Amendment protection solely on exclusive control would be in tension with the

16 Supreme Court’s precedent and its articulation of underlying Fourth Amendment

principles.

First, the Supreme Court has long expressed a preference for case-by-case

analysis in the Fourth Amendment context. There is “no talisman that determines

in all cases those privacy expectations that society is prepared to accept as

reasonable.” O’Connor v. Ortega,

(1987) (plurality opinion). The

Court has, with limited exceptions, rejected requests to draw bright lines broadly

authorizing searches and seizures in particular situations because “the Fourth

Amendment will not tolerate adoption of an overly broad categorical approach

that would dilute the warrant requirement in a context where significant privacy

interests are at stake.” Missouri v. McNeely,

(2013) (plurality

opinion). As the Supreme Court has held in several other contexts, when it comes

to shared spaces in multi-unit buildings, we think there is “no valid substitute for

careful case-by-case evaluation of reasonableness.”

(citing other Fourth

Amendment contexts where the Court has taken this approach).

Second, the fact that a particular area or thing is not completely walled off

from the outside world has never been wholly determinative of Fourth

Amendment protection. This principle is the essential point of Katz, which held

17 that “what [one] seeks to preserve as private, even in an area accessible to the

public, may be constitutionally protected.” 389 U.S. at 351–52. Moreover, the

Court has recognized Fourth Amendment privacy protections in shared spaces for

housemates, social guests, and co-workers. See Georgia v. Randolph,

(2006) (housemates); Minnesota v. Olson,

, 96–100 (1990) (guests);

Ortega,

(co-workers); see also Ortega,

(Scalia, J.,

concurring) (“It is privacy that is protected by the Fourth Amendment, not

solitude. A man enjoys Fourth Amendment protection in his home, for example,

even though . . . his landlord has the right to conduct unannounced inspections at

any time.”). Together these cases establish that the “untrammeled power to admit

and exclude” is not “essential to Fourth Amendment protection.” Olson,

.

Third, in another context, the Court recently rejected a categorical rule that

“automatically would grant constitutional rights to those persons with the

financial means to afford residences with garages in which to store their vehicles

but deprive those persons without such resources of any individualized

consideration as to whether the areas in which they store their vehicles qualify as

curtilage.” Collins v. Virginia,

(2018). That reasoning applies

18 here. A categorical rule regarding shared spaces would have the effect of

extending greater constitutional rights to those with the means to reside in single-

family dwellings or those who live outside of densely populated urban areas. See

also United States v. Whitaker,

(7th Cir. 2016) (noting that “a strict

apartment versus single-family house distinction . . . would apportion Fourth

Amendment protections on grounds that correlate with income, race, and

ethnicity”).

A body of non-binding decisions applies these principles and rejects a

categorical rule in the context of multi-unit dwellings. Other circuit courts have

found Fourth Amendment protections in certain shared areas of multi-tenant

properties. See, e.g., United States v. King,

, 743–50 (6th Cir. 2000)

(shared basement of a two-unit building where both units were occupied by

members of the same family); United States v. Fluker,

(9th Cir.

1976) (small basement-level entry hall shared with one other basement apartment

in three-unit building); Fixel v. Wainwright,

, 483–84 (5th Cir. 1974)

(backyard of a four-unit building). Likewise, unpublished opinions of this Court

have rejected a categorical rule. See, e.g., United States v. Bedell,

,

463 n.2 (2d Cir. 2009) (summary order); United States v. Sykes,

, 12

19 n.1 (2d Cir. 2008) (summary order). And district courts within this Circuit

routinely conduct fact-based inquiries rather than simply deny a motion to

suppress immediately upon finding that it concerns a shared space of a multi-unit

property. See, e.g., United States v. Rico, No. 18-CR-661 (PGG),

, at

*17 (S.D.N.Y. Aug. 26, 2019); Patrizio v. Nelson, No. 14-CV-7497 (JBW) (VMS),

, at *7 (E.D.N.Y. June 28, 2016); United States v. Bartee, No. 13-CR-365

(RJS),

, at *5 (S.D.N.Y. Nov. 12, 2013).

The Supreme Court has emphasized the importance of giving effect to the

“core” of the Fourth Amendment: “the right of a man to retreat into his own home

and there be free from unreasonable governmental intrusion.” Jardines,

(quoting Silverman v. United States,

(1961)). In light of that

principle, we emphasize that a categorical rule that those who live in multi-tenant

buildings never have a constitutionally protected privacy interest in the shared

areas of their dwellings is inconsistent with the Supreme Court’s Fourth

Amendment jurisprudence, the approach of our own decisions, and the

precedents of our sister circuits. Our decision to affirm the district court’s denial

of the motion to suppress and an evidentiary hearing rests solely on the facts and

circumstances of this case, and on Lewis’s failure to meet his burden to put

20 forward specific facts that could establish standing to bring a Fourth Amendment

challenge.

II. Sufficiency of Evidence

We also conclude that the evidence is sufficient to establish that Lewis

possessed the handgun recovered on the porch and that he did so “in furtherance”

of drug trafficking.

We review the denial of a motion for judgment of acquittal de novo. Terrorist

Bombings of U.S. Embassies in E. Afr.,

. “A defendant challenging the

sufficiency of the evidence supporting his criminal conviction bears ‘a heavy

burden.’”

at 112 (quoting United States v. Tran,

(2d Cir. 2008)).

This Court must determine “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.”

(quoting Jackson

v. Virginia,

(1979)). In doing so we defer to “the jury’s assessment

of witness credibility and its assessment of the weight of the evidence.” United

States v. Jabar,

(2d Cir. 2021) (quoting United States v. Martoma,

(2d Cir. 2017)).

21 Title

(c)(1)(A) provides that “any person who, during and in

relation to any . . . drug trafficking crime . . . uses or carries a firearm, or who, in

furtherance of any such crime, possesses a firearm,” commits the crime of

possession in furtherance of drug trafficking. Likewise, the law prohibits any

person “who has been convicted in any court of[] a crime punishable by

imprisonment for a term exceeding one year” to “possess in or affecting

commerce, any firearm.”

(g).

Lewis challenges the sufficiency of the evidence for his convictions under

§§ 924(c)(1)(A) and 922(g)(1) both as to his possession of the firearm (for both

convictions) and as to the “in furtherance” of drug trafficking element of his

§ 924(c)(1)(A) conviction. We conclude that the evidence presented to the jury was

more than sufficient to support a guilty verdict on both elements.

A. Possession

First, we assess whether the evidence was sufficient for the jury to find that

Lewis exercised actual possession of the gun. Actual possession requires a

showing that the “defendant physically possessed the firearm.” United States v.

Gaines,

(2d Cir. 2002). Lewis’s DNA was found on the handle

and trigger of the weapon. The Government’s forensic examiner, Dr. Echard,

22 testified that Lewis contributed approximately 86% of the DNA profile found on

the handle of the gun and that the odds that the DNA found on the gun did not

include Lewis’s was one hundred billion to one. This testimony plainly allowed

the jury to conclude that Lewis possessed the gun, and even brief physical

possession satisfies this element. See

Lewis argues that no reasonable jury could have found possession beyond

a reasonable doubt given the possibility that his DNA was found on the gun

because of a “secondary transfer,” since his DNA was also found on the sock in

which the gun was wrapped. But Dr. Echard testified it was very unlikely that the

DNA got there solely by secondary transfer, and the Government’s proof “need

not exclude every possible hypothesis of innocence.” United States v. Facen,

(2d Cir. 2016) (quoting United States v. Martinez,

, 1042–

43 (2d Cir. 1995)). Based on the evidence presented at trial, a jury could have found

beyond a reasonable doubt that Lewis possessed the gun.

Lewis maintains that even if the evidence was sufficient to permit the jury

to conclude he possessed the firearm, it did not establish that he did so on or about

June 1, 2017, as alleged in the indictment. However, the law does not require proof

that conduct occurred at the specific moment alleged in the indictment, provided

23 that a defendant is not prejudiced by any variance between the allegations in the

indictment and the proof at trial. See United States v. Teague,

(2d Cir.

1996) (“[A]n indictment date only needs to be substantially similar to the date

established at trial.” (cleaned up)). In any event, the fact that Lewis was home

when the gun was discovered, had easy access to the porch where the gun was

found, and admitted in his state plea to possessing the marijuana the gun was

found next to “on or about June 1,” App. at 746, means the evidence is plainly

sufficient to conclude he possessed the gun at the relevant time.

B. In Furtherance of Drug Trafficking

We also reject Lewis’s sufficiency challenge to the jury’s finding that his

possession of the gun was in furtherance of drug trafficking. To be sure, “the mere

presence of a weapon at the scene of a drug crime, without more, is insufficient to

prove that the gun was possessed ‘in furtherance of’ the drug crime.” United States

v. Snow,

(2d Cir. 2006) (emphasis omitted) (quoting United States v.

Castillo,

(7th Cir. 2005)). The Government must show a “specific

nexus between the charged firearm and the charged drug selling operation” to

allow the jury to conclude that the firearm played some part in furthering the

crime.

(internal quotation marks omitted). This is a “fact-intensive” inquiry

24 “well-suited to resolution by a jury,” which can consider relevant factors like “the

type of drug activity that is being conducted, accessibility of the firearm, the type

of the weapon, . . . whether the gun is loaded, proximity to drugs or drug profits,

and the time and circumstances under which the gun is found.”

at 62–63 & n.6.

The ultimate question is whether the firearm “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. Lewter,

(2d Cir. 2005). Here, Lewis’s loaded gun was found with the

drugs, which were packaged for distribution and which he admitted in state court

to intending to distribute. See United States v. Willis,

, 184–85 (2d Cir.

2021) (loaded gun found alongside “the combination of drugs and tools of the drug

trade” support “in furtherance” finding). Furthermore, the gun and drugs were

easily accessible to Lewis. Viewed in the light most favorable to the Government,

this evidence is plainly sufficient to find that Lewis possessed the firearm in

furtherance of his drug trafficking.

To rebut this conclusion, Lewis relies on a recent summary order, United

States v. Rosario,

(2d Cir. 2019) (summary order). But that case is

readily distinguishable. There, we vacated a conviction because the evidence

25 established “at most” that the defendant “possessed the gun during the time that

he was engaged in a drug-trafficking conspiracy . . . [and] stored it in a locked van

parked near his home . . . [and] that the same van had also been parked . . . near

the site of” a drug deal the defendant had been observed making a month before.

at 78–79. The relevant evidence against Lewis is far stronger because, as noted

above, his packaged drugs and gun were found together at his home. Thus, this

case is much more like our precedential decision in Snow, which involved two

loaded handguns found in a bedroom dresser next to $6,000 in cash in the same

room as drug-packaging paraphernalia. See

. We held in that case

that “a reasonable juror could conclude” that a gun was being used to protect the

paraphernalia and proceeds of drug trafficking as well as the drug trafficking

defendant based on the “the proximity between the handguns, proceeds, trace

amounts of drugs, and drug paraphernalia.”

Here, as in Snow, a reasonable

juror could have inferred that Lewis’s possession of the gun was “in furtherance”

of his drug dealing.

III. Obstruction of Justice Enhancement

Finally, we do not disturb the district court’s decision to apply a two-level

obstruction of justice enhancement in the guidelines calculation. “On review of a

26 district court’s decision to enhance a defendant’s sentence for obstruction of

justice, we accept the court’s findings of facts unless they are clearly erroneous.”

United States v. Pena,

(2d Cir. 2014) (quoting United States v.

Agudelo,

(2d Cir. 2005)). If the district court’s factual findings are

“plausible in light of the record viewed in its entirety,” then the district court’s

findings should be affirmed. United States v. Reilly,

(2d Cir. 1996)

(internal quotation marks omitted). We review de novo a district court’s conclusion

that a given set of facts constitutes obstruction of justice, “giving due deference to

the district court’s application of the guidelines to the facts.” Pena,

(quoting Agudelo,

).

The Sentencing Guidelines provide for a two-level enhancement for

obstruction of justice if “(1) the defendant willfully obstructed or impeded, or

attempted to obstruct or impede, the administration of justice with respect to the

investigation, prosecution, or sentencing of the instant offense of conviction,” and

(2) the obstruction was material. U.S.S.G. § 3C1.1. “If the obstruction-of-justice

enhancement is based on perjurious testimony, courts must apply the federal

criminal perjury statute,

. . . .” United States v. Thompson,

(2d Cir. 2015). Thus, “the sentencing court must find by a preponderance

27 of the evidence that the defendant 1) willfully 2) and materially 3) committed

perjury, which is (a) the intentional (b) giving of false testimony (c) as to a material

matter.”

(internal quotation marks and citation omitted).

The obstruction enhancement should not be applied when a defendant

“may have reasonably believed that his statement was true,” whether because of

a misunderstanding, a lapse in memory, or otherwise. Pena, 751 F.3d at 106–07. If

a defendant testifies to a detailed account that is demonstrably false, the

enhancement has been found to apply. See, e.g., United States v. Lincecum,

(2d Cir. 2000) (defendant filed a false affidavit in support of motion to

suppress in which he provided “a detailed account of at least three” requests he

allegedly made to speak with an attorney at the time of his arrest). On the other

hand, if a defendant submits a conclusory affidavit in support of a motion to

suppress, the fact that the district court does not find the testimony credible does

“not necessarily mean he gave knowingly false testimony in his affidavit.”

Agudelo,

(reversing application of enhancement where defendant

testified via affidavit that “at one point, I told the agents that I wanted to speak to

a lawyer but they did not cease their questioning”). Courts must balance the need

to disincentivize obstruction of justice through perjury with the risk of subjecting

28 defendants to punishment for submitting an affidavit that raises a colorable

suppression issue on which they do not ultimately prevail. See Pena,

n.1 (noting that the obstruction enhancement “is not intended to punish a

defendant for the exercise of a constitutional right,” and “not all inaccurate

testimony or statements necessarily reflect a willful attempt to obstruct justice”

(quoting U.S.S.G. § 3C1.1 cmt. (n.2))).

While the circumstances in this case “walk a line between Agudelo and

Lincecum,” Pena,

, they fall on the Lincecum side of the line, and

therefore the district court’s finding that the enhancement applied here was

proper. Lewis stated, “[d]uring the last week of May 2017, I did not occupy nor

stay at my place of residence located at 200 Winthrop Avenue, Second Floor . . . .

I had no visitors that were present at that location during the last week of May

2017.” App. at 104. During the suppression hearing that followed, Lewis’s

attorney reaffirmed this statement, asserting that while Lewis returned to his

apartment to change clothes and spend time out front, he “was not present with

any visitors” at the time the informant stated they were there. App. at 120–21.

Lewis was present at the hearing and did not dispute these statements.

29 On appeal, Lewis argues that he did not categorically assert that he was

never present in his residence and that the evidence does not conclusively show

that he slept there or entertained visitors inside the apartment. He argues that it

is therefore “attributable to a lapse in memory or to counsel’s inartful drafting” or

“simply, to a miscommunication.” Appellant’s Br. 64–65.

Applying the deferential standard under which we review the district

court’s factual findings, we affirm. The district court found that Lewis’s affidavit

was categorical enough to admit of only one meaning and constituted a willful

attempt to deceive the court as to a material issue—whether the informant had

been inside of Lewis’s apartment and basement when the informant said he had.

The court concluded that Lewis could not have subjectively believed he was telling

the truth.

We agree that the only possible relevance of the statement was to suggest

that Lewis had no visitors at his apartment. Likewise, we cannot find clear error

in the district court’s conclusion that Lewis willfully lied and that the affidavit was

demonstrably false. Significant evidence indicated that Lewis slept or entertained

visitors inside his home during the week in question. For example, Lewis was at

home with his girlfriend and her daughter when the search warrant was executed

30 on June 1st, and the apartment appeared lived-in. Furthermore, a detective

testified at the suppression hearing that he had seen Lewis sitting on his front

porch a few days before the search and that Lewis never mentioned not having

stayed at the apartment in his post-arrest interview. The record also includes text

messages sent from Lewis’s phone after 10:00 p.m. on May 27th stating, “I’m at my

crib,” and “[w]e in front of my crib trying to get the cookout rite,” to which

someone responded, “Oh ill be thrue.” App. at 110. Finally, GPS data associated

with pictures and videos on Lewis’s phone show that he was frequently near his

house during the week in question, and a video taken on Lewis’s phone during

the last week of May 2017 showed the surroundings outside Lewis’s home on 200

Winthrop Avenue.

On this record, we are not “left with the definite and firm conviction” that

the district court erred in concluding that Lewis’s statements were demonstrably

false by a preponderance of the evidence. United States v. Cuevas,

(2d Cir. 2007) (internal quotation marks omitted). Application of the obstruction

enhancement was therefore appropriate.

CONCLUSION

For the foregoing reasons, we affirm the judgment of the district court.

31