In the

    United States Court of Appeals
                For the Seventh Circuit
                    ____________________
No. 23-2617
UNITED STATES OF AMERICA,
                                                 Plaintiff-Appellee,
                                v.

LAMONT COLEMAN,
                                             Defendant-Appellant.
                    ____________________

        Appeal from the United States District Court for the
         Northern District of Indiana, Hammond Division.
       No. 2:18-cr-00101-TLS-JEM-1 — Jon E. DeGuilio, Judge.
                    ____________________

    ARGUED SEPTEMBER 4, 2024 — DECIDED MAY 15, 2025
                ____________________

   Before ROVNER, BRENNAN, and LEE, Circuit Judges.
   ROVNER, Circuit Judge. Suspicious of drug activity, investi-
gators sent confidential informants and undercover officers to
make at least fourteen controlled purchases of heroin at an
apartment building in Gary, Indiana, owned by Lamont Cole-
man. Officers used evidence from those buys, along with evi-
dence they collected from a surveillance van they placed out-
side of the building, to secure a warrant to search Coleman’s
apartment and a house he owned next door. That warrant
2                                                   No. 23-2617

turned up drugs, money, and firearms which the government
used at Coleman’s trial to convict him on most, but not all, of
the counts of the indictment. Coleman presents four claims on
appeal. First, he alleges that the court constructively and un-
constitutionally amended his indictment by issuing generic
jury instructions despite a very specific indictment. Second,
he accuses the government of withholding, until sentencing,
information which, he argues, would have proven the falsity
of key allegations in the warrant. Third, he claims that the sen-
tencing court impermissibly refused to accept an affidavit as
evidence of mitigating circumstances. And fourth, he argues
that the district court erred when it considered acquitted con-
duct at sentencing. We affirm on all grounds.
                                 I.
    From November 2017, through August 2018, agents sent
confidential informants and undercover officers to buy drugs
from Coleman’s suspected heroin operation. Coleman lived
with his then-girlfriend, Katrina “Trina” Owens, in a two-
story apartment building he owned on a corner lot at 4104
Madison Street in Gary. That apartment building shared a
driveway and side yard with an unoccupied house to the
south, at 4120 Madison Street, which Coleman also owned.
    The configuration of the house and the apartment build-
ing on the property took on importance during the warrant
request as investigators needed to connect the drug activity
happening generally in the apartment building to Coleman
specifically. Coleman and Owens mostly used the south door
of the small two-story apartment building at 4104 which led
out to a driveway shared with Coleman’s house next door at
4120. Augustine Pike, Tony Petty, and Coleman’s uncle,
Leroy Coleman (hereinafter “Leroy”), also lived in the
No. 23-2617                                                  3

apartment building and acted as drug runners. They used the
building’s door on the east side of the building which faced
the sidewalk and street. From this, investigators surmised
that the south door led directly into Coleman and Owens’s
apartment, and the east door served as a common door to the
remaining apartments.
     Investigators observed several controlled purchases, ei-
ther by confidential sources or undercover officers. These
purchases followed one of several patterns. The confidential
source would call a phone number ending in 5944, answered
either by “KD” or “Trina.” “KD” was a name that Coleman
used on social media and which law enforcement databases
tied to Coleman. A few moments later, someone would come
from the public entrance of the building, deliver the drugs,
and then retreat into the apartment building’s public en-
trance. Often, just before the drug runner would exit the
apartment door, Coleman or Owens would leave through the
south door (their apartment), go briefly to the house, and then
return through the south door. Runners delivered most of the
drugs on the corner directly outside of the apartment build-
ing, but sometimes they would deliver the drugs in front of
318 or 321 West 41st street, two houses east of the apartment
building. Occasionally Trina would direct callers to a location
a little farther away.
    Law enforcement officers were involved in one way or an-
other with approximately fourteen of these controlled pur-
chases. We summarize the controlled buys that were included
in the warrant request affidavit in the following table:
4                                                       No. 23-2617




      Date          Purchaser          Arranged        Delivered by
                                       buy with
    11-6-17    Confidential Source 1      Leroy             Leroy
    11-13-17   Confidential Source 1      Leroy             Leroy

    11-16-17   Confidential Source 1      Leroy             Leroy
    11-27-17   Confidential Source 1      Leroy             Leroy
    1-18-18    Confidential Source 2       KD          “Black female”
    1-25-18    Confidential Source 2      Trina       “older Black male”
    1-29-18    Confidential Source 2      Trina       “older Black male”

     2-6-18    Confidential Source 1       KD            Pike & Petty
     2-8-18    Confidential Source 2       KD               Petty
    2-19-18     Undercover Officer          KD               Pike
    3-13-18     Undercover Officer         Trina             Pike
    4-19-18    Confidential Source 3      Trina             Pike
    5-10-18     Undercover Officer         Trina             Pike

    8-14-18     Undercover Officer      Likely Trina         Pike



   In addition to these controlled buys, investigators also wit-
nessed other drug deals not involving police-controlled pur-
chasers. For example, just before the August 14 controlled
purchase, investigators watched Coleman, Pike, and Petty
leave the apartment together, travel several miles to another
location where Pike and Petty delivered heroin to other indi-
viduals before selling more heroin to the undercover officer.
No. 23-2617                                                    5

    In late June, investigators placed a surveillance van in
front of the properties. For five days, the surveillance van rec-
orded the drug runners coming and going from the east door
of the apartment building. It also recorded Owens and Cole-
man leaving their apartment, going to Coleman’s vacant
house across the driveway for a few minutes, and then return-
ing to their apartment, just before a drug runner left the front
door of the apartment building to sell drugs. At some un-
known point in time, the video recordings were spoiled dur-
ing a transfer from one format to another and became unusa-
ble.
    After collecting the information from the controlled buys
and surveillance, on August 23, 2018, David Murray, a task
force officer with the Drug Enforcement Administration, sub-
mitted an affidavit in support of a search warrant to a magis-
trate judge detailing the information the investigators had
gathered.
    Officers executed the warrant on August 28, 2018, during
which time they found a Glock handgun under the mattress
on which Coleman and Owens were sleeping, a Ruger hand-
gun in the filing cabinet in a room of the apartment that ap-
peared to be used as an office, around 9 grams of cocaine, and
11.5 grams of heroin. At the house next door, they found a .40-
caliber, Hi-Point handgun and a safe, for which Coleman had
the code, containing $19,000 in cash.
   The grand jury indicted Coleman and charged him with
conspiring to distribute heroin, two counts of distributing
heroin, possessing heroin with intent to distribute, possessing
cocaine base with intent to distribute, and being a felon un-
lawfully in possession of a firearm, “which was a Glock” with
“serial number NLW237.” R. 146, 299. The specificity of the
6                                                            No. 23-2617

description of the weapon in the indictment is one of the main
focuses of Coleman’s appeal.
   Along with Coleman, the government charged Owens,
Leroy, Pike, and Petty, and all pled guilty. As will become rel-
evant later, Leroy’s plea agreement stated that he was a minor
participant, and he was sentenced accordingly.
    Prior to trial, Coleman moved to suppress the evidence
from the search warrant, arguing that the warrant lacked suf-
ficient evidence of his participation and of probable cause to
search his specific apartment. The court held a Franks hearing
during which Officer Murray testified about Coleman’s com-
ings and goings connecting his apartment to the deals. 1 In de-
clining to suppress the evidence, the court, summarizing the
facts, noted that a surveillance van was placed near Cole-
man’s residence and “recordings show” numerous “times, ei-
ther Mr. Coleman or Ms. Owens … briefly enter the unoccu-
pied house next door,” and return to the south door shortly
before the drug deals. R. 278 at 3. The court also noted that
investigators had observed “several controlled purchases
with the same pattern of activity.” Id. Coleman did not chal-
lenge the judge’s reference to the recordings during this
Franks hearing or at trial. For the first time on appeal, how-
ever, Coleman raises the issue of whether the recordings ex-
isted or not, claiming that Officer Murray’s testimony at sen-
tencing about their spoliation was new information entitling
him to a new trial, or, at the least, a new Franks hearing.



    1 A Franks hearing is used to challenge the validity of a search warrant

affidavit based on allegations that it contains false statements or omis-
sions. See Franks v. Delaware, 

, 171–72 (1978).
No. 23-2617                                                             7

    At trial, the government presented evidence found pursu-
ant to the execution of the warrant, including the firearms and
drugs. The jury heard about the controlled buys, including
audio of some of the phone calls in which “KD” answered the
phone, and testimony from law enforcement officers identify-
ing the voice as belonging to Coleman. They saw video of
Pike, from one of the informant’s vehicles, completing drug
deals, and heard a stipulation that the Glock handgun trav-
elled in interstate commerce. Owens testified about Cole-
man’s role as the leader of the conspiracy. Detective Slatton
testified briefly about the surveillance van that investigators
parked in front of the property for several days, and he in-
cluded a brief description of what the surveilling officers ob-
served, but he also stated that something went wrong with
the video that investigators intended to record from the van. 2
The jury also heard from experts about the connections be-
tween weapons, large quantities of cash, and drug dealing.
The judge sent the jury to deliberate with the indictment and
the unopposed jury instructions.
    The jury found Coleman guilty of being a felon unlawfully
in possession of a firearm, as well as of conspiring and pos-
sessing with the intent to distribute heroin. It acquitted him
of the January 18 and February 19 drug deals, and of pos-
sessing cocaine base with the intent to distribute.
  Prior to sentencing Coleman objected to several enhance-
ments, but only three are relevant to this appeal: his role as a

    2 Detective Slatton testified that the van was parked outside of Cole-

man’s residence for “[t]hree days, I believe.” R. 336 at 105, Tr. 105. The
warrant application attested that the surveillance van had been parked in
front of the property for five days. The amount of time that the van rec-
orded is not relevant to our resolution of the case.
8                                                  No. 23-2617

leader, obstruction of justice by attempting to intimidate and
influence a witness, and the inclusion of acquitted conduct in
the calculation of his sentence. The court held a hearing to al-
low the parties to present additional evidence relevant to
Coleman’s objections. To address the first two of these en-
hancements, Coleman introduced a handwritten notarized
statement from Leroy dated July 31, 2021, just prior to his
original sentencing date of August 12, 2021 (sentencing was
later extended to March 10, 2022). In the document, Leroy de-
clared that he, not Coleman, was the leader of the operation.
Coleman’s counsel informed the court that Coleman gave him
the affidavit, but he knew nothing else about its origin. Nei-
ther Coleman nor the government chose to call Leroy. Al-
though the court marked the exhibit, it ultimately declared
that it was insufficiently reliable for admission and consider-
ation.
    On the government’s side, to support the leadership en-
hancement, Officer Murray testified to the role Coleman
played in the operations. During cross examination, Murray
confirmed that law enforcement investigators recorded activ-
ity from the surveillance van but noted that the recordings
had been lost while being run through a software program
and uploaded to a cloud-like system.
    The court issued an order addressing Coleman’s objec-
tions to the presentence report, overruling Coleman’s objec-
tions and finding sufficient evidence of Coleman’s role as a
leader, and of his efforts to influence Leroy’s testimony.
Shortly after that order issued, but before the actual sentenc-
ing judgment, Coleman’s defense counsel withdrew, and his
newly appointed counsel filed a motion for a new trial based
on the revelation of allegedly new information—Officer
No. 23-2617                                                   9

Murray’s sentencing hearing testimony about the unviewable
surveillance recordings. Coleman also alleged that the gov-
ernment failed to divulge the lack of recordings in violation
of the requirement in Brady v. Maryland that the government
disclose all exculpatory evidence. 

 (1963). At a
minimum, new counsel argued, Coleman was entitled to a
second Franks hearing to flesh out the facts. The court, how-
ever, disagreed. It interpreted Murray’s testimony to mean
that indeed there had been recordings from the van surveil-
lance, but that those recordings were rendered useless only
while being uploaded. The court also concluded that investi-
gators had real time access to the video feed from the surveil-
lance van and had also observed other activities firsthand,
without the use of recording equipment. Moreover, the court
noted, the jury had already been told that there were technical
problems with the videos and therefore Murray’s testimony
would not have added more. The court found no inconsisten-
cies between this interpretation of the facts and the statements
in the search warrant. In any event, the court noted, the affi-
davit also contained the independent observations of the in-
vestigating officers and other information that established
probable cause even without the paragraph in question. Fi-
nally, the district court concluded, none of the allegedly new
evidence would have altered either the court’s holding on the
motion to suppress or the outcome at trial. The district court
judge rejected the Brady claim for the same reasons—the trial
evidence would have been the same and there was no reason-
able probability that the result of the trial would have been
different.
   Having resolved the objections, the court sentenced Cole-
man to a below-guidelines sentence of 240 months. He now
appeals, arguing that the proceedings were tainted by a
10                                                    No. 23-2617

constructive amendment, the government’s withholding of
information, the court’s refusal to allow into evidence an affi-
davit, and the use of acquitted conduct at sentencing.
                                  II.
A. Constructive Amendment.
    The Fifth Amendment ensures that defendants are given
reasonable notice of the allegations against them and an op-
portunity to prepare a defense. United States v. Pierson, 

 (7th Cir. 2019), cert. granted, judgment vacated on
other grounds, 

 (2020). The words of the amend-
ment—“[n]o person shall be held to answer for a capital, or
otherwise infamous crime, unless on a presentment or indict-
ment of a Grand Jury”—have been interpreted to mean that
“[o]nly the grand jury can broaden an indictment through
amendment; neither the government nor the court may do
so.” Pierson, 

 (citing Stirone v. United States, 

, 215–16 (1960) and U.S. Const. amend. V). “[W]hen
the proof offered at trial, the jury instructions, or both allow
the jury to convict for an offense outside the scope of the in-
dictment” we say that the indictment has been “construc-
tively amended.” 

 at 919–20.
    In this case, Coleman claims that the jury instructions, in
combination with the evidence presented at trial, impermissi-
bly broadened the narrow indictment which charged Cole-
man with being a felon in possession of “a Glock … with serial
number NLW237.” R. 146 at 8. Coleman argues that despite
this narrow charge, the jury instructions allowed jurors to
convict if he possessed either of the two other firearms about
which the government presented evidence at trial—the Hi-
Point and Ruger.
No. 23-2617                                                 11

   The jury instruction stated:
      Count 4 of the indictment charges the defend-
      ant with unlawfully possessing a firearm on or
      about August 28, 2018. In order for you to find
      the defendant guilty of this charge, the govern-
      ment must prove each of the following elements
      beyond a reasonable doubt:
      1. The defendant knowingly possessed a fire-
      arm; and
      2. At the time of the possession, the defendant
      had previously been convicted of a crime pun-
      ishable by imprisonment for a term exceeding
      one year; and
      3. At the time of the possession, the defendant
      knew he had been convicted of a crime punish-
      able by imprisonment for more than one year;
      and
      4. The defendant’s possession of the firearm was
      in or affecting commerce.
R. 315 at 24. In contrast, the final superseding indictment al-
leged that Coleman violated 

(g) when he “pos-
sessed a firearm, which was a Glock model 19c firearm bear-
ing a serial number NLW237.” R. 146 at 8.
   “Specific language in an indictment that provides detail
beyond the general elements of the crime makes the specified
detail essential to the charged crime and must, therefore, be
proven beyond a reasonable doubt.” Pierson, 

.
In other words, the indictment did not have to include the
make and serial number of the firearm, but because it did, the
12                                                    No. 23-2617

jury had to find, beyond a reasonable doubt, that Coleman
possessed a Glock with serial number NLW237. Proof of his
possession of another weapon would not suffice for a finding
of guilt on the felon-in-possession charge.
   To assess Coleman’s claim of constructive amendment, we
must determine whether his argument was forfeited or
waived, and if not waived, whether he can demonstrate the
elements of plain error, particularly the prejudice prong.
     1. Forfeiture or waiver?
    Coleman did not object to the jury instruction at trial. We
therefore must decide if he intentionally relinquished this
known right, waiving it in the district court or inadvertently
failed to raise it, thus forfeiting it. See United States v. Patlan,

 (7th Cir. 2022). Forfeited arguments may be
reviewed on appeal, but only for plain error. United States v.
Carr, 

, 647 (7th Cir. 2024). Waiver, on the other
hand, removes all contest about the matter and precludes any
appeal. United States v. Robinson, 

, 639–40 (7th Cir.
2020). Nothing here points to the type of strategic and know-
ing relinquishment that we look for as the hallmark of waiver.

 at 641–42. We cannot surmise any reason why Coleman
would not have lodged his constructive amendment argu-
ment in the district court had his counsel considered that pos-
sibility. And indeed, we commonly find forfeiture and not
waiver in cases where a defendant fails to object to jury in-
structions in the district court and then argues constructive
amendment on appeal. See United States v. Withers, 

 (7th Cir. 2020); Pierson, 

. Our case law
is in some tension, but predominately we have held that a
blanket “no objection” to jury instructions, like Coleman’s
counsel’s statement here, results in forfeiture and not waiver.
No. 23-2617                                                    13

See United States v. Leal, 

 (7th Cir. 2023) (re-
counting tension, but pointing to only one case, United States
v. Bell, 

 (7th Cir. 2022), as an example of this
court finding waiver); cf. United States v. Hyatt, 

 (7th Cir. 2022) (“A mere failure to object to part of a PSR
is not enough to support a finding of waiver. … the waiver
principle is construed liberally in favor of the defendant.”).
We find that Coleman forfeited his constructive amendment
claim.
   2. Plain error review.
    We therefore review Coleman’s forfeited constructive
amendment claim for plain error only. That is, we ask (1) did
the district court err, (2) was the error plain, (3) did it affect
Coleman’s substantial rights, and (4) did it seriously affect the
fairness, integrity, or public reputation of the proceedings?
United States v. Marcus, 

 (2010); Pierson, 

.
    We begin with the third criterion which requires that the
“error must be ‘prejudicial,’ which means that there must be
a reasonable probability that the error affected the outcome of
the trial.” Marcus, 

. Under our circuit law, “[i]n
the context of plain error review, the [constructive] amend-
ment must constitute ‘a mistake so serious that but for it the
[defendant] probably would have been acquitted.’” Pierson,

 (quoting United States v. Remsza, 

 (7th Cir. 1996)).
       a. There was no prejudice in this case.
   The facts in this case are quite similar to those in Pierson,
in which we were “confident that if no constructive amend-
ment had occurred, the verdict would have been the same.”
14                                                 No. 23-2617

Pierson, 

. In Pierson, the government indicted
the defendant for being a felon in possession of a specific gun,
a Taurus, found in the defendant’s car. At trial, however, the
government presented evidence about another Taurus, found
in the defendant’s house, which had not been included in the
indictment. The jury instructions, like those here, asked jurors
to determine whether the defendant was guilty or not guilty
of possessing a firearm without identifying which firearm.
The court concluded that the “combination of the evidence
and untailored jury instructions added up to a constructive
amendment.” 

. The court went on to find, neverthe-
less, that several factors worked “to counter the possibility of
a conviction outside the terms of the indictment.” 

.
Those factors included the ample evidence that the defendant
possessed the gun described in the indictment, the govern-
ment’s closing argument instructing the jury to focus on the
weapon in the indictment, and the fact that the jury had a
copy of the indictment during deliberations. The court ulti-
mately found “no prejudice that would authorize an appellate
court to find a reversible plain error.” 

       b. The government sufficiently focused the jury on the am-
          ple evidence that Coleman possessed the Glock.
    In this case we are similarly confident that the verdict
would have been the same even with the assumption that the
jury instructions, combined with the evidence at trial, con-
structively amended the indictment. The jury heard compel-
ling evidence that Coleman possessed the Glock identified in
the indictment—officers found it in the apartment building
that Coleman owned, resting underneath the mattress on
which Coleman was sleeping. See United States v. Tate, 

 (7th Cir. 2024) (finding that locating a gun under the
No. 23-2617                                                               15

mattress of the defendant was sufficient to support a finding
of constructive possession). Coleman does not dispute that
the jury was properly instructed on the legal requirements for
possession. The government also presented the testimony of
experts in drug crimes who explained the connection between
weapons and their use in drug distribution.
    Although the government’s presentation included infor-
mation about a Ruger pistol in the apartment’s office and a
Hi-Point .40-caliber handgun in the house next door (also
owned by Coleman), the government repeatedly drew the
jury’s attention to the Glock and the fact that the Glock was
the gun to which the indictment referred. In its opening state-
ment, the government explained, “Count 4 alleges possession
of a firearm as a convicted felon. Again, you are going to hear
about the Glock handgun that was hidden underneath the
mattress in [Coleman’s] apartment.” R. 336 at 42, Tr. 42. 3 In
closing, the government reiterated that it needed to prove that
“the defendant knowingly possessed a firearm. And just to
remind you, Exhibit 15A, that’s the firearm in question. It’s
the Glock found at the apartment building.” R. 338 at 39, Tr.
410. Thus at both the start and end of the trial, the government
linked the Glock, and only the Glock, to the felon-in-posses-
sion charge in the indictment. The government also referred
the jury to a photograph showing that the “Glock was found
in between two mattresses in that bed,” and declared that the
government had met the burden of proving that Coleman


    3 The firearm count was presented to the jury as “Count 4” even

though it was originally Count 8 in the Third Superseding Indictment. See
R. 338 at 25, Tr. 396; R. 319. Several of the counts from the Third Supersed-
ing Indictment were dismissed before trial, thus changing the labeling of
the counts.
16                                                  No. 23-2617

knowingly possessed the Glock. 

 The government did not
show photographs of where officers located the other two
guns.
       c. The government proved the interstate nexus only for the
          Glock.
    Importantly, in any federal case involving a felon-in-pos-
session charge, the government must prove that the weapon
was “in or affecting commerce.” 

(g)(1). The
government set forth that proof for the Glock only, informing
the jury that Coleman had stipulated to the interstate com-
merce nexus of the Glock. R. 337 at 172, Tr. 339; R. 338 at 39,
Tr. 410. The court, likewise, instructed the jurors that they
could not find Coleman guilty of Count 4 (possessing a fire-
arm after being convicted of a felony) unless they found that
the gun had travelled in interstate commerce. R. 315 at 24.
Coleman argues in his reply brief that “the government ar-
gued during closing arguments that the jury did not need to
think about that [the interstate nexus] element.” Reply Brief
at 7 (citing R. 338 at 39, Tr. 410). The government did not, in
fact, tell the jury they “need not think about” that element. To
the contrary, the government informed the jury that the par-
ties had stipulated that the “possession of the firearm was in
or affecting commerce,” and explained to the jury that the
stipulation meant that the parties agreed that the government
met the burden of proving the element. R. 338 at 38–39, Tr.
409–10. Because of the stipulations, the government
No. 23-2617                                                   17

explained, it had but one remaining element to prove to the
jury: that Coleman “knowingly possessed” the Glock. 

       d. The evidence of other weapons was not used to prove the
          felon-in-possession charge.
    In contrast to the Glock, the government never set forth
any proof about the interstate travel of the Ruger and Hi-Point
firearms. In fact, the government presented very little evi-
dence or argument about those weapons at all. The mere fact
of their recovery was mentioned by one of the warrant-exe-
cuting officers in a simple explanation about each gun. See,
e.g., R. 337 at 25, Tr. 193 (“Q. Do you recognize Exhibit Num-
ber 5? A. I do. Q. And what is it? A. It is a Ruger handgun.
Q. And where was that Ruger handgun recovered? A. It was
located in an office style room in the apartment.”); see also
R. 337 at 12, Tr. 179 (similar brief exchange about the Hi-
Point). The government mentioned those guns briefly twice
in closing argument, but each time for a specific purpose other
than proving a felon-in-possession charge. For example, five
pages into the transcript of the government’s closing, the law-
yer for the government listed the evidence that demonstrated
Coleman’s intent to advance the conspiracy, including: his
provision of the drugs and the drug phone to Owens, keeping
large amounts of cash on hand, hosting the drug runners in
his apartment building, profiting from the conspiracy, and
keeping guns which the government’s expert witness testified
were essential tools of the drug trade. R. 338 at 33–34, Tr. 404–
05. To round out this last claim—that Coleman had weapons
to advance the conspiracy—the government stated:
       We also know that the defendant had guns,
       multiple guns, and we know this from the
       search warrant. There was a GLOCK recovered,
18                                                   No. 23-2617

       a Ruger. Both of those came from the apartment
       building at 4104 Madison. There was a third
       gun, a Hi-Point firearm recovered from the
       house next door. And both of those properties,
       we know from the evidence, belonged to the de-
       fendant.
R. 338 at 34, Tr. 405. The government also referred to the other
weapons to support the claim that Coleman intended to dis-
tribute the drugs. Most often, people who possess drugs for
their own personal use do not need weapons to protect the
drugs. The government’s expert witness explained that peo-
ple who distribute drugs are vulnerable to theft and violence
and use weapons as tools of the trade. To make this point the
government lawyer noted that:
       the defendant’s intent to distribute can also be
       inferred from some of the other items found
       during the search warrant execution. We have,
       as you know, three guns that were found there:
       The GLOCK, the Ruger, and the Hi-Point. They
       were there, we know from [the expert’s] testi-
       mony, to protect the drug dealer, his profits, and
       his drugs.
R. 338 at 42, Tr. 413. Similarly, the reference to multiple guns
in the government’s opening statement occurred in the con-
text of defining a felon-in-possession charge. See R. 336 at 41,
Tr. 41 (“they found firearms. And the firearms were some-
thing that [Coleman] wasn’t supposed to possess at all be-
cause he had a felony conviction.”). The only other mention
of other weapons came at the end of the closing argument
when the government mentioned “guns” in its list of evidence
proving guilt. R. 338 at 70, Tr. 441 (listing all the evidence as:
No. 23-2617                                                      19

“The audio recording and video recordings of the buys; the
testimony of Owens and David Maldonado; all the law en-
forcement agents; everything found at the search warrants,
the guns, the cash, the cell phones, the drugs; the multiple IDs
of the defendant’s voice”).
    In sum, the government mentioned other weapons in an
attempt to fill out the contours of the counts involving Cole-
man’s intent to advance the conspiracy and to distribute
drugs. For the purpose of assessing whether the government
expanded the terms of the indictment on the felon-in-posses-
sion charge, we focus on the court’s instructions to the jury on
that charge and whether those instructions expanded the in-
dictment. We turn to those instructions now.
       e. The jury instructions and verdict form referred to the in-
          dictment.
    It is true that the jury instruction regarding Count 4 did
not indicate a particular firearm despite the indictment’s spec-
ificity about a Glock with a distinct serial number. Neverthe-
less, the jury instructions pointed the jurors back to Count 4
of the indictment by telling them that they had to consider
whether the government proved guilt “[a]s to Count 4 of the
Indictment,” the felon-in-possession charge that specifically
identified the Glock. R. 319 at 1; R. 146 at 8. And if that were
not enough, the district court judge directed the jury that
Coleman was on trial for charges in the indictment, including
“Count 4, possessing a firearm after being convicted of a fel-
ony,” and only “for the charges in the Indictment, not for any
other crimes.” R. 336 at 24, Tr. 24; R. 338 at 19, Tr. 390. These
are the types of connections and clarifications that we have
20                                                    No. 23-2617

said minimize the risk of jury confusion and constructive
amendment. Pierson, 925 F.3d at 922–23.
    In his defense at trial, Coleman argued that the Glock be-
longed to Owens, not him. Coleman asserts on appeal that the
jury rejected other parts of Owens’s testimony and may have
been similarly disinclined to believe her denial of ownership
of the Glock. But because the jury could rely on two other
guns for the verdict, Coleman argues, they did not need to
consider this theory. The jury instructions made clear, how-
ever, that the jurors could only convict if they found all of the
elements of Count 4, which included the interstate commerce
nexus requirement. There was only one gun for which the
jury could have found that the government met that require-
ment—the Glock. Even had the jury fully rejected Owens’s
testimony that the Glock was not hers, it could not have con-
victed Coleman for being a felon in possession of the Ruger
and Hi-Point. The government made no attempt to prove the
elements of a felon-in-possession charge for those guns, and,
to the contrary, told the jury in both the opening and closing
arguments that the Glock was the handgun in question in the
felon-in-possession charge. R. 336 at 42, Tr. 42; R. 338 at 39, Tr.
410. We conclude, therefore, that any constructive amend-
ment would not have affected Coleman’s substantial rights.
     3. The law on constructive amendment is now clearer.
    This conclusion precludes any need to look further at the
elements of plain error, but given the evolving state of our cir-
cuit’s law on what it means for a constructive amendment to
constitute plain error, we think it warrants a few more words.
In Pierson, we concluded that the error was not plain for three
main reasons: the law had not yet been settled, our caselaw
had not yet provided guidance as to what kinds of statements
No. 23-2617                                                    21

by the government or instructions by the court might ward
against constructive amendment, and the Supreme Court had
not yet provided direct guidance for the analysis. The Pierson
decision, however, significantly clarified at least part of this
court’s jurisprudence on constructive amendment by warn-
ing jury-instructing courts and instruction-proposing lawyers
that this exact type of mismatch between a narrow indictment
and the pattern jury instruction risked creating a constructive
amendment:
       The court risked constructive amendment by
       not tailoring the pattern jury instructions to the
       specifics of the case. When the indictment nar-
       rows the basis for conviction by adding specifics
       to an element of the crime, as it did here, the dis-
       trict court should adjust the pattern instructions
       to ensure the defendant stands to be convicted
       for precisely what was charged in the indict-
       ment. … Where the indictment makes a particular
       firearm an essential element of the offense as charged,
       the court’s jury instructions should be adjusted to
       include that essential element. If jury instructions
       are tailored to the specific charges in the indict-
       ment, constructive amendments are less likely
       to occur.
Pierson, 

 (emphasis ours).
    We reassert that advice in the hopes of providing further
guidance for those crafting jury instructions. Nevertheless,
because we stop at the prejudice prong of plain error review,
we need not consider under what other circumstances we
might find plain error based on the constructive amendment
of a jury instruction. Our conclusion that Coleman was not
22                                                 No. 23-2617

prejudiced is supported by the ample evidence that he pos-
sessed the Glock, the dearth of evidence about the other fire-
arms, and the written and oral instructions to the jury which
tied the necessary proof to Count 4 of the indictment.
B. The “Newly Discovered Evidence.”
    Coleman alleges that it was only at the sentencing hearing
that he learned for the first time that the surveillance record-
ings were “basically useless.” Coleman Brief at 35 (quoting
R. 370 at 51, Sent. Tr. 51). At that hearing, the exchange be-
tween Officer Murray and Coleman’s trial counsel about the
surveillance recordings proceeded as follows:
       Q. And wasn’t there, in fact, a van or something
          parked outside with surveillance equipment
          in it?
       A. Yes, there was.
       Q. And wasn’t there a problem with retrieving
          that information?
       A. We had several problems with that van, yes.
       Q. Okay. So if I never got through discovery any
          of those surveillance videos, it’s because
          they were deficient or defective?
       A. Correct.
       Q. Okay. Not because you didn’t want to turn it
          over; just because—
       A. No. We had technical issues with the soft-
          ware we were using and the placement of
          the van. There was no—it was just basically
          useless.
No. 23-2617                                                23

      Q. Yeah. Did you ever turn those over to the
         government?
      A. Well, we couldn’t—I don't believe we did be-
         cause we could not watch most of it our-
         selves.
      Q. Was it just discernible? Was there nothing on
         it? Was it just black? Blank?
      A. So the software was so fuzzy that you
         couldn’t see if it was night, if it was day. It
         didn’t record the entire time frame. I don’t
         recall us even turning it over because it was
         just ineffective equipment.
      Q. Okay. Did you ever have it examined by ex-
         perts to make sure?
      A. We did.
      Q. You did?
      A. We did.
      Q. Okay. And did any of that information, the
         reports of the experts or the fuzzy tapes or
         anything like that, ever get turned over to
         the government?
      A. No. So we—you couldn’t record. So it goes
         through a software system, and then trying
         to watch it from the software system and put
         it into a recording was a technical issue that
         couldn’t be done. So we had technicians as-
         sisting us from DEA, and I believe the whole
         thing just got scrubbed.
24                                                 No. 23-2617

       Q. So it was never turned over to the govern-
          ment?
       A. There was nothing to turn over.
R. 370 at 51–52, Sent. Tr. 51–52.
    Coleman claims that this was new information—that until
that time he had assumed that there were recordings based on
Murray’s attestation in the affidavit seeking a warrant which
stated:
       In late June 2018, Investigators placed a surveil-
       lance van in front of 4120 and 4104 Madison. For
       five days, it recorded foot and vehicle traffic in
       the area. The recording showed runners coming
       and going from the east door of the apartment
       building at 4104 Madison Street between the
       hours of approximately 8am and 9pm on a daily
       basis. On numerous occasions, OWENS and/or
       Lamont COLEMAN exited the apartment
       building’s south door and entered the ranch
       house next door at 4120 Madison. OWENS
       and/or Lamont COLEMAN only briefly stayed
       in the house before returning to the apartment
       building through the south door. Shortly there-
       after, runners would leave 4104 Madison to de-
       liver heroin. Investigators had observed Katrina
       OWENS and Lamont COLEMAN conduct this
       same activity prior to several of the controlled
       purchases detailed above in this Affidavit.
R. 190-1 at 11 (emphasis ours).
    Murray’s testimony during the sentencing was not the
first time that the video recordings were mentioned during
No. 23-2617                                                     25

the proceedings, however. At trial, Detective Slatton testified
that officers parked a surveillance van with recording equip-
ment outside of Coleman’s apartment for several days. Ac-
cording to Slatton, the officers could watch in real time and
pan the camera around as they watched. But even if they were
not watching, the camera recorded constantly. As described
earlier, he also testified that at some point “there was some-
thing wrong with” the recordings. R. 336 at 105, Tr. 105. Slat-
ton testified that “the results of that surveillance, I believe,
were of us seeing the runners constantly coming and going. I
also believe Katrina Owens was seen on the video walking
down the streets. Some other activity, I believe, with the vehi-
cles outside. … I couldn’t recall off the top of my head every-
thing that was on that video for three days.” 

 There was no
further reference to the recordings at trial, nor any explana-
tion about what happened to them.
    For the moment, we will set aside the question as to
whether Officer Murray’s testimony at the sentencing hearing
contained new information or merely a more complete expo-
sition of Detective Slatton’s description at trial. We will also
suppress our curiosity as to how Coleman’s trial counsel, de-
spite seeing the warrant application, had never requested ac-
cess to the recordings described therein. Coleman’s trial coun-
sel moved to withdraw following the sentencing evidentiary
hearing and his new counsel filed the motion for a new trial.
But as we discuss below, no Franks hearing was necessary to
resolve these questions.
    Coleman makes three claims about this “newly discovered
evidence.” First, he claims that the post-trial revelation enti-
tles him to a new trial; second that, at the least, the case should
be remanded so that the district court can hold a second
26                                                    No. 23-2617

Franks hearing to determine the extent of the misinformation;
and third, the government committed a Brady violation. Cole-
man cannot prevail on any of these claims.
     1. New trial or Franks hearing.
    Federal Rule of Criminal Procedure 33 authorizes a district
court to vacate a judgment and grant a new trial “if the inter-
est of justice so requires.” Fed. R. Crim. P. 33(a). We review a
district court’s rulings on a motion to grant a new trial with
great deference, looking only for an abuse of discretion, and
bearing in mind that the “‘exercise of power conferred by
Rule 33 is reserved for only the most extreme cases.’” United
States v. Hamdan, 

 (7th Cir. 2018) (quoting
United States v. Peterson, 

 (7th Cir. 2016)).
    In seeking a new trial, the defendant must demonstrate
that the new evidence “(1) was discovered after trial, (2) could
not have been discovered sooner through the exercise of due
diligence, (3) is material and not merely impeaching or cumu-
lative, and (4) probably would have led to acquittal.” United
States v. Coscia, 

 (7th Cir. 2021) (quoting United
States v. O'Malley, 

 (7th Cir. 2016)).
    In this instance, Coleman argues that the newly discov-
ered evidence revealed a falsehood on the warrant applica-
tion. A criminal defendant who alleges that a warrant was
materially inaccurate or incomplete may be entitled to a
Franks hearing to determine whether facts were deliberately
or recklessly omitted from the warrant application. See Franks
v. Delaware, 

 (1978). In this case, therefore, the
requirements for a new trial under Rule 33 and for a Franks
hearing overlap.
No. 23-2617                                                   27

    To obtain a Franks hearing, a defendant must make a “sub-
stantial preliminary showing (1) that the warrant application
contained a material falsity or omission that would alter the
issuing judge’s probable cause determination, and (2) that the
affiant included the material falsity or omitted information in-
tentionally or with a reckless disregard for the truth.” United
States v. Clark, 

 (7th Cir. 2019).
    As is clear from the requirements for a new trial pursuant
to Rule 33 and for a Franks hearing, the defendant must make
a showing that the allegedly new information about false-
hoods in the warrant application was material. In the Franks
context, materiality means that the new information would
have “alter[ed] the issuing judge’s probable cause determina-
tion.” Clark, 

. And under Rule 33, materiality
means that the new evidence probably would have led to a
different outcome at trial. See, e.g., United States v. Kawleski,

 (7th Cir.) (no showing that new evidence
probably would result in an acquittal), cert. denied, 

 (2024); Coscia, 

 (defendant did not carry bur-
den of demonstrating that the new information would seri-
ously call into question the jury verdict.). A decision that the
new information would not have altered any outcomes, there-
fore, would make Coleman ineligible both for a new trial and
a Franks hearing.
    Coleman argues that the new evidence about the video
failure would have been material as it “could have potentially
caught Murray in a blatant lie”—a lie which Coleman then
would have used in the pretrial suppression proceedings to
impeach Murray and subsequently to suppress any evidence
found pursuant to the execution of that warrant. Coleman
Brief at 38. Our precedent, however, requires us to presume
28                                                    No. 23-2617

that an affidavit supporting a search warrant is valid, “based
on the assumption that, when law enforcement officers make
a factual showing to a neutral and detached magistrate, it ‘will
be a truthful showing.’” United States v. Taylor, 

 (7th Cir. 2023) (quoting Franks, 438 U.S. at 164–65). “The
presumption of validity is not easy to overcome.” 

;
see also United States v. McMurtrey, 

 (7th Cir.
2013) (noting the difficulty for a defendant to make the sub-
stantial preliminary showing required under Franks).
    To overcome this presumption takes more than a bald as-
sertion that the swearing witness “could have potentially”
been caught in a lie, as Coleman says. It is the defendant’s
burden under Franks to “make a substantial preliminary
showing that law enforcement knowingly and intentionally,
or with reckless disregard for the truth, made either a false
material statement or a material and deceptive omission in the
underlying warrant affidavit.” Taylor, 

. To do
so, “[t]he defendant must identify specific portions of the
warrant affidavit as intentional or reckless misrepresenta-
tions, and the claim of falsity should be substantiated by the
sworn statements of witnesses.” 

 (internal citations
omitted). Only once that burden has been reached does the
Fourth Amendment require an evidentiary hearing on the ve-
racity and completeness of the affidavit. 

    Coleman has not offered any specific support for his claim
that Murray lied in the warrant application, as his burden of
production requires. He has offered no sworn statements of
witnesses. He provides no “direct evidence of the affiant’s
state of mind or circumstantial evidence that the affiant had a
subjective intent to deceive based on the nature of the omis-
sions.” United States v. Glover, 

 (7th Cir. 2014).
No. 23-2617                                                              29

He offers only the conclusion that of all the possible explana-
tions for Murray’s use of the word “recording,” the only one,
or at least the most likely one, is that there were no recordings
at the time of the warrant application, Murray knew this to be
true, and knowingly and intentionally misled the court. 4 This
conclusory assertion is insufficient to rebut the presumption
that the warrant affidavit was valid and entitle Coleman to an
evidentiary hearing. See Franks, 

; United States
v. Vines, 

 (7th Cir. 2021) (conclusory statements
that misrepresentations and omissions were “material” are
insufficient to preserve a challenge to the district court’s hold-
ing that the warrant established probable cause).
    The district court listened to Murray’s testimony at the
first Franks hearing and again at sentencing, along with De-
tective Slatton’s testimony at trial. The court made a factual
conclusion, which we disturb only if we find clear error, that
the evidence and testimony “establish[ed] that the


    4 Based on Slatton and Murray’s testimony, there are myriad alterna-

tive explanations for Murray’s reference to the recordings in the affidavit,
including but not limited to the following: the recordings may have ex-
isted at the time he submitted the affidavit in support of the search war-
rant and then were later ruined as they were being uploaded to the cloud,
as the district court assumed; the recordings may have already been ru-
ined when Murray submitted the affidavit, but Murray was unaware of
that fact; Murray or the officers reporting to him may have watched the
events unfolding on the recording equipment screen as it was being rec-
orded, and assumed that in addition to being broadcast on the screens in
real time, they were also being successfully recorded; Murray could have
known that there were no recordings, but used the term “recordings” col-
loquially to mean events captured and watched in real time on video
screens.
30                                                    No. 23-2617

investigators had real time access to the video feed from the
surveillance van and the outside activity was being video rec-
orded. However, due to software problems, the recorded data
failed to transfer into a usable format.” R. 397 at 10 n.4; see also
United States v. Osterman, 

 (7th Cir. 2024)
(the court of appeals reviews a district court’s factual find-
ings, including those made in a Franks hearing, for clear error
only). The court made no clear error by concluding that the
officers observed the activities to which they attested, and
that the officers recorded video even if the video was ulti-
mately lost.
    But perhaps most importantly, even if the Franks hearing
revealed that Murray deliberately and recklessly or intention-
ally intended to mislead the court by discussing “record-
ings”—and there is nothing that leads us to believe that he
did—Coleman cannot demonstrate that Murray’s misleading
statements would have altered the issuing judge’s probable
cause determination. See Clark, 

. A statement is
not “material” to the warrant if, when the court sets it aside,
probable cause remains. United States v. Souffront, 

, 822 (7th Cir. 2003).
    And here, the warrant contained more than sufficient evi-
dence of probable cause for the search, even without the con-
troverted paragraph. The key to linking Coleman with the il-
legal activity was not the video recordings themselves, but the
events and activities that the recordings captured. The inves-
tigators could have established evidence of those activities in
many ways—among them by observing Coleman’s behavior
directly or through closed circuit video, by observing video
evidence of Coleman’s activity before it was ruined, or
through information given to investigators by reliable sources
No. 23-2617                                                     31

like informants or undercover officers. Coleman argues that
“[i]f the allegations about the recordings were struck from the
affidavit, the main fact tying Coleman to the conspiracy
would have been the allegation that some informant identi-
fied him as the kingpin and man who took drug calls.” Cole-
man Brief at 40. But the “non-recording” evidence consisted
of far more. After all, the video recorded for a mere five days,
but the warrant application contained law enforcement obser-
vations made over more than nine months. Video or no video,
an officer’s sworn affirmation about what the officer observed
is sufficient to establish probable cause. See, e.g., United States
v. Miles, 

, 741–42 (7th Cir. 2023) (finding probable
cause to search a house for drugs based on observations dur-
ing controlled buys, where the seller left a location, obtained
drugs from the house, and returned to complete the sale.);
United States v. Kelly, 

 (7th Cir. 2014) (find-
ing probable cause to search Kelly’s residence based on obser-
vations of Kelly selling drugs to an informant from behind the
residence and the officer’s experience that drug dealers are
likely to keep contraband in their residences.).
    The warrant application also asserted that confidential in-
formants and undercover officers conducted deals with “KD”
(a name that the officers knew to be tied to Coleman), and
with “Trina”— a name they linked to Owens, who they con-
tended was not only Coleman’s girlfriend, but also a member
of the conspiracy. The warrant application vouched for the re-
liability of all three confidential informants with specific de-
tails regarding their trustworthiness. The affidavit also noted
several other connections between the drug activity and Cole-
man: “investigators observed” Owens and Coleman exit the
apartment building’s south door, go into the neighboring
house, stay for a brief time, and then return to the apartment,
32                                                     No. 23-2617

shortly after which the drug runners completed the deals;
Coleman’s relationship with the drug runners who came and
went from the apartment building that he owned; and the fact
that his personal phone was often in contact with the phone
known to be used for the drug transactions. None of that ob-
servational evidence relied on the video recordings. In any
event, a warrant affidavit need not be correct in every asser-
tion, nor must it provide every detail of an investigation. Tay-
lor, 

. Because the reviewing judge had ample
evidence to support the warrant, even without any evidence
of the recordings, any falsehood, had there been one, would
not have altered the probable cause determination, and thus
was not material. See, e.g., United States v. Roland, 

 (7th Cir. 2023) (quoting Glover, 

).
And if it would not have altered the assessment of probable
cause for purposes of assessing materiality for a Franks hear-
ing, it also could not have had any material effect sufficient to
warrant a new trial pursuant to Rule 33, as it could not have
created a likelihood of a different outcome. See, e.g., United
States v. Jones, 

 (7th Cir. 2023), cert. denied, 

 (2024).
     2. The Brady claim.
    Coleman lodges his final claim of harm from the allegedly
new evidence in the form of a Brady claim. In Brady v. Mary-
land, the Supreme Court held that the government violates the
due process rights of a defendant if it suppresses any material
evidence favorable to the defendant’s case. Brady, 

. For Brady purposes, the evidence is material only if there
is a reasonable probability—that is, one sufficient to under-
mine confidence in the outcome—that, had the evidence been
disclosed to the defense, the result of the proceeding would
No. 23-2617                                                   33

have been different. United States v. Bagley, 

(1985). To establish a Brady violation Coleman must demon-
strate that the government suppressed evidence, the evidence
was either exculpatory or impeaching, and that prejudice re-
sulted. United States v. Mitrovich, 

 (7th Cir.
2024). The materiality and prejudice requirements of the
Brady analysis reorients us back to the discussion of material-
ity above. Coleman cannot demonstrate that there is a “rea-
sonable probability” that the result of the trial would have
been different had the jury seen the suppressed evidence.
Goudy v. Cummings, 

 (7th Cir. 2019) (quoting
Kyles v. Whitely, 

 (1995)). For all of the same
reasons that the allegedly new evidence would not have al-
tered any outcome of the proceedings, we also conclude that
the Brady claim fails.
C. Leroy Coleman’s Affidavit.
    At sentencing, Coleman objected to the recommendation
in the presentencing report that he receive a two-level en-
hancement for obstructing justice by attempting to influence
the testimony of his uncle and co-conspirator, Leroy. The gov-
ernment presented evidence at sentencing about a phone call
between Leroy and Coleman in which Leroy expressed con-
cern about testifying at Coleman’s trial. In that call, Coleman
urged Leroy to testify that he did not recognize Coleman’s
voice on the recordings of the phone calls, and that it was
Leroy, not Coleman, who was the leader and built the opera-
tion with Owens. Coleman said to Leroy that if he testified
accordingly, Coleman would be “out tomorrow.” R. 347-2 at
2.
   At the sentencing hearing, Officer Murray testified that
law enforcement conducted numerous interviews with Leroy,
34                                                 No. 23-2617

who they determined was an unreliable witness as he “con-
tinually changed his story after speaking with Lamont Cole-
man or anyone else from the family.” R. 370 at 44, Sent. Tr. 44.
Defense counsel also acknowledged that “Leroy is a mixed
bag” (Id. at 84), but nevertheless introduced a handwritten no-
tarized statement from Leroy dated July 31, 2021. In that doc-
ument, Leroy declared:
       On or around April 28, 2021 I Leroy Coleman,
       during a phone call with Lamont R. Coleman
       stated that “me and Trina ran the operation. La-
       mont R. Coleman was either at work or at
       school. I also stated that I was caught on video
       and audio conducting drug transactions.” La-
       mont R. Coleman did not threaten, intimidate,
       or unlawfully influence my statements.
R. 370 at 73, Sent. Tr. 73. Defense counsel informed the court
that Coleman gave him the affidavit, but he knew nothing else
about its origin. Neither Coleman nor the government called
Leroy, and Coleman did not present any further evidence
about Leroy or his affidavit at the sentencing hearing.
   The court eventually declared the affidavit inadmissible,
reasoning as follows:
       At the evidentiary hearing, Mr. Coleman sub-
       mitted a purported affidavit from Leroy affirm-
       ing that he made such statements during the
       phone conversation. While the Court allowed
       the defense to mark the affidavit as a hearing ex-
       hibit, the affidavit is not admissible into evi-
       dence. Leroy did not testify at the hearing and it
       is unknown whether he actually wrote the
No. 23-2617                                                       35

       affidavit and whether it is actually notarized. In
       fact, no testimony was offered about the foun-
       dation for the affidavit so as to indicate any in-
       dicia about its reliability. But even if the affida-
       vit were admissible, it would change nothing as
       what it states is inconsistent with the trial evi-
       dence about the roles of each member of the
       conspiracy.
R. 371 at 13 n.3.
    “A ‘defendant has a due process right to be sentenced on
the basis of reliable information.’” United States v. Tankson, 

 (7th Cir. 2016) (quoting United States v. Zehm, 

 (7th Cir. 2000)). At sentencing, a judge has great
latitude in admitting evidence, like hearsay, that might other-
wise not be admissible at trial, but the district court must en-
sure that “the information has sufficient indicia of reliability
to support its probable accuracy.” United States v. Barker, 

 (7th Cir. 2023), cert. denied, 

 (2024);
see also U.S.S.G. § 6A1.3(a). We review those determinations
for an abuse of discretion. Tankson, 

.
    Coleman argues that affidavits can be self-authenticating
under Federal Rule of Evidence 902(8), and need not require
extrinsic evidence of authenticity for admission. It is true, in
the usual course of events, that an affidavit may be suffi-
ciently reliable on its face at least to warrant admission. But it
would be wholly inaccurate to assume that a district court
must accept an affidavit as reliable simply because it allegedly
has been sworn before a notary public. See, e.g., United States
v. Amerson, 

 (7th Cir. 1999) (affirming district
court judge’s decision to exclude affidavit as unreliable);
United States v. Wilkus, 

 (7th Cir. 1989) (same).
36                                                    No. 23-2617

In this case, in assessing reliability, the district court heard ev-
idence that Leroy was an unreliable witness—so unreliable,
in fact, that neither side wanted to call him. Coleman did not
wish to call him as a witness but nevertheless wanted the
court to admit an affidavit from him that would not be subject
to cross examination. Moreover the sentencing judge heard
evidence that Leroy’s story pivoted every time he spoke to
Coleman or someone from his family. And the court also
knew that Leroy had entered a plea agreement that identified
him as a minor participant, but that the affidavit alleged oth-
erwise. It is true that a court can admit an affidavit as evidence
and later discredit the truth of information contained within
it. But when the circumstances under which the affidavit ar-
rived before the district court judge are as suspect and unreli-
able as they are here, it certainly is not an abuse of discretion
for a district court to deny its admission for lack of reliability.
D. Acquitted Conduct.
    In his final claim, Coleman hopes to preserve for the Su-
preme Court the question of whether the district court erred
by considering, at sentencing, conduct for which the jury ac-
quitted him. Coleman concedes, as he must, that this argu-
ment is foreclosed by the Supreme Court’s holding in United
States v. Watts, 

 (1997) (per curiam), and our cir-
cuit’s interpretation of Watts in which we have held that a sen-
tencing judge may consider acquitted conduct in calculating
a sentence, so long as that conduct has been proved by a pre-
ponderance of the evidence and the sentence does not exceed
the statutory maximum for the crime of conviction. See, e.g.,
United States v. Robinson, 

 (7th Cir.), cert.
No. 23-2617                                                    37

denied, 

 (2023); United States v. McClinton, 

 (7th Cir. 2022), cert. denied, 

 (2023).
     In denying the petition for certiorari in McClinton, four Su-
preme Court justices encouraged the United States Sentenc-
ing Commission to resolve questions around the use of ac-
quitted conduct at sentencing. McClinton v. United States, 143
S. Ct. at 2400–03 (Sotomayor, J., respecting the denial of certi-
orari) (noting that the Sentencing Commission had forecasted
its plan to imminently resolve questions around acquitted-
conduct sentencing, but declaring that “[i]f the Commission
does not act expeditiously or chooses not to act, however, this
Court may need to take up the constitutional issues pre-
sented.”); 

 (Kavanaugh, J. joined by Gorsuch, and Barrett,
JJ., respecting the denial of certiorari) (“It is appropriate for
this Court to wait for the Sentencing Commission’s determi-
nation before the Court decides whether to grant certiorari in
a case involving the use of acquitted conduct.”).
    Ten months later, the Sentencing Commission heeded the
call, passing an amendment to revise the United States Sen-
tencing Guidelines such that they now state, “Relevant con-
duct does not include conduct for which the defendant was
criminally charged and acquitted in federal court, unless such
conduct also establishes, in whole or in part, the instant of-
fense of conviction.” U.S.S.G. 1B1.3(c) (effective November 1,
2024).
    The Guideline revision, however, does not have retroac-
tive effect. The Guidelines allow for retroactive application
only for amendments specifically listed in U.S.S.G.
§ 1B1.10(d). The amendment at issue here is not listed in sub-
section (d) and thus does not have retroactive effect. See, e.g.,
United States v. Botsvynyuk, No. 24-3253, 

, at *2
38                                                   No. 23-2617

(3d Cir. Mar. 28, 2025); United States v. Ashford, No. 23-3395,

, at *2 (8th Cir. Jan. 13, 2025)
    The Sentencing Guideline change may not have retroac-
tive effect, but if Coleman’s sentence was based on a rule that
the Supreme Court deems unconstitutional, and that rule
prejudiced Coleman, he is likely entitled to a remand for re-
sentencing. In United States v. Paladino, we held that, because
mandatory sentencing guidelines violated the Sixth Amend-
ment, any defendant prejudiced by a sentence handed down
under that illegal regime was entitled to a remand for resen-
tencing. 

, 483 (7th Cir. 2005). “It is a miscarriage
of justice to give a person an illegal sentence that increases his
punishment, just as it is to convict an innocent person.” Id.
    The Supreme Court, of course, has not ruled that increas-
ing a defendant’s sentence on the basis of acquitted conduct
violates the Sixth Amendment. At least nine Supreme Court
justices, however, over the course of various time periods,
have expressed some level of concern with the practice. See
McClinton, 143 S. Ct. at 2400–03 (Justices Sotomayor, Ka-
vanaugh, Gorsuch and Barrett all noting that the use of ac-
quitted conduct at sentencing raised important issues that
needed to be decided); Jones v. United States, 

(2014) (Scalia, J., joined by Thomas and Ginsburg, JJ., dissent-
ing from denial of certiorari) (opining that a sentencing judge
cannot use acquitted conduct as “any fact necessary to pre-
vent a sentence from being substantively unreasonable—
thereby exposing the defendant to the longer sentence—is an
element that must be either admitted by the defendant or
found by the jury. It may not be found by a judge.”) (emphasis
in original); Watts, 

 (Stevens, J., dissenting)
(“The notion that a charge that cannot be sustained by proof
No. 23-2617                                                       39

beyond a reasonable doubt may give rise to the same punish-
ment as if it had been so proved is repugnant to that jurispru-
dence.”); 

 (Kennedy, J., dissenting) (“[T]o increase a sen-
tence based on conduct underlying a charge for which the de-
fendant was acquitted does raise concerns about undercutting
the verdict of acquittal.”); see also United States v. Bell, 

 (D.C. Cir. 2015) (Kavanaugh, J., concurring in denial
of reh’g en banc) (“Allowing judges to rely on acquitted or
uncharged conduct to impose higher sentences than they oth-
erwise would impose seems a dubious infringement of the
rights to due process and to a jury trial.”); United States v. Sa-
billon-Umana, 

 (10th Cir. 2014) (Gorsuch, J.)
(“It is far from certain whether the Constitution allows” a dis-
trict judge to increase a defendant’s sentence within the stat-
utorily authorized range “based on facts the judge finds with-
out the aid of a jury or the defendant’s consent.”); United
States v. Settles, 

 (D.C. Cir. 2008) (“To be sure,
we understand why defendants find it unfair for district
courts to rely on acquitted conduct when imposing a sen-
tence.”).
    It is not unreasonable for Coleman to hold out hope that
arguments like those set forth by Justice Scalia in Jones might
prevail, and a majority of the Court will find that the “Sixth
Amendment is violated when courts impose sentences that,
but for a judge-found fact, would be reversed for substantive
unreasonableness.” Jones, 574 U.S. at 948 (Scalia, J., dissent-
ing). But we are not certain whether such a change would ben-
efit Coleman. Coleman argues that the district court judge ig-
nored the jury’s verdict which it describes as “acquitting Cole-
man of the controlled buys and seemingly rejecting any testi-
mony that Coleman was the head of the drug operation.”
Coleman Brief at 51. The jury, however, never acquitted
40                                               No. 23-2617

Coleman of being a leader of the conspiracy. There was no
such charge in the indictment, rather it was merely an en-
hancement that the judge considered at sentencing. In other
words, it does not appear that the district court judge used
acquitted conduct in considering Coleman’s sentence. But in
any event, the issue has been preserved, and we must await a
decision in a future case as to whether a sentence based on
acquitted conduct violates the Constitution. In the meantime,
for the reasons described above, the decision of the district
court on all matters is
                                                AFFIRMED.