here time first case on the argument calendar is united states versus malina object was a weapon based upon the court's finding we believe that his ruling not to suppress the controlled substance was incorrect the record shows that the officer reached in three times to touch the object and each time could not identify it as a weapon and also that he could not identify it as controlled substances under both what did you make you know  hearing again i knew it wasn't a gun i knew it wasn't a knife but i didn't know what it was i think the officer what is does that mean that he's ruled out the possibility that i don't think it's a weapon he just doesn't know what it is including the possibility that may not be that it may be a weapon of some sort i think when you look further into the record the officer ruled out that it was it was a weapon he said it wasn't a gun a knife baton  pepper spray and what do you think is later statements when he says well you know this is after nine eleven and there's even those words but brian used you know when white powder anthrax or whatever i think the absolutely it was very quick but i didn't start the officer took the time to do a search or a pat down of the area he was concerned we're not arguing that he couldn't do that certainly could but when he did the pat down and wasn't able to identify it even after three touches the reason for the terry stop and frisk has it evaporated essentially he couldn't identify it as a weapon he didn't think or he didn't articulate any reason why he thought it was a weapon after the third touch and he could not identify it as contraband under dickerson and so the reason for that the touch the reason for the search goes away even though the officer may be equivocal at times counsel the reason for the search is based on safety he should end he did in this case you see each time that the fennec put his hand back into that jacket pocket the officer reached out and touched and want the last time he actually goes inside the pocket to feel the item weapon it could be some sort of a powder some sort of against some sort of something that might might injure him and he doesn't know what it is and the man keeps going back to it even though he's told don't put your hands in the pocket i want to see you handle because he's going back to his pocket isn't that sufficient suspicious circumstance for the officer to say i want to see what's there it suspicious circumstances i think that is correct based on the record but you know what it was he knew it wasn't of the normal type of weapon but he didn't know what it was and the man kept going back to his pocket time after time after being told keep  your hands in view obviously keeping hands in view is a matter for safety of the officer correct absolutely and he wouldn't do that and he was telling people his interview and other which for him to visit the just reasonable under the circumstances i'm thinking that when the man put his hand back in his pocket that strikes and that the remedy for it or the officer can then take the step of  down to see if he can feel the object and make a determination long as the the pat down shows of the lump in there the answers and find out what that lump is as far as their own safety is  i thought it was a weapon i couldn't i couldn't rule out the weapon and the reason i don't know what it was but the man kept going back to it when i told the show's fans he was absolutely he was not following my instructions regarding my security i get going back to something i didn't know what it was under the circumstances after reasonable say i don't rule out that it is a weapon of some sort and the district court found that he did the district courts are finding i page seventy five anymore and he was continuing the search to find out what it wants even with reaching in and feeling the bank and feeling the object for the one he couldn't identify it as controlled substances he couldn't identify it at all until he reaches and pulls it out looks at it and then makes a determination so i think the distinction is up through the cherry stuff the court the district court found the officer did not believe it was a weapon all the concerns that have been raised and where you have a sudden and aggressive movement and reaction to questioning that the officer has a right to go into that specific area along it's not a generalized for another as i think you know when he speaks of  earlier on page seventy five a weapon you know he's differentiating that from anthrax and smallpox and other kinds of things they could be carried in a pocket but you know don't have the feel of a traditional weapon isn't that reasonable interpretation of that finding i think i would have to respectfully disagree i think once the officer i mean that just determination that it was a weapon it's the court that comes and says well it could have been something else it could have been a powder there's nothing in the testimony that indicated the officer believed it was some type of a biochemical or agent not regard he was concerned about his i think that finding as judge there has pointed out needs to be read in context although he said it didn't believe that it was a weapon the judge said he found that the officer didn't believe it was a weapon the judge also said that he found that he didn't know what it to your speculation the officer said that he was standing within arm's reach and his he knew that his life could be in danger he said that he didn't think it was a gun but he didn't know what it could be because of what was going on in the country and because of different officer safety belts and said he had received and i might point out your honor that this is not a subject of a test here this is an objective test that we're we're looking at and i would say that any reasonably prudent officer in the circumstance would be concerned for his own safety because a man within arm's reach of him was reaching into his pockets aggressively suddenly and for no good reason being known as a child a weapon without the judge found that he doesn't believe that traditional weapon because the context of his ruling he says that it's not he didn't he didn't think you have to believe it was a weapon but he didn't know what it was and he believed that the last one was concerned because of other things that were going on in the country so i guess now let me ruled on a situation very much like this before nine eleven long before nine eleven and that was simply where a man continued to reach for his pocket even though after not being asked by the officer and the officer couldn't tell by feeling the back in his court what it was and did a pepper spray his answer was no it wasn't a gun i didn't know what it was no it wasn't a knife i didn't know what it was no it wasn't pepper spray i didn't know what it was it was clear that he was concerned and given the circumstances the government would said everything was happening so quick that i just know that it was not a normal movement and i think probably the closest thing would be when he when he testified that i didn't think it was a gun but i didn't know what it could be because of what is going on in the country and different doctors are safe people wouldn't have been received by all in very close proximity with in travelling in the car needed to ascertain just what the object was that he wouldn't let alone to make sure that everything could proceed as it should terry points out that it is not limited to just guns and knives and clubs but it's also limited to other hidden instruments for the assault of the police officer there has been no crackdown at this time because this was in response to simply asking what his name was but that started the series of events know i think the case law actually in this district as well says if you can't if there's an object that's suspicious and you can't for whatever reason and you can't tell from a pat down then yes the officer should be allowed to secure the situation by determining what an object is even though the officer conclude from the pat down that it's not a weapon the judge found that the officer did not say that  have been a rock that he could have used to hit the officer in the head and having had no previous pat down the officer didn't know if he had might have had access to other weapons besides what was in his pocket so yes there are lots of things besides the traditional weapon that could have been there and i think the district dealt with by the ninth circuit and that charity this court holds also stands for the proposition that no interaction the other the distinction i'd like to make between counsel's argument about continuing to search until you find out in this case is that in those other cases the officer said he didn't you think it was a weapon until he made that final touching determination that it was controlled substances rather than a weapon and other cited in the reply brief i won't bel that point and then also that the concerns that this was not a normal move do not are not supported by the officers continued efforts in this case he did not secure mr moreno with handcuffs before the pat down searches he did not take any other steps to indicate he thought it was a officer safety issue and also if you look at page forty eight the officer said he didn't think he was going to find took him out and put him back in all in a matter of character very short period first short and you know the officer is confronted with a difficult situation with what what to do when his response was probably was probably an immediate response was simply to put his hand in that pocket see what with there he put his hand on the outside of the pocket twice in response to putting their hands mr only putting his hands in the pouch twice he touches the outside of the pocket and then on the third time when he's not satisfied that the objects that are shown to them are would would be the need one that he thought he thought he goes inside b and officer goes reaches in all of them correct correct the officer took the steps allowed under terry he did the first he he felt he even went inside the pocket but each time he said  because the united states versus taylor court my name is ed she he jr i'm appearing here on behalf of norman eric taylor who is appealing from here as one hundred and thirty five months sentence for distribution of cocaine which  imposed on february seventh of two thousand and three and it was a reset and saying after his first appeal to this court where in march of march ninth of two thousand he was given one hundred forty month sentence this court on may fourteenth two thousand and two reversed that with regard to the drug drug quantity because this court said that that that good quantity had to be proven by clear and convincing evidence so this case then went back to every sentencing and in this appeal while we've raised several issues the one i want to talk about is the drug quantity because i don't believe that even  drug quantity was a stablished by clear and convincing evidence because they pushed on the part about this drug quantity was manwell gallivant and as we have argued in this appeal under the mcintyre case from the seven district court was then required to go back and do a closer examination and here we have exactly that