say i think the objection was sufficient it wasn't as good as it could have been what the district court lawyer did was to object to the use of that arrest or to the use did object to the time frame so what did this report lawyer objected to was this enhanced and under the guidelines for committing the instant offense while under criminal justice and what the lawyer said was that criminal just ended on x date and that date was after the two thousand and sixteen incident that was considered relevant conduct right so that that was a perfectly fine argument that actually prevail to be part of a common scheme or plan or it has to be part of the same course of conduct now this i don't think anybody here is contending this is part of the common scheme or plan but just to go through the factors there's no common victims no common accomplices no common purpose and no similar models operandi so we're looking at the second prong which is the same course of conduct which have to have fission connection to show that part of the single episode spree or ongoing series  offenses now the guideline commentary says that in order to make that determination to look at three things you have to look at the degree of similarity between the offenses you have to look at the regularity the number of repetitions of the offense and you have to look at the time or temporal proximity and they also say that if one of those factors is extremely weak then you have that strong evidence of the other few factors so you are the court did was they gave the court gave the conclusion restatement that there was more or less a continuous course of conduct over an extended  of firearms in different contexts and then acknowledged that there was a very long almost a year lapse between the two incidents so looking at that  lying in telling the truth at the same time and that's what makes that statement so unreliable the girlfriend made that statement when she was taking back her statement that he had the right lie that day she said no wait he hasn't the right i haven't seen him within six months so of course the police want to believe that she's lying there in that she did in fact have the right thought that day but they also seem to want to believe she's telling the truth when she says that you had yet she hadn't seen in six months and i don't i don't think that's probable evidence with that i mean that's that in the p s r it's a factual finding that she said that in that washing that control as it relates to looking at the temple gav involved what we may be stuck with it but this court can certainly review whether it is strong evidence or not because that regular i mean the court accepted as a fact there is no contest to it being a fact so it's a you know what i would say is that the court is supposed to look at the strength of court has and what the model says is that you can only look at instances between the few that are relevant conduct and the offense of conviction so here what we have is this two thousand and sixteen incident we have t thousand and seventeen offense of conviction and then we have weak evidence that maybe he might have possessed this gun six months in between that that is not evidence of regularity under the case law they say two incidents is the outer limit so it's not strong at that and it's i mean everything is on a sliding scale but that's not strong evidence of regularity under the case for use of the excuse me the new big three incidents the rest of your possession with but the case i would say that that's fairly fairly weak evidence of regularity furthermore there was no discussion whatsoever of similarity in the motto which is i think again the most comprehensive opinion says even when you've got the same drugs in the same players that's not enough to make a strong showing a similarity here all we have is the name of the defendant in the name of the charge that said you also have the person saying this possession of a farm didn't get that i mean what the government cited is many cases where the court ended up concluding that something was relevant conduct but didn't go through the various factors and may have thought one factor was weak in fact but one clue that because of the other factors were premise that just because it's the same charge that that's enough to satisfy similarity it's certainly becoming more well i think in these instances it's not really the same time like to me because the first instance he's outside he's lining his own business or what you're doing with a well looking at the drug cases the conduct could be selling drugs or it could be selling cocaine in gilo quantities to this syndicate i think when we're looking at similarity we looking at that are they offenses were not merely similar but identical that that to say that it is plain error here to say that these three offenses were similar relevant that these three are related when we seem to have said that several different offenses got in possession of a firearm by physics it fell and were identical when you didn't go into the detail well you know i think that the will opinion is difficult because there is no detail you know it might be that every single time this person was found in the same location with the same exact gun but more than that that case was an had five times in a four or five month period and i think that the difficulty with these cases is that when you look at the conclusion as opposed to the analysis if they don't tell you very much it's obvious you have to agree to disagree that with respect to the regularity prong i think we've gone through that the temporal proximity prong every case that's looked at the wide range of cases has had for the outer limits incidence there was no discussion by the court whatsoever of this this other possible possession that the girlfriend talked about when she was trying to recant her statements and we have completely different circumstances under which  don't wait until the other side to do that no i just want to briefly state that although this court owes deference to persons district court this court is not a rubber stamp the sentencing commission statistics demonstrate that this was wildly out of whack there eons it was much much higher than the average or the mean or the median or even whether people get a variance at all and i know that the government did not consider the six months the girlfriend said as part of regularity in the you're looking at a year long as the super approximate question or you can look at them together and say you have three instances  month mark plus you're dealing with a six month to proxima pop there's another way you can also look at it he had the spire the same firearm six months earlier he had the same firearm when the police arrest  girlfriend that we're within six months wasn't the nature of her testimony that for the last six months of that he basically had the gun every day it just wasn't out that's how i would interpret the testimony of her so what we have is has had an extensive criminal history much of it which involves things like his first convictions i think a firearm a school he was involved in drive by shooting he pointed a firearm to und courts are doing and what they show is that one it's rare to vary at all to the average length and percentage of variance in cases in firearms cases are well below this one and although we don't know the criminal records of every single person and there's no way to look all of those things up but we can see is that this is again a nationwide sample and given that these are firearms he says the danger to people about the danger of physical harm is high in these cases