good morning i represent the appellant the angles be mr goolsbee appeals from a judgment of the district court of the western district of new york he was convicted after a trial of drug offenses and firearms offenses for which he is currently serving an aggregate aggregate sentence of three hundred months that is twenty five years in prison additionally this consolidated appeal also includes mr goelz b s pro se appeal of the district court's decision which denied his motion his se motion to dismiss the indictment mr goolsbee sentence should be vacated re mandate for set re sentencing as we argued in our brief and as the government has conceded the district court committed procedural error in ruling that mr goolsbee had at least two prior felony convictions for a controlled substance offense the government has conceded the so called townsend issue yes requires a re which bumped up the base offense level by four points for the counts three dollars and four dollars were grouped weapons conviction and it would also impact the career offender status under dollar i believe which appears to have bumped up well by by six as well as all this was considered by the sentencing court when it calculated his total offense level and his criminal history category and his guideline sentencing range of the rehab fish to the real yes so with respect to the rehab issue for the reasons that we see stated in there is no proof here that the government has failed to prove that that mr goelz being new he also belong to a relevant category of persons that was barred from possessing a firearm and he raised this issue himself right and the stipulation only says that he was convicted in county court of a crime punishable by imprisonment for a term exceeding one year it does not state that he stipulates to knowing that this of that this conviction barred him from possessing a firearm which is what red hafe requires ultimately to more than a year or so in the sentence in that case the jury didn't hear about it but the sentence was well over a year right yes so this is not going to be much of a retrial i assume unless he says i forgot about those four years and i served well at this point based on her hafe and based on the argument that he made in his pro se motion this because the thought was it would be prejudicial to the defendant if they heard about the actual length of the sentence and the details of it with all due respect i can't state why the counsel below stipulated to that that would be mike that would be speculating just i mean that's the implication it may have now on we should have trials where the jury's going to get to hear what the actual sentence was because it's going to be relevant to the knowledge of the defendant that he was prohibited from having a firearm what's relevant is that the defendant knew he was prohibited from having a firearm based on this conviction and that could have been included in a stipulation the jury could have been charged on that it was just following this train of logic of future trials he had been convicted on two occasions of a felony right y would have to go back and check what the p s r says with respect to this particular issue is the stipulation isn't enough to establish it's knowledge that the evidence was just insufficient establishing knowledge here that  that we stated in the brief his conviction should be reversed because there was insufficient evidence from which a reasonable fact finder could have found that he knowingly possessed the narcotics and the firearms under constructive possession theory or otherwise the only evidence that the prosecution introduced to support that he constructively possessed any of this contraband came from one witness susan henry and she had an established motive to lie she acknowledged having this in touch with him she was that obsessed with it i mean these are all arguments and in fact in many cases were made to the jury the jury gets to establish credibility if they believe henry then that's the end of it isn't it well what we're asking this court to review this as insufficient evidence you're asking us to make credibility findings i'm asking this court to look at the weight of the evidence here and see that the weight of the evidence did not support the verdict here this is a constructive possession henry is credited you would concede to sufficient evidence right now is the statement of her alone would be sufficient wouldn't well not necessarily because the location of these of the contraband within the vehicle you know count cuts against finding that he constructively possessed at the turn of the gun was found in the back seat behind him your client right that's what she stated but she's credited game over right she testified to that to the jury did she not she did testify that to the jury the jury was free to believe her or not the jury was free to believe her but we're asking this court to review this based on the weight of the evidence here that it was insufficient and if you if you were to find that she was that the evidence is sufficient that's a different story but our issue that's being raised on this appeal is that the evidence was good morning my name is charles morning and i appear on behalf of the united states in this case and this you concede to the towns and re manned we do but not to the re have your honor we do not believe that this court should reverse the conviction for the fel or more in prison the stipulation is the only evidence but it says nothing about his state of mind doesn't it says nothing about the state of mind so nothing about the length of sentence it says nothing about the length of sentence either you're on a view that well what do you have to know that he well because in this matter your honor in the circumstances regarding rafe are subject to a plane or review as as my office has argued in the twenty m away but that's about jury instructions the dry structures are clearly wrong after a that's correct but this is a sufficiency the evidence point that is correct ok and there was there was in fact a motion made after a trial saying there was insufficient evidence right that is correct and so does the so isn't isn't that men fair game for us to review your own what's the state of the evidence with respect to all the and the elements new and improved under a right that is correct but the but the evidence as it was permitted by the government to prove here was sort of carved out by the stipulation that was entered into by all the parties and mr goolsbee acknowledged his prior conviction and agreed to it and didn't contest it is evidence of concealment of the gun does that go to a knowledge that you might be in the status of people who could be  from possessing a gun in your honor i would agree yes i quite frankly haven't thought about that but i would agree with with the court yes because of the clandestine nature by which mr goolsbee according to the testimony secret of this firearm in the house of his of his friend susan henry and then ultimately retrieved it in place to in a shoe box he told her to bring it didn't they he told iran i believe the testimony was he appeared at her house sometime the day before asked her to hold on to the this is not going to be a problem going forward your honor i think i think the government but the government would be permitted to prove up one or more of his felony level convictions in fact i think it's in his proceed motion even maxed out on parole one point  can prove it on paper but the jury never heard it that is correct on an element of the conviction and they were wrongly instructed that they didn't have to reach that so you can't go back and bring the jury that that is correct you again the the the idea that that somehow the the defense in or that the appellant in bringing this issue and presenting this issue to the court hasn't been able to shore reasonable probability of a different outcome but what i mean so i guess i'm trying to figure out what the jury would be doing in that jury room if they'd have the correct poster hafe instruction they'd be sitting there and saying great what about his knowledge of the sentence that he pleaded guilty to the st time the underlying felony  what evidence would they be talking about you are dismissed the stipulation right now i would in terms of the stipulation presented here the government may in all affect not enter into any stipulation if it wasn't agreed that there was the knowledge portion of the state of the of the appellant status of mr woolsey status if this case were to proceed to trial again the government has many again i'm saying before so if the correct instruction had been given you're saying i think that there is sufficient evidence from which the jury could have concluded that all the elements of the nine hundred and twenty two g count were met is are you saying i'm saying that the that there is no reasonable probability presented or shown that the outcome would have been different but that that's what you're suggesting that means we get to salute imagine what would have happened if you had presented a different evidence if you think that's part of the inquiry i think i think your honor i think the inquiry is is the reasonable whether or not the outcome would've been different the the position whether or not the outcome would have been different based on the trial record as it exists now or whether the outcome would have been different if you could have supplement it with new evidence that went to the new new element well on your own unfortunately the trial record as it exists now was silent on that issue because it's because of the stipulation had mr goolsbee not stipulated to that and the government had been required to prove that up i'd be speculating on what type of evidence we present because that wasn't presented but very well it could have been trial pleading transcripts it could have been sentencing issue sentencing transcripts related to his prior conviction from one thousand nine hundred and nine right so this isn't a if only argument if only the gun they had stipulated and if only you had a chance to do it but if only doesn't count you know but your honor i understand that but i think that the in this this is sort of a unique situation because mr goolsbee is agreeing to stipulate but then reaping the benefit of a subsequent case which says that that stipulation is not significant or sufficient to why isn't the right way to think about this that there was an error that was a sufficient the air that was preserved there was an objection to the grounds at trial so we have to address we have to assess this is a sufficiency claim on appeal and doing that we're going to ask drawing all inferences in favor of the jury verdict we have to look at the evidence that's in the case confine ourselves to that and see if that's enough you're arguing that we should look at it and correct me if i'm misunderstanding i may be but i frankly there's a compelling piece of evidence that is subject to multiple interpretations as terms of the illegality of the possession of a firearm yes there are multiple reasons that this firearm could be illegal but one of which is his status as a felon therefore resulting in his behavior which sort of is this clandestine nature by which he moves around from place to place with the firearm and the drugs and attempts to secret it in places where he is like is able to be able to distance himself from it that's what i mean adopted by the by judge syracuse correct yes your honor ok but your brief seems to be a running from the magistrate judge's opinion it seems to me you don't seem to be relying on henry's texts you seem to be saying that we should just go off the smell of marijuana and his admission that he smoked or you are you are you not relying on henry's texts and statements provided to the officers prior to this s honor we are relying on those insofar as they actually do provide an independent basis upon which to stop the vehicle however that's a credibility finding in sort of the conglomeration of all the evidence that was testified to by the officers at the suppression hearing the reality is that it's undisputed that there was a vehicle traffic violation which provided officer miller a reasonable basis upon which to stop a lawful basis upon which to stop the vehicle and upon approaching the vehicle and smelling burnt marijuana which was corroborated by mr officer miller had the legal authority to search that vehicle i understand that i guess i'm just surprised that you your brief is not relying on henry's statements or statements attributed to her at the suppression hearing and is sort of the credibility finding that judge that the magistrate judge found finding the officers were credible and that they you know that that that information in itself provide a basis for which the vehicle to be stopped but that's the easiest analysis here is in the court knows it has to defer to the credibility findings relative to the the finder of fact in this case which was the magistrate judge and ultimately the district judge however the easiest basis here is to go to the uncontested evidence which was there was a vehicle in traffic violation followed by a smell of marijuana in an admission by the by the operator mr goolsbee of the vehicle that there were that he had smoked marijuana earlier that are your basic position is you focused on what you thought was the easiest but there are multiple lawful ways explanations for why multiple explanations for why the officer's actions were lawful yeah sure i see my time expired i will sit down with them and give you a moment to speak about what counsel raised and that is the sufficiency of the evidence based on ms henry's testimony whether it amounted to any there the the evidence is sufficient ms henry's testimony alone as the district court noted during the during its decision on the rule twenty nine dollars motion was filed post trial was alone sufficient if it was credited by the jury which  apparently it was at least in part to to convict mr goolsbee of the offenses that were presented that presented to it that evidence amounting insufficiency of the evidence argument credibility determination is difficult is a high hurdle for a defense the appellant to do and quite frankly in these circumstances the only way it would be do you have to be exceptional circumstances to sort of set aside those or to to successfully prevail on that and they're not to sit there not those exceptional circumstances here the testimony is not inherently inconsistent it's not proof disprovable by extrinsic evidence in fact quite frankly it's corroborated by the other evidence so if we go into the credibility determination the fact that a firearm was found in the car in a shoe box drugs were found in a lunch bag in the car that i found it peculiar that she was texting even when she was in the car with him the whole thing seemed very peculiar but that's why don't you run i think me your honor i think that speaks to the credibility issue that would have had to have been resolved by the jury in terms of whether or not they would have believed what she had to say but we're not but we're also talking in addition to discover seventeen and eighteen were presented to the jury in a very very small portion there were a few minutes played in governments exhibit seventeen which was a jail phone call and in that phone call mr mr goolsbee apparently makes admissions to make statements which the jury could have reasonably believed or inferred related to his going in acquiring the firearm and if he hadn't taken it from there he wouldn't be here that is in the jail and then government's exhibit eighteen which is also a telephone call from the jail mr goolsbee engages in a conversation with another person wherein he discusses that person advising him to make good choices and that he still went in and took it and that that good choice was to not play with not to get involved a depend only on ms henry's testimony his conviction that is your honor i would agree it a bit depends on his entering the officer's testimony as well as the other evidence was presented thank you thank you asked me to address the suppression hearing which you still like me to do so ok so it is our position that the hearing court did clearly error when it denied the motion for suppression suppressing the the  the gun and the drugs that were recovered from the vehicle we feel it was clear error for the hearing court to credit the testimony of investigator gun and officer miller and we believe that this was the case in light of susan henry's text messages that were introduced into evidence at the hearing and if you look at the timeline that was established by officer miller's testimony and you compare it to what was presented in the one thousand text messages that were sent to officer gun you'll see that these  so long as unless we're willing to say that there was clear error in crediting the officers testimony the marijuana smell in your client's admission that he'd been smoking earlier in the day provided probable cause to search the car do you agree with that no i do not i feel that you know the court heard about these text messages and also heard officer miller testify may not have recognized the in consistencies that we've pointed out on appeal in terms of the timing but there were other question all aspects of officer miller's testimony i mean this was essentially you know a set up he knew that he was supposed to stop this car and he claimed to observe it committing a traffic violation everything comes from him he claimed to have smelled the odor of burnt marijuana he claims that mr goolsbee you know admitted to that it made it to not stopping at the intersection and admitted to this bert marijuana or the smell from smoking earlier then he mr goolsbe allowed him to search the vehicle there was never any on attempt to be evasive here and the only thing that was recovered from the vehicle that would explain the smell of marijuana was rob marijuana shavings that were on the floor of henry's side of the car you know it just appeared that this testimony is contrived not credible and it was designed to ensure that the stop of the vehicle by miller was going to be justified and that his warrantless search was found reasonable and you know in the process he didn't want to blow susan henry's cover because as you said she was frantically testing texting gun while this was happening and notably she doesn't mention anything about a weapon being in the car until forty minutes after she's driving around with him she never mentions marijuana and she she doesn't even describe what the vehicle looks like two  gun and miller is getting his his information through like the game of telephone you know susan henry sending it to gun and gun is telling folks and ochs is telling miller so there's a real disconnect here in  of the the information that miller is getting which leads his testimony to be suspect as well and if this evidence had not been introduced had been if the motion had been denied i'm sorry granted in the evidence was not introduced a trial you know mr goolsbee in all likelihood would not have been convicted based on susan henry's testimony alone and as i stated initially her testimony was extremely  suspect it was unreliable there were numerous in consistencies in what she testified to numerous and consistencies things that she said she knew that that goolsbee had been in a hotel room with the prostitute but it didn't bother her that she paid for the hotel room even the trial judge was perplexed by by by some of her statements she claimed to be gave her the gun the night before that it came at nights and nobody would see the gun in the drugs that he sat talking to her driveway till midnight then she went to bed she kept the gun in her bedroom but she was afraid of guns four hours later in the broad daylight she had given the gun during believed the jury did believe her but again the jury had to the guns were introduced the gun was introduced into evidence and was all this contraband you know how to pin so had the motion to suppress been granted the government would not have had that and it was a show and tell so thank you thank you both will reserve decision thank you and we rest on our briefs as well as mr goolsbee is pro se so supplemental submission