facilities he was found guilty as a felon in possession of a firearm i'd like to first discuss with the court the contention that it was error to apply a four level increase under guideline section two k two point one and that contention is for two reasons the first being the contention that estimate as was not in possession of the firearm and the words in the guideline are in connection with another felony and the second is that there was not under the guidelines another felony and the first i think it's helpful to repeat the language applicable language in the garden one section and it says that a four leveling crease is applied if the defendant used or possessed a firearm in connection with another felony so turning to in connection with another felony no you met with someone planning to commit a robbery on another person was known to be a drug dealer and he brought within the gun brecht but the agreement was here  that a gun would not be used that the robbery would be committed through beating up the other individual so that's the problem here and mere if it's we have an element in the guideline section which says possession then element is met but then this in connection with a gun if it brought a gun and he possessed a gun and and a man at the building where they expected to find sharky where they were going to rob said there's a phone call and in that phone call this is where the agreement will plan it we're we're going we're going to rob in the agreement that it's by beating up it's not by using a gun there was an agreement to go rob the drug dealer brecht you can do with that correct but by the by what means by beating him up so then well i mean let me give a hypothetical for example supposing that there is someone who has a felon and he has possession of a gun and then he goes out and he has the gun and he's committing the crime of wire fraud well that would not be a felon in possession of of a gun in connection with  was it just reported wrong in finding that the farm had the potential of facilitating the well facilitating the it well the limiting factor here in the contention is a limiting factor was that there was agreement not to use the gun and there is an added fact in this record that would indicate that that was not going to be the intent and would not have been used and that is that when yesterday's shows up at this meeting and by the way with this meeting curley is asked when was the robbery to take place curly says on direct examination there was no agreement on time and place all that curley said was come now now by the way at this meeting there's no conversation then at the about the robbery it immediately goes to zero let me see the gun or he sees he transfers and now here we're what is the gun the gun is wrapped in a plastic bag and as curly and therefore the question then becomes under these undisputed facts does it meet this additional element of the guard line that the possession of the gun must be in connection with the robbery or as the government argues here attempted robbery and we say that there is no evidence here that it was going to be used in connection with all we have is mere possession nothing more so i just say on that basis that that is that is it was in whatever what is one logical conclusion from the fact that he brought the gun that he intended use does that not  detail not to bring the got then agreement where they would not use a gun to commit the robbery and as i believe the ready brought is not but he also said i agree we're going to beat him up we're not going to we're government argues in the alternative on that and just to address it quickly this record although that is your court did not find it was insufficient there's certainly enough here that the district court had great doubt because that district court was asked to find based on the february twenty one district court said i'm amending and deleting here and there was i submit this was this was you cannot make this little sharp to charge of as one crime in the indictment that separate the crimes for the purpose of sentencing us to utilize the february twenty first crime yes as a as he answered yes and so and no other reason you know turning quickly then to this contention about the unanimous on the two individual events i do concede that it is proper for the government to charge the gun crime as you continue with offense under this court's decision and walter but that does not change the problem in this case and that is that in fact the factual theory of this case was that he either possessed it on february worked for twenty one or february twenty six or both from the government have a situation which there is danger of confusion to the jury and here there would be danger of confusion because the really would have to be you know nobody of the jury as to one date or the other date or both so that was what the instruction asked and so what is possible in this verdict is you can have some jurors saying i believe five or twenty one i others saying i believe february twenty sixth you got to you know unanimous verdict on a general recruits what's hidden in there is unknown unanimous verdict was it charged as a continuous offense it was was charged as to the two particular dates my recollection it was charge but certainly the arguments focus very strongly on the individual that it's so our contention is factual thank the court my name is amanda kramer i represent the united states in this appeal as i did below the conviction and sentence should be affirmed i'd like to start by responding to something counsel just said this case was charged as one continuing offense and although there was evidence of vents on february twenty first and evidence of events on february twenty sixth there was no doubt that the government charged this as one continuing offense indeed the february twenty first shooting a person looking like asked of as is seen on video surveillance running away from the scene with a gun that is the gun that is used on february twenty sixth there was no official shot of the person who was running away it wasn't it wasn't was not susceptible to recognition that is correct your honor although a has a cell phone location data indicated that he was near the i hop at the time contrary to his argument at trial that he was in home at home far away the only d n a found on the firearm was was and ballistics showed that it was indeed the same firearm that was used on february twenty first and february twenty sixth so the notion that these are two distinct events that were separated by several  days is just not at all supported by the record and this court has held that possession of a firearm by someone previously convicted of a felony is a continuing offense that's how it was charge and there is nothing improper about that and because of that the judge's general unanimity instruction was absolutely proper there was no risk of confusion here the case is that we found the position as a continuing offense has there been an issue as to  the jury's obligation to find position on a particular day not that i have found your honor but in the firearms contacts in united states versus johnson in two thousand and sixteen this court held that no the jury find that he possessed it one or any given time during that period and not throughout that period while your honor think this court has so held in other cases where the time frame of case have we dealt with what the jury must find as to the date on which possession occurred when this is charged as an offense that occurred from on  about such and such a date through another day a later date i don't know your honor but there was overwhelming evidence that he possessed the gun during the entire time period so on february twenty first the ballistic demonstrate that the gun that he possessed five days later was used his a person looking like cam it was not on that first part yes someone was shot the twenty first the bullet was retrieved i gather in the if if the jury found unanimously that he had the gun on the twenty six and it was it is not sufficient to support a conviction on the campus charges possession for  about and it lays out the dates as a range i think your honor asked earlier whether this was charged as one continuing offense or whether it was charged as separate individual deeds were these were distinct events which potentially could create confusion depending on the circumstances that was not the case at all here so for the jury to have sufficient unanimous verdict they need to find that at some point during the charge period your honor there there was absolutely no meaningful risk of confusion or prejudice here because of the evidence that he had the gun unequivocally on february twenty sixth the surveillance video shows his face with the gun in his hand he is as mentioned grazed by the bullet curly testified that it was asked of us who had the gun who brought the gun and curly prison calls really resolve any remaining doubt so in the prison he was talking to someone who asks if the police ask him about the the i hop robbery and he says no and the friend says authorities knew about this i hop incident that's true your honor as you know we have no no facial recognition of of the person who was running away with the gun why isn't  permissible inference that it was the friend who asked about what the what the authorities knew and who perhaps was not recognizable we don't know any do we know anything about the person you're sucking on the phone no your hon his gun so the notion that he would have given his gun to shoot at someone is i think belied by the testimony that judge mcmahon credited with early at the high hope i hope no your honor and in shooting so i respectfully think it would be a stretch to say that it's an inference that someone else was using esteve as his gun that that just five days later he pulled out of his own pants and that only only carried his d n a i mean that might be a reasonable inference but you're saying that on the basis of all the evidence the government proved beyond a reasonable doubt that on twenty first it was  honor and so the four point enhancement was properly imposed by the district court and although counsel suggested that the reason that the february twenty first incident was discounted by the court was you know that that the discounting of that of the removal of it from the p s r reflected some doubt that's not supported by the record indeed the transcript makes very clear that the district court said i have found this for february twenty sixth so i need not consider february twenty first but both advance would support the four point enhancement the jury was properly instructed on unanimity the guideline sentence the district court imposed was procedurally and you know the list of evidence and here we have counsel saying well what were what was recovered bullet fragments and you're supposed to be able to tell from fragments able to stick test as to whether it's fired from the same can you know these types of testimony to that fact that the bullet first did not and but let me let me i would say it's an indication at least it's a it's an indicator of doubt but what i will also say is what what is what is presently before this court as an appellate court and we do not have a district court finding and so it's in a sense a reversal here we have the district court here who is in the better position to to weigh the evidence to make a determination the court did not and here we now the government is asking this court with respect if every twenty one t weigh this evidence and it's in this court is not in in the superior position actually with standards of review in this sort of situation it is the deference to the district court we have no district court finding of waiting here the what you're hearing is a government argument government's argument that was not found by so there are firm of statements going on here saying this happened this happened this is it's the same gun  they really had to be a determination by the district court if you want to rely on that and if if it gets to that i would submit that either the court would say this is insufficient on this basis were remind is necessary for the district court to make that factual find that the government puts this court in a difficult spot to be trying to make a weighing of evidence on the record thank you thank will reserve decision