enhancement is four levels the two d and hence means two levels and they have very different standards for which the court needs to evaluate in order to apply the four noble enhancement requires of the court find that the defendant possess a firearm in connection with another felony that facilitated the other felony and it is and when a drug case is the gun isn't close proximity to the drugs or the drug  standard it merely requires that the gun be present during a drug crime and then the burden shifts to the defendant to show that it is clearly improbable that the firearm was connected with the  burden shifting is where the error lies in this case because the district court while using both standards during its findings both orally and written it also uses the to do you standards which t and and the court says that several times that there's a presumption in this case and that of course would lead the defendant to need to prove that it was not it was clearly improbable the gun was present during the offense and involved well the district court may have alternately made findings regarding touquet because it also made findings regarding two d it's not clear from the record for this court yes the cases are by the government and the invited error are both factual admissions made by a defendant so in the one case johnson the defendant made an admission about a fact in the case and then later tried to argue that the district court should have prevented the jury from learning that fact this is not a factual question but the invited errors of pretty broad doctrine in appellate practice and as you know as well as anybody and if you're the district judge you've got to address that right i think so i think the court does have to address it however the remedy for that is not making findings under the erroneous guidelines section so yes  counsel didn't make arguments regarding two d and that was an error it's obviously easier to prove to do you don't then it does to prove a toupee and handsome i think the judge should have addressed that but said but that's not our standard here counsel our standard is to k which says in connection with another felony founds facilitates and close proximity but that's not what the judge said it's unclear from the judges back and forth between the two sections what exactly the judge's ruling this case so i'm i'm i understand the invited error argument and i don't think it necessarily applies because of the legal standard involved because i think the judge did have a duty to say i can't make that finding because it's not the correct legal standard to make that finding we do have his later writings though correct correct and well the later writing if you do kind of a balance of two k and two d and in just the later writing the judge does analyze more commonly in a nine hundred and twenty four dollars seat case in furtherance of you know i think that it from a lay person's perspective we're all talking about things that don't seem to matter we seem to be talking about all the same words because it's hard to distinguish in connection with in furtherance of facilitating but under the guidelines it does make a difference it makes a two level difference and it also is just an incorrect application of the court were to apply today to a two kate case that would be a flat out error and it would have to be remanded isn't judge john brennan right though that under under our court's decision in pennington united states versus pennington from two thousand and eighteen that the proper way to look at this is to both to look at the transcript is you you're rightly emphasizing but then to look at the transcript against the backdrop as well of the statement of reasons isn't that the proper analytical approach i think that certainly is the proper analytical approach i don't think that it says open and wise no no i understand i think i think you're i you know i understand why you're focused on the transcript because i think there's more conflation in the transcript when you get to the statement of reasons you know it's framed around two k one point one in that in connection with language is used that's what judge peterson uses to analyze it that's where it gets harder for you oh definitely it does get harder i do have a practical in that the defendant is certainly not present when the judge is writing the statement of reasons sure often they match very closely in this case they don't match as closely the oral and the written in the written can be used to explain the oral but with the not present i think we do have to look at both in conjunction with each other and not just the written and certainly not just the oral which pennington and there are several other cases this court holds that that the oral is not the end all if there's a written statement or reasons but without the defendant there the defendant's you know i'm clear exactly how this is and handsome and applies to him probably maybe not in the way that the lawyers would explain why there's a difference but the back and forth language is quite difficult particularly when the this christianson one of the issues here for some of the circumstantial evidence of drug trafficking that the judge peterson relied upon was the amount of ca the exact pinpoint i think that in my time that's left that there is a problem with the factual basis here regardless of the the guideline itself three of the items relied on by th said well the timing of the previous traffic stop the compartments of the previous car and then the cash in the previous traffic stop but then the court also found that that offense was unrelated to this one so we have a juxtaposition of evidence that perhaps was relevant but the court found not relevant but then relied on to give the enhancement descriptions of professional recollection were there any objections to the facts in the defense yes but not on this issue particularly the he did it jack to the prior traffic stop being used to support any of the in hands which then prompted the judge to say i'm finding that prior traffic stop is unrelated i represent united states in this case and here the district court correctly applied the two k two point one standard and i was reliable accurate and sufficient facts in that application now the government agrees that there is a different standard between the two case standards that were taught or applications we're talking about here but while the district court gave a thoughtful response to the defendant's argument in this case those comments did not interfere with the end result here the district court did not stop with those comments related to the two d co mingling as we were kind of describing it here the judge went on to consider what it meant for the gun to be in the close proximity on the scene proximity to the there the gun has to be in furtherance of the drug trafficking there has to be that something more and by the district court focusing on that something more you can see that while there isn't co mingling and i will argue that in balance if you go out and  as i kind of did in vallance the vast majority of the district courts comments are in the two k category and so while the judge struggled with these issues the main thing that he struggled with was was it more he struggled with the which is the greater burden the greater standard of the two k if if this were just a simple the gun was present because a gun was there the defendant didn't disprove otherwise we'd be in to dealing and we're not there because in the  balance the district court comes and makes the ultimate conclusion at the end in this case comes to the ultimate conclusion that there has to be more than the thing the gun being present at the scene the court asked the question was the firm there somehow to feel silicate this drug crime again probable that the firearm was indeed connected to drug trafficking offenses in this much as defendant morgan would have them have them either to protect his drug trafficking activities or the drugs themself did that does he go that far though i mean does he i thought he specifically disclaimed this idea that there that the weapons were who were necessarily part of the training and i thought he relied more on the physical location of the weapon the physical location was important but i think the judge also recognized the gun drug nexus but specifically did not rely entirely on the drug and nexus so i think every step of the way the district court here is going that one step further into the two k world versus stand in the t d world and ultimately the district court concludes that the different courts quoted i said i think there had to be something other than the gun itself to show that there was actually some drug crime that was facilitated and the district court found that that standard paragraphs that are relevant citing two k two point one does not cite does not mention two d one point one and one counsel mentioned the the used for hunting which was in one of the application notes i believe in two d the used for hunting as i'm sure your honour's are aware is is one of the considerations and factors also in one thousand and four c and further it's what is the type of firearm so i don't know which which way where exactly that came from but it applies in both circumstances one of the in the circumstantial evidence do you recall right the district judge also pointing to his prior conviction it was quite old wasn't not there were a number of prior convictions there was a juvenile ninety three possession with intent to distribute cocaine base in ninety five dollars possession with intent to distribute cocaine base and then a two thousand and two distributing a larger quantity of cocaine base which resulted in a lengthy prison sentence in federal court that was ultimately whittled down to ten years of total federal prison time mr morgan was released in two thousand and eleven revoked in two thousand and fourteen and ultimately released in two thousand and fifteen times you just think it was a ten year prison term correct i may have gone beyond what's done and that's all that's rose and i think the the point that i'm trying to make is just as you know you calculate the numbers here you kind of take into account the amount of time that somebody has been incarcerated where obviously they didn't have the ability to to get to that incarceration to commit those crimes but so the government does put forth that there ends up going the government's position is there was no error in terms of the application standards on the two k two dollars in terms of the accuracy and sufficiency of the evidence the defendant claims eight separate i guess factors are facts the st four which pertain to the facts from the market or two thousand and seventeen stop there is the heroin itself two five grams now there's nothing was nothing there that jumped out that let the judge say you know these are definitely intend to deliver and the judge just record i think agreed almost conceded that there could be a conceivable d personal use quantity but went on and said that's not the only evidence that we have in the other in other cases we often see heroin packaged in number of but the judge when i consider the baby corners of the cocaine residue in the nd cell phone has been suggestive of drug trafficking as well as a large quantity one thousand five hundred dollars in cash and the defendant can say that the pit bull district court doesn't need to buy that the district courts are permitted to choose between two permissible inferences and the fact that the district court in this case elected to find the substantial amount of cass's as as an inference towards drug trafficking is within the district court discretion as long as it's permissible inference and here it is the time of the previous stop i believe i addressed that in my brief that was the timing was really immaterial it was estimation whether we're talking one week or fi nt there was the compartments in the vehicle which the court i think correctly based on experience in order that it could have been opened up store drug trafficking materials and then the prior convictions which i think we've addressed her in his argument so there's certainly sufficient  stop it was it was unrelated in the sense that there was no continuation of one course of conduct but it was related in terms of the fact that was the same type of conduct and same type of behavior and i think it's within that purview addressing the defense counsel's argument and then went on to address to case that's simply not what happened there's a reading of the terms back and forth and the government seems to be saying that because the court got more right than wrong you the prior convictions were very old that was one of the factors in the case but the other factors were found regarding the related offense that another offense that's not really related conduct