the booker issue i will focus primarily on the guideline issue because it is our position that zavala and party support our position on appeal however given the on bank panel decision that has not yet been issued we believe our appeal the second issue will turn on that panel decision and possibly this find us to defer submission of this until those cases are decided well as a procedural matter goes supreme court decides the issue or whatever it is sort of depends if the court were to agree with us that the guidelines were calculated incorrectly the court could remain for we sentencing based on kim brewer in control which say if the guidelines aren't right you've got to remand for  the drugs work recovered from two separate locations from under the hood of mr sensors car and in his pocket mr sense you know presented ample evidence and undisputed evidence that he was a drug addict in fact the government concluded that given the circumstances of the amounts over twenty grams of actual out of three must have been for sale it is our position that this finding was was in air and should not be given any deference because there is no basis that the district court gives this court to determine why that was correct for instance the district court did not explain whether or not it was deciding whether the drugs mr since he was pocket were not make any findings asked that the court also did not decide if they were for his personal use what amount was actually in his pocket and third the district court did not decide whether or not any of the drugs under the hood were for his personal use a severe addiction to methamphetamine he was doing both he was using and he was selling and in fact it was not our burden by presenting that evidence enough of that evidence it was then up to the district court to make a determination of what amount was for sale versus personal use what is it is that what it is he said but there was really no factual basis for that there was no finding that supported that it was a simply a conclusion rather that it was satisfied with the guidelines because just dozens of allah the district court started with the guidelines and then said if i find those guidelines to be unreasonable then i will go lower appellate court standard of review reasonableness that was set forward in booker the district court was basically making the guidelines more important it was elevating the guidelines under the three five five three eight factors and that was inappropriate as ins of all similar to carty the district court didn't once mention three five five three eight and it didn't articulate its findings under three five five three and instead it kept referring to the language of departure departures are a term of least twenty grams of methamphetamine with intent to distribute and at the outset i want to emphasize that the government's burden in the district court was a preponderance of the evidence and that the standard of review is clear error here the sentencing transcript looking at the overall sensing transcript it's clear that the issue was framed as how much of the drugs were in the defendant's pocket because the government said we think the way that those drugs were packaged means even those were for sale but giving him the benefit of the doubt and even assuming some of the drugs in his pocket were for his personal use it was such a small amount that there's still enough drugs here to be over twenty grams and it's clear that the district court when it made it holding that there were at least twenty grams was basically deciding that question how much was in this pocket the district court's holding is is clearly supported by the record here we have officer jeffrey's testimony we have the fact that the drugs were found in that dime pocket which is extremely small we have the original police report which talks about the two small bags found in his pocket versus the large bags found under the hood so there's plenty of evidence here there's also a second basis for holding for upholding the factual finding and that's the circumstantial evidence in the p s star's undisputed statement by the defendant that he was using only up to a half a gram of math  was the question before us though what's excuse me what is the question before us on this record the question here is only whether the district court committed clear error in reaching a factual finding and that it did not currently binding circuit precedent also we believe even if the valar carty were affirmed that we that this sentence is consistent with those however with the pending cases out there do you think that this is consistent with with did even if it didn't say section thirty five fifty three a binding and ins of all that there are two point two problems not present here one is that a presumption was applied and instead of just using the guidelines as a starting point which the court d the court used a lot of presumption language that that troubled the panel not case in addition ins of all of the court put the burden on the defendant to show that that should be a non guideline sentence here there's no language to suggest that the court was doing that it just asked i believe they do with i believe they were indicating that i'm sorry i'm not sure i'm understand the question i'm asking you whether or not that issue was raised  johnson i wanted to address the court's question we did raise it and probably not as our chile as we could have in the opening brief we discussed how the court didn't have any methodology didn't have any underlying facts to support the conclusion of twenty fra is whether or not there should be a departure outside the guideline range or whether the court should send to hide the right prowling range because the guideline range yields an unreasonable sentence that puts the guidelines at a higher standard