maid please the court my name is calling prince on behalf of timothy binford we have reserved two minutes for rebuttal yes please be informed that the time remaining is your total time that you have thank you we have two issues before the court the first is whether mr binford possessed a firearm in connection with a separate felony offense and the second is whether washington harassment with threats to kill is a predicate offense that's still an issue yes held that in comparison washington accomplice liability and federal accomplice liability washington accomplice liability is overbroad it is imputed into all washington criminal offenses and essentially i'm making the government's argument recognized that if washington accomplished liability is overbroad and it's imputed into all washington offenses then the outcome of that is essentially all washington offenses are overbroad i did misunderstand you argument thank you for the clarification so there's  a couple respect under that case and this was my obviously i was in the dissent and i recognize that but my problem is that then that means no washington conviction can ever serve as a predicate honor that was the government's argument involved i think the court opinion call that the pragmatic argument from the government is that it has this effect and the true for every federal offense i mean automatically included the underline the fence overbroad because i thought we were supposed to be looking at the underlined offense which was not an accomplice liability aiding and abetting i just don't know how you get there but i'm lost that aren't  worley court did not hear the issue it was raised in a twenty eight j a letter after velvia came out so we really was closed at the time the valdivia argument was raised in that case of the world court never considered what was going valdivia was not in effect it was not raised with the worley court that's the eastern we don't i think i think we understand your argument forgive us if it and maybe it was my fault it took us a while to get there but i think understand this point now can you go to your next why why did the district order yes because the factual record is not supportive that there was anything more than mere proximity what does she need to have she's got a fine by preponderance right correct and i don't think she used those words but you're not contesting that are you agreed are burglars tools and also relies on identity theft right correct and there's a credit card and is now your client's credit card correct so what's wrong with her enhancement here if she decides that this these items on the gun were used in the furtherance of the identity theft so virtually not virtually every court to consider this has held that near pitch possession mere proximity of a gun to other unlawful items is not enough ok so so the the guideline was looking for a case file that would convince me that she has to decide that this other felony was committed by a preponderance as opposed to somebody was planning to commit and that's why it seemed to me that burglary was a little tougher because of all the guideline uses the word used in past tense and i think that means you did it right as opposed to planning the burglary tools could be more of a planning but with the with the credit card  that doesn't belong to your client in the materials then why isn't that sufficient to show by a preponderance that the gun was used in the furtherance of identity theft that is another offense that was actually committed so the first answer is we don't know the identity theft was committed we don't know if mr bin for put the gun into the bag moments before hand what difference does that make well you have identity theft which presumably would have been committed by using the credit card to some other date which is separate from simply possession of the credit cards it's not identity theft to just simply have someone else's a stolen credit card is that was reached so this goes back to what the what the judge had to fine is that this gun was used in connection with another offense and i think i think by implication she found it by a preponderance and she found that it actually occurred and that the guidelines requires that although correct me if i'm wrong i couldn't find case law specifically telling me that that she has decided that this other offense occurred but isn't the presence of a credit card that doesn't belong to your client sufficient to you know over the hurdle to show that that was that that that that offense was committed no your honor so again this comes back to what we have in the facts are that mr binford is found in possession of stolen credit cards stolen gift cards and the gun the fifty six than eight circuits and this circuit of all held that what we have here is mere proximity and what the sixth circuit really talked about in a case called seymour which i believe out for you in a minute your honor they discuss what's called fortress theory which is the theory that it's typically comes up in drug possession cases where a defendant is found with drugs in his possession and a firearm and the court can find that the firearm facilitated possession of the fire of the drugs because you you know went out of the house with a gun and with drugs and that him into possession of the drugs but it's not a necessary finding in drug trafficking under application note fourteen b it's automatic if you're at the other offenses drug trafficking in you're caught in possession of a firearm the enhancement applies if it's drug possession we're under application note fourteen a which is the facilit standard and courts can or may not apply it we're here in obviously a residue case and stolen credit cards what we don't have number one is a ruling from the court when did identity theft happen and how did the gun facilitate that identity theft all we have in this case and the reason the government has to lose is because we have a bag with unlawful items in it and a gun i don't think we're consistent with burglary or identity theft and there was some there were statements made that could be relied upon to connect your client to burglary or robbery in a more layman's term  mask there is a mask on mask right so why wasn't that enough that the scary mask was used to rob somebody or again the standard is by a preponderance correct so at this point i believe i'm running out of my time here  we're simply making a speculative leap that the other of the district court made a leap and you're trying to argue that was clearly erroneous it is contrary to as i read it all of the other does all of the other case law from the fifth sixth and eighth circuit to have said you have to identify what the other felony offense is the statements from the witness most certainly do not say that mr binford was seen burglarizing anything or robbing anything there's the case the restaurant gift cards there's an zero statements  the record that he possessed a gun while stealing gift cards there are zero statements in the record that he possessed a gun while stealing stolen credit cards or using those credit cards for identity theft there is nothing respectfully the government has argued drug trafficking gun to the actual other offenses that court has abused its discretion our counsel thank you we'll give you one minute for they will hear from the government briefly one thing that i wanted to point out as i as i thought about the issue we have seventy seven pages of briefing in combined briefing in the in the case and none of it addresses about to be a floor so it's kind of hard to to come in and argu but i had thought about it and i think one of the things that's that's that's most important in terms of distinctions is that in a floor as the case involved a drug trafficking for which there was a federal analog and the case the case the court makes a comparison between the state crime and the federal analog and decides that the state crime was broader because it imported this aiding and abetting well the problem is that the panel did not even address the drug statute that focused on the aiding and abetting statute but but in this case there isn't a federal analog the case that the underlying offense was harassment with threat to kill and the way it the way it becomes important to sentencing in this case is through the elements or the force clause not through comparing it to a federal analog but comparing it to the forced clause in worli the court determined that the underlying crime meets the criteria the force clause the mens rea of for that required isn't greater than knowledge the aiding and abetting provision which was which allows a conviction based on knowledge doesn't he broaden that so there's a clear distinction  here in terms of what the court would be doing it's not comparing a state crime to a federal analogue it's comparing the state crime to the force clause and in this case the aiding and abetting provision doesn't broaden it so that's one point of comparison i'm not going to go on further but it's good that we moved to the position of farm which in my view is more problematic for the government  well the court made its determination based upon the total circumstances that it saw which which crime in particular did the district court canet the position of far with i don't know that she was that specific but i think that she focused on the identity theft and burglary in this case but it does there have to be a specific finding by the court as to what crime the farm was possessed in connection with this there have to be a finding by the court i'm not aware of any requirement for that do you know of any case where it hasn't been done i don't think i've ever seen it not don't know i don't really see there's a match up here she mentions but i think in most cases it's it's implicit in the facts implicit or x implicit because because it's a drug trafficking case and you have the firearm with the with the drugs or for whatever reason it might it might not be charged as in one twenty four c count but my point is in this case there was there was an abundance of material to commit all sorts of crimes it's not just burglary and do a finding even an implied finding that this was sufficient but perhaps in still in the planning stages would suffice and my read of the guideline a l c case law on this point that my read of the guideline is they're really talking about another offens was committed well he was arrested by the state for a commercial burglary that was that's that's how the whole search but i understand that but my i'm just trying to make sure that i understand your argument and it sounds like your argument is the think that i don't think the standard is that we have to be able to prove the other crime it's not is not to do a prosecution right and again i mean i read the commentaries talked about used past tense and in the judge findings i think maybe not articulate exactly this way i think she found by a preponderance that he committed one of those two other offenses which gets us all the way back to judge johnson question i think she talked about identity theft and i think she talked about burglary and i both and there's evidence to support other criminal conduct as well but but the but the burglary this is an individual who had if you count them all up including to thirteen counts of robbery for each he was convicted in canada two in the state court one in federal court had sixteen prior robbery convictions in one jurisdiction or another in this case he had the firearm with the blanks with the mask with the push dagger the handcuffs i think that the the court in essence was looking at this and the defense themselves referred to the material in the bag because they did not want the jury to hear about the material in the bag and for the most part the jury didn't they heard about them they referred to that material as as a burglary want to one kit in their briefing and that was repeated over and over so they understood that the defense understood what this was what the implications of the jury hearing this would be is that they would draw the inference that these things are here for a reason they're to gather their combined for a reason the defendant was under investigation for the commercial burglary which led to the arrest i think the court drew the conclusion that these it it connected these dots together and drew the conclusion that it felt was reasonable based upon the total circumstances of this case and then of course it is shewed a sentence of final sentence that was within the or potentially facilitated the crime of identity that i don't think that there is other than the you know the the whole mill you know what's in the bag and the just being in there does it i think in this case it does when you look at the total circumstances it's it's this defendant is is the judge threw the inference i believe that this defined it was committing multiple crimes stolen credit card tells us that maybe he's getting ready to commit identity theft but in order to convict him of identity theft or even by a preponderance to decide that he can actually committed that crime if that's what's required you need more than just that he's got somebody else's credit card then i get a robbery or burglary it was multiple cards and the the judge i hadn't done anything with those cards you don't get to identity there is no indication that he's got you know there's not the visa bill there's there's no indications or receipt that he used the card if we could connect these this gun to a prior crime with specificity amended or as would have been a specific crime i'm sure he would have been convicted or prosecuted for that and so if that's your much stronger crime burglary and not identity that i can't see any evidence that he used that was before the district court but i'm inviting you to tell me if i'm wrong that he actually used the cards counsel so it just seems to me much stronger to be arguing burglary well there was evidence that he was using gas cards but i'm not sure what came in terms of the record the burglary there we have evidence before us that he was using somebody else's gas card i don't recall the  record on that point ok me i'm sorry we don't know when the burglar would we know when when one of the burglaries occurred but we don't know whether he was carrying the firearm during that burglary either you know so so we know that there's evidence that he's committing burglaries he's under investigation for this prior commercial burglary he's got these burglary tools in conjunction with the firearm that's what we have in the judge through the inference based on that the council on page sixty one of the well she was more specific in terms of identity theft and she was with burglary just to me it never connects the burglary with the firearm so i have some difficulty even getting so i think the court has hit on exactly the right issue and i think i would just say this obviously goes beyond tembin for this in connection with enhancement is used in felony possession cases constantly and so we're looking at mr bin for getting an additional three years of time for something he was never charged with taken to a jury scene witnesses subpoenaed anything so i think that what this court should rule is pretty much consistent with the fifth sixth and eighth circuits which is that when we're doing this on a preponderance of the evidence standard at sentencing the district court needs to say here's what the felony offenses perhaps some specifics to some reasonable degree here's what happened and how did the gun facilitated because what we're lacking in this record is any kind of connection between identity theft and the gun because what we're getting away from is the facilitation standard it's not just that they're possessed at the same time all the courts are saying that this mere proximity is just not enough to have them seeing him going in to pond shops to pawn yes your honor so there was the case is gift cards and there is zero evidence in the record that he possessed a gun when going into that restaurant and taking gift cards for all we know he's got his gun at home he walks into the cases he eats dinner and he picks up the gift cards on his way out there is zero evidence in the record that he had a gun when committing that offense there were some references to jacking people there is zero evidence in the record that he possess when this happened where it happened who the victims were we don't know any of that but there was no evidence other than you know what so you can you go back to the big key keep trying to get back to the guy tell me where's the evidence where's the the language in the guideline or in the commentary that talks about whether this this this gun that had the potential to facilitate whether it's i think that's the language in that line yes where does the guideline require that the court court find that she actually the court find that the defendant actually went out and committed that offense using the gun because as opposed to the gun has the potential to facilitate your entry about the temporal problem i'm trying to figure out exactly what she had to find and i think you're focusing on a temporal problem because you keep talking about we don't know when the burglary occurred we don't know when the identity theft occurred but the language in the in the guideline talks about potential to facilitate right yes your honor if the defendant used or possessed any fire more ammunition in connection with and that's what i read as i go directly back to the body of the actual guidelines as used or possessed in the past tense i think we'd be getting into dangerous waters asking district courts to produce dicked future behavior and give defendants years of extra prison time based on predictive crimes that they have knocked on it i'm giving you that point i think that's right that it says used and i think in context she found that he used just done by a preponderance and so why isn't why doesn't she have enough  circumstantial evidence given that she's got witnesses showing who who described him going into on shops with these items to pawn because again the record is devoid of evidence that the gun is there or facilitated and the courts the gun is where facilitating the gun is facilitating the potential you're taking potential out of the guideline that well again but this is this goes back to what the six oared it's called focus theory right which is that he's protecting this th doing something or if it has the potential i would say number one the curtain does need to say i think specifically this is the offense if he's pointing jewelry the gun the offenses felon in possession of firearm and that's the offense and if he has the gun you are concerned about how that gun not only i think actually was used but what its potential use is and so i really don't have any trouble with the notion of even looking to the future given that is a fence was it wasn't close to have a gun in the first place so  i think as i read the case law when we were applying this enhanced meant it is for the first identification is what is the other offense and the second is what will do the gun play or have potential to play in that offense but there's got to be a connection between those t because if mr benford possessed a gun burglary tools you've got items that were reported story you got a gun not a hard line to draw between those  to respect you just you know i may not prove the actual connection but the guideline says potential it doesn't say you have to prove that the gun was carried in the course of a burglary so what i would say your honor is that respectfully what your honor has just described i valueless it's not valueless i agree your honor i would say that in this case there has to be some sort of identification of what is the other friends where was the gun how did facilitate it and on this record i think at the very least we just have a procedural matter is we just don't have enough factual united states versus powell