so i understand that all counsel present today is for today's world or human calendar and all dispense with calling the calendar therefore start with morning your honor good morning your honor may please the court my name is todd monaghan thank you for having me here and orally argue this case my client has asked me to seek an explanation for why he received a substantially larger sentence than his codefendant when they are similarly situated let me briefly make several points st of all i want to call attention to the fact that having read the government's submissions i acknowledge that these cases are yes your honor it is as i as i was saying these cases arise from the same set of facts they come from the same indictment they are the same charges they have the same top count they were the same they had the same sentence calculation by the u s probation department and at both trials or i'm sorry both trial levels the government argued for a seventy one month sentence for both and fame i am i am i right also that mr ryan was found guilty of five different counts and mr three that is correct your honor and i and i would like to address that i acknowledge that there are differences between these cases i have not denied that fact however at the end of the day like i said were both the same top counts these are both the same set of facts and as i understand it while they were convicted of a different number of charges the trial judge never actually addressed that in the record he never addressed it certainly in my case and i and i don't see it in any of the record for mr wood to the extent that the trial judge did attempt to count each this difference in anything was  anecdotal statements on the record which government indicated that he wanted to give mr wood the benefit of doubt that he was employed i think that's dealing with a fairly outdated idea of employment because as i argued fairly strenuously in my brief my client mr ryan was a was a caretaker of his child while his significant other worked so i submitted and i didn't the district court also allude to their different criminal histories in the different ages in which they st were convicted of various offenses your client at age sixteen he got six months for criminal possession of a drug age eighteen criminal sale of a drug and he was twenty three i think when sentenced was mr wood was age thirty three and when sentenced and he just had a car accident in which four friends were killed he had a burglary conviction each twenty one  another off and age twenty four but there were differences that he what was the district court in total to take those into account in assessing two guidelines sentences one at the bottom one at the top the district court is certainly entitled to take those differences into account however i don't believe the record reflects that anywhere in either on the record in open court for either case or in the documents that are generated to go onto the into the docket your complaint is the district court didn't do enough to explain the defend is one of my complain honor but even in light of that it is certainly an issue that i that i would want to bring before this court i still don't think that there is sufficient difference between these cases such would justify such a large sentencing discrepancy fourteen months who  the gun who actually sold the gun to the c i it was the evidence of that i thought it was mr those your client according to according to the facts of the case it was it was my client but both individuals were convicted of it and both well but did you say that they were in the same position that is you client sold the gun to his his friend mr wood was a go between  the correct and it's my understanding why isn't that a sufficient difference right there because both individuals under federal under federal sentencing would be responsible for the relevant conduct of each other and given that they were both or people that i rely on to help me sell the guns on the main seller is not a difference it is a difference ok yet it was never stated in the record and there's nothing in this record that would indicate that this is explicitly what judge kahn couched his sentences in my client if nothing else is seeking some clarification of why the sentence is riddiford like i said i've never hid from the fact that these are somewhat different cases but i do submit that they are much more similar than they are different we could parse the record we could try to find some minor differences which i think has been done here to justify what i believe was an arbitrary sentence difference was that you know contemporary objection made to this so that the judge could then and there provide what you seek no your honor because my client was sentenced to seventy one months before mr wood was so i didn't have the ability to make this make an objection at that time all i could do at that point was to file for the appeal that is enough for the enhancement to apply well the government relies upon two cases the th in the th circuit fletcher case in particular which says that treats possession of the g gun that's that's not that's not an accurate assertion his his offense was aiding and abetting in possession of being a failing in possession of a firearm through aiding and abetting all he did was he became aware that mr ryan had a gun he was moving and couldn't bring the gun with him and he said that the c i could obtain a gun from him he did not ever possessed the weapon mr would never possess that never had it in his possession never controlled it didn't amounts of heroin and and case law suggesting that he would have reason to infer that the gun would be used in connection with those significant quantity purchases and therefore part of drug transactions and would be used in connection with another felony offense and that that is sufficient why's that well i don't think that shows active participation that's his awareness is not his active participation the guideline commentary says that the enhancement applies to the firearm or ammunition facilitate it or had potential to facilitate another felony offense my client did not my client may have had knowledge of the existence of the gun in the fact that it was going to be transferred but he didn't plead guilty to that he was not found guilty of that and he was not it wasn't part of a transaction that he was directly involved in where he was facilitating the transfer of the gun to someone who he had reason to believe was a drug dealer significant quantities of heroin why isn't that a transfer in connection with what he had reason to believe be used in connection with another that there's a slight difference the gun the firearm did not facilitate the drug offense you're saying that my client did but but the gun did not that's a separate  consideration but i'm saying that he would have reason to believe that the gun would be used in connection with other felony offenses which would be the confidential informants sale of drugs since he had been participating in the acquisition significant quantities of drugs be recent believed that the confidential informant was a drug dealer these were not personal quantity personal use quantities so that would be the a p the other  say that the gun facilitated another offense and point to that offense and say here's the other friends and family think the stack the enhanced was created for there's a drug deal and one of the drug dealers has a gun in his pocket now we may not use it but he possesses it he's got dominion control over it and it probably enhances the dangerousness of the exchange between the two there's no question about that but this is like two completely separate this is two separate transactions where the gun doesn't facilitate the drug offense but somebody who's selling drugs says i know a guy that's selling a gun and introduces and then the person sells the gun and that and that's a different of the gun doesn't make  the other offense the other particular offense more dangerous under under the circumstances of this close law isn't i mean i'm as we're trying to explore the nexus between the presence of the gun and the sale and what would satisfy that section or the in connection with requirement wise enough that the sale the gun in this case makes it a little bit more palatable to sell the  factual record was developed by law as your honor has stated i don't think it's that developed this to to be able to say that i think that the record is my client sold drugs he said he knew somebody who had a g him makes the introduction the c i goes over to the apartment with the guy to purchase the gun my client does not have possession of the gun does not touch your client is there at the time of sale correct  s he's in the house he goes in the house and then leaves and does not there are some items in the present report which we disputed as to who actually took the gun out of the house and it was in a pla klein i don't know my client my kind as awful as it is sold heron he didn't sell guns and he's not selling more heroin because this guy is able to buy a gun he's not sweet in his pot he's just saying hey you want something i know a guy that's on a gun so he's not i don't think you know if he says i got some heroin and you know what i give a little bit more if you want to buy a gun we'll throw a gun and i will do a deal on that and that's not how it unfolded i  is right this silver it's right that you hear from the most with respect to mr wood that there's no clear precedent that clearly is not from this court but all of the cases that literally at the same thing transactions yes yes i would like to call the court's attention to the fact that this issue is pending in another case which i think arises out of the same investigation and had an appeal that was filed afterward if i could just provide the court with the number of that case it's seventeen dash four thousand and fifteen is that argued or not yet not yet it was file after this appeal was filed and i know that that the government made the court aware that this case is pending in that other case but that was a later fi i think it's wrong for counsel to argue that wood did not have dominion and control over the gun because i don't think that's a relevant factor clearly this was relevant conduct of mr wood that the gun was sold in connection with the sale of the heroin and because it's because it's jointly undertaken activity and therefore relevant conduct and the fact that mr wood pled guilty to possession of that firearm that is the firearm that forms the basis of his phone and possession plea he clearly had at least constructive possession of the firearm and in any event would be responsible for the conduct of m wright even if i would say even if mr wood wasn't there but he was i think the easier question as judge carney was discussing is we can talk about possession of the fire arm in connection with the simultaneous sale of the drugs or we can look at the transfer of the firearm in connection with the anticipated drug activity of the confidential supply on august th the informant purchased eight grams of heroin i'm from these defendants not a terribly significant amount but not only mr ryan was there and mr wood was not there i'll ask the court for permission to provide a letter but i'm fairly certain that's what happened on on september nd about a week later the informant more thirty three grams of heroin for  hundred dollars and then it was on september th that the informant twenty seven grams of heroin for a one thousand dollars and the fire so that gave both defendants reason to believe that the gun might be used in furtherance of the drug activity of the confidential informant and according to the application note to the to the enhancement as well as  why is it that when you get up to the podium you acknowledge that we have no clear law that deals with this issue precisely i believe i say in my brief your honor that  this court has yet to decide whether the enhancement applies in this particular circumstance but that other circuits have found you know i understand that but what you are suggesting is that maybe we do have case law that clearly squarely deals with this issue i cited the jones case in terms of the transfer prong i'm not aware of a case from circuit that squarely deals with this set of facts if i gave the impression that i had such a case i give the wrong impression  other thing i would say with respect to your honor's comment about sweetening the pot is i read application note fourteen to the guideline guideline the the gun has to ryan's claim that the science imposed on him was substantively not reasonable i would say st of all while he's correct that there are similarities obvious similarities between his situation and that of mr wood there are differences and i think the most striking difference has judged a point that out is the gun was physically in the possession of mr ryan when mr wood suggested to the informant that he could purchase that money from mr ryan and other factors that have been discussed  ryan's youthful adjudication starting his criminal history age sixteen and continuing pretty much right up until the time of his arrest on these charges and there are other smaller the government requests to desensitize and of the guidelines for both the fans you're you're you're arguing that the court had the power to do this is really the question as to whether it was an abuse of discretion where this  transaction was conceived and proposed by the government and there was no no separate at that there was separate payment a consideration and the only way that was facilitation the transaction disagree on a respectfully i st of all i don't think it's a highly technical argument and as i say particularly with respect to the transfer of the firearm to an individual who mr wood mr ryan have every reason to believe is a drug i don't see anything technical about that it's nothing good about that nothing good but i don't think this is a difficult technical guideline issue once the enhancement is found to be applicable i don't believe the court has discretion not to apply i think i think it's hornbook law that the court st has to determine the applicable guideline range then the court can exercise its discretion and in my opinion to reason mr wood got the benefit of the exercise of the court's discretion because the court sentenced him at the low end of the guideline range particular point it did within the guidelines and i would say briefly with respect to mr wood's argument about the failure of the court to comply with rule thirty two  has made clear has to be reviewed that claim has to be reviewed for a planner and mr wood cannot establish that the result would have been different if the court had resolved the factual disputes mr wood never requested a variance or departure from the guidelines he did argue that the guideline level should be four levels lower without the enhanced meant and then at sentencing requested a sentence within that resulting guideline range of thirty to thirty seven months but he never requested a departure a variance on any ground and he got the low end of the applicable guideline range if this court determines that the gun it has been properly applied so i argue that he has not satisfied