the first cases morning as united states versus tours so i and the other is that the gun was never at the locus of any actual tracking conduct none of that you know we don't we all agree everyone agrees that there must be a nexus here i think that's right you know the government's now conceded that and the district court obviously found otherwise well the district court and on the say two though made a finding that the position was in connection with this why doesn't that qualify as a finding on valve the court can certainly look at those factual findings the standards are different in under the enhanced in it the issue it's sort of a two step in alice's presence and not clearly and probably connected with ok so looking at all of the facts so the analysis or are not you know perfectly on square perfectly the same the task however if you look at all the facts what the district court found with experiments on you well no not on  circus question that the court can certainly find that this sense that the safety valve this is towards a safety valve eligible even if the enhancement were not that's possible surely that we look at the record and that's even if the district court the judge found with respect to the safety valve is that mr torres was essentially here to deal drugs that was why he was here in delaware and he found that the items found in the house quote could be used for packaging and then the judge found that the gun was accessible in the sense that it was under a couch cushion as opposed to locked up or somewhere else and was loaded and was loaded correct so now the we ha gun and why it and why we can infer that is because he did the exact same thing the next day or two days later in the in the money transaction followed in a rental car he's arrested he's got no gun ok so what we have here is is the government's cooperating witness you know the gentleman who's who's who's who has been arrested use the news getting the five k who's you know going to that for the witness for the government he says he never knew thor is ever to have a gun  all the transactions he's ever conducted of course he could say that but considering the burden here which is you know very slight we're not beyond a reasonable doubt couldn't this trip judge and far from all of that it was more of my plea the not that district court certainly relied on hey you know mr torres is really only here to you know operate this truck conspiracy this is is that sufficient and i would say your honour's it's not because this is i think very very important what that line of reasoning  does is it confuses the reason or the impetus for getting the apartment or the house even even presuming that you know that mr torres was in the second house only you know in relation to the drug conspiracy but for for that it confuses the reason for getting house with what's done at the house and if i could if you if you're honest with just indulge me for a second if my family and i live in philadelphia and i decide to you know brennan apartment in new york  you know occasional use because i'm going to go take a job there that doesn't mean that i do work at my apartment in new york it doesn't mean that everything i do in my apartment in new york is related to my job or it's just it's about if you have a briefcase in that apartment in new york it stands to reason the briefcases sociate it with your work prop not necessarily the problem i think it's a very weak inference your honour's when you when you set it up against if you go to new york for work it's a week inference that your briefcase in your new york apartment was associated with your new york lawyer joe well i mean you know look if it has if it has you know what mr torres was doing here i'm going i'm taking your hypothetical a face val yeah a briefcase is found you're a lawyer you go to new york for a law job in the briefcases found in your apartment isn't it most logical to conclude that that briefcase is associated with your legal work and your well i don't think one who knows what else i'm doing in new york number one number two what we have here is you know if if a gun you know if gun here with which is what we have is you know  is is no it's not contested that he's the lawful owner of is not a felon anything like that millions of americans have guns in their home for protection and that's what mr torres who after all when he was arrested gave a full debriefing to the government and with respect to sit it out of course one of those one of those factors is whether the defendant being truthful there's never been any allegation here that defendant was untruthful and he laid it out all the while he admitted to what he did it is runs that the government never really you know surveilled or anything else and but he wasn't going to he wasn't going to say what he didn't do and that and what k w actually corroborated he did do what if the reason he has the gun truly is for public personal safety then but the only reason he fears for his safety is because he's a high level drug dealer from california well there's first of all there's no evidence to support that's that second difference number one number two even if there's no evidence to support the inference he's a high level drug dealer from california that the only reason he has it is to is because of fear of drug dealers because we know he's a high level drug dealer from california who relocated to delaware for that purpose  conceded that correct yes so why isn't it a reasonable inference to draw if in fact he is afraid for safety it's precisely because of that because the record evidence is that the buyers didn't know where he were to make that sort of conclusion it really just collapses down into if you're a drug dealer and you have a gun it's in connection with but usually yeah i mean that's what they were that's a tough thing because it is a tool of the trade it is a tool of the trade the tool of the trade is not enough there has to be some evidence under the tast under the tutti one point one test its presence and the and the connection asked how do you define presence presence is in the courts have i would point in close proximity to actual drugs or paraphernalia or number two the drug is possessed in a location where actual tracking conduct is happening so in other words you know if mr torres had had the gun during the money possessed the weapon during the currency of the offense not necessarily that he actually used it in perpetrating the crime or that he intended to do so he need not have the weapon on this person for the enhancement to apply any position actual or constructive can trigger to increase you think that's a good way i has no i have no argument with that language properly understood the facts of macdonald the house is a command post for drug however you know the government and this is we're all in agreement with that so i don't think the court needs to read the reach the second amendment issue we have a dispute with the government over you know whether mere possession finding would violate the second amendment but i don't think that's necessary to reach here you know with respect to the you know the the test for mcdonald you're honor those facts are so distinguish one such a minor one case from that those facts as opposed to what we have here and when we look at loney for instance where this court looked at the in connection language with respect if you took a two point one is sort of some middle case here in the third circuit what are the court those facts again drugs package for go that's where that's what in connection with means and so what we have here is obviously miles away from that so the district courts focus then on the court accessibility of the gun figure right so what that means is it's going to assuming there's a presence there sort of an escape valve for just wild scenarios now here we don't have a presence that that's that's the important important first point presence means one of those two things not only do good morning honors my name is randy short i represent the united states of america would you agree with that standard under thorton that the government must prove that the weapon was present and that it is not clearly improbable that weapon was connected with your fans we would agree your honor however in this case the district court did apply that standard while the district court did not necessarily articulate the application note when the record is viewed in its entirety it's clear that the district court did apply that standard not only finding that the farm was possessed but also that it was clearly not clearly improbable and there's a number of reasons for that the first thing they sort of give the impression that they probably just having a gun was  thought i would disagree your honor respectfully in this case the dish of court and the reason is that for this is the district court lied on a number of factors firstly the arguments of counsel and it's clear from the arguments of both parties both the government and the defense that the issue wasn't whether possession alone was enough the arguments were focused on the issue of whether the farm was possessed in connection with the drug trafficking that was issued by both parties and furthermore the district court's reasons for why he was applying to the one point one even though he didn't get into in depth until later until the state about when elvis is or his reasons initially on pages eighty and eighty one indicate that he did consider not just possession but also that it was connected the offense specifically the district  found that the defendant was engaged in a long term large conspiracy he described the circumstances under which the farm was recovered which was it was under the callous rap and it's how he was loaded furthermore he also stated that the bar was accessible to the defendant in case anyone to threaten him if you were merely whether the farm was possessed or not those reasons would be completely extraneous and not necessary when you look at the organs of counsel when you look at the district court's reasonings and you look at the fact that just a couple pages later the district court goes into a full analysis of the facts which are the same for the enhancement as well as for the safety valve in that sort under those circumstances it's clear that the district court applied the correct standard in found  not only that there was a foreign possessed but that it was connected to the defendants drug trafficking even though he didn't fully flesh out the issues until the safety valve analysis what do we just then ignore the fact that he said mere possession was on  as i think that again that statement or that quote taken in and of itself seems as if the district court did not apply a great standard however when you look at the for the arguments as i stated to the parties the district court's reasonings if he was only considering mere possession and the defense concession that he possessed that farm would have been enough and he certainly did not need to go into the additional reasons as to why he found to be one point one applied additionally also adopted the p s r which states in two separate places that the standard includes both the possession as well as the connection or that it's not clearly improbable that it was connected to the drug driving offense and specifically in the p possessed and it's not clearly improbable that's connected to the fence so i think under the circumstances under the entire record including the arguments including the judge's decision or reasons in both the two the one point one and hansen as well as the seat of hansen it's very clear to everyone that was in the court that day government counsel defense counsel as well as the judge that the issue wasn't whether farms possess that was the only issue the judge did not need to go into the explanation that he did but it was whether it was possessed in connection to the offen reason his sole purpose for being here on the east coast was to further the object of conspiracy and defendant was part of the california based drug trafficking organization the traffic a large amount of narcotics however his role w be here at the east coast representative in that end his travels to the east coast the temporary lodgings that were arranged for him and that he later range from self all those steps were taken to further the conspiracy in that capacity when the  liable for this this enhanced but now we know the typically don't keep drugs near them that's for the mid level in the low level guys right that scratcher and i would say there's a what do you need what do you need to show you need to simply show that a guy's a high level dealer if he's a high level and he has a gun that's it that's that's not not not this occasion are for instance by analogy using this the same facts or if we flip the facts a bit if this defendant's home in california high level drug trafficker if he's in california where say for instance his family is that guy would necessarily be in connection with the offense it could be for protection or you might be for you know the reason you  colleagues on the other side of the country would be arguing the reason he has a gun in this california house this white receipts to protect is his family and your argument would be well the only reason he has it is he's afraid that he's going to get robbed because he's a high level drug dealer right we're i think under those circumstances it certainly would require some additional evidence where here it's very clear that the sole purpose for the defendant being here was to traffic drugs and every step he took travel innocuous in the example that that the defendant or that defense just discussed the briefcase example the firearm is for all intensive purposes a briefcase it's part of the defendant's work required or or  cable to his work accessories what about it so what about the accessibility issue i mean how accessible as in the facts here well your honor in this case again the defendant is charged not with him while he's charged with one individual drug trafficking act but also with a conspiracy that spanned three years so even if the defendant did not possess a firearm each time he delivered drugs the focus is not on whether he had it at the site of the delivery it would be your honor certainly a conspiracy was not charged and it was not the defendant's actions here were not part of the conspiracy or his presence here then argument would be different and again it's different  situation where a defendant lives here in philadelphia he's got family here just because there's a farm in the house at that point doesn't necessarily mean that it's possessed in connection with his drug trafficking but the defendant's situation here is not that situation is not the on its experience with drug trafficking cases are going to judge to that i think a judge certainly can infer based on based on facts the scene whether certain implements may be used to further drug trafficking was the house furnished your honour's we don't have specific evidence for that as to whether it was furnished or not or any evidence that there was anything of value in the house not not on the record now the judge did find that yeah you're right it was the colloquy right there was there was not specifically your honor however the judge did note that a large amount of currency was involved in each of these transactions that the defendant engaged in while there wasn't a currency found at the house defendant certainly had large amounts of currency we don't have evidence that that currency was brought back to the property and to be honest i think under the circumstances it's not required the district court was able to make a it did the first in the tenth circuits have held that once the government establishes that the weapon was present it becomes the defendant's burden to show that the connection between the gun in the drug offense is clearly improbable  we haven't said that we need to overrule fortan in order to say that or could we say that in this case without doing violence to form your honor i think in this case where the judge found that there was a connection between the drug trafficking offense and the defendant i don't think that it would i don't believe it creates an issue what do you think our standard is now and what do you think it ought to be the standard is still that the farmers be possessed well i'm sorry the burden of proof on that on on the improbabilities the burden of proof of this is that still on the government it's on the government to say that the prove it was possessing that's also on the government to prove that it was not clearly improbable and we the government did that by the evidence that was as if you're not asking us to reconsider you know your burden of proof even though other circuits  but the burden on that if we're not asking that of the summer you feel that standard passes muster it absolutely does your honor certainly there's a connection there and this particularly here it's a connection which is that's the requirement under the sentencing guidelines and therefore it doesn't unduly infringe on the second and i'm i'm sorry i cut you off we just tell us what the government's position is as to what if you were reading the opinion what's the standard here the stand the standard your honor is that the farm was possessed and that it was not clearly improbable that it was connected to drug crime and how do you define possess possessed would be that there is a temp spatial nexus which the government approved through the defendant's actions in presence here it was some sort of yeah well yes as constructive possession that's drugs and then finally whether was accessible and as a district court found on the record it certainly was accessible it was hidden underneath the sofa cushion in a place where the defendant could easily access it if you access it if he was right now those those factors seem to overlap a bit with honour's to return to the hypothetical your honor the difference here is with the new york in the brief case is that if there were testimony in the hypothetical from my coworkers at the law firm that i never carried a briefcase and that's not sufficient for the in useful there are discovery pictures here which show a perfectly furnished fully lived and house we could certainly provide that i'm sure there would probably be no issue with that the second point is that if the court what it was before it was with respect to the to the one point one and so later on the safety data but my point is this your honor i'm not arguing that you can't look at the factual finding of the safety valve and sort of mesh it all together but my point is this the government's wrong when they say it didn't apply the correct one point one standard and why that's important is if this court reviews for clear error the court is not in a position to make that determination in the first instance let's assume you're right in that  mean let's assume that it applied the wrong standard to the enhancement but then it applied the correct standard to the safety valve if it applied the correct standard of the safety valve and ruling is was not reversible error isn't there a risk that that the essential finding on the safety valve issue renders the error regarding to the one people broad language presence really presence talks about and when you look at all the cases i can't i can't emphasize enough how how much an outlier case this would be but if you look at all the cases presence means proximity to actual paraphernalia not made up he's not having the gun on his body on his person or you know right around the corner you know then he doesn't have it meet that but why would we apply that sort of  physical proximity standard to a guy who's you know one level below a kink and you're got this guy's because he's very high up in the air in the chain he's not in the executive suite he's handling twenty four kilos on the street in a home depot parking lot you know this is your honor had suggested that well he's an operator level person so they kind of keep a distance from friends so what happened here this person i mean you know he hargate they don't bring them into the house right i mean these well there was no the his role in this conspiracy was to shovel the drugs directly from the source in maryland to various you know places in delaware where their meet ups with k w so you know but the notion that somehow we should loosen the nexus requirement for upper level drug dealers because they don't you know they don't bring themselves in close proximity to drugs is just not borne out it's i don't think it's actually right general but when we look at this case mr torres had a lot of incentive to carry a gun in this case and these transactions mean these are major deals he could have been ripped off k w could have gone south that would that's not at issue at issue is whether he had it he got it here on the east coast right yes he comes to the employment on the east coast and he gets a gun on the east coast has me going to new york really it really is the same thing what we have here when we look at real facts is opposed to speculation we say well you going to new york and going to the local store and buying a briefcase and putting it in your apartment and then say oh i know i came to new york and bought a briefcase and i put in my apartment but trust me i'm not using it for my legal paper no that's that we look at all strictly look at all the actual facts in the case though and so in the hypothetical if you know every one of the law firm says no he  bike messenger bag which is what i happen to carry my real job then the no the edwards doesn't hold maybe in some other case it holds but that's not the facts we have here and we have to look at the facts that the government has the burden it's a real tools of the trade high level probably related that's not what's happening here this is four levels this is a huge swing this is a lot of time for a man in prison so i would submit if a court should really hold the government to its burden and require some real evidence i mean really meant in the district are it does not because i mean on the factual record here it's clear that it's insufficient to to support the enhance time and still be within guidelines that is a fact now what happened here obviously in actuality is you have a talent variance from what i like range there's no reason to believe the judge wouldn't do that otherwise we don't we don't know but it's clear that sentence of twenty four months was below what the guidelines range would have been but i guess here your argument would be that that's not really opposite because what your guy got want eighty is not below what the adjusted guidelines for he's ok i mean it's i think there is prejudice there's not there's there's there's a real i don't think that's contrary would be procedural procedural violation under yes under