fallout urges that the district court here found him in possession of firearms and sentenced him according to relevant conduct and dared him so doing the crime of the offense and in this case involved a single shotgun in an indictment and the facts of that are somewhat relevant and important i think because the co defendants there miss hey we've looked at this plays let's go out and a burglary off four of them ended up place and burglarized it and in so doing a single shot gun and then there there were some brutal swabs that matched up to dani run goal and so forth now all of that swapping all of that stuff took a lot a lot time probably a year and a half or so the government when we're getting ready for the sentencing the status report they started at base level fourteen added to because the shotgun was still an added four because it because that's in connection with another felony the burglary and came up with a total of twenty points minus three for acceptance a seventeen we agreed with that except for birth and were not appealing that but then probation scored up by starting out at twenty level twenty because of this august st incident and story county and using that as relevant conduct then from there added for because there were up between eight and twenty four firearms added to because the firearms were stolen again this is a shotgun and then the other four was for the the possession during a felony the burglary so they came up with a rd minus three for acceptance twenty seven so the us probation scored the guidelines one hundred and thirty two thousand one hundred and sixty two the maximum sentence is one hundred and twenty go away we scored it would have been  seventeen and his criminal history six no matter what that would have been fifty one to sixty three months so he got virtually no more than double the sentence  he appealed we claim that the judge chief judge strand erred in the decision concerning relevant conduct and at sentencing in his honor a did indicate which was refreshing that if he was long he wasn't sure that he give the same sentence you know he and he would welcome a reception sing sometimes in district cases they just say well i give you the same thing so what the heck the two events are not relevant conduct to each other because they were not substantially connected to each other by at least one common factors such as common victims there were no common victims common accomplices there were no common accomplices common purpose there isn't really a common purpose the purpose obviously is for any kind of burger theft or something like that as it is to gain money to buy drugs in this case there is no similar modus operandi in considering the degree of similarity of the offense the regularity or reap repetitions of the offense in the tim between them they do not qualify as a common scheme or plan and are not a part of a single episode spree or ongoing series of offenses well spalls level should have been determined to be fourteen plus two plus four because of the felony offense and ended up with level seventeen the  in the materials that i found following the kiss principle it's a primer put out by the united states sentencing commission on relevant conduct part i think is where we're all focused is jointly undertaken criminal activity and jointly undertaking criminal activity then you also have to figure out whether it's grouped and according to three d one d how does the grouping interact with relevant conduct the sentencing guidelines say that the court must consider whether the conduct was part of the same course of conduct or common scheme or plan and st for two or more offenses to constitute a common scheme or plan they must be substantially connected to each other by at least one common factor such as common victims again we don't have that common accomplices don't have that common purpose there really isn't a common purpose or simplest similar modus operandi which  in this case and the case by side in the cited in the by the primer on relevant conduct by the u s sentencing commission is this united states versus  held that up creevy as handgun possession was not relevant conduct in the instant felon in possession offense even though the offenses were three months apart because with only some evidence of temporal proximity and no showing of regularity the government had to show stronger evidence of similarity in other words it's kind of a case where there are these three factors and if you've got really strong one of them's really strong and the other ones don't have to be in this case none of them are strong except for the timing and you know all of the august august in june and the two and a half months apart that's certainly closer than in some of the cases decide but i think that amberson case stands for the proposition that the case was wrongly decided here and should be reversed and remanded for sentencing three one a or b case this is a one b one point three two pages just that there are two ways that the defendant's conduct here can be counted as relevant conduct as one is the same course of conduct that is found by the district court of error at age forty eight of the transcript but also as argued in the brief this court would find a separate ground supported by the record that there was a common scheme or plan in this case and this court could then rely on that independently of the district court the government's argument is both apply here running down the factors of the same course of conduct argument mr favor of the government of course that's the right answer because we have just eleven weeks separating as about the time frame even in the cases that he cites is greater than that the regularity of the government's understood that in and correct that the defense counsel at paragraph forty three dollars what he described it differently but then the district court didn't rely on at least six was so i'm not sure how that figures in the exactly i mean it's clear the district court ought to have sufficient in light of the other factors it appears as if he credited the testimony but so that's an additional factor they're talking again about similarity of cases i wan think that the firearms are part of our common purpose they are similar in the in the purpose as well as execution so for all those reasons i think that that evidence does factor to be similar and here the government the best you have to we have a common purpose common purpose of both these burglaries and perhaps the rd as well is to parlay stolen items including firearms into drugs that it's all for you and the modus operandi maybe not the most out unusual circumstances but still sufficiently distinct group of people abi  scheme or plan it's unnecessary to have a rd or any kind of regularity and we know that because the sentencing guidelines themselves haven't a baffle where they just have to cocaine onto and the fact that they use that as an illustration i think strengthened government's argument a dish that no seems to be very similar to what happened in this case you have a guidelines one additional point i want to make is the defense attorney is correct that he and i anticipate that different guidelines however the plea agreement that the d c ninety it allows a relevant conduct determination at least involves one other instance of conduct so all in it's not if it doesn't really say anything for the government say well that there was this other burglary and possession  so in cases like this regularity is completely absent and where the government shows only go the other offense the other thing is with regards to my home's case my home case that mr fairchild sides in that case the office conduct paragraphs of the p s r to which my home did not object contain substantial evidence that the three firearms at issue were part of a single course of conduct and involved informants who may control biased reporting that guns are being kept in this get this is a gun crime and these people who are stealing guns they aren't planning on stealing guns it's not like they're burglarizing gun shops if we were doing that we would be here today that's got to be relevant conduct they'd go into a place that there's a gun there it is because these people are felonies they get rid of them right away so it's not like these other cases where they're continually possessing them and then they go do a search warrant they see they had guns on time one and then you know four months later they catch him