unseen guideline issues as well as a sense of scene disparity argument i'm the court directs me otherwise i'm going to do something that is a little unusual in my practice and i'm going to work backwards on those questions for me and wants to address any specific issues other than them please feel free to jump in and interrupt me but relating to the last issue that i spoke about that would be the sentencing disparity issue it's important to note that in this  in this case the facts bear out bad marshal who pled guilty in this case were the ones who have in their possession seven of the firearms that are at issue in this case and this is  possession of stolen firearms last fall in the possession case though those individuals pled guilty who they cooperated with the government in this case they each received a sentence of six months and seven months respectively in this trial court has an obligation in order for this court to review these types of issues to at least address the substantive differences in giving codefendant disparity if the trial court would have made specific findings assa differences even with a reduction for a five k want to rule thirty five in this case it would presumably would have been a five k one motion that was made by regardless of that and they had two points for acceptance or three points  there's a compound question so i'm going to ask i'll answer it and this way they both testified they both testified against my client hampshire they did not implicate hole sure per se because they could not identify the obstruction enhancement if the court has no further questions on the sensing disparity argument the entirety of the obstruction assman is based off of documentary evidence of spaced off of some text messages or e mails that obstruction based off of a p s r being threatened to put into a public space specifically a social media facebook platform and i would simply state that bad bad opinion is not appropriate to apply in this case hampshire simply was if you look at the actual message that was relayed it was a message saying please tell somebody that i'm not a cooperating witness the other person who is alleging that i'm the cooperating that is the cooperating witness in this case there's no evidence of a threat there's no evidence of that was intended to dissuade marshall or when we learned their testimony it was simply a rebuttal of what happened that he then my client was being accused applies to be six b which is at issue here it talks about the explosive or firearm possession or trafficking offense and isn't it reasonable to read that as the been charged which hears possession your honor that's a good question i would say i think that you could read it that way but i think that the fact that that deafened that's the definition that you're referring to that definition is further clarify it to another application and so censors another application no the specifically states i e means in other words if another application or says an offense other than a firearms of fact i think that definition is modified by the internal use of that in a separate application that that application  morning your honour's morning i'm kevin collin are with u s attorney's office in south dakota be presenting for the government a lower this real quick although on the same order that defense counsel has gone in first address the sentencing questions are asked about differences between mr hampshire and his co defendants who were convicted as part of a plea plea agreements there was a difference in terms of the number of  guns and i say that without having their pre sentence reports in front to be but my understanding is that there are only seven guns attributable which triggered a lower enhanced meant there was also reduction for acceptance of responsibility and there were five case in this case  another significant factor here is that i just looked at the p s r pre sentence report for mr hampshire and his criminal history spanned sixty four paragraphs in that report that's one of the longest criminal histories that i've seen in my  years as a federal prosecutor and and probably one of the longer ones this court has seen going through so many of these over the years it's an incredibly long criminal history and that's what one of the things that the district court focused on when going through thirty five fifty three factors talking about the nature and characteristics of this particular defendant this was a low range of the guidelines sentence which also means there was a presumption of reasonable ness of course that's the guidelines with these enhanced  parcel of the post golf sentencing regime and we certainly have that here we have a district court not only who sat through the trial of course and heard all of the nature of characteristics of the crime but in the in the sentencing hearing itself gave great weight to individualize factors of this defendant or the other two marshall and wing lawyer where they also felons they were and that was you know part  of their convictions but so were the charges the same filed against all say all three that were convicted i believe that's correct and they were they were all co defendants initially and then those two pled the other two went to trial mr holzschuh was acquitted so you've got the same charges essentially the same conduct with the exception of the acceptance of responsibility obstructive behavior the other two did not get the months in a in a firearm case where the district court talks about how she believes that they were intending to traffic these guns six and seven months is pretty low i think if you look at cross the district but i'm going again on memory here your honor but i believe that what it reflected was about a fifty percent reduction from their guidelines  so that's commensurate with other five k reductions that the district court is given and in other cases so the big difference in the guideline range between these defendants and you know some of these enhanced ones we're talking about for level and of course two points for acceptance the obstruction it did raise his especially when combined with his his highest level criminal history category it raised his guideline range up to that we probably have to assume that the four level and hanson for possession in connection with was not applied to the other two i i be going strictly on relative rights i don't i don't want to say without without knowing for sure  variety attacks that are described in the record those were texts that were on a i pad that's issued by the county jail where mr hampshire was being held pretrial and they were tax that regard  trying to get a third party mr weber to contact a guy named mike spann and there was testimony at sentencing from one of the case agents talking about who this mr spathis was what is not in the record but what is public record is that mr spatz was a federal defendant who had been sentenced by this very district court about a month and a half prior on firearms charges so the identity was testified  about at the sentencing and known to the district court that this was a man who is someone one might want to contact if they want to harm done to a cooperating witness now there are different takes certainly on what the texts meant but the district court did not clearly error when determining what this was was an attempt to reach out through a third party to get someone to silence a witness those texts are all in the record and we do believe that it mirrors the brisbane case in the sense that it's reaching out to a third party to try to silence witnesses with respect to the another felony enhancement your honor judge grounder you're exactly right that fourteen c is the controlling analysis here and the definite article the use of the word is important and it's important because this court has already found that to be the case that's the u s v jackson case six thirty three s third seven o three from two thousand and eleven where this very issue was at issue in the court found that the use of the definite article is a clear reference report and objection number four was about this application the probation office in fact responded and said we could have applied either of these and we chose b six they didn't cite that seven circuit case but it was clear they were concerned about double counting  i mention that because if this court were to be very concerned about this application of of the six be it be harmless error issue because the result would be for re sentencing be we have i don't have the language of the five in front of it says if the defendant engaged in the trafficking of firearms well here we have him doing the first step right we have seven of the guns being taken from the tattoo shop over to  apartment where they were found we have all the messages of course showing that this was and the testimony showing that this was you know to sell these guns so when is trafficking completed i guess is the question  perhaps that's a metaphysical question but you know here we have the movement of the guns from one place to another for the purpose of of selling them  in terms of the sufficiency of the evidence that takes up a big you know part of the briefing in this case i want to talk briefly about it this court of course is well versed in the standard of review  on claims of insufficient evidence all reasonable inferences all credibility questions all factual conflicts are cast in favor of the verdict here there's kind of two facts to general facts that are really in dispute on appeal and that's whether this defendant knowingly possessed the firearm and whether he knew that they were stolen in terms of his knowing possession of firearms we have one of the stolen guns in the car he was driving when he was arrested we have testimony of mr winkler and mr marshall testifying they saw all of the guns at his tattoo shop they say we have guns that are found winkler apartment and we have mr hampshire being seen by officers surveilling that apartment that night coming and going from that apartment where the guns are found to very important fact that ties him to the  we've got the testimony from mr marshall that mr hampshire came over and held a gun to his head that night at the apartment and the description of the gun matches the glock that was found in the vehicle hampshire was  driving there's a lot of evidence here that's tied ties mr hampshire to all eight of these firearms and his knowing possession of them second question is did he know they were stolen well we have winkler saying that hampshire told him that the source of the guns was he got them from his buddy who stole them from his dad so that alone would be sufficient on this record but we also have all the reasonable inferences that can be drawn from the fact that the nature of the sale of these guns they were going to be sold a poncho they were going to be sold on craigslist they were going to be sure sold at a gun show they were being sold through a third party and a very low rate for the guns issue this is effort to sell them through a middleman and the middleman is going to get to keep a large cut there's nothing at all about this plan to sell the guns that hinted of any sense of legitimacy also these guns were completely encased right they were being dragged around in a duffel bag at the time that they were found so a lot of evidence also that mr hampshire knew that these firearms were st believe from all that there is a clear finding a clear ability for this court to find there was sufficient evidence i have some time left on the clock if the court has any questions on the remaining issues i'm happy to recent conviction that's my understanding that's not in the record either no i think that there is testimony that mr spann was and cost the i don't know at what point in the record as to what exact dates he was in the record but if you witnesses would have seen it there's no evidence and the situation at all there's no evidence of a threat and there's no with evidence of suborning perjury regarding him but call issue and lazenby lazenby hasn't been overturned all that sort of theory but i would ask the court to look at the record when that happens but that thank you very much for your time just your bill the court appreciate your willingness to accept the c g a appointment counsel we appreciate your arguments today the case will be submitted and decided as soon as we can thank you