reflecting upon it judge calmly said nobody was impressed with stamps candor in that statement stands as clear i have a small drug dealing operation about a dozen customers i always mean i'm away from my house and i don't carry a gun i had the gun for personal protection after i was falsely accused of murder he made that story the statement the morning of his arrest he made it before the case went federal before the nuances of safety about the matter it was just telling him telling the cops what he did and why did it and not only did judge conley have that statement when he took the bench he also had stamps affidavit and he proved there he provided further detail about his operation not even his supplier knew where he lived and the gun was left in the house and it only went there started only left the house once that is just is this court called for in fincher the defense had presented affirmative audience evidence it was credible evidence that this report found credible and that if wade under the proper standard would even title stamps t finding the government's harmless error argument isn't rooted in the record rather it would rely upon a rule that no court has adopted namely that anytime we have a drug dealing operation and there's a gun other than a hunting rifle defending his time that's the person who we charge of making these decisions in the st instance those counties watch the video using one who has expertise he's the one who you know time and time again makes he said hard sentencing calls and there's a reason why we want him to do is because he's able to make that with fresh eyes now the government is asking the court to make this in the st instance to look at this and say look there's no way the judge calmly could ever have fallen that this would have mattered but that's contrary to the record and remained just calmly will again have that statement is watched and found credible he'll have stamps affidavit and he'll have all the facts before him that's who should be making this case this decision in the st instance i should also note that this from the transcript particularly if i can't account for his candor talking about stamps the law enforcement and the fact that he has never spent any time in prison before i might well but for the statute the mandatory minimum have considered a lower  and and the statute and then there were efforts to try to rehabilitate him or what we would say if it was a witness as opposed to the judge to rehabilitate and get the right standard injected into the mix but it wasn't just the of the courtroom what was going to i mean this is what was my take upon it all i didn't handle the sentencing but in knowing what happened as soon as my clock colleague came back from court is that the probation department had doubled down on means and if the district court he just sort of adopted that and didn't give the government time to speak or the defense time to make an argument and and that's really what what happened here you can see that in the p s r objections were very clear blow for the united states here as mr bout you just pointed out the district court did credit the defendant statement that he had this loaded glock nine millimeter pistol protect him because he was wrongly accused of a homicide however the district court correctly found that the firearms had a dual purpose he also possess a firearm to protect protect his drugs and his drug proceeds had met his burden of clearly and well available i didn't see it because i think finding by the district court that the firearm here had a dual purpose no well it's implied in the record i mean the the judge is the least credit your statement like mr bud nice that's he's got you know i watched the video i respect he respected the defendant's candor but then he also said it's not clearly improbable that this firearm was also not connected to your drug offense but well let me read you that's a different standard than the stablish ing by a preponderance of the evidence that the gun wasn't possessed in connection with the offense right the problem for mr stamps here in the government's view is when you look at fincher sinter clearly stated you can't meet clearly improbable if you can't meet preponderance will hear the judge found that it was clearly improbable so there's no way mr stamps could meet the lower burden a preponderance you know because the judge already held to the how how how would that apply you can't meet the higher standards they can't meet the lowered it's one thing to say if you if you can't move the lower you can't meet the higher but to flip it and say fifteen rounds in a magazine tucked between the defendant's mattress with the drug proceeds one thousand and seventy nine dollars right next to the bad and then this is a small apartment just like infants or the small apartment and the over fifty grams of math and scale were in the course the nd bedroom of the apartment so when mr buck needs reply brief he says the apartment was utterly unconnected to stamp this drug dealing operation and that is not what the facts support here you know you can he could have yes had the gun for protection and also to protect drug proceeds because the district court noted because the defendant vocation distribution that's why he was implicated in this homicide that may be true but mr bunk east point is that's not something that this court can determine from the record that that something that the district court should determine in the st instance based on the record right but that in the statement of reasons the court said fortunately ok there's nothing achan example this case the defendant candidly admitted to a five year history of drug dealing maintaining over fifty grams of methamphetamine trafficking materials and the court just went on to say that and while the court credits the defendant other reasons for keeping a gun in his apartment the court is on able to find that it was not also connected to his interest the case of drug distribution much less that the connection was clearly improbable that's why i referenced at the beginning of my argument that that's the dual purpose the court said the gun can he could attribute it to both things but then finding it's not really improbable l you just don't get safety valve if you get the two to one point one enhancement didn't we say something different center that it's not babies don't but it's not automatic that you don't because they're two different  subset since it's the you can't get safety belts it's sorry one to the defendant to get safety belts the court has to make a finding that the defendant did not use violence or credible threats or others or possess a firearm or other dangerous weapon in connection with the offense so here just how many found that mr stamp did satisfy my proponents because i found you couldn't even satisfy clearly improbable that's the problem mr stamps is facing  here in the statue so the government believes as stated in this brief that the air here was completely harm harmless based on the facts of this case the facts are overwhelming and there are even more egregious than they were in you're making a factual argument in a legal argument but i understand you know is that as a matter of law you can't get if the judge finds the higher standard as a matter of  and the facts really support his finding the drugs in the scale were in one room and the proceeds in the loaded gun that the fifteen round magazine ran the other close proximity not a hunting rifle in the closet which the court discussed infringer i think maybe there's a misunderstanding about how this guy playing this dangerous weapon enhancement actually works the government argument and you're not you're having an argument based on x found by the district court you're making an argument based on the judge is apparently going to are standing by what i'm trying to say  forgive me of really not making myself clear the facts here support the judge's legal conclusion absolutely the facts support it the nature of the weapon the presence of the drugs the presence of the skill the presence of the drug proceeds all in close proximity i mean mr stamps did receive a two level enhanced meant for maintaining a drug under the guidelines and they're not contested that i thought you were admitting acknowledging the legal error and all we have is a question of harmlessness here your argument is really think i know what i'm not meaning to your honor and i apologize for that no what i'm saying his stance cannot meet the burden by a error here there is our position is based on the facts of this case there's no way mr stamps can satisfy  standard of preponderance and that is supported in the government's view by the district court's findings of clearly improbable because fincher states well you know it's and we argue that that error his error in applying the printer standard was harmless because of the strong facts of this case knows exactly what it decided it's very clear that if you can't meet the higher standard it doesn't mean that you can't meet the lower standards and that lower standards judge calmly never actually rule of time we have a lot of facts in our favor it's not like the fincher case in a couple regards one the center case was actually a stash house it was a one bedroom sparsely furnished it was just meant to keep the drugs and you've got a pistol there to and right next to the drugs here this is his primary place of living and he's there with his girlfriend it's a completely separate bedroom far away from you know the drugs and he doesn't use it for the drugs he doesn't need to nobody knows really lives he has a very small operation center was not a small operation on don't recall seeing that in the record they never put said that the one thousand dollars was actually from drug proceeds but my client didn't actually have a job so we don't know it was a tax return but there's no evidence that the one thousand dollars was not his girlfriend's but that by itself would not be dispositive it would just be among the many facts a district court would consider but here especially given the fact that nobody knew where he lived that's pretty strong evidence that he wouldn't need to use it to keep his drug dealing safe it was really meant because of the ricardo simms murder that he'd been wrongfully accused of and been cleared of and in fact you know we did actually have the police reports of that and everything else was confirmed so it's not just a matter of just calmly finding uncandid there's  significant amount of evidence here that you had it for one purpose and it wasn't for the other indeed it wasn't until the ricardo sims murder that that he actually bought a gun i mean that's a very strong inference that this is somebody who wasn't having any connection so you are  fincher this court i think clearly knows what fencers holds and what it allows to do if you don't meet the guideline it doesn't mean you can't meet the safety valve and we would just ask for a man for resend saying upon the proper standard before just c