terry for the public i recognize that we've got two appeals consolidated we've got multiple issues but we are somewhat pressed for time so i would appreciate if counsel would limit it to ten minutes each side rather than fifty do your best anyway that makes it very difficult for me and i recognize it but your briefs are good and i can assure you we've we've read your briefs i'd like to bring up something before the reasons that we asked for or admit it's very important it's an important issue in the case it's a plastic bag that contains seven other plastic bags in this week i learned that exhibit eight ease in nashville it's not in cincinnati so it's not in this court there are pictures of exhibit a and e that are in this record and they can be shown to the court today i'm informed by the  it it's a bunch of ziploc after the fact put into the black plastic bag and we understand you're unhappy because those were at the scene what what what i would there's a court to do is allow me to have it's there if we decide that we need it we will get it thank you for bringing it to our attention and we will consider it and i would like to point out also that there are pictures of the exhibit if you don't bring that exhibit here or asking us to understand ok and i'm asking you to take a look at these pictures of you know i mean on the merits of this issue two things one it's not  there's no objection to the admission of eighty right so it's plainer review right there's no but there's no objection to the admission of the black bag right but when in as exhibit a he is not one black bag there is no objection to that being admitted to evidence in the form that you're now finding objectionable no there isn't a bit of yes there is an objection to this evidence because  would go in we didn't know that eighty exhibits were going on but it's your obligation a trial if you don't like the form of an exhibit to tell the district judge that the exhibit that was going in was the black bag that had some marijuana it what happened was what actually went to the to the jury room was a plot when did it change when did it change i mean are you saying it went to the jury room in a different form than it was admitted  trial the only thing that was admitted only thing that we agreed it was relevant in miscible was the black bag with the marijuana and in it was what went to the jury room was a plastic bag that had seven other bags in it one of them being the black bag and then six bags that came from the toxicologist analysis none of which were relevant material and which the jurors saw as and asked a question about and ask questions back and then post trial when we took the bag apart and the technician came in all of those bags came out and they were they were little baggies but they were put there by the lab technician and they weren't even in the house were those let me ask you i mean i'm just one more procedural question because when the jury asked if they can open the black bag and examine the contents  i don't know i don't recall if you were the trial counsel i was ok you you advised the district court to answer no you may not at that yes and the district court answered according to your requests dischord asked for  that decision but at that point i mean certainly it would seem that any complaint about the district court's handling of that inquiry is not only forfeited but waived outright because i mean which makes it totally not reviewable but think think about the circumstances are sitting there the jury's out in this been out for a bit they come back with a question and now you see what the what the problem is that you can't just open this bag and begin to show them t different bags the whole problem has to be corrected those bags have to be explained what are those bags doing in there they weren't in book or straight they came from the lag to technician so just opening the bag  deliberation would have done anything we needed an evidentiary hearing to explain what had happened and we didn't get that we got the post trial and it showed what it had right but the jury saw photographs of the bag at the scene as it was right yes but i've got i've got to stop this discussion in order to get to some other issues if i can i have four minutes and thirty seconds left i mean you chose to raise about ten issues which you know that was your choice in the brief so but let me get here where yes ok so the first issue i want to get to is there's no federal drug felony in this case the there's there's three three counts in the in the indictment against us one the first one we admit the second one is intent is possession of marijuana with the intent to distribute the third one is the nine twenty four c charge not the scales and six hundred dollars in cash on your client's purse and allow a rational jury to find that he in fact was distributing maybe had sold it all recently but he's a distributor it's not that's not the point under under nine twenty  under eight forty one and under before unless there's proof of remuneration and if the quantity is small it's this is a it when you when you refer to money anybody anybody who is caught with with an amount of marijuana is going to have some money somewhere that's not the requirement hundred bucks in your pocket is i mean that's more than most people but that's that's not the requirement judge the judge is proof of removal ration in if you had sixteen hundred dollars in your bank or sixteen hundred dollars in your pocket it would be a small amount of marijuana yes and there's no proof of remuneration well it is not it is you cannot have a federal drug felon you're begging the question point and point to the question is whether the possession of marijuana and a signal are not in significant amount of money is capable of being interpreted as such by the jury if that's all you have it is not you must have proof of the moon ration government at this point you can't you cannot take the sixteen hundred dollars and assume that there was a sale that and you have to do that in order to fill a bill when there's a racial throw in the scales now maybe we're getting somewhere about a sale co incidence scales plus sixteen under that the only explanation for the scales would be that someone must be selling and again the point was very clear  clear that it's not their obligation to exclude every conceivable theory that's not the standard your argument is possession of sixty of our books is not illegal possession of a small amount of marijuana is in significant misdemeanor but i need to go to one more argument and i'm going to move to sentencing very quickly because i don't have much time here in the or illegal you cannot it's clear you can read in in the guidelines the sentencing commission's lawyers handbook that you can not a a felony if you have a nine twenty four c you cannot put a weapons related enhanced man on that happened here twice the worst one is the attempted murder specific characteristics related to attempted murder that it's clear the u s probation department the p s r in this case that you can't do and district judge went ahead and did the cases the the sentencing commission says that it's just it's just clear simple and clear you if you if you're convicted he further questions from the i understand your argument thank you thank you thank you for your patience today it was a as mr terry had alluded to that was not in dispute was he freely admitted essentially even though we were put to our burden that he was a convicted felon in possession of the forty four revolver however because of the shooting at the police officer it cross reference over to the attempted murder and in that instance that's what gave rise to and as for which of which one of these convictions now becomes the level for attempted murder right yes well farm position and ten years of convicted on the a forty one violation the conduct which you do the judge would have gone under and correctly so under two k two point one and then follow the cross reference provision over to attempted murder once you arrive at the appropriate god line to account for the conduct of the defendant which in this case included shooting at a police officer so they gave an additional rise of six levels effectuate that sentence so that results in some consecutive sentencing i will note for this case the nine twenty four c conviction that the defendant have at this time that predated elaine and so there was no such a special verdict form or submitted to the jury in that particular case so instead of looking potentially at a ten year mandatory minimum in that case he ended up getting a five year mandatory minimum at sentencing consecutive to the other other count was in recognition of a lien yet believers after a lame because the judge never because it increased it would have increased demand a judge enemy empted any aleem error at that point and the judge in only imposed a five year well i think arguably he would have been within his right based on the facts even though there is a gavel there is a mandatory minimum of five to life imprisonment that he could have justified a greater sentence or a variance from that  particular conviction however i just point out to the can i may what about mr terry's argument that you cannot have this cross reference to murder attempted murder when in the same case you have a nine twenty four c conviction i would simply submit that the district court was correct in the court's analysis that the probation office think that mr terry's argument was correct probation office did not apply across reference to the government lodged an objection and i don't have the docket cited in that in the district court upon hearing the proof that the citizen disk or right though i mean why why is mr terry wrong in saying once there's a nine twenty four c in the case you can't pile on some gun related conduct well because it doesn't specifically deal with a weapons in han for example if you were under to be want point one just for example you would not get the two level ball up for possessing a gun in connection with drug trafficking if you were convicted of a drug offense that's not the same scenario we have here we do not have that  strangle the officer i mean there are other ways to gun it's not specific if it could have been someone who is trying to harm the officer in another way just point out to the court that he gathered there because the direct testimony from the officers i'm sure the court is aware is that this defendant fired directly at him and that war to the cross reference over the officer was clearly marked in police raid gear they had a den of them selves repeatedly  themselves as they made entry there was also the public address system in blue lights flashing so the defendant shot him or shot at him causing the officer to return fire so just submit to the court that there was ample evidence in the record to support what the judge did it syncing in a riving at the sentence that the judge the judge imposed i will note the judge the way the judge broke it down the ultimately gave the defendant in addition to five years less that he may have been looking at it because of the elaine decision also since him at the bottom of that advisory guideline ranges which was effectively done in this case i want to point out one thing if the court will permit and that is with respect to the indicating went through the evidence in this case that supported the position with intent to distribute those want to point out a few things as the call this court knows there was also a trash pull down where there were several bags of remnants of marijuana and other items that was done just prior to the execution of the search warrant so that information was art was introduced at trial as well that there was a stretch from that residence there were was marijuana and marijuana residue recovered from the from the garbage at that location and at trial the evidence showed not only multiple bags of marijuana that they were the digital scales that were on the counter in the kitchen next to marijuana that mr a mr a few mr owens were both in the kitchen armed with firearms at the time you're talking late at night your honor as well late into the evening mr fieger mr of that time mr few in mr owens were in there armed with weapons fieger has over sixteen hundred dollars cash on his person that in totality with the marijuana there the scales the cash all of that gives rise to certainly minute when you talk about strangling look at the findings of fact made but you know that's not it wasn't strangling the judge said i'm doing this because the area where you cannot do it because the gun in the only let me give you this citation police firearms primer prepared by the office a general counsel u s sentencing commission page thirty two says you cannot do it you cannot enhance when you have