fence fencing ring and then on september twenty sixth two thousand and five when he was not quite twenty two he was sentenced in the sentence to fifty seven months which was a low end of the standard range based on an offense level of twenty one a category four but we're asking the court to do is reversed in part the sentence that in installed a four level increase issue as i see it because there was no connection between his prior assault third assault for pulling a gun on a clock on somebody and this is a very interesting indictment that point but if we look at the appellant's argument here and if we look at the g sand and united states versus maine and three one five that's the third one zero five four eight circuit if you among other things if you go up and look at two k through point one before just above the statute that we're talking about the enhancement we're talking about right over the rule of lenity that there may well be that it didn't carry the day and what we have is a holding from that circuit plus two other circuits just say that any means any we also have law on our circuit that we don't create circuit splits unless we have a good reason for it with three circuits now having gone to mean any means any and not the on what basis do you suggest that we should create that circus just all of the dissent of the younger judge arnold your honor i get in my review the case law i only found two circuits that i think were on point and i think that what i had still stands if we have two circuits going one way and you go your way we would have to create a split what is what is so unreasonable about those other two circuit pieces all i can say in answer to the enticement fancy firearms that he admitted to being involved in and the older saw it wasn't a similar modus operandi it wasn't a part of a si it was is the same walk all the way i would still argue that because of the time difference and the different type of cold felony were a firearm was involved fencing firearms on the other hand i see those as two totally different scenarios and two ammos and that's stanley connected by victims accomplices mr sinclair didn't help them  please to corporal hicks we can on behalf of the united states there was a question that was asked why wasn't that kind of originally charged and the reason why it was not originally charged is because the only proof was asked for the two that were found in the safe and so then the next issue became with the defendant being charged in state court was the government going to pursue charges against mr nichols and we subsequently did pursue charges against mr nichols when i as the cour the government believe that a three month sentence was reasonable that's what the government believed under the circumstances judge quackenbush did not judge quackenbush has to start at an application of the guidelines that's what and we maintain at this point in time i maintain that it was not in error that the four points were appropriate your honor you have discussed the course of conduct here the course of conduct was  that the same is the same lawful or not we don't know i can't tell the court that's all and i think your honor one of the reasons why they deal why one of the cases deals with any gun is because th exactly an example of what could happen is that any defend it could get rid of a firearm any defend it could say well it wasn't this particular gun it was another one and what we're really saying is that somebody who has a firearm is a previously convicted felon in the course of a judge quackenbush basically said was that this had been taking place over a period of months but it was a continued type of activity you had a burglary ring where both mr nichols was the first fence and then the second fence you actually disposed of the weapons was mr sinclair but this was the same source of conduct that was where all the firearms were stopped all of them were stolen in multiple burglaries and there were approximately forty firearms that were admitted to by mr nichols and that and i'm not it we can say that two years ago when he wasn't charged with anything he had committed this felony offense i don't believe that that's a proper interpretation but i do believe though as you look at the conduct and in this case where a person goes directly from where he commit an assault he's a previously convicted felon who should have a firearm at that particular time goes directly to a house the police show up very shortly afterwards because they're in and in effect in pursuit because in this case there was even an issue as to whether or not a fight hit whether or not it was discharged and that but in any event the police show up the police go in and they get involved in a search and there are these two firearms there now of course you also have mr there and you have other people who should not be possessing the firearms that are in in the states also previously convicted felons so in any event this is all together and it's part of a common scheme or plan that they've all been doing the reason the states was purchased for example to begin with them again the clock was not in the safe was in order to provide a location where the stone firearms could be kept under lock and key for a period of time and then again when we talk about the numbers and nobody's contesting it but what happened is that if you had other firearms that was stolen and once the defendant mr nichols was arrested he contacted somebody to get those firearms out of the out of the location and got them to a person by them must provide vocal through sinclair so this is all relevant content that's all tied together over a period of months and it's not as if they weren't constantly going if they were  because that's what the court asked me in the prior argument that we had doesn't make sense that somebody who gets twenty nine days in jail should pay now to the point where somebody else should or should somebody here who use that when i looked at that first case in terms of fairness and my told you my reaction was a so how could this be in terms of fairness and principles a sense but in this one i think that the fairness is that the person who actually uses the firearm during the course of a felony offense should receive more punishment than the person who's just a felon in his possessing it say for whatever other purpose but he's not out committing crimes this are most certainly are going to be more compelling certain compelling factors and they're going all out way some of the others and the court look at the fact of the defendant's youth the court considering the fact that he was early on addicted to methamphetamine but wh came back and said look at all of that but then look at this horrendous background of violence and that's where he disagreed with the government and that's where he said we have to take some action also the court did recommend that he get a drug treatment program the five hundred hour treatment program they're actually took into account medical necessity medical needs etc so i think the court has considered all of that i have nothing further unless the court has questions thank you