please the courts council i guess if there's one thing about the record in this case that's true that is that whatever the effect of an offer to sell  marijuana played on the police officers who were trying to buy a firearm mr bailey did very little to try to market the connection between the sale of a f and the marijuana itself the fact the only time marijuana was mentioned was in the very first phone call when mr bailey said that he had some good weed for sale every other phone call every other text message all related to a gun transaction there was no mention of price quantity there was no mention of a specific transaction that might take place for marijuana it was all about the gun in fact you know this may not be the usual scenario in which the de and it's offered an opportunity to buy drugs at the same time which he was on the very first cause you said why can't the fact finder conclude that the gun purchase if you look at page one twenty five of the trial testimony this was brought up by the government in its brief and it was a question by me to the case a me but it was really both our ideas and the reason we wanted to buy the marijuana was not because well it was because they wanted to make it seem plausible that they were there to buy more than one thing and i were they cared about more than one thing because more than one thing had been offered to them on that first call but the case agents that they wanted to have a drug transaction take place to distract mr bailey so that his attention wouldn't be on the undercover police officer who we had never met before and who hadn't even been discussed before so that that would take his attention away from the real transaction which was the gun transaction in other words oh what was really surprising to me mr operad it was that mr bailey doesn't know who's calling him but he's offering not only a god he's offering the marijuana i mean oh my goodness but i'm a stay right that you know my experience that's a very unusual situation but that doesn't change the way that you should look at this transaction he pleaded guilty to possession of the gun up by a felon and he pleaded guilty to delivery of the marijuana although we were saying was that there was no connection between the gun and the drugs such under nine twenty four see that the gun transaction further the drug trafficking given that was it the gun transaction was what the whole deal is about and  said well i'll throw in a marijuana too except the case agent was the one who directed the informant to buy that to draw attention away from the gun transaction if essential in more concerned about the to the seller and buyer rather than with the case agents no i understand that at but it was alan's idea too but he felt that it would be it would not be plausible for him to go there and not buy marijuana if he was bringing another man to buy a gun and so the seller sold the marijuana to the buyer only to further the firearm transaction not not the other way around and that's what the point of a nine twenty four c prosecution is now the government also says that the the marijuana was like a one stop shop you could get your marijuana your firearms at one place and that that was an incentive for a buyer like alan and the police officer to buy a rifle but they cited a case from this court which the facts showed much more of an incentive than what was at play here the actual incentive in mackey's and i believe it was the one case the drug dealer said look to his underling you meet my sales quota you get rid of six kilos of we and i'll give you a rifle so there was a specific non theoretical fact that tied the firearm to the drugs the only tie in this case is the simple fact that they were sold at the same place and in the government's words it's the milk in the back of the you go into the store you're going to buy a gallon of milk but you might grab something else on the way out your honour's that's not sufficient it seems to me in a nine twenty four c prosecution to say that simply because they're both offered for sale at the same time that you have to ignore the requirement that you that the government point to specific non theoretical facts that shows the tie between the rifle and the guy who would be the difference and because two or three men she knew three but pot in them but a gun both of them pleaded guilty both of those what's the enhan he had already pleaded guilty to both of the offenses separately and his sentence on that count i believe was twenty seven months so we got an extra sixty months on top of that simply on this theory that the firearm further the drug transaction and i've and i respectfully say that it did not now the government likes to talk about market theory and to try to explain how this is a valid connection between a rifle and a firearm that it's a rifle or a firearm and drugs that somehow if you go in to buy a firearm and you can buy another drug item that that satisfies the requirement of nine twenty four c but as i told the school you've right now the case agents plan was to do just the opposite it thank you may it please the court counsel i'd like to start with the notion of what's in that case agents mind that i believe is a red herring it doesn't matter why the purchaser is purchasing guns or marijuana what matters is that the defendant's possession of the firearm here did that facilitate the drug sale and without mr bailey's possession of the firearm there simply is on the facts presented here no drug sales he didn't know mr allen they had never dealt with each other before mr allen was never going to buy marijuana whether with a case agent or on his own from mr bailey except for the that mr bailey was offering him a firearm for sale it is his possession which facilitates which promotes which moves forward which advance which furthered the drug sale it's only because he possessed and then sold  firearm that he was able to make the drug sale so what was in the case agent mind whether he wanted to distract whether he thought it was a more realistic scenario is irrelevant to this court's inquiry on whether judge mims factual findings support the notion that it was bailey's possession of the firearm that furthered the drug sale that i guess the question would be what  cause the purchase one of the guns i think that in fact didn't the gun change in some point was in the same gun or something that's right mr bailey at first offered two  handguns and said you better hurry and come get them quick because they're going to sell and in fact they did sell and then those two were five hundred dollars and then he said oh i have another gun you can get that one for two hundred dollars and when they bought that gun there was testimony that he said well i've sold six other guns in the past week so i mean for really want to get to what caused law enforcement to want to do this is there's a guy out there selling guns on a routine basis that they want to stop but he also sells marijuana and uses his gun sales to help him sell marijuana and that's the point i think your guess the question would be would he have bought the gun with out having the ability to get some marijuana along with i think absolutely the gun sale as there's no dispute i don't think that the gun sale was the main event here i mean law enforcement was interested in buying a gun but it was mr bailey who as they can see in the first call said oh and by the way i also have only do have guns for sale i have marijuana for sale but it was the gun that was the main event the entire time he just used that opportunity to make a drug sale and i guess that's what i'm asking you what would be the difference if the leaning nine point four c yeah i think the limit for a case of the four circuit talks a little bit about this is that people who deal in selling one illegal item of make themselves a more attractive seller by selling multiple illegal items and vice versa purchasers make themselves a better more trustworthy purchaser if they're willing to buy guns and drugs as opposed to just guns i suppose is the theory with it was it was it more than a user amount of do i think the forty dollars if it was it was barely more i don't think it was it as it's just a court found it was a very small marijuana purchase but he said that's irrelevant the question is was it a controlled substance distribution and there's no question about that there's only one point i want to marry if this court is going to find based on this then factual findings that a nine twenty four c prosecution can result when you sell guns and drugs at the same time without anything more without any other connection then we're going to happen off a lot of nine twenty four c convictions and a lot more five year sentences stacked on top of whatever other guideline range sentences need to be imposed and i don't think that's what was meant by this court in vani and castillo and in discussing the  legislative history of why nine twenty four c was needed to be promulgated the ideal was that if you have a firearm and you do something with it in relation to a drug trafficking crime that furthers it that advances it that makes it more possible that's when that five year mandatory should kick in and i don't believe that under these facts the government has met  would you think was intended well there clearly is one intent that's one theory of how a gun could further a drug trafficking crime another one would be if guns were exchanged for drugs or drugs exchanged for guns those are clearly proper uses the third one the third theory that this court has applied is that there has to be some sort of incentive some kind of an in more likely that a drug trafficking crime could occur and just having guns and drugs for sale at the same time with no other facts i don't think would meet that standard