turn to the court's sentencing errors and finally whether the case should be sent back down to the district court to determine whether the state and federal sentences should run concurrently with regard to count five that count charged possession with intent to distribute cocaine and it referred to the powder cocaine as opposed to the cocaine base and count to count five with insufficient because the government did not prove mr willis knowing and intentionally possessed the powder cocaine it helps to understand the layout of this building this was a two unit building with a lower apartment and up or apartment the cocaine and the majority of the drugs were found in the upper unit each apartment in this building was it had had its own key to enter and the cocaine and the drugs upstairs well the cocaine was located in a locked bedroom upstairs so mr willis did not have a key to either the opera unit or the locked bedroom where the cocaine was located so he did not even have access to the powder cocaine and there's no evidence that he had ever been inside the upper unit none of his belongings were out there so the government didn't even prove his knowledge of the cocaine and the upper unit and this is not a conspiracy count this was a possession count and there's no evidence of actual or let me try to i want to make sure i understand what your argument is there's a separate question as to at sentencing by a preponderance of the evidence that the judge error in attributing the up stairs willis excuse me but your argument goes to the specific count of possession of a firearm in further and of possession of drugs right particular count and you're saying that the evidence as to mr willis was insufficient for that particular count yes i did make additional arguments might creep but there are too many to then right i understand i understand that's the one you're focused on here and if that if that were if that argument is successful what if any impact does that have on mr willis is sentenced unless we also conclude that the judge erred in finding by a preponderance that there actually was a conspiracy and that he was responsible for the drugs in both apartments and i think your honor it would need to be sent back for the court to reassess its guidelines calculation because there is no finding on the cocaine powder because it was part of the conviction however your to your honor does make a point that the court would have to also rule on me error with regard to joint conduct  because that finding uncompressed the totality of the drives so there should be there should be a new that we should remain and if we accept this argument i have seen you make other arguments that would lead to other relief but if we accepted this argument you're saying we would need to re man for re sentencing with the judge taking account of the fact that he mistakenly believed that the defendant had been properly convicted on count five  your honor and we're also asking the court to remand and rule that the judge erred in including the totality of the drugs do i understand i just separate argument i'm just focused on the one that you highlighted as your st argument argument if that is the one that we agreed with that would be the relief that is required by that ever that's correct your honor there's no question they knew each other but more is required it would be speculation it was speculation for the court to say because they knew each other and willis had links to the lower unit that he with peters there was no other evidence that they work together and the court also relied on unproven acquited conduct evidence to hold well as responsible for the totality of the drugs specifically the evidence underlying counts ten dollars eleven cents that willis possessed drugs at the erie county sheriff's office at forty five street this was based willis was acquitted of those two counts and this was based his testimony was solely one government witness officer carney who claimed that he and detective granville were at this sheriff's office and recovered drugs on the grounds that willis dropped and they're saying what it should be you're saying that the judge  clearly erred in believing that witness by a preponderance of the evidence yes your honor and i was the jury because the jury rejected his testimony as proof beyond a reasonable doubt or because you're saying it's so inherently incredible that we should decide that the judge could not reasonably have accepted that testimony the latter your honor and that's because that officer carney testified that the other government witness granville was present with him and recovered the drugs from the floor but got detective brando also testified at trial and he did not testify that he recovered drugs from willis he didn't testify that he was at the sheriff's office that day he testified he was in another place entirely outside of seventy henrietta street surveilling the location so we have the the government witness's testimony completely undermined by another witness so in that unique circumstance i think the court should have justified why it found that even proven by preponderance but instead the court just dropped a footnote in its opinion stating it found by the preponderant and i think it was error for the court not to explain that and i don't think it meets the preponderance standard at all and that finding actually was the basis for the court to include the totality of the drugs and mr wilson's guidelines so it was a very piers please the court robert culp or isaiah pierce i'm also going to focus on my suspicions the argument and my argument goes to all counts basically in a nutshell we argue that said i believe there is a reference to they've got my keys we don't even know what keys that refers to whereas there's multiple cars in this case there's the equinox that  question to the government because i mean the key is do you not have near the significance that the government attributed to them or that the judge attributed that to the post trial motion for those very reasons and there are multiple she's on there as these pierce is she needs you think they can find one that that operates a car that he owned or or an apartment that he was known to frequent they didn't do that at all the way they do have fuller's connection to this key chain is just a strong use the one who drove the car to the premises that day as your honor just pointed out and also when they searched the girlfriend's house he was hiding in the attic so it's almost a coin toss you know which one of these guys but boston these cheese or orange someone else entirely the government made almost no connection other one other than that argument to the keys the lower level those are not in mr pierce's name in the upper level you'd think if someone had to meet in the control of that upper apartment there'd be something there's not there's no there's no least no documents there's no a on it that was deemed a highly likely to include mr pierce but it also had four other people and the government's witness admitted that d n a is easily transferred  and and therefore it doesn't even establish that he necessarily been touched that gun and also going back to your honor to your comments about the keys the government didn't what before the jury who the think i'd probably prefer you ask that of the prosecutor but i know he was initially arrested on state charges and then at some point the feds took over the case i don't know the details behind that but basically you've got a guy serving a fourteen year sentence where you've got i mean the government said in their brief that he had easy access to this place and that's not true they they have evidence of eleven visit slimmest of evidence that i don't think satisfies this point standards thank you can captain gregory attorney representing the government i apologize runners there is an alarm going off in the hallway i have someone trying to see if it's a test or if it's real so i polish guys if i get pulled out of the building so much too soon but i will do my best but i would like to start off and case i do get pulled out i would like to start off with clarifying a very important point on the record with respect to count five and that is that there was cocaine recovered from the lower residue see if you've seen the photos too that we have catched in the appendix exactly what it is that there was no penalty just programs to do well it's a powder other side so if you were to find like baby powder on your fingers and again you can look at the photos the chemist with she also testified that there was but she felt comfortable and she identified the test that she used identifying that as cocaine powder residue wasn't wasn't there were personal use quantities found in the cook it that were found out stares at the two shoe boxes that contain hundreds of bags hundreds of rubber bands to contain the powder which again you can see in the photos attach the context in which it was found suggests and intent to distribute that is it's a big bag that has a little residue and it and there are all of these other items that suggest the possibility of what residue the rubber gloves the fact that there was testimony that you can't make crack cocaine without cocaine and then of course there was crack cocaine or cocaine base recovered in the lower part as well and the judge  his girlfriend the mother his child money from the pro offer that he left with her or at least you know lived there among other places and the keys were on his person he was driving the vehicle us how many tell me what happened in granville r and detective carney watched via the live video feed they watched as he began to get out of his pants so they say they saw it happening they also when they entered the room they found a plastic bag on the floor right next to mr well as covered in feces and that it had the yellow glassy not the ones that were found in the upper apartment of the kind that were found in the upper apartment so laboratory tests also revealed that there was a heroin in those baggies which was the same counts also right now they were no now mr willis was not convicted of possession of that but this the jury has a higher stand much higher standard of proof which is beyond a reasonable doubt then the district court judge has at sentencing which again it is subject to that the evidence is too good the evidence is too convenient that it links specifically the drugs recur heard according to the police testimony at the police station link pierced well this is room and well room and then the jury evidently found that too convenient and the question is whether the question is whether the district judge was required to make the same draw the same conclusion or whether the district judge wasn't titled to conclude that as the government contended  this somewhat mutual connection actually existed because police officers testified that it did and the judge credited that testimony yes that's exactly right your honor and a before these two defendants were put in holding cells which stuck with the searches going on with the searches and the upper and lower apartments did they take place before  that were found in both units and so you can see for yourself the size i don't believe that there are good and how many were found on the floor in the brick in the interrogation room i'm just i don't recall off the top of my conduct that trial so i guess i you know i don't want to i don't i don't to get far down this rabbit hole except to say that the district court found by preponderance of the evidence and i would emphasize again and again that what's what what's the government what is govern want to believe along these lines ma'am well your honor don't listen together wasn't testimony about this particular thing but anecdotally i can tell you that there is a fear that the bags corrupt and then he would be potentially overdosing there's a fear that when you go to the actual county jail facility you have to ask what cost you're going to get caught with them anyway and that the you know fastest and easiest way to disclaim something that you are storing in your rectum is to get rid of it on your terms and in this case the just of course found that in the pool in the police station well you know your honor i'm again as opposed to being caught with it actually on your person quite about what actually happened at the sentencing the the district judge says i find the possession by a preponderance of the evidence right yes i believe so does the district judge do any of the analysis that we've been talking about today as to why the officers testimony on this regard should be considered credible i would i would have to refer to the decision the district court reviewed the fact that mr willis and mr piers were both had on their person and apparently dug down their pants to get rid of it at the police station right so the court of the court essentially credits the testimony but does not specifically analyze why that testimony is credible and i think that's my recollection anyway we can check it but the next question i would ask is did anyone make these arguments to the district judge or were they made a trial of and i'm guessing that they were made that the defense counsel made at trial the argument to the jury that we've been working through and that's why the jury found them not guilty but am i wrong about that i don't think in such graphic terms was that was the government's point maybe but yes the defense counsel at trial did argue that it was suspect that or that it was as as writers like basically too convenient yes but the district court was not persuaded by that evidently and the district court did have a much lower standard than the jury right ok thank you no i just would like to know that with respect to the right of argument very do you agree that the remedy would be to simply reverse and enter judgment of acquittal rather than to have a new trial since if we think that the evidence was insufficient the evidence was insufficient and that's the end of the story we're not the same sort of argument that as far as to play an error would support giving a new trial in which the government could make if it chose to make whatever arguments it might have been presented dition all evidence i under the under the plane or standard which is how we're doing it here problem for i would argue just as in no way that this doesn't fit into to the proceedings because both willis and they did not but this court held in miller that you're not confined to the trial record when you make this review and based on the p s r you can see that they did spend at least one year and i believe more than one year for both incarcerated federal and for the bare presence purposes he was in primary federal custody as soon as he was arrested on a federal matter so the federal sentence is primary and begins on the davids imposed which means there would be no reason for the district court to make  consecutive distinction even though he isn't the custody so he's already getting what is effectively a concurrent sentence and that's why it's always so i thought i have to go back and look at it there was some confusion in the record a technical remand assuming that you want everything else with the government have any objection to a technical remand to have the judgment modified to make clear that it's concurrent so we're not back here at some and go save him is gregory thank you thank you your honor with regard to count five briefly there were ten thirty five grams of cocaine base found in the lower unit and the government repeatedly specified that count five related to powder cocaine in the upper unit  it looks like they're trying to change their theory at this point with regard to the drugs that forty five elm street they had mr willis's d n a there was no d n a evidence to match it to these drugs  and the government relied on detective granville's testimony throughout the case that he was at at seventy henryetta surveilling all day now the government's relying on carney's testimony that he and granville at the same time and i don't think carney was being credible and truthful in his testimony in addition the government stated the hair and heroin was the same in the drugs they purportedly found as there went upstairs and that's unfortunate it's unfortunate for mr willis that nobody noticed it but i think there's a lot of errors committed in the sentencing particularly that need to be fixed here and with their guard to th have it specified that it's concurrent sentence whether or not they went on everything else because if they don't well everything else it's gone back anyway for other purposes so they may have stipulated as far as i'm concerned ok thank you  evidence from the surveilling officer that that there was an exchange of cheese in other words it was tansey fuller who who was driving the car at that time and he's obviously the one who opened the door to the to the premises which i think  strengthens the lack inference of them in any control as it goes through those keys and so is the government in correct when it says that the keys were found on mr cares