here and there has a new theory to support the two k two point one b six being enhanced when i want to point out to the court this panel exactly in my opinion what the government is asking this court to do is the governor's asking this court to find facts which will not before the district court and the which the district court did find st on the core is asking for the government's asking this court to find us the mr of governments brief was a joint undertaking with codefendant but the to obtain a distribution quantity of methamphetamine fact number three miss where to either knew that this substance  issue was methamphetamine or if she didn't know it she knew that whatever the substance was is on the federal drug schedule as fact number four miss work is possession of a firearm and this is a quote from reasons why the district court couldn't fan any of these facts and therefore this panel shouldn't find any of these facts be the st reason the only place in the record where there's any it there is nothing in the record suggests the district judge in the anything about or had anything on his radar screen regarding the contents of what went on at the detention here number two even if the district court ahead conducted it in excuse me conducted the detention hearing the testimony of the detention hearing would support the finding that the government wants to support the testimony that's relevant with a car ok that went back and forth st he said card and he said drugs he said car so the detective is ask do you know if any of this was a part of his scheme to transfer guns in exchange for the ringback transfer guys in exchange for the drugs dr rogers no sir so the only testimony at the detention hearing would be that info would be towards a finding that we don't know there's there's nothing here that says it says anything to do with drugs ok number three district court made no findings as to the scope of this where to this agreement with mr badia regarding methamphetamine through to determine whether conduct is relevant conduct under a jointly undertaken criminal activity theory number one and this has to be a disorder with is it within the scope of the joint undertaken criminal activity and again the application notes that that's the very st consideration you don't to get to in furtherance you don't get to reasonably forseeable until you get to is it within the scope ok and i would point that there is no significant government's brief will pay fifteen dollars sites to united states b rice th circuit case but that case was a two thousand and eleven kids and the finding in that case that the government or law is on was based on reasonable forsee ability they never got to it was it within the schooling excuse me to spoke of jointly undertaking from the activity but that's what this court is being asked to do by the government you've got to start with was it within the agreement with not whether it was reasonably forseeable or in further you've got to go in that order and again as part and parcel of whether is it within the agreement if you've got a conspiracy then part of that conspiracy to distribute requires knowledge on the part of the coconspirators of those who are part of this agreement well after that mcfadden case and it was two thousand and sixteen there's two ways that you can establish that a coconspirator has knowledge number one either the defendant didn't know the name of the substance knew it was on the federal drug skittles or actually didn't know the names of us there is absolutely this were to were never in actual or constructive possession of any methamphetamine the only methamphetamine around was possessed by misbah lardy and the government appears to have abandoned that theory and i address that theory as best i could in my initial brief history why that theory doesn't work and i'm not going to you know my going to repeat that but if there's no if there's guns and no drugs then you don't get a close proximity if you can't you can't do it two grams of methamphetamine that mr the dia had on his person or the under identified substance that you swear to had on this dollar peel possession amounts won't support the enhancement in my or was it for the car again the only testimony about that came from the detention hearing which the district judge never heard and the only testimony at the detention hearing from the detective was ambivalent he had no and by the way the detective didn't talk in this where or mr b he only interviewed the arresting officers and he made his opinion otter the district court to rely on the detention hearing information even if the district or didn't hear it if you know if we knew if they would absolutely if we knew that he that the district judge did rely on it absolutely just like it would be proper for the district judge to rely on the video camera or body cam stuff that were that is discussed in this case if it had been aired deuced into evidence but never was is not part of the record my argument is that if we don't know that the district judge had it within his memory bank consider it's not fair it's not proper for this judge to assume that he did that would just be my number five again as i've argued in my reply brief given the this is a new theory is reviewed for plane air and the government's cites to the record meet for clear air for air to be flying it's got to be clear now the government everything the government relies on asks this court to make an inference that's not necessarily obvious at all for example the government says but deers carrying on his person more than nine thousand dollars cash is consistent with the drug dealing objective he attended meeting oks consistent with it's not obvious though number two as but the advise police officers because where to was his girlfriend not obvious where to who had been unemployed for more than one year was no stranger to drug possession that doesn't that doesn't make this up agreement obviously in any way maybe ok then it says and this is a more addresses count where tos and b has admissions largely corroborated by video recordings established their coordinated movements maybe but we never the recordings will never introduced they're they're not in evidence and so my argument is if the district court didn't have him before him it's not proper i don't think i'm not i'm suggesting this court can't take judicial notice and find out what's on them and make a decision that would be my argument ok a couple words of al about the seconds the nd issue here and the government filed a supplemental notice of these two recent cases opinion basically i mean they both the firm everything they said before but the do well the middel guadeloupe opinion added this which wasn't in their st opinion and it had to do with the fact that martinez sentenced was ten months looks at this him or anybody who's in prison says well if i didn't argue that the district court in the feel that i don't like and i got a sense or ten years i can still take it or fists circus previously says no you can't do that and i'm reading yes ma'am and i will give it i understand it i did mr guadalupe the o s that's why i will meet with his his didn't say that but the general terms of the authority given to the probation officer would allow the probation officer to do that in my in and those other cases there was a delegation to make the determination in this case there's no delegation and that's a difficult you're right not specific ok so there's no problem as long as ok i look at this guideline and i look at the the record and the st question that i had as i picked this up was all right what what is the other felony offense that's at work here we've we've got possession of a firearm by ms where actually possess two firearms as i read the record she possesses each of them a different times the circumstance and so the guideline actually allows for application of this under two circumstances and i said as i read it one is if the defendant used or possess the firearm in connection with another felony office and i think that means a felony off and that the defendant commits and then the nd clause in it possess permits application of it if the defendant possessed it with knowledge intent or reason to believe that it would be possessed or used in connection with another felony i think record here supports both of those but i think that the district court made its determination on the st that is based on a finding or a determination that ms where it was in a conspiracy with others the scope the op was in possession of almost ten thousand dollars and below are that there's another player here bill are they was in possession of eighty one six grams of methamphetamine these are items are indicative of drug trafficking and the factual circumstances as i see them in the record are and it includes testimony by an officer of the o p c the detail at the detention hearing is that they got a call from the super eight motel they showed up to  motel d they got a call for a person with a gun they found four people outside the motel that appeared to be together and mr ware at the drop the gun and the officer heard it ms bell are they who is charged in a separate related case she is not charged in this case but she dropped eighty one six grams of methamphetamine in a baggie on to the ground and then is where data was found holding an a k forty seven pistol  said he went to the super eight motel to meet with a guy named allan gonzales and gonzales is also charged with a large a in that related case it's number two hundred and forty nine i believe and in the district court they were both d indicted on the same day these two were indicted on guns the others were indicted on a methamphetamine conspiracy st he says he was going to buy a car then he says no he was going to get fifteen pounds of meth from alan gonzales she said that but the a told her let's go to the super right motel you're going to be armed and he gave her the six hour pistol and then after they were leaving he gave her they exchanged guns and she ended up with the a k forty seven and they went to the room where gonzales supposedly was we don't know why they didn't get to see him but they didn't but as they were leaving the police showed up four people asked yes ma'am couple of the district court can you address that and then my nd question is how do we what is the evidence that ms where actually knew even that this was some sort of drug well as part of the record on appeal i can't attest to what the district court may or may not have read but i think that as part of the record on appeal we can assume that your good district court at the time  record there was some back and forth and the district court said the response by the probation officer is certainly telling ms where to and misspell are they one of those one of the four of them were who were there are the possession of this money which is almost ten thousand dollars and possession of some eighty one dollars and a half grams of methamphetamine which certainly are indicative of drug trafficking and there is a firearm and ms where those council object well they're not charged together and the judge's response was but that doesn't keep ms bell are they and ms where from being coconspirators correct so i believe the district court was aware of the circumstances that were going on at the time the police showed up at the at the super eight motel because i believe this indicates that the district court's determination in this particular matter was based on the district court's finding that ms ware  participated in a drug conspiracy and that in connection with that she possessed this firearm and accordingly and there were eighty one grams of methamphetamine found that ms of a lot of a had disposed of during the time that the police showed d up and there was reference to it's not in the record but it's referenced as information that the probation officer i believe looked at as well as office reports that these people were seen together as though they were operating or they were they were coordinating or cooperating but they they somehow knew each other at the motel and from those circumstances i think that was the basis for the district court's determination that there was a conspiracy now as far as ms where does knowledge that the transcript of the of the detention hearing does not say that she knew that there were d drugs we don't have that she didn't have drugs on that what we do have though is she shows up with mr by the at the super eight motel mr body is going to do he's looking into a drug transaction look for fifteen pounds of meth that he hasn't received and he tells her and you're going to carry a gun now i doubt that she was going or under the impression that she was going to look for cars that's not usually the way used cars are purchased and you usually don't need two weapons to purchase a car at a motel mr d by the area told the police when interviewed he st gave his nonsense about karr which i think the court could certainly say that's not credible he's trying to make up a story and it came around and finally told d the truth he told police he was going for fifteen pounds of methamphetamine well he told police i think it's a fair inference by the district court that he told miss where the as well and miss where th was not the st time that this kind of a dance she's got a history she was she was convicted of a drug offense about a year two years ago and she was arrested in a motel room with drugs and a firearm and sometime after that she was involved in another case that the charges are still pending she was in a car that fled in a police chase and the car had drugs a gun and a digital scale so it was where there is not somebody who has no idea where she was or doesn't understand what the circumstances were and the question here is where the district court finding on this was clear error or whether his finding was plausible based on the record as a whole and i submit to the court that based on these circumstances the district court's determination that she was involved in a conspiracy at least by a preponderance of evidence and we had that done in connection with that conspiracy i believe the district  court's findings should be upheld should be affirm i also think and i don't want to change horses again but but i also think that all of those facts also clearly establish that she had reason to believe that that gun was going to be used in connection a drug office a drug conspiracy and i think the court can uphold the district court on any basis that's in the record and i think that's that there's sufficient information to to support the district co guns a lot of money drugs at the motel and under those circumstances the district court made the determination that those guns were in connection with a felony drug offense and based on her background in the circumstances she knew enough to be held accountable so i think i submit to the court that the district court finding was not clearly erroneous on turning to the issue of the super i think i did answer both your questions  kind of plus her her background and experience then i don't well two i'm going to tell you that it would be sufficient to convict her of a conspiracy beyond a reasonable doubt i'm that's not the question before us and that would be a tough case i think that's probably the reason she was charged with a firearms offense and not charged in the drug conspiracy but i think that those circumstances together with her background and i think her her her criminal history and the circumstances that are set forth in the pre sentence report from those the district court could reasonably find she won there with a gun at the motel with mr but the and with these other people one of whom had about three ounces of methamphetamine she had enough knowledge to be held accountable under this particular guidelines and the district court finding was not clear or under these or there's not evidence that she was under the control of the testimony or her statement as i understand it was she had known him for about two weeks and have been messing around with him but she had a full time she had a regular boyfriend but she acknowledged that she told police that night that he was her boyfriend d but that wasn't true they've known each other for about two weeks and they were messing around prisons and there's very likely to be a question when she comes out does she need further drug abuse treatment i would assume that if she's had treatment and doesn't indicate that there is further need for the probation officer is going to some point recommend ok you don't need any more of this right now i also assume that the probation officer is going to sit down with her and say ok d well i think that outpatient is going to be fine i may say inpatient may be fine if she agrees with him is that an improper delegation if she problem well i think if she says no i'm not going in patient then the probation officer has to take it to the district court and it has to get there i think is clear that this drug treatment in prison given that there are guys that are involved in this office i don't know this but i'm guess she's not eligible moving back now i guess maybe understood these are students urban but i thought i understood him to say that the district court made a or and this is this is the significant part or possessor transfer any firearm or ammunition with knowledge can chant or reason to believe it would be used to possess you connection with felony office if their ear relied upon by the government is the  st part the only time it's ever been mentioned the nd part is by mr durham today and that nd part doesn't have anything to do with the facts of this case that has to do with the situation or individual transfers guns to another person typically to be transferred to somebody else and the martinez case that the government sites in his brief addresses that but that cases in apas it to this case or the in my opinion for the reasons that i've just s d and i think that's i think that's this reinforced by the application notes here an application of fourteen education fourteen specifically addresses drug trafficking in the case of drug drug trafficking oftens in which the firearms found close proximity to drugs drug manufacturing materials or drug paraphernalia ok this there's nothing in this application note that has anything to do with the reason believe reason to believe the language from that other provision this is in my opinion is brand new this is a new argument that the that has nothing to do with the facts of this case and that frankly the government is presenting it for the st planet or are so other than that those are my only co i believe we have your arguments in the end and hearing no further questions i think the case is submitted and we appreciate you both appearing today urged relief so we that we conduct this argument thank you