law i think in this case based on the record we can't presume that because of the because because of the confusion stemming from the government's lack of diligence here are i think there's two reasons why be inappropriate to affirm based on the record here as we've detailed in our twenty eight day letter it's not clear that mr gill did violate florida law which the government didn't cite until these appeal proceedings if if we look at the context of everything that happened at sentencing mr gale objected to the enhancement he brought forward a case where the tenth circuit held that this enhanced requires unlawfulness state or federal law in response the government stated it was aware of campbell's holding but it was simply going to leave up the issue to the district court and presumably but campbell is different campbell said only those convicted of violent felonies were prohibited from possessing firearms and there was no evidence in that case that campbell had been of a violent felony and therefore the record  here the record p s r stated that your client had been convicted of felony i think in two thousand and twelve and didn't you didn't object he didn't object for you to that assertion so we take it is true that he was convicted of felony and then you look at florida law and that's all that's required well it's true that he was a prohibited person but the government needed to prove more than that as we detail in our twenty day letter florida law uses possession as a term of art so he could have been clearly here based on peers are facts he didn't have actual possession of the gun so they would have need to prove constructive possession and constructive possession requires more than just proximity federal law all our circuit not think of the shark at least our circuit is that you had control over it and in intent to exercise it and now he's been found guilty of that you're not challenging his conviction so he had constructive possession of the pistol well clearly the government can't proceed under a theory of unlawfulness under federal law here without the interstate nexus so if you were to affirm it would have to be based on state law and state law requires more to show constructive possession than what we have here in the record of the the federal requirement that was he convicted of possession of this gun because he knew from that point onwards he was not going to be conceding that this gun could be included under the enhancement on appeal that the government is is raising this florida law theory of an all unlawfulness for the first time  but as i said it's not clear based on the record as it stands right now that they could have proven up that unlawfulness because of the fact that florida law uses constructive possession as a term of art and because we don't have any information know based on this record whether mr gill actually had constructive possession of the firearm and indeed at sentencing the government chose to offer no evidence or argument about this guns on lawfulness under any theory and told the going to leave it up to the discretion of the court now the government is trying to have a second bite at the apple but having left this issue up to the district court below it should not be rewarded with that opportunity as in washington t whether the district court erred and the district court did not air in holding that an enhancement for eight firearms involved in the offense was appropriate that ruling was correct as a matter of law and it was supported by the requirement that so long as the district court's ruling is correct as a matter of law and it's supported by the evidence there's no requirement that the district court or the united states state the particular statute or legal principle in the record that courts that ultimately correct conclusion in fact even if the district court had explicitly erroneous lee reasoned its way to the correct conclusion so long as that conclusion was evidence in the record that he actually can resist it under florida law and we're talking here about whether it was unlawful under florida law as opposed to unlawful and with so there are multiple why this court should either not reach that issue or reject it the first is that this issue was raised for the first time in this entire case of the twenty a j letter it's not just new authority supporting a previously raised issue but it's an entirely new issue as to the notion that this is new because now we're talking about florida law defendant has t explained nor have we found in our research any meaningful difference in the constructive possession standard between florida and federal law if there were actually an issue with the evidence as to mr gale's possession of the firearm they had every incentive to raise that from the very beginning but they didn't and even and there and mitchell brief they state i believe this is that page seven that only seven i quote mr gill's eight firearms had an interstate nexus there are multiple unobjective two facts in the p s r for example if you look to it is there firearm that he didn't object to but there is a lot your honor that taken together think makes pretty clear that he wasn't disputing possession of any of the firearms including that one well exactly the hanssen is warranted because there were eight firearms involved in the offense doesn't say possessed but i think it's pretty i thought he objected to it but only on the basis that the eight firearm lacked an interstate subsequently raises any objection to that interpretation i would also point you to paragraphs twenty nine and thirty four where it says that mr gill possessed the firearms again doesn't explicitly say including the eight firearm but there's no objection to those limited to right and i would also point you to paragraph sixteen which says that this eight firearm was in the same safe as six of the other firearms that mr gill doesn't dispute possess in so their whole notion that that he didn't possess this particular one because it's in a safe well if that's true then they should be dissed butin the other six as well but they don't and if you look at that the sentencing transcript as well where he repeats his objection he says that an enhancement is appropriate for seven firearms possessed with an interstate nexus but again his only objection to the eight firearm is that it lacked an interstate so because he and conceded or at the very least didn't raise this issue below and it's kind of illogical and in the fashion in which they're trying to say that the court should it's their burden to show on plain error that the district court's factual finding any possess that eight firearm was erroneous i don't think they can even show clear air there they basically make this case that now on appeal that the father also had access to the safe and so there's an inference that i have been the father's but on even clear error if you need to show more than an inference that could have gone the other way and there's there are other facts in the record that support the inference that that firearm was mr gill such that the drugs that he admitted possessing were also in that safe for example so i don't think that defendant can get there on this new possession issue as to their original contention and there at least in their reply brief where they say we didn't prove by a preponderance of the evidence that the enhancement was appropriate for the eighth firearm and once you put the insufficiency of the evidence on  possession issue aside all of the evidence that we needed to prove to support the enhancement or florida laws and the record and that's that gil was a felon that he possessed all eight firearms and that he was and florida once you have those facts in the record it's correct as a matter of law that he possessed those firearms unlawfully and the enhancement applies they cite canty and washington for the notion that we didn't meet her burden but those cases are now applicable both of those cases involved the failure of united states to introduce sufficient evidence neither of them had anything to do with united states or the district we would submit that this is not these these points about florida law this is not raising a new issue this is just another point in support of our claim that the government failed to meet their burden of proof to prove that this gun was included under the enhancement indeed we we wouldn't have had occasion to raise this point about florida law because the government never cited a florida law in the proceedings below so to say that this is too narrow mr gill's claim the way that they are trying to do is essentially shifting the burden of proof to mr gill to refute every possible theory of unlawfulness they could have proven  had so presumably assuming that the government was adopting not theory and assuming that the district court was adopting that theory the finding could have just been that it was enough that he was a prohibited person under nine twenty two g believe here where the government made no no effort whatsoever to prove of the enhancement that the appropriate remedy would be the same as the one in campbell where this case should be removed the man did with instructions to impose a lesser enhancement and not give the government another reason why they hadn't or not a good go out but once once he brought that objection to their attention the government stated they were completely aware of camels holding unlawfulness of the gun in the district court proceedings because interstate well in additional court proceedings as in campbell the only statute that was before the parties was nine twenty two g and so that was why the government or at least one one reason why the government hadn't proven up the unlawfulness of the gun it wasn't until these proceedings that they attempted to cite to florida law for the first time and so at that point  in support of his claim that they hadn't proven up the enhancement he provided additional information just to show that it wasn't so clear as they were making it out to be that this court could affirm based on the  record i would say i would just add a couple points the government says that the situation is not analogous to the to the situation in washington but we would say submit that it is in that case the government also failed to meet their burden or prove even though the defendant conceded in washington that there likely were enough victims to prove the enhancement but the defendant stated that the government still required to prove it  up and the government in that case argued that not only did he can see that but it proven up that number of victims in his co defendants cases but despite all of that this court despite the fact that the enhancement likely did apply this court still declined to affirm and and remained with instructions to impose a lesser unhandsome and we'd say materially this case is similar to that in that the government had an opportunity to prove up in the awfulness of the gun chose to do nothing and this facts it is just russian area and we agreed that this court has the discretion to fashion the kind of remained that they think is appropriate but we feel that based on the facts of this case based on the fact that the government made no effort to prove up this enhanced meant despite claiming that they were completely aware of the issue it would be inappropriate here and it would send a message that we don't expect be the kind of