morning me please the court morning my name is justin boost as i represent the appellant charles bolden i would like to reserve about two minutes for rebuttal this appeal was brought entirely dispell as the sentence that mr baldwin received the appeal raises two sets of  arguments challenges both the determination of the sentencing guidelines range and it challenges the substantive reasonable this of the sentence for purposes of today's argument i didn't in the focus my time on arguing the calculation of the guidelines range so st i will address the criminal history category the district court erred by concluding that mr bolton's prior conviction for california carjacking cost you a crime of violence and the district court made that decision by relying on the modified categor on appeal the government no longer contends that the bonafide carrot categorical approach the appropriate for this conviction instead the government relies entirely on the categorical approach that is categorically a crime of violence so this court previously determined in the ruiz decision that california carjacking is not categorically a crime of violence so really the threshold question for this court is is this larry or resists clearly irreconcilable with the supreme court's recent decision and and it's not and here is why the still cling court made it very clear that not all contact is sufficient force for purposes of the crime of violence to termination it made it clear that the mere snatching of property does not meet that force threshold now i would submit to the court that in california a carjacking can be accomplished by the same amount of force involved in mere snatching and i have to to examples to explain that argument to the court st i think the best case we cited for that proposition that demonstrates this is the people of the locust case which was the court of appeals of california case in that case the sheriff's deputy had a foot chase with the defendant the deputy was about five to ten feet behind th thin gotten the deputy's patrol car the deputy came up with the car and lifted up the handle it looked inside at that point the car drove off there is no application of force at all to the officer in this case and yet the california court of appeals found that that level of force was sufficient to to maintain the crime of violence let's say we disagreed with you on the effect of the supreme court case and we were going to concentrate instead on your argument that this crime can be accomplished with physical force against the property of another which in your view would disqualify it from being a crime of violence do you have real world examples of people who are prosecuted in california for carjacking based on a threat of force against the property of another yes your honor i have one specific example and i refer back to the lopez case that i just described in that case when the court was analyzing the sufficiency of the evidence the court noted that the jury could have concluded that the officer had a reasonable fear for the fate of his vehicle and that's if there was in addition property of another that is correct it did not involve just force against the property of another but when you read the court's reasoning in that decision it also specifically noted that the fear of the fate of the price of the vehicle alone would have been sufficient to maintain the conviction absolutely and then i also cited numerous examples of case law were a trial courts have instructed the jury that way and were appellate courts have found sufficient evidence based on using that jury instruction and so the same reasoning that applied in the being sitting court case where the court found robert robbery was overbroad i think would equally apply in the context of california carjacking and i guess the last point i should make on that is in the robbery context in the list scal it decision the court did note that mere snatching of property was sufficient for robbery and because california courts treat robbery and carjacking identically and indeed the court of appeals has in fact said that in carjacking cases you look for the force involved robbery cases that the amount of force is the same for both types of  offenses and and as categorically overbroad now i will move on to the argument that it was inappropriate to impose the two level announcement for the fire now there are two potential firearms at issue in this case there's the firearm that was found in the storage unit and there's also the firearm that was sold to the c h s now at the district court level the government relied entirely on the firearm that was found in the storage locker and in fact the district court adopted that argument when i was reviewing the excerpts of records prepare today's argument i noticed that on page sixty nine of the excerpts of record the district judge did note that it was the fire of the storage unit firearm that he relied upon for that and i point that out to the court because i don't believe it was contained in the briefing that was sixty his he admitted it was his storage unit he did not admit that it was the normal i'm looking at page seven of the pre sentence report we are one hundred and seventy one and it's as in paragraph twenty five on january th two thousand and seventeen agencies to firearm in various quantities of controlled substances from the defendant's storage unit and the defendant counsel and the defendant admitted at sentencing they challenge none of the facts in this and in the plea agreement it's as where the defendant also agreed to the facts on january th agents executed search warrants on baldwin's residence and storage unit so in the p s r that it's his storage unit and the defendant agreed to the facts why why isn't that the end of the argument again because at least one other person had access to the storage unit the government never presented evidence that angele baker was a fictitious disha person that she did not have access to it she didn't have any involvement with it and so when you introduce the fact that possibly two people had access to this fire it's insufficient for constructive possession but the guns were found in a bag of drugs and there's no focus on constructive possession was a gun near the bag wasn't inside the bag what the drugs it was in a backpack and the drugs were also in the backpack act so i mean i don't understand factually was i if it's the defendant's storage unit the fact and the defendant paid to extend the lease the fact that some person who or may or may not have been fictitious his name was on the lease why that prevents a factual finding that your client possessed a gun well there are other belonged to one defendant a different defendant or both and here i submit because angela baker had the storage unit the person had access to the firearm in addition to mr bolton and we'll give you another minute in addition to her time i think you playing for the united states i'll start with questions regarding the threats to property there are actually no real world examples of cases in california that demonstrate a defendant being charged and convicted for committing a carjacking with merely threats to property the one case that mr bolton's counsel cited was a lopez case but there are a couple of issues with that case the st is in the language of that decision the lopez court talks about the california legislature specifically enacting the carjacking statute as a crime against the person so if you look at that language in conjunction with what was said about the possible fear that this deputy experienced could have been going on my question you know my my biggest problem with your argument here is i mean i'm looking at the jury instruction you know i have it in front of me and there's no doubt that juries are apparently routinely perhaps in every case instructed in california that fear specifically means immediate injury to someone else present during the incident or to that person's property so if if juries are routinely instructed that way why isn't that in in this kind of a circumstance here the end of the matter i think there are two reasons why your honor the  is the jury instructions that were submitted are referenced in the reply brief we're not controlling jury instructions and mr baldwin's case in two thousand and five california completed a complete overhaul of their jury instructions and so they used to use what was called the callon jake and now six for carjacking there was no equivalent instruction regarding fear that was not added until the mid two thousand when california switched over and overhauled completely its jury instruction for an instruction that i just read from your view is that you think the evidence is that that was not the instruction that was given at the time of the defendant's conviction i believe so because it simply did not exist and if you go back and look at the  version of calc dick one point four six carjacking back in contemporaneous with mr baldwin's conviction was actually the st instruction for carjacking because the statute was brand new back then but it did not contain that fear definition that goes along with the current carjacking instruction is the current carjacking instruction relate to the exact same statute yes so the statute has changed the statute has not changed and then the current instruction tells the juries with regard to the same statute that if your property is enough if you're of injured a property is enough the model said she contains it that portion of it is optional there are occasions of cases where they don't instruct  to property but i do have a nd point to your question about why the jury instruction itself does not show that this is how california prosecute cases and if you think about when this court considered nevada's definition for a deadly weapon nevada defined it three different ways two of them are very analogous to the common law and one was cross references to a lot of other different nevada statutes and one of the ways nevada through that cross reference defines deadly weapon is if you use any device that could be used to mark a person with paint or another device or another substance and so it read literally that could be something like a can of spray paint that you spray someone with or a sharpie or something like that that nevada literally technically speaking could be swept into a deadly weapon but as a practical matter as a realistic probability this court held that no nevada case had ever  gone and applied that technical definition it was more about something that was in fact a deadly weapon or something that was used as a deadly weapon and so we would analogize to that in this carjacking scenario because although the carjacking statute is very closely related to the robbery statute from which it derived and that's where that beer definition comes from it's an optional part of the instructions to read to the jury but if you look at how california charges and prosecutes carjacking there is no such realistic case or somebody was actually prosecuted for saying i have the keys to your ferrari and i'm going to bring it up right now if you don't give me your car so i think well it could be a theoretical possibility under that language similar to how this court said look just because nevada might consider a can of spray paint somehow a deadly weapon that's not how it's prosecuted in fact and so the court said that it wasn't going to basically make up something that wasn't really the way that a state  going to the question the judge your sole ass you agreed that if that under those facts someone likely could be prosecuted under this statute give me your ferrari or i'm going to destroy that threat fits within the language of the statute i don't think it would be likely because we don't see a single california case where anyone has ever been prosecuted for a thought to property like that and so going back to doing this auburn as it's not a theoretical possibility it's a realistic  don't have that realistic probability here because we don't have a single case and we would argue that that does not meet the standard under duenas alvarez a briefly address the firearm in the storage unit the other firearm that was in that part of the undercover drug sale was not disputed by mr baldwin at sentencing so there was no reason for the government to prove anything up with regard to that and so the government spent its efforts at sentencing to prove up the story as you know firearm and i think that's why you see the district courts comments at page sixty nine of the record saying that was the fire we heard about today that was the only one that was really disputed at sentencing the court make specific finding anywhere at sentencing th r references both firearms and the court adopted that finding so i think you have it in a couple of different places well i'm looking at paragraph twenty five does paragraph twenty five the firearm in the storage unit i see that it says he possessed it during the drug transaction but i don't see that it specifically says that the defendant  in the storage unit as opposed to saying that it's his that's cracked because the enhancement in the guidelines is not that he possessed it it just has to be in connection with the drug often so and so in connection with could be in this case he constructively possessed it inside of a storage unit th contained only a single box inside the box there were two bags one of the duffel bags contain baden's drugs for which he pleaded guilty in count seven as well as this firearm so they were together in the same ba it is a a low burden for that particular enhancement and given that there were two separate firearms in this case either of which the car could have relied on and one of which mr baldwin did not even challenge we would submit that it meets  unless the court has any other questions on the carjacking issues or the enhancements we would submit on our brief thank you thank you thank you i will pick up where we left off talking about the firearms so in response to your earlier question about the factual basis on who had possession of the firearms i would point the court to page one forty five dollars of the excerpts of record which is the factual basis forty six dollars it states that the canine was deployed on the row of units including the one rented to angele baker right but it still says it's his storage unit correct your honor but if but if multiple people had access to the firearm when you're let me back up when you talking about constructive possession you're talking about dominion and control so he didn't have actual possession of the firearm so then the question did he have dominion and control over the firearm in the storage unit if another person had access to that storage unit it's possible that the firearm belonged to that other person and i believe that factual scenario is very similar the kelso or a gun was found in a car but two individuals were also in the car you might have actually said this do you agree with your colleague that the judge did make a specific finding that the gun in the storage unit was possessed by your client it was implied finding i believe so the judge certainly relied upon upon that conclusion which you're seeing there was insufficient basis for that finding other was an insufficient basis because we know as i hate to repeat myself that because when you have two people that have access to a gun one person doesn't have physical possession of the gu the question always arises will which person actually possessed the gun and we don't know if mr baldwin the gun we don't know when the gun was obtained we don't know if the gun was even in the storage unit at the time mr bald was observed entering the storage unit that was january rd i leave and the gun wasn't found until january th so it's entirely possible that the person who rented the storage unit may have gone in there and stored her own gun in there so i believe that this court's decisions and highsmith says our wrists and kelso are controlling