and we'll move on to the next case with thanks to all counsel for the next case today is the united states against karen in a new under nelson appeals sixteen days four zero six six and sixteen days for one seven four  and it will be mr ruef first yes my name is rob ruth i represent the defendant appellant andrew nelson and i actually will be presenting the oral argument for both appellants and keep the issue your honor is does the dangerous weapon enhancement to the one point one b apply in this situation unloaded hunting rifles found near where drugs were stored and sold when there's no ammunition in the house there's no usual for a hundred years and i don't think it is i'm an avid hunter your honor and i don't always have ammunition you know it wasn't hunting season so if it's hunting season and your plan to go hunting tomorrow sure it would be unusual that it's a mission but but it's a fact there's no ammunition available and that takes away the dangerousness of a weapon when you don't have ammunition  for directions you're right you know in the sticks where they were they probably pretty much knew who their customers were coming and going i believe that they knew all of their customers i think it was by invitation only so it's only the guns th would be for someone they didn't know well you know what i think that what you're proposing is a theoretical or abstract possibility would scare away the bad guys if they were  it wasn't a situation where just people on the street showed up it was only by invitation but even with that two things two points i'd like to make about that first of all that was a finding that the district court made with respect to  ms rice not on the record at the hearing but it was included in her statement of reasons but it wasn't a finding at any point in the context of mr nelson it's kind of a strange situation i think that quite frankly it's a situation of the court sort of correcting itself it didn't say that i'm correcting myself but she did the sentences were two different hearings ms ice had her sentencing hearing and this issue was litigated sentence was basically driven by the reduction that occurred as the result of their substantial assistance and my if my my humble opinion about why she got more is that mr nelson had a four and this was my argument to the judge and i think you're exactly right mr nelson lost about one hundred fifty thousand dollars in property in the context of a forfeiture he was the rightful owner of that house it was passed down in his fat through his family it was one hundred fifty acres plus a house and that got split in half he lost half of that in my argument to the judge was you have to give him that's punishment and you have to adjust his sentence accordingly and i think he accepted  so he did get a less a lesser sentence but the district judge said look at the guns in that zeiss is not as i say sentencing but in hurst in the statement of reasons for zeiss he said the mere presence is an implicit threat you lose a neck but he corrected himself without saying i'm correcting myself but that wasn't something that he said in the context of mr nelson's sentencing but did you attack that finding you know soon sentencing hearing soon everybody was very familiar with the sims and were yeah right so i mean i was there and i know the government was there it didn't and i honestly never came up because it recall in that syces it didn't come up at syces sentencing either it threat and the judge didn't make that finding a nelson's case but let's just look at there's an implicit threat which you we have to do is first of all we have to look at the record was there ever anyone who said they were threatened who said they saw the guy who felt intimidated no there's nothing like that but the other thing you have to do is look at the application no it sets a benchmark for us ok the application outsize that the it is an example what is clearly improbable that it was connected with the drug that is unloaded hunting rifle in a closet that's our benchmark so anything that we have in the judge looked at that and he was he  was close call for him he said well this is this is really close to that but you weren't in a closet but it is that example is it meant as these are elements that you have to meet the person that he didn't think that i honestly think that he has big hang up was the closet the closet as opposed to being at the doorway to the drug room well actually behind the doorway yeah behind the door and you know quite frankly he said that's a terrible place to put the guns if you intend to defend the place he did say that out of the closet you just open the door and grab it and go shoot the person so it isn't like we have to show that it's impossible we're just talking about improbable in that the note said that's improbable that's our benchmark so now apply that to our case we have unloaded hunting rifles we have them and everyone agrees they're hunting rifles and they were unloaded they're not in the closet ok but there's no ammo in the house so a rifle without any mission available is not a dangerous weapon it's not a tool that can be used to defend a drug organization so that's the practical reality of this case there is no animal available they can't be used to defend a drug organization they were never used to defend a drug organization and all we have are these theoretical possibilities and the no tells us they all look at it there's a benchmark the benchmark is if it's as improbable as this that's improbable enough and quite frankly at this point i think that essentially what the district court if you accept the district court's finding when you're talking about where there's not even ammo available if you accept that finding you're saying if the guns are in close proximity there is no exception that's not just presumption it's definitive close proximity you loose and that's not the law you lose if the district judge who's convinced if he's against y yeah i i mean you're not see just to use unfair to i mean i don't know not i mean i just think that i think that it's actually entered of review here mysteries clear clear and so where the i think he's wrong on the law i think he's right on the facts and the law and his mistake in the law is he reads the note too literally he says unloaded hunting checked checked in  they were in a closet you lose that's too literal it's a benchmark it's ok how probable is it that an unloaded hunting rifle in a closet would be used to defend and drug runners drug organization that's what we have and then you look at the probability in our case and say is it more or less than that and he didn't do that he just did it as a checklist he said there unloaded their hunting but they're not in a closet you lose and that's where he's wrong in the law i reserve the rest of my time  good morning your honor smith please the court my name is dan gray where i was a usa that handled the case down below first of all with regards to counsel's argument as does the board pointed out it's a clear standard of review that court did not  commit any clear error in the findings that there was a nexus in this case between the firearm and the drug offense as a court pointed out it was in close proximity to a drug ruled out of the entire house the one place that three firearms were found three rifles was downstairs in the drug room the one room that was used exclusively to store large quantities of drugs to use drugs and sell the drugs this was a room that had the monitors up there was six or valence cameras on the outside and for life feeds on the inside to see what was going on with it one long gun with the sole which in the door jam as you were walking as if you were going to go outside and go up the stairs to go outside to service the customer where the cameras are pointing that was where the first long gun with the scope was on the outside of the wall outside of the wall as you come out the door the other two long guns so when judge peterson was making the finding of close proximity that's what he was talking about physical proximity as well as the fact that temporal proximity they were engaged in one thousand defendant drug conspiracy to distribute methamphetamine from weight would store their weight pick it up and then move on so this was sort of the drug hub of the organization at the time that they were using was it the true amuses a stash house and were it was a stash house it was it's on one hundred forty eight acre property in the middle of a northwards it's the perfect place to have if you're going to do an operation like this that's the place to have if you could write you know a dramatic wind that's what you'd want to use it is that many customers that knew scare argument in their brief we didn't argue harmless error because judge peterson didn't do say the magic words they usually you want to see what i just want to weigh why they're making a big deal about the gun connection because it does change something you know what they're trying to show some kind of prejudice if there was error that it's where is it true that there's something else that they would not be available because there's a going to involved they do get our debt they just don't get the year off your honor so they still get our dept training program and try to get better at the question is that just there's there's not the carrot that you get the one year off if you do it because of the gun this is a clear case well again we're not arguing harmless error and the reason for the downward departure is there was s involved that we we asked for and with regards to mr nelson he also was forfeiting a large portion of that one hundred forty eight acres we took that under a forfeiture were good so i just want to peterson correctly said well you've got unloaded hunting rifles that's for sure but they're not in the closet they're in next to where all the drugs are stored in the cache twenty thousand a week is coming out of that place in cash there's  that's the problem you can't meet the hypothetical they then they try to make these other arguments to him well andy nelson was an avid hunter and in the judge peterson correctly said well that doesn't mean that he can't also use the guns for tools of trade in the drug business he's got a lot of motivation to do that because he's got a lot of drugs and a lot of money in that place they said well he had no intent to ever hurt anybody judge correctly found it doesn't matter to me whether he wanted to hurt anybody or not that's not a requirement under to get three b one point per cut to do one point one you don't get that the government doesn't have to prove that you don't have to prove intent you just have to prove possession then they argued well he if you really are i was going to use those then he when the when the police came and raided the place he would have brought his guns up and had a shoot out with the police and the judge correctly said again that doesn't help that's not a fact that helps because it doesn't matter there's a lot of people a lot of drug dealers that because you use the tools of the trade the weapon to prove protect their stash but they're certainly not going to engage in a day and a drop in a shootout with the police so a lot of the facts that they were bringing up these alternative facts that they were saying well he's right on the facts but wrong on the law he was discounting all these facts sing those don't help those don't move you forward on your burden of proof or you have to meet it by clearly and probable standard given the nature of where the drugs were found the nature of the organization how large it was and what their roles were in it and that's why he didn't error in saying look there's more than enough evidence to show a nexus and you  honor from the government's argument you would never know that there was no ammunition in the house and that is the fact that changes everything i can see that we lose under the note and under the case law with respect to the question of what if it was a violent felony or a crime of violence we used to say that walk away from the jail failure report to jail was a violent felony and we said and we it was a lot of argument to get there but it was well maybe there would be a confrontation with the police when they arrested you after you walked away wow you know what at some point after the game and new cases that looked ridiculous and that's what we have here the government is saying find that the guns were connected to the offense when there's no way of well i've gone without ammo is not a weapon it has got i got to ask you're out hunting and angry landowner comes out with a gun you know whether it's loaded no absolutely not ok so why why doesn't that rationale extend to this school you say well to two reasons one is there's no evidence that anything like that ever happened and to you go back to the benchmark the benchmark of in the know is unloaded hunting rifle in a closet there are possible ways that that could lead to violence r of the definition of what a firearm is so toy guns don't count and i mean the bottom line is but these weren't tours so they weren't toys so he won't give us your bottom line and thank you well no and that's the bottom line and north leave north north says it all i mean if we had if that that case explains it all and if judge i do want to correct you on something from the last argument you said there's no money in horses that there's a lot of money