granted thank you i propose to address two of the four issues on this appeal this morning the insufficiency of the evidence to support the gun and drug convictions and the erroneous admission of the evidence of mr benjamin's parole status i would like to begin with the sufficiency of the other hands on the drug convictions the benjamins ten year sentence for firing the gun at the shooting range was effectively doubled by the drug convictions which were based on the marijuana and crack cocaine gaming tables there were pool tables there was a foosball table there was laundry in the basement there were teenagers who came in and out of that basement on a regular basis when you're out there  a and then together and i think i think it is important to look at them separately and then together because i think if you break it down separately what you end up with is individually sort of  element beyond a reasonable doubt so it is it is still a standard that require substantial evidence and it requires evidence beyond speculation and surmise and it requires a decisive nexus between the defendant and the evidence and that's i think where the government's case crumbles here so starting with the supposedly ledger which actually was just a memo pad and i want to begin here before we actually discuss the ledger by correcting a misstatement in the reply brief page five footnote five i said that the district court sustained an objection to the eight ball testimony the district court sustained a number of objections to the testimony about the ledger but the eight ball testimony actually went on objected to so i want to make sure that that is clear however there were numerous objection sustained to the like your testimony and the reason was that the district court found much of that testimony to be speculative and here's why the ledger basically was a small note a memo pad and they had some slips of paper and what the memo had contained was all kinds of information all kinds notes including notes about cars notes about mr benjamin's cell phone job and it was undisputed that he were paired current and that he had a legitimate job selling cell phone service plan s and it contained phone numbers it contained names and contained all sorts of notations about with numbers and the the testimony about the fact that it was a drug ledger be or that what you want his reasons well i think that what we've requested is we have not challenged except with respect to the interstate commerce claim we have not the merger question which is one of the major issues i believe in this case and this court has not specifically spoken in the past in the current that's correct although i think that this court about twelve votes to which was the predecessor statute indicates what the right result should be on the merger issue and the sports case law regarding merger of convictions generally speaking only for myself that happens to be my view there is one hundred dollars special assessment there is a supervised release term and and they concurrent sentence but as this court said in the recent case lewis where the court was looking at  the violation of the statute while the defendant was on pretrial release a district court made also determined that if a conviction is a kid and they wish to give a different sentence because there are now three convictions instead of four convictions and this court should give the district court dollars session may be the only difference which would not require man did you say that why i think a remained is necessary because first that the district court will need to enter new judgments and secondly because the district court should have the opportunity to consider the appropriate sentence given that there would now only be three convictions instead of four convictions and the district court may in its discretion wish to enter a different sentence than the sentence that was originally imposed given that there are now only three convictions and not four it may not wish to do that but that should be a decision that's left in the sound discretion of the district court bottom line you would like the district were look at this if there were they remain and and all the convictions stood counsel could could make some equitable thirty five fifty three arguments that three convictions is less than four that it shows less kind of criminal intent to possess a gun by one continuous possession then two separate times and there are there are reasons the judge might want to create a different type of sentence than the one that was issued originally with for this defendant the district court judge  but our position would be on reset and saying that three convictions is less than four and that the judge should consider downwardly adjusting the sentence thank you with respect to the ledger i wanted to add one point which is that even the expert in addressing the ledger said that he would not rely on the ledger alone in forming his opinion he said he would also need to rely on other facts including the possession of the gun which is our p was soley possessed by mrs spree as evidenced by her ownership and her statement that she kept it on her at all times which the government stated in closing argument they found to be quote extremely honest by the presence of the dog for which there was testimony he was the family pet and then by the gloves which is and advertently to the defendant's parole status and so if even the expert has to invert the parole status in order to come to his opinion i think that demonstrates how weak the evidence is overall there's a cloud of suspicion in this case about mr benjamin certainly mechanic not to clean up the house but to package drugs interesting only i don't think there was ever a cautionary instruction there was not nor was there one  has indicated in its brief that the government assumes without a decision of this court so holding that the crime of possession of a firearm by convicted felon this is in fact that this court if it hasn't defendant's possession on this record was not interrupted then the remedy which we look to the panel opinion for by judge a garrett is for the court to  district court to re form the judgment that is to merge the counts making the decision which count to set aside and and which two would remain and  then there would not be two concurrent sentences or v a single sentence on the one twenty two g one so that's that's that's the remedy so do i assume that you can see that there is no only the error that's mine is if this court rejects our contention that the record establishes interruption and the interruption of the staff would in this way there's no evidence what gun ever left the house or that benjamin when he was away from the house directed control of it what does the evidence show and more appropriately what did  possessed it on the day of the firing range which if i recall the fourteenth right was the fourteenth which of the day after it was purchased and whether it was he possessed it on the day that he was arrested so arrested so why would that not have provided a record of circumstantial evidence from which an ongoing period of actual and constructive possession in it would support that had we charged to continuing a fancy which we frequently do in these circumstances for example if we had chosen to charge the case against both the defendants and charged her as a straw purchaser we would have charged him with possession from the date the dime the gun was acquired until it was seized we charged the case based on the evidence we had which left a gap from those to date so the government gets  benefit from the gap of the evidence the government gets the benefit given that we're on underplaying air if the government has the burden of proving and this is not an element the question is merger if the government has to prove constructive possession or at a time in which there was no to struck the possession why isn't it the constructive possession here in the principles that are centuries old the principles of law that are applicable for the plane or it would seem to me that the application that the existence of an application of construct principles are about as plain as they can they are and we prove his constructive possession on the day in question if the court finds that the record stablish is also his continuing constructive possession then we agree that the ram of the that the defendant seeks that is the merger of those offenses should be applied to does it does the record support the owner of the gun exhibited at the time it was purchased a desire to have some control over it for example the defendant tried to persuade to purchase another gun the defendant tried to persuade her to get a six shoulder holster which she refused to do which demonstrated that she was prepared to stand up to him there is no evidence that the defendant ever removed the gun from the evidence there is no affirmative evidence that the gun was out of his constructive possession for example that she gave it to somebody else and returned to her we do not have that light of this court's prior case law i think that's known to the government and understood that those offenses should merge at the time of sentencing it's unfortunate that wasn't discussed at the time of sentencing but that should be considered pla how do you respond of the government's argument which i guess goes something like this you know the jury wasn't wasn't charged following it through option no now the defense is arguing this you know when we do well i don't think the government can have it both ways i mean fifty area that the government presented at trial was a joint possession theory if the government wanted to argue that he possessed it on two discrete days discretely and that those should form two separate convictions that's the theory that they should have presented knowing that felon in possession is a continuing offense and that's the backdrop of the case law that's not the way they presented the case they presented a joint possession theory that was the way that it was argued by both the prosecutor and the defense at trial the defense argued that he didn't possess it at all ever and i think the record evidence supports that as we've argued in our brief intended to possess it soley herself the entire time either he had dominion and control over that gun the entire time or he didn't you know the idea that he was able to exert it in that one moment i gather that's their fury in that one  appeal they're saying he asked her to take it out of basement and that was his exertion of control in that one moment either he controlled it and had the ability to exercise dominion and control over it the entire time or he until the day that that the search was conducted and that's consistent with the case often the other circuits joint possession and merger the cases involving the gangs where the guns are shared between the gang members and the gun may be yet another gang members home but when you know when there are shared by the gang members even if one gang member is not present he still exercises dominion and control over that weapon that's those are the  the same situation i would also note that this court i don't think i've ever reform the judgement the circuit level it's always reminded for the district court to reform the judgement and i would point the court impacted by the fact that lewis was convicted of two counts rather than one and may now wish to impose a different term of imprisonment which we permit henri mans and we would ask for that same courtesy to the district court in this case  you thank you very much counsel will argue several interesting issues for us mr henson i almost slipped at one point when i fortunately made reference to the government's evidence i almost referred to the