six b for possessing a firearm in connection with another felony offense reviewing the briefs i think it really this case really now comes down to the resolution of two questions one of them is whether or not a violation of iowa co section seven twenty four point four which is the i was statute on carrying weapons constitutes another felony offense and secondly whether or not error in this case is harmless error based on some statements made by the district court at the time that sent us mr walker star position that a violation of section seven twenty four point four is another felony offense both sides i think to get to the point we're at both sides have made some concessions i think the government in this brief  now conceding that only a violation of i will code section seven twenty four point four would justify the enhancement that's the only i will offense that they can conceive of that would result in the enhancement the defense on the other hand is conceding that while i believe a violation of seven twenty four point four is characterized under iowa laws and is an aggravated misdemeanor it is in fact a felony because it carries a maximum penalty of more than a year we really didn't have the opportunity to test  this particular statute at the district court level too much that wasn't mentioned by the government at the district court level when we were arguing about whether there was some i was fenced that constituted another felony offense or the government threw out a number of possibilities specifically they mentioned i will code section seven twenty four point twenty five which isn't even an offense but they did mention carrying weapons at one point and it really the argument made by the defendant at that time is the same as the argument made by the defense here which is that under the application note fourteen see that that's the underlying firearms offense and cannot be used as an enhancement in this case cannot be the basis for the four level enhan we didn't get any real guidance from the district court after we were making the arguments and as i say the government suggested various alternatives that might be other for other of felony offenses i think after some sentence came down i specifically asked the district court what what felony offense you're relying upon in discord said i'll file a written order thank you yes and that never came so we don't know we don't know but i think at this point at least for the purposes of this argument the government is proposing seven twenty four point four and as i did as i say they did mention carrying weapons at the sentencing hearing without identifying a code section so for the sake of this argument a lot of talk about seven twenty four point fo exclusion and this court really use something of an elements matching test and doing that the question in the jackson case i think is the defendant doomed to commit this state offense by committing eighteen us a violation of eighteen u s c nine twenty two g which is the offense that mr walker is charged with here and what the court did in the jackson case was to compare the circumstance of that case with the circumstances of united states versus link question which this court decided in two thousand and five and i think that's instructive here i think really that the comparison that they did that and that is that you did in the jackson case i would be applicable in this case as well in the jackson case the missouri statute upon which to court relight is another felony offense was the missouri statute prohibiting the unlawful use of weapons now there are some elements of that offense that the defendant knowingly exhibits the weapon in presence of want to more persons by contrast the i was statute that was relied upon in the link was case with ownership of a handgun without a valid annual permit now what the court found in jackson was that the fourteen exclusion applied under the circumstances of link quest but did not apply under the circumstances of jackson because under jackson the state's having trouble relating what your time to what i thought the case where where were we going with this dissertation well we're going is it that carrying weapons under seven twenty two four point four the i will code is is the underlying felony offense and so it should be excluded under no fourteen  and link with i think it militates toward a decision in this case that that this was the same offense in this case as well there are alternative ways of committing violation of seven twenty four point four in the iowa code that involve possession of a firearm one can go armed within city limits with a pistol revolver or any loaded firearm one can carry a transport a pistol or revolver in a vehicle now admittedly the government come back comes back and makes the argument is that there are scenarios under which a person can commit a violation of nine twenty two g without also violating i will code section seven twenty four point four for example mr walker could have possessed a gun in his house and he wouldn't necessarily be guilty of a violation of seven twenty four of one twenty two g or he could constructively possess the gun and that's not a violation or that's a violation of one twenty two g but not seven twenty four point four but that's where i think i compare the comparison between link west and jackson is most appropriate because link west isn't really all that restrictive because in link west there were circumstances under which mr link was could have violated nine twenty two g and not violate the statute regarding possession possession of a handgun without a permit for example mr link was could have had a permit and he would not be guilty of the i was under the i was statute but he'd still be they characterize it as to whether or not is a modified character of course one hundred one or what are you but i think of the latter i think is what would apply under these cases if we read jackson government the government says this you know there's enough there's enough non there is a there is a line and i think this kid this case is on the same line with with link question not on the same line with jackson because of the sensually there are some distinguishing points it is possible it is possible to commit a violation of nine twenty four nine twenty two g without violating the state statute under the specific facts of this case if mr and miss walker committed the offense it would because it was all about if there's no evidence he aimed at the house well that's a different that's a different yes yes that's right that's why it's not what used to be terror wasn't there i mean the shooting that went on here goes far beyond the nine twenty two g we're looking at the elements so you're either not not at the y m c a i don't understand what your analysis is well the analysis is i think it i you know i hate to use the modified categorical approach because they didn't say that in jackson but it seems jury instructions are what we have but if they're anything if there's any anything setting forth the facts that are disclosed in the briefs in this case we are we we are close to a match with a bare nine twenty two  we're looking at well i think it's almost it's almost a complete match that's our position it's is it's as a complete match in this case is a few did shoot even in the air and that that's not an element of the i was statute deila statute just precludes defender from carrying weapons you know a firearm a pistol or a loaded handgun it doesn't say anything about discharging the weapons i'm matching the elements there's a state this the state conviction there were some  i mean factually factually there was a there was a discharge of the weapon allegedly when the when the offense was first first reported factually there was but that's not required under the state statute and it's certainly not required under nine twenty two g so the question is whether or not the defendant can be guilty of the state charge with also without also being guilty of one twenty two g and it is admittedly possible there are some there are ways to violate seven twenty four for that you wouldn't  or vice versa i guess there's ways you can violate ninety one twenty two g without also violating seven twenty two four but that was the same certain same set of circumstances and link with and that's my point link which is not that narrowly drawn but i don't think you look at the specific facts of the case you look at the two offenses you look at the possible state offense you look at nine twenty two g and make the determination as to whether it's the same offense and as to the same degree that the i wa statute in the link was case with the same offense with one twenty two g i think we can argue here that the i would statute seven twenty four four is also the same offense for the purpose of this case that's our position i don't know if i can make it any more clear but that's that's what we are arguing i mean obviously there are there are some distinguishing elements obviously as i say there is a requirement that the defendant carry weapons and carry them in a vehicle there court found that the note fourteen c exclusion applied and so i'm asking that it apply in this case the second aspect of this issue is whether or not mr walker was prejudiced because the district court made the statement at the conclusion of the trial that even if the four level has been did not apply the district court would it would adopt the same sentence and i think the senate actually the two decisions relied upon by the government really who settle this and i think they support the defendant based on any alternative guidelines calculation but instead intended to cover any and all potential guidelines calculation error the sentencing court affectively has ignored the requirement of hacked to first determine the appropriate guideline sentencing range for the alternative sentence and that's exactly what the district court did in this case district court made a blanket statement that number one it talked about thirty five fifty three a factors after it calculated what the guidelines were with the four level enhancement then of adopted a sentence that with three months or over the bottom end of the guideline range for under that particular set of set of circumstances then it makes a statement that the court believes that the guidelines structure is a sufficient to address the thirty five fifty three factors that cetera and then it's then to make finally makes a statement that even if the four level one has been didn't apply i'd still i'd still oppose a same sentence or boces you can't just do that if the gift a district but i've written a harmless fair question mr ford has made clear that it would have imposed the same set all in but the district court simply says i'm going to impose the same sentence without doing any analysis and what the district court would have done if the four level one has been done the ply would be to it they basically adopt eleven eleven months of upward departure and there's no analysis supporting that in this case women are not in departure  what would have been a departure out of the game would have been a departure would have been a variance but it would have been eleven months talks about the thirty five fifty three a factors that variance we talked about the thirty five fifty three had only a factors then he then impose a sentence three months over the bottom of the guidelines then he says the guidelines system is sufficient to address all the facts or circumstances in this case and then throws out those at the very end even if even if one for this for level one has been i would have given the same sentence as our position that that's not sufficient under bar so for these reasons i'd ask unless the court has other questions i've asked a court to reverse his conviction remand this case to the district court three sentencing under this division and for a new trial under division  trying to figure out what should be done in this case why do you charge these things if you can't prove he's enhanced well your honor the p r i suppose the probation people to the probation officer recommended  recommend and judge just to be clear the probation officer suggested multiple iowa convictions that could potentially qualify including the conviction that the government's relying on an appeal considering what's in the record regarding those those convictions that we were to the if we were to do a shepherd analysis of those convictions what do we have to look at well and i should be clear that he the defendant wasn't convicted of concealing weapons under iowa law of course he he so there is no charging document offense you're in line judge there is no prior offense because the enhancement applies if the defendant committed the firearms offense he's charged with a federal crime i so i see you would think so there's not going to be a charging document there is not going to be a  instructions that if i could i'd like to start with a harmless error argument because i actually think that's the simplest way to dispose of mr walker's appeal on i'm happy to of course talk about the substance of the enhancement but on harmless error it what the district court did here was a textbook example of making a record of for harmless error he first identified the contested sentencing issue at stake and there was only one contested issue at sentencing and that was this four level unhandsome and after identifying that issue the court said that even if he was wrong about the enhancement and it didn't apply the court said that he would certainly have sent the senate to the same sentence he said it was not just driven by the guidelines but was based on thirty five fifty three a factors and then he went on to discuss those thirty five fifty three factors in detail and explained why they supported the sentence even without the enhancement the first factor he relied on with the aggravated nature of this offense he said this was not an ordinary felon in possession case he said it was an aggravated crime it was associated with violence specifically a drive by shooting within the city of des moines he said that that violence was in retaliation for other violence and what the court was referring to there was that the victim or the person who lived in the house where the drive by shooting occurred was a state's witness in a murder case all that evidence was was in the record he also points of the defendant's history and characteristics he noted that the defendant had a two thousand and four conviction for armed robbery at gunpoint the defendant's work release had been revoked after he was released on that conviction and after he was eventually released from custody the court noted that four months after getting out of custody he's doing a drive by shooting of the state's witness in a murder case in the morning in addition to that the court said that there was need for deterrence in this case and the need to protect the public and i think all of those thirty five fifty three a factor that either by themselves but certainly in combination are an adequate explanation of why th sentence imposed was justified even without this particular enhancement and i would support point this court to its decision and you it states against sales where i think the court outlined just what the district court did here the court said in sales we found a harmless sentencing error when a court specifically identifies the contested issue and potentially erroneous ruling sets forth an alternative holding supported by the law and the record in the case and adequately explains its alternative holding that is precisely what the district court did here so if nothing else any error was harmless and the court made a detailed record with compelling discussion of the thirty five fifty three factors to support that conclusion so i think this court can decide the case on harmless error and doesn't have to wait in to the issue about the enhanced my but i'm i'm happy to do so now so if if i understand the government's position leaving harmless errors we have the offense to conduct facts primarily paragraph nine of the p s r to which i don't see that the probation officer does not indicate there was an object and one would intuitively think there has to be one somewhere one would you know so in your view your view if if if you could if you could charge those facts and then say this violates seven twenty four point four of the i was statute for the offense we're relying on is carrying weapons and the bottom line is carrying weapons under iowa law is different than being a felon in possession under federal law there are two different offenses the elements are different so for example and this is something the court stressed in both jackson and in english which are cases both parties cited the question in those cases was whether possession of a firearm or use of a firearm is an element of the state offense and it is not necessarily an element of the iowa offense of carrying weapons that offense can be committed with any sort of dangerous weapon at least in certain circumstances and that could include a switchblade or a taser or other types of weapon so the possession of a firearm is not necessarily an element of that offense and it's not true that anybody who violates the aisle code for carrying weapons officer violate eighteen u s c section one twenty two d as i said if you possess another type dangerous weapon you can violate the statute i think i think counsel was wrong in his interpretation of lindquist lindquist the state stat essentially carrying a firearm without a permit but in not under iowa law anyone who violated the federal statute must have violated the i was statute because under iowa law convicted felons couldn't have perm so there really was no daylight between the iowa code in this case and the federal code it's also true that you can violate the federal statute without violating the state statute in our case so for example a person who possesses a gun in a home but is a convicted felon is obviously guilty of being a felon in possession he would not be guilty of any offense under the iowa code the i will code requires the defendant to bring that firearm out into public to bring it in some this wasn't something they were picking out of thin air on appeal your honor it is it is true however the district court did not make a specific finding about what the felony was there's no to no question about that so it's up to us to find well this court can medieval theologians which is a part of the poor figure of speech but i had to get it off my chest i understand your honor and i also think that if nothing else this court can rely on the district court's findings that the thirty five fifty three factor support this sends regardless about handsome men and fine that any error if there was one was harmless happy to answer any additional questions but if there are none we were asked core i'll rest on my brief for the issue raised in the first part of i asked the question of the district court after the judge was after the sentence was pronounced basically because mr burns was persuaded that there wasn't another felony that would qualify for the four level and handsome and he was confident to tell us the answer i think at that asking at that point and getting surance from the district court that the district court's going to file a written order clarifying that i think that was me asking the court to file a written response and that we never got that and i would then today i'm confident that there is no felon qualify for the enhancemen straightforward and brief cases submitted we will take it under consideration