two k two point one b six be applied to mr norris the originally alleged other felony of the attempt to tamper with evidence is to  attenuated from his crime of conviction which was specifically transferring the firearm to as brother in december of two thousand and eleven to be a felony that the gun is possessed in connection with minion and control that you actually had in order for mr norris to use that firearm he needed to have actual power and ability to exercise dominion and control over that different than possession either actual possession or construction possession i mean doesn't use mean something different or is it just redundant it's almost redundant but not quite ok then that then there is a distinction between constructive possession actual possession and use and what is the distinction the distinction your honor for instance in bercy where you have the defendant who has marijuana and a pipe in one pocket and a gun in the other pocket he possesses the gun it emboldens him to use the drugs in public but he's not just stick elating with the gun he's not pointing it at anybody he's not firing it he's not even displaying it it's just the mere possession of the gun and bold and sam looking to constructive possession you have the chain of cases where in the same room as the defendant or in the defendant's sole room in the house you find a gun you find drugs you find scales you find packaging paraphernalia where as with use you more have the pointing the gun during a robbery having it stuck in your pants shooting somebody pistol whipping somebody that sort of traditional idea of use although from our actual possession no i don't and i'd like you to give me an example of where you mean something different than  your honor i think most of the use cases we are going to see relate directly to either actual or constructive possession that you need to have in order to use it you need to have it either actually or it's in the other room or it's in the same room or it's in your car we see that in the chain of cases the smith and bailey cases out of the supreme court followed by congress's amendment nine twenty four c to make it clearer that if you use or possess a gun in connection  other than possession either actual or constructive it needs to have some sort of impact on the crime of commission that for instance in a nine twenty four c context you can have the gun for home protection but if you're also selling drugs out of the home then you have that gun in possession knew using it but you have possession i think that the two were to come up with an example which parent we haven't been able to come up with a year where you don't have actual or constructive possession but you still used how can you do that i don't think they must have meant something so what they mean i think they just wanted to be clear to cover all smith has drugs jones has a gun and poker has money and they do with three way swap ok and and people end up with what they didn't have but the gun the gun is used the gun is used in the transaction and you get the person who you know two people who have started out money and drugs and end up broke one who have money his drugs and the one who had drugs has money neither one of them ever possessed the gun but they grew used to drug the gun and got benefit from all right i suppose you can get can you ask somebody to come along on a drug deal and bring a gun with them you  don't possess it you don't constructible you don't actually possess it you don't construct what you possess and you're only control what that other guy does but he agrees to bring it along and that's used to enable a transaction so maybe that's it i think in that case your honor and the example judge poster gave you have a conspiracy you have an express agreement to engage in conduct that involves the gun and so it's similar to fritz although at some point the defendant fritz did have actual possession of the gun where you have sort of a gun playing hot potato bouncing around between individuals who are all involved in the joint conspiracy i guess the point here ms davis is your position is that while we may not know what use is it we can't think of a good example that whatever it it is it doesn't exist here under these facts he didn't use correct your honor so do we need to go bit past that i don't believe so you're on in the house you want to say no your honor thank you brennaman for the united states the district court applied for level enhancement here based on its finding its undisputed factual finding the defendant instructed another person to dispose of a firearm how does he have a you it says you right i don't know isn't it best north attempted to use the gun at best and in a request the mother to do something with it but how how did north or for them or anyone use the gun in this case there i agree with you that there is no actual use active employment the war against actual or constructive possession at the moment he calls and i think this is a very this is a very close case in that sense but if you say means anything obviously there will be cases in which a defendant uses a firearm without also possessing it will be very rare and that's part of the reason we have no controlling case law or even directly relevant cases from other circuits but if that language is to mean anything there has to be such a case and i think that's where  appropriate remedy is to remain and or that we've suggested in our brief there's an alternate basis on which the enhancement could possibly be applied course the defense has pointed out that that wasn't litigated at length so if this court finds that this does not satisfy whatever definition of use applies in this enhancement and i agree i can't provide you a useful definition there for use because it's so hard to imagine cases that fit here but if we look at the discussion that the district court provided that's where he thought it most closely fit it would be easier to say defendant used a foam to control the gun obviously the language of the nansen says defendant has to use  in connection with his other felony offense whether making this telephone call and telling whether he has authority to control it or not but telling someone else to get rid of a gun and getting the reply that yes he'd bring back to him at least from defendant's perspective he thought he had that control it's not true constructive possession because he didn't have actual dominion and control over it and i think that's the the situation under which the district court believe that this fit under use i agree with this court it's a very close case you think perhaps the term use is much narrower than we're even talking about the use of my possession is one thing i possess a fire i use  language of active employment from bailey but let me suggest another twist for you here but this is i'm just speaking as an individual member of the panel we can issue an opinion and you might lose and the government and us is in general may not like what we say about us so another alternative is i know you show up here you feel obligated in your district to support the district judges decisions when they rule in your favor i get that but there's nothing where you can't concede to avoid a worse result so why don't you tell us within three days whether you're willing to have this remanded back without application that penalty and then you get no decision here i will certainly can i don't know what my panelists will agree to do but that's one way to make this go away this guy gets what he wants and you don't get a decision you don't like potentially i will be happy to consult with my office and file a response of the court within three days thank you and  court were to reach the merits and find whether because of the absence of a good definition for use or because of the strange facts of this case that the enhancement is inappropriate at every man for resentencing the court good remove the four level enhancement i don't believe so your honors aside from reiterating that the government has not proven the mental health aspect of the case and i think that's sufficiently addressed in my reply brief but i did miss it i just wan attempted evidence tampering in bashing the pro percent correct your honor if we just want to start from the right place and go from there without the four levels got it all right very good case will be submitted that complete