defendant maintained a drug premises for the purpose of manufacturing or distributing a controlled substance that unlawful conduct has to be the principal use of the premises in making a determination about principal use a district court should consider how often a defendant used the premises for distribution versus how often he used it for a lawful purpose the premise the issue here is mr winfield's apartment he lived there for almost a year and while he was there for that year period he your honor but it was significant it resulted in many additional months of imprisonment for him and the problem of course as we see it is that the district court didn't engage in the necessary analysis to balance the four occasions where he sold drugs in a year period versus the three hundred sixty five days included within what that four day period or four patients rather they did all the lawful things on balance the principle use of the apartment was for lawful contact and he wasn't using it as a place to store a lot of drugs that were not key low quality is involved here there was not a gun there wasn't a lot of money that was found there and this is where he lives yes does it have any other  that is not information that was considered it wasn't part of the district court's analysis but what the district court did do was latch on to the idea that there were for drug sales and therefore for drug sales from an apartment leads to a premises and hence me but that doesn't take into account the facts that do inform about the principal use of the apartment which is by and large lawful so there's a procedural problem in the district court's analysis paragraph twenty two of the p s r it's pacifically said that they couldn't consider that as proven since the substances weight was unknown as was its composition they didn't know what that was we're left here with gram quantity it's i think the largest incidental yes so you're saying this is incidentally was selling yes that deliberate but incidental relative to the by and large lawful conduct and that's the test so this is heroin and m and so ultimately it's the government's burden to establish the premises and hence the government offered the four occasions but it didn't offer anything else that's well there in addition to that district judge took note of the fact that he was living off of the proceeds from john sales which makes it reasonable to infer that these four are not the on the ones sure well she didn't make a determination about what the amount that he was living off he did have an injury settlement and he was working so he had other sources of income and the amount that was found there judge was two thousand eight hundred fifty dollars that would be suggestive of rather small time drug dealing and that's only if you can even consider that all that twenty eight fifty was drugged proceeds but he had other sources of income which were wall so i don't think the district court could reasonably speculate or reach a conclusion that would show again that this was something that takes this out of a primary use for lawful purpose and chose instead primary use that would support the drug premises and handsome in the sense that he got the fifty five month sentences right in the middle of the adjusted range without this enhanced that right right so the range would be lower and you do less time  so no harm no foul should she have said that we'd have a harmlessness issue but that wasn't what was said so it's a thing to speculate about but it isn't something to be demonstrated from the sentence in transcript so i think that my client is entitled to relief if the enhancement doesn't apply his range would be lower i don't think the government minutes burden i don't think the district court gauging the necessary now he flushed down the toilet i don't recall there being an amount flushed down the toilet your command of the facts might be better than mine on that judge of about seventeen piece stones who come up from chicago ran a big crack cocaine we did a wiretap we took down all these people he got a seventeen year sentence which was reduced ultimately with the crack in a little bit here and there he gets out of prison so why is paul winfield our cases is your question he's our case because when we have guys come out whom we've done before and as i said at sentencing you're set apparently didn't like a seventeen year sentence so now he's just a little petty federal prison he cannot we do all these guys when they do it again we do it you keep your own repeaters we do our own repeaters you know that you do your own i missed the word repeat to our own repeated receivers but he's not repeating on he's down to is his little apartment and selling some small quantities of heroin and that which is not such a big deal supervision and he got a twenty seven month i think twenty seven month sentence on the revocation and judge crabber and the two of them concurrently and she did she was very go this this is concurrent with one has already been imposed at the same i think to your question judge posner and it's really that the briefs go back and forth on this the guideline simply don't say that the premises and handsome and only applies to the multi kilo dealer or the you know the disagree your honor it doesn't say that it's right and if you use it to distribute and distribution can also be storage for distribution and basically we've also done which is why he was charged with using a place for distributing a base of twenty four added to for the the for using the premises ultimately he ended up after the three levels for acceptance at seventy to eighty seven months there was a one level reduction because he'd given us some information of their case  got a five cute little five k he ended up at sixty three to seventy eight and from that judge crabbe decided fifty five month sentence and the thirty five fifty three was appropriate now if you took away the two levels you wouldn't start at seventy eighty seven you might start more in the sixty three might even started sixty three to seventy eight a little higher than that you would start somewhere in the midst you know around seventy to there abouts so it's probably  fifty one to sixty three there we go that was going to the next fifty one to sixty three is where he might end up so the judge would be in a position getting the same sense to do it now and mr hill is exactly correct she didn't say that and i'm not making that argument but that is certainly what she could do so i just make two brief quick comments on the facts because i think which is in there i find it interesting mr hillis makes the argument that correctly that he lived there for a year and it looks like he only sold four times in this year i actually think a better the correct way to look at this is in the four in the in the two and a half months that we were involved in buying from him he was such he sold four times to us and judge crabb in implied  not having a lawful employment for the six months leading up to his arrest before that he did have some but he told told to the police and he told me it was in the p s r that by this time it was basically only  he in terms of that extra way the the way that was always seen the p s r comment that mr hillis refers to it is correct but what what they were getting at is we didn't add any of that into his relevant conduct we don't know if it was the same two ounces a month later that he had been so it seems unlikely but their point was we didn't have any test of it we didn't know if it was just sitting there you were going to keep adding up the same drugs is also what he was also  methamphetamine i was it that's more of a problem and are used to be more reform and rural wisconsin rather than in some discounts and so long in the short of it is i think with all due respect that even the guideline can apply even to a relatively small dealer who has chosen not to sell them the wal mart parking lot or the street corners or his car like they normally do he's setting up shop at home storing that stuff there and then however it sorted itself out for sentencing it it's still it's still started with  respectfully if we're to follow the government's logic then anytime there are drugs that are kept at a premises that's a basis for premises and handsome and so that can't be dispositive we have to look at the other factors the quantity is an important factor it doesn't ha because they know of course they're going to bump him up with a two level enhancement sort all comes out in the wash so yes apparently they think you do something the privacy of your own home but it's more an issues than if you do it out into the public eye streetlamps we really don't know how many how much drugs he had there becaus