case and that bright line rule was wrong the court held that the section three c one point two enhancement apply because mr denning's quote from fled from police while carrying a loaded gun and the gun had recently been discharged and under the plain language of the guideline that's wrong because this court and other courts have held armed flight without more does not rise to the level of the gross deviation from the standard of care that the guidelines say is required and if this court were to adopt the district court's bright line rule it would effect of lee convert anything other than immediate submission to the police into the enhancement the defendant in these cases will always have a gun this court has held that i think the laws pretty clearly established that if you were to dispose of the gun that would apply the enhancement because of the risk that someone may find a gun to go make of the danger that way and the district court rule here says job of going into the history of this and handsome it in the one nine hundred ninety the commission decided to separate this out from obstruction of justice before then this conduct was covered under obstruction of justice but i think the courts all agreed that it wasn't really a good fit for that so we wanted something to pull out and deal with this conduct in particular and the commission could have simply said that not submitting to arrest is worth a one level bomb or a two level bomb or however many it didn't do that it said that this enhanced meant would apply if you cause reckless endangerment during flight and it specifically cross referenced the recklessness standard for manslaughter so i would submit this isn't even just recklessness that you learned in your one l criminal law class this is manslaughter recklessness this is a gross deviation from the standard of care and for the almost thirty years that that law is been on the books in which this they think the governments ate a lot of cases and we say cases when eating a gun at an office or any of that happened in multiple cases that happened in the eastern states that happened in the hill collapse brandish model which could just as easily go to the official victim oh wait out so we don't want to try to read this enhanced one out of the guidelines crossing it over with that but in this case it seems like to me you've got more than just somebody running with a gun because while the individual was running the testimony was that they had a hand and their pocket where the gun was and then when they were finally tackled they still kept their hand on the gun arm and resisting arrest so why isn't that enough in addition to flight to satisfy the guidelines and your honor risp respectfully those are two responses first those are fighting that the district court did not make any of this court does think that what happened at the moment that mr denning's fell down on the officer landed on top of him is relevant to the analysis at most  government could say you could remain that back in the district court for those fight but we do have is mr denning's five foot three inches tall one hundred twenty five pounds running falls down the officer lands on him when he dies does it make if he's five three or six three if he's got a gun and he's got his hand on my gun well your honor again the officer did not testify at the sentencing hearing this was all simply proffered by the government and i would actually say this may be a case of the dog that didn't bark in the sense of why didn't the officer testify the government had the power to bring that officer in chose not to and if you read the p s r carefully and if you read the sentencing transcript carefully we don't really know if his hand was on the gun the officer didn't know if there was a gun he said he saw one hand swinging he saw the other hand not swinging and again if you read the probation officers description he landed on his arm and then didn't really wish control of it with that the gun i would say if you read that sentence the gun doesn't occur and that he didn't really control of his arm because it was pinned under him and if we look your honor at the cases where there actually was a real struggle and if you look at the magic case you know that was a three minute struggle with the officers you look at the leak case and again these are all cases that the parties say in their briefs the defendant pushed past response to that if you run an officer will very likely chase you that's what they're trained to do the officer is a police officer he almost certainly will have a god so your honor i would say that adopt that rule converts this in to any situation in which you run from a police officer which will almost always result in the officer apprehending you in a somewhat violent way in that universe of fact this actually falls far on the other end of the spectrum he wasn't tattle he fell down and started shouting i give up i give up and if these facts they found those facts are enough for this enhanced meant to apply it really does just collapse into an enhancement saying if you run from the police in any way and i would also submit your honor he started running before the police showed up he started running the officer noticed him running and then pursued how would you have as few the evidence that he was has of the pulling his arm out from under him so it could be well in your honor it's a one way to view that evidence is the district court didn't make any findings regarding the honors i'd say where is somewhat relevant that he's one hundred twenty five pounds the question of whether he was intentionally keeping his arm there to try and grab a gun to try to keep it from the officer to try to do whatever or whether someone who weighs possibly twice as much as he does lands on top of him and he can't get his arm out it was also your honor uncontested it was both in the p s r and in our property the district court that he was saying i give up i give up the p s r didn't use those words but the p s are uncontested your honor i did say that he was surrendering his actions are not my words his actions your honor are matching his words if he old i mean that's just simple officers so you seem well in your honor i would say that again is a fact there that the district court didn't if you look at the uncontested p s r there's no evidence that the officer was responding to call of a gunshot or that he heard a gunshot it said that the r he was mr jennings was riding in an officer sees someone running and i think naturally think this is suspicious so we don't know and again this is partially why again if this court really things we submit as we say in our briefs that even taking these facts in the late most favorable to the government there isn't enough here for the enhancement and this court should rule that as a matter of law but really if your auditors think that it's very relevant whether there was an actual struggle or whether he just submitted whether the officer knew he had a gun whether the officer actually saw the gun or didn't see the gun then this is your honor that needs to be remained it because these are all facts that the district court didn't resolve the officer didn't testify i mean there's one human being other than mr denning himself who could really provide clarity as to what happened that day and the governor was there any  now get to go back and explore all the factual idiosyncrasies that you may have picked up since then when you never made a specific objection you never offered any evidence in your honor the burden is on the government to apply the enhancement and the law obligates the district court to meet those fighting it is not up to us to attack a factual premise when the government doesn't even brady witness in to testify and your honor i think a fair reading of the sentencing transcript demonstrates that we were not simply say that this was an obscure legal objection your honor it's double counting your honor it's simply unfair to apply this because of his tragic family situation a lot this was an objection to this enhanced meant on these facts and the undisputed facts a very few undisputed facts were that the gun was discharged we don't know who fired it but it was discharged the gun was actually inoperable after that when they found the gun there was a round jammed in the cylinders so the gun couldn't operate mr danger a n an officer chased him  the officer landed on top of him he shouted i give up i give up and he couldn't or chose not to rap that is empty it was get his arm out from under him and the entire sentencing your honor was talking about that factual universe so it's again this wasn't just oh we don't need to be heard objection and if the question is there's not enough evidence here in the record then the hall is clear it was the government's burden to put that evidence on the record the enhancement of lies if and only facts that were undisputed the joint tactics in the sentencing transcript makes clear that the court adopted the p s r in full and there was no objection to that furthermore the numbers  adopting the full facts of the p s r as well defense counsel stipulated to the factual basis that the government presented him as at the  twenty sure this is that line six ms allen counsel for the defendant stated here on the we stipulate to the factual basis and this is after the government had presented the full facts of this case including that the defendant was unarmed but there was a dark places of the crime itself that's correct running with a loaded weapon in his hand and to clarify the loaded weapon was in his jacket pocket while he was running as a p s r makes clear so while he was running he did not need to have his hand in his pocket but nonetheless his pocket was still ahead and these are the facts that the court consider when determining furthermore note that in addition to the note in the p s r even during sentencing defense counsel admits that the fact that offended was resisting arrest and this is a forty four of the joint appendix the court states he resisted arrest though did he not to this is that why six eight months counsel responds yes he did your honor and we don't deny that therefore the interpretation of the court made  the defendant with his hand in his pocket failing to relinquish control those facts the court reasonably could have determined was resisting and as well the fence counsel admitted as much during sentencing do we know that  i'm sorry page seventy eight which states that the defendant's right hand was not empty freely swinging like his left hand and the officer was unable to determine if the defendant was digging in his pocket or holding on to something so  sentence there put p s r demonstrated that the defendant did have his hand in it as he was running playing the defendant went up to an individual who brought a gun out hit that individual on the hand with a gun and it in that interaction he claims that the gun accidentally went  so the substantial risk of heart or that was created when the defendant then started running was in fact realized just moments prior when during a struggle while he was standing not even inflated non riding during an altered cation with another individual he claims that he got accidentally went off and this same risk is the risk that the court determined as well existed while the defendant was running and again now in a state of panic with adrenaline pumping where he hears sirens so if the if the record evidence was only that there was a discharge of a far arm and the defendant ran he don't have any e though we have a situation that is plus that is more we have a defendant that again i believe the defendant would like to characterize the hypothetical that tended to witness and should apply but the court did not evaluate a hypothetical defendant the court evaluated this defendant and this defendant in the moments after he had just begun to realize the risk of in gauging and or having an armed weapon argue and struggling with another individual he then pursues and engages in flight and thereafter that is not the only risk there is the risk during flight but as well he put the officer just risks when the answers attempted to subdue him and he would not immediately as to the other defended the court found that and suggested that resisting arrest from a police officer was sufficient enough for this and hanson to apply and that's without having a weapon here may have even more and in that case the court ultimately did not apply an enhanced to that but it was due to a lack of facts as to whether defendant fell intentionally when being apprehended by police officers or whether he actively resisted but the court did i find that resisting was sufficient alone without a loaded weapon which is the case that we have here as well in addition to the ninth circuit  multiple other courts have found that activity that does not even reach the level of what we have here the enhancement appropriately by i direct the course attention to the eighth circuit case and bates as the court noted perhaps the struggle was longer than at least the record in this case demonstrates but the court did provide bates that resisting arrest and reaching for a firearm was sufficient for this a handsome until apply and here we have even more than reaching for a firearm the defendant didn't reach his hand was already in his pocket again in his jacket pocket where arguably he did not even need to be while he was running and i believe that the court could have made the district court could have made a reasonable inference that his hand was on the gun while he was running or that his hand in the same it presented a risk to not only the public but as well two officers when they all of them at least subdued the defendant where we're in the record is evidence of what you just said that his hammers and spock well again i refer the court to the p s r and the facts in the p s r and i'm looking at page seventy eight seventy eight to seventy nine of the joint appendix and in that portion of the appendix the record states that during the chase the officer observed the defendant with his right hand not empty and freely swinging like his left hand and was unable to determine if his hand was dealing in his pocket or holding on to something the officers perceive that he had his hand or believe that he has hands get as he was used he said he could not determine when he could not determine if he was digging in his pocket or holding on to something however though with the predicate being that his hand is in his pocket but the officer could not tell whether he was holding on to the gun or whether his hand was in his pocket for something else and this is the same pocket that the officers later retrieve the twenty two caliber fire and again i highlight that the defendant's hand was in his jacket when the alter cation where he was involved in a struggle with another individual that most proceeding him fleeing weapon is not facing down it's the weapons likely facing outwards towards the public and these are facts that the district court heard and the district court made a determination on these facts that the advancement was warranted and we fundamentally read joining in big seventy eight differently join appendix seventy eight says the officer who again was not brought to testify couldn't determine we don't know there is not evidence that his hand was in his pocket and the district court made no findings on that point if a part of why me and handsome at the district court had said i find based on the p s r that i think he was reaching for the gun then i'm in a fundamentally different position up here honor to point your honor i think a fair reading of joint appendix seventy eight seventy nine says that it was under known if his hand was in his pocket that's the word unable to determine is the word that was used i would also note your honor that that you know the government says and i honestly have not here in front of judge howard enough to say but but he made that statement after talking about the variance and after talking about the sentence if you think it fits somewhat more into boilerplate and his sentencing discussion than it does in direct response he had said that right after this discussion about the enhancement i would also say your honor i think you call this but a joint appendix twenty nine that was not at sentencing that was at the leak and that was simply the government giving the factual recitation of the elements of the crime so that was not admission to anything in joining bendix forty four they say that we acknowledge that he was resisting resisting arrest he was running your honor and i think it's a fair assessment that he kept running when he saw an officer chasing him i e he was resisting arrest and he tripped and fell down but if you look at that entire sentencing discussion we were not in any way acknowledging that there was an actual struggle in fact we proffered that he fell down the officer landed on him and he was shouting i give up i give up so that to the extent these do not read this record to say that this was a struggle and your honor do you think you asked the government you know what would be the situation if the gun had been discharged and he ran but then there wasn't a struggle and i think the government acknowledged as it had to under the plain language of the enhancement it probably wouldn't apply we would say it doesn't apply and then that's this case because joint appendix seventy eight seventy nine well it's almost scary because it's not minute it's not just that he fell down and he was resisting but if you accept the reading of the p s r that he's got his hand his pocket where the gun was while he's running that's an additional fa district court making no specific factual findings about what the officer was unable to determine there's a new there there is no factual basis to support the idea that he was holding onto the gun or that upon