afternoon gentlemen thank you for appearing by video conference for this argument session madam clerk would you please call the case for argument twenty dash eleven from the southern district of iraq united states versus and i have the opportunity to represent st faster on this appeal i was actually his trial court tourney back in october two thousand and nineteen mr bannister was elected to go to trial as a short tr day and three quarters long and you know him only got convicted of the only count he was involved with which was conspiracy distribute methamphetamine in excess of five hundred grams he was sentenced to one hundred and ninety months some time later the district in there's some some reasons for that so i agreed to it because in our best interest not to mention the gun so no evidence came in whatsoever zero evidence came in a trial concerning the weapon at sentencing the prosecutor introduced t had no opportunity to cross in the law enforcement to confront the government witnesses just to photos and the to find that that gun was somehow connected to the drug activity is a huge guess where was it found was it moped who found it all those things were not answered and for him to tie the gun in and give him a to point in handsome and i think was an air without any evidence that point to answer the question i propose a question really well how was the gun connected and to answer that question based on the record in this case you have to guess you gonna make some presumptions that are based in fact or evidence and i don't think that's what the law calls for we don't you know where the gun was found we don't know when it was found who found it was it moved before these pictures were taken the reason moved afterwards i don't criminal history scores determine based on points but i think what you mean is a two level increase in his offense low is that the dispute here that just cracked or are from thirty four to thirty six yes ok so we're talking levels over north central while bonewits was also buying and selling pounds in kilos of methamphetamine the answer on the other hand received one ounce per week and she sold part  bonewits he had nothing to do he never metroid car he never no idea where they got it from how they got it what they paid for it they just delivered him an ounce every week and he turned around and so part of it and did the rest work in both state federal court some point specially in federal court you have a it's called to talk with your client and the talk is you bring your client in and say ok here's the plea agreement you do the gu calculations you said this is what you're looking at on a plea agreement made his let anyone see maybe not but you talked about what advantages are out of taking a plea and you always say well what if you go to trial and the common answer  acceptance and you probably get hit with obstruction if you testify lose but it should be in line with the rest of them with that i'm going to yield the rest of my time for reb very well you may thank you for your i need just one moment here evidence as to the location of the gun starting with paragraph thirty three of the present paragraph the defendant admitted to that the how the firearm was observed at the time of the search warrant in the case underneath and table and then the nd and rd photographs are essentially staged photographs showing the firearm in more detail as the foundation for the photograph so that we would be able to confirm what you just said about what's shown in each photograph the photograph was simply  right right next to it so it was based on the trial record this photograph clearly was the firearm in its case on his end table next to mr spatial relationship between the end of the criminal activity and the firearm we find i'm that it is not clearly improbable that far had nothing to do with the offense it's a tool of the drug trafficking trade that's something this court has mentioned in the anderson case of for example in other cases as well this is this is well with his own customers regarding the role it just meant mr mccarthy's argument or the extension their argument is there would almost always be a roll reduction if there's an upstream supplier of some sort and that simply is not the law we cite the q b locates the page nine of our brief as an example the defendant was deeply involved in the offense he had his own customer base he had us was held accountable for the same range of drug quantity and was mr bannister she did not get a firearm and handsome and she was denied accepted responsibility for smuggling methamphetamine into the polk county jail she is the same criminal history category she received a similar variance in terms of percentage the difference between warrant of mr clarke's residence where ms bond of which was present entirely different circumstances it was under a pile of clothes there is an initial suggestion that she might be tagged with the gun but the this court frye and pierre for example is cited page twelve our review has made clear that we're really not supposed to be doing comparisons between individual defendants or co de rural communities where this stuff has a particularly pernicious effect he was carrying around not carrying around he was in possession of a firearm only  examine anybody or confront the witnesses that led to this increase so there was no foundation no foundation what about the senate the judge could see that the photo showed the same area that was shown in the trial exhibits i think that was the answer but the question is one of those photos taken and what was placed where i don't know it's a guess to put it a little bit in perspective whence came in for sentencing with the same criminal history in the same basic level they recommended sense of one hundred and sixty eight months for her she got one hundred and fifty and then when my client appears mr bannister they recommended two hundred and ten the low end of the guidelines form so there's a huge discrepancy there and again he was doing one ounce a week and she was doing pounds and kilos opinion in due course that concludes the arguments session for this afternoon so the court will be in recess until further call the docket good