which is the united states case was at the foot of the better head of the bed head of the bed do we know whether the case was a leather case whether it was a vital case whether it was a metal case whether it was a plastic case the that the clips were there it was a lock whether it had padlocks on it i don't know but the end the record stablish that at least it was if you have those clip locks like you would on a case like that it was like do we know anything about the lock itself no sir that was not established just that it was a slip box and i assume there's and that's just an assumption that was a lock on the top and bottom judge would be a standard gun case right a k forty seven right little shorter than most guns   the policeman testified they found nothing no meter pistol and pistol and all there was no suggestion that any ammunition was found for the gun but that wouldn't matter i'm sure that wouldn't matter for  brilliant correct we're all bound by a right or wrong i have to stand that i just want to ask you a question this way why when we look at what the term close proximity means there's no definition correct the guidelines y or we cannot give it the normal definition that we might commonly understand that to mean which would mean that when we speak of proximity we're talking about both space and crime that is to say how far away and how long to get access shouldn't we understand close proximity to be pounded  distance and the ready accessibility i long it might reasonably take and be done with it and use that as a general definition and then ask other or not this was close to another back together to get the magazine i know the court the courts the shit you say it doesn't matter whether or not it's loaded but when you think of it in the abstract it still only have done that capable of accepting the teddy and the other crime or even a lead guess my question is even if i agree with you that the drug in our g is not a very good one i agree because that's in connection with that the objects a different language is different arguably the purpose is different and all i'm walkin looking into is whether the firearm and me clips me ammunition were in close proximity i wouldn't this be close proximity defining it in terms of time and space by space i mean accessibility one is at the head of the bed one is at the foot of the bed if all i needed was a i even though it's close it's certainly isn't accessible and i think you have a much more powerful argument in that circumstance but if it's in the same wrestling against the same front one at the back of our christmas why that wouldn't be close maybe i'm missing it i was trying to think on light of what the question would be from this court from you particularly about that issue and all i could say to the court is this is that i understand spatially to a different distinction of the wall because it wouldn't be as readily accessible i'm submitting to the court at least as our argument in a case with a lot is the same as being behind  bad wasn't locked but i'll locked box for the gun so i think that's just that's a specialty different of having it behind an apartment walk isn't one way of looking at this case what trying to envision what the defendant gone that is not involved in any other criminal activity but close proximity means for purposes of second and hanchen of that type and whether or not a separate can of the two because neither stand alone is illegal neither the weapon nor the magazine it's only the status of persons what close proximity means and of course that's why we're before this court so i can't say anything else  and please the court stephanie hauser on behalf of the united states of america with me at counsel table isn't it a white united states attorney would handle this matter what it district court this is a relatively simple case about whether or not the distance  ten feet is close proximity do you want to address something about the factual record here while there was testimony from the defendant but the gun itself had an unlocked there is actually no record evidence that the case itself was locked or that the  i think there are secrets you make an argument that suggests maybe something a little bit different i think on these facts distance alone is sufficient because we do not have any dispute that the defendant could that he was not in possession of both the firearm in the magazine so here i think distance would be sufficient to do this in the eight to ten feet in other factual circumstances you know the court might want to look at other factors in terms of accessibility i know you gave the apartment example previously i think of both are locked in the defendant doesn't have achieved the other apartment a distance there might not be enough but what if he does have the key and in that instance he would be able to get access so you think it's likely the circumstances of we're talking about really facilitating a drug crime absolutely the difference there actually is in the guns and drugs circumstance there's a higher burden because there are the court would have to find that the defendant was in possession of or selling drugs and that would potentially be able to use the weapon to facilitate that so now we're talking about accessibility and i think the language is easily achievable in those cases but you could actually use the gun for either protection or enforcement or whatnot you can actually selling drugs here the close proximity  asking is the firearm within close proximity of the magazine it actually doesn't it's not asking whether the defendant is in close proximity to either of those is not asking how or why or in connection with anything but the defined it would be using this firearm when you're yes i think i think time could be a factor i'm saying on the time the tautness what the time is just to go between the two hours of the time to actually extract the gun and be able to and to be able to put the magazine follow me it's not just a time to cover the space is the time to do what you would want to do with the gun yes correct so the critical question as judge walker's asked me was is it readily accessible under a few facts i believe so no but is that relevant in formulating a test yes as you can see we're trying to think of if we were to write this opinion how would we write the opinion in a way that makes sense not just in this case am quite certain if it was in our we would have heard that and the district judge would have heard that