from monday to today and i would also also ask the court that if we're going to get into matters that are raised on sentencing issues that those portions of these proceedings to be placed under seal because those issues proposition for me to discuss with the court in open court but there are matters in the in the record and there are issues of my client's safety and he's in protective protective custody in the below peak there are issues that are raised references to issues that are under seal in the district court and i can do the same thing for the for the accepted record if you'd like to lose from the forty two and then you know what forty six unspirited during that plea proceeding the government made an offer of proof indicating that the defendant was in proximity to a weapon that was discovered during a traffic stop in a vehicle and that but it's numerous times during the colloquy the court asked the defendant in response to the question how do you plead to the one twenty four c use or carrying a firearm in relation to entering a crime drug trafficking crime proceed on the carry of the weapon theory and the carry problem has to several elements there must be knowing possession which can be actual or constructive and there must be no inconvenience and then the second element i furtive movements and evidence that he won't accept the car i'll tell me yeah and then they find the gun under the floor mat wouldn't wouldn't that be adequate states versus recently united states versus young say that the joint occupation of the inference cannot be drawn where there are several occupants in a vehicle or occupation there's also evidence of his hands being down at the floor mat and of him stalling or delaying before accident so what why when you put that together with the gun being best if it shows that he knows about the gun it doesn't show his intent to possess the gun it doesn't show no inconvenience it doesn't show that the location of the gun or the guns presence in the vehicle was not accidental or incidental we have a variety of other facts before the court that demonstrate that mr sanchez bill trans fingerprints are not on the gun we have that is our summer knocking advice whether the district judge appropriately advised him over describing the the elements to mr sanchez bill tran the court convinced him that he was guilty of this offense if the gun was found within his reach and that is that is not a correct statement of  beltran indicated that he was not in possession of that weapon and that it wasn't his weapon and we also know from evidence that his property before he was for mr beck stanch as bill trans own testimony which the government has indicated was candid and reliable that neither the weapon nor the vehicle were his we know that there were no fingerprints that match mr sanchez beltran on the weapon we know that there are no witness statements that attribute the weapon to mr sanchez beltran we have him leaning over and we have him in a vehicle within reach of the weapon and that is the sole evidence on the record to substantiate this to substantiate and provide a factual basis for the  mention this but that in on each element of this case in order for the court to sustain this plea each and every element has to be factually established by the generation of an inference there is no case in the ny circuit or any i would submit that that a factual basis of a plea predicated solely on inferences is is patently insufficient there is absolutely no direct evidence again there's circumstantial evidence there is the attempt of the generation of inferences but there is no direct evidence whatsoever on any single element but do you have to have any case that says that all of the elements can be shown by a reasonable inference that is i would have thought that the question is whether unreasonable that i think each of these inferences to be raised is on reasonable taking each one apart i think that that the best evidence of the of the leaning over movements does go to possession i still think that's an unreasonable inference to draw on given the evidence that's before this court that's probably before this court on that issue but even if this court were to find that the possession element was properly raised by inference and that was a reasonable inference there's absolutely no evidence on the conveyance seven on the conveyance element of the car focused on in terms of the convenience issue is that who was the conveyor of that weapon there's no evidence no record who conveyed it we certainly know after the fact when he's getting when there's a protection a traffic stop going on that that m feet we don't know if one of the other two passengers placed it under the mat we don't know if was under the mat at the time that the car was borrowed by one of the occupants we don't know how the how the how the gun got there particularly in a case where there's a pleat it would be pretty simple for the district court to have asked these questions and to have resolved the record and we have a defendant saying i didn't have the pistol with me he's saying directly on the record i have your mind version or five minutes you want to cover another area that  morning to the court my name is john going i'm an assistant united states attorney for the northern district of california and i represent the government in this case may it please the court the record in this case contains strong evidence that a factual basis existed for the did it all or i asked him you know understand that that's what the government has to prove right and he said yes i understand that but he didn't ask him and you'd met that those are the facts show me where you asked him that question on in the detention transcript e r one twenty two you in the back seat of the car to morgan hill presumably from the salinas area to meet with the informant he then got out of the vehicle and parked pointed to a bag in the trunk of the car which i'm saying that's two hundred fifty thousand dollars cash he then got back into the backseat of the car he was the only occupant of the backseat of the car and the testimony from officer paro who was the c h p officer was very particularly compelling on this issue he used the word furtive he testified during the suppression hearing that the defendant on approximately twelve different occasions continuously and repeatedly and nervously reach down toward his feet toward the exact area we're after par also observe the bug and that he carried it and it was during in relation to a drug trafficking crime and in this regard there only need be sufficient evidence in the record only sufficient evidence in the record to support the inference luzhin rather that the defendant is guilty in terms of the line of cases basis can be shown by reasonable inference from circumstantial evidence well i think that the the law is clear that circumstantial evidence and direct evidence are both acceptable as means of proof and i think it's also clear that if you project these nine twenty four see cases and a jury trials it's going to be very unusual for the government to have direct evidence for all of these element evidence that the government is going to ask the trier of fact to drop and i think there's certainly no case that for hits or i should say there's certainly no case that requires that the government have only direct evidence of any specific aspect or element of an offense i just think that it's clear that the government will be involved in trials in one thousand foresee cases where it's going to have to show we're where the standard is contesting the element that's the record that this case is reviewing on appeal and i think given that the court needs to affirm now there's there's two other main issues on the appeal obviously one has to do with the competency to be  to enter the guilty plea the other has to do with the sentencing council has not made any oral argument in those areas i prepared to argue those to the court of the court wishes let me ask you one question about dissenting issues i mean i think the main issues is you know gained in this case given this record as to how the sentencing hearing was conducted there would be nothing to be gained by waiting for further clarification and nothing to be gained by remaining this case for reset and saying there is no there is no five different hearings leading up to this guilty plea it was also the pleas were entered on the eve of trial so there was a large number of pretrial documents that were submitted the court had an unusual handle on this case and consistent with the book her decision the court did consider aggravating and mitigating circumstances in this case the aggravating circumstances which the court considered with the coercion of the defendant's sister against her will into participating in to this drug  trafficking conspiracy one of the one of the three conspiracies the extremely threatening situation which the defendant created which i referred to earlier in the argument as being one of the two or three most terrifying incidents in the ten year career of a c h p officer the fact that tenet was a fugitive for over two material that should remain under seal obviously there's one thousand pages of d n a reports that were submitted by the defense during the sentencing hearing that's a good example i think of something that needs to remain under seal and answer the court's earlier question but i think that given the fact that this court or the district court rather spent an unusual amount of time in the sentencing hearing weighing out the arguments from both sides that it had an unusual grasp of the circumstances surrounding the both the defendant and the the the very surprised that he committed that there would be nothing to be gained by remaining this case for reset and saying and i think that the the the sentencing and the manner in which it was conducted was completely compliant with with booker and the sentence was reasonable within the meaning of booker the court clearly considered the thirty five fifty three a factors there are four or five different portions in the sentencing transcript that i could cite to the court which is where it was very clear that the district court was familiar with booker and it's actually utilized language which is book there is no legitimate reason to believe that the this court would have imposed a materially different sentence so we have that and i'm prepared to argue the competency i don't know that the court wants to hear that we have unanimous opinions from both doctors as well  i just want to be clear i just go back to the one twenty four c issue before i move on to the presumptive sentencing issue that we certainly in our brief indicated that the court articulated the elements to mr sanchez beltran but that there was a mistake in the confusion of elements and that the court never asked the person questions and i just wanted to be clear that that's what they're rethinking references and that's our argument but just to briefly address the question of the presumptive sentence i think it's the principle disagreement here is simply whether there is any mitigating circumstances that would justify a significant deviation from the sentence that the guidelines are nancy that's more than a starting point that's placing the onus on the defendant to provide evidence in mitigation to reduce the sentence sentencing in my view and i would urge the court to to look at reversing in remanding making the sentence and remaining because i do think that a different result is possible if the court were to properly consider evidence that it did not properly consider case received a sentence of probation was never on was never considered by the court there were a variety of factors including this defendant's horrific childhood abuse organic are inappropriate factor for the whole i'm sorry and if they had been i think a lesser sentence would have been imposed than the draconian thirty two year sentence that was imposed in this case the less the court has any further questions i will sit down and write a thank you