morning honors may please the court jacob russia bow for the appellant justin's government prove that mr smith possessed an object that closely resembled a firearm and that he used it in a manner that created the impression that the object was a firearm that is the definition of a dangerous weapon and sort of level dangerous and weapon enhanced and clearly applied the government introduced no evidence on the single distinguishing fact that would elevate this from a three level dangerous weapon enhanced and to a five level firearms incident namely that the object was in fact capable of expelling a projectile by the action of an explosive without any such evidence the district court erred in applying weapon first the court relied on the eyewitness testimony from the clerk she test she did not testify she only gave a statement to an a t f and a t f agent and the a t f agent testified her statement said that she saw a tiny black gun and she saw it she remembers looking down the bear but the mere fact that she saw a barrel doesn't establish that the object possessed was capable of testify was subject to cross examination she was never asked if she had any reason to believe that the firearm was real she never stated that she had any experience with firearms that would somehow allow her to make the determination in the instant that she saw that it was a real firearm as opposed to a b b gun and that's the only reasonable inference one can draw from her statement is that in an instant she saw something that looked like a guy so again this doesn't rise to the level of proving that anything beyond a dangerous weapon merely establishes that the object possessed closely resemble the firearm and was used in a manner consistent with a firearm which fits the definition of dangerous weapon to counsel just to be clear on the procedural setting this is evidence that was presented sentencing hearing and the standard of proof is a preponderance correct that's correct and we're revealing for clear error that's correct all right second the district court relied on mr smith gestures as viewed from the surveillance footage the court found that because he used he had the classic gestures of an individual using a firearm that supported the five level the inference that it was in fact a real firearm however again using a an object in a manner that creates the impression that the object is a firearm is literally the definition or a definition of dangerous weapon so the fact that he used gestures consistent with the use of the firearm and among those items were firearms the court found that mr smith's criminal history evidence is a recognition that firearms have value and use and due to this recognition it is more likely because of his recognition of firearms and use therefore he used must have used a real firearm in a in a robbery eight years later but the fact that he meant that he stole firearms among other items during a presidential  robbery does necessary show that he knows that firearms have value in use or certainly value for parents for resale or whatnot but it doesn't take a residential burglary to understand that firearms can be used during a robbery firearm the mere fact that he had this this prior criminal history it doesn't take such a criminal history to understand that a firearm has value in use it doesn't show that that the object used during a during a robbery eight years later was  actually capable of expelling project out by the action of explosive and that is the technical definition of firearm it was the government's burden to meet that technical definition the evidence that they did present showed only that's that's what the a t f agents and the fact that the agent used i think it's telling that that the agent said object first before calling it a firearm but you didn't call it a dangerous weapon no but there's i mean that there is if you're honest the surveillance video is the government submitted that as part of the record on appeal if you watch that there's absolutely no way it  are you making any argument that they are this was improper expert testimony you know i'm not what it is an a t f agent they're supposed to know something about are right i don't i think it's an unfair interpretation of from the surveillance video you can see that an object is possessed and it looks like a firearm i think that's fair is reading if you look at the surveillance video there's no way you see a tiny piece of something for literally one second so so would you agree that the evidence was consistent with the object being either firearm or dangerous weapon yes but what i would say is that where there there is this tiered structure of the guidelines where if that a dangerous weapon is something that closely resembles a firearm or is used in a manner consistent with a firearm the government can't meet adverted to show that the higher hansen applies without showing any evidence as to the one distinguishing fact that would elevate it from a dangerous level well i guess the reason i put it that way is just how much do they need are we sort of at fifty fifty in terms of the record they just need a little nudge to get over the liners at something different i mean i think that there's admittedly overwhelming evidence that closely resemble the firearm use in american firearm there can be no dispute that the government met its burn to prove that the dangerous weapon has been applied the only difference between those two in terms of the government's burden of proof would they would need some evidence showing that something that goes to that additional facts that the object was in fact capable of projectile by the action of explosive in that we can look at other cases where they where they have found that there was enough evidence for example  insidious case that the government sites this wasn't before the issue wasn't before the court that was about whether it was about unreliable hearsay and whether evidence was admissible that's not the argument that i'm making here but is nevertheless telling there at least the victim had an opportunity to view the gun for a longer period of time rather than a mere instant he was familiar with the with the individual he testified that the he didn't fact testify  i believe and he at least stated that the object possessed was either of the fifty seven or thirty eight but it but they're very similar looking and he would need to know he would need further inspection to tell to distinguish between those two so at least there you have someone who's seen the gun with experience with firearms they were also for military have undergone firearms training potentially that would be enough but here you just have a victim with who at least on the record has no experience with firearms agent was able to testify from far more clear surveillance footage that we have here that the object possessed looks like tec nine and tech nine replicas or b guns are not available for sale in the united states so there certainly is and in most cases you know where the government's trying to prove the firearms and handsome and they may have recovered the firearm fire might have been discharged or they can at least have more evidence than they do here that just something going to show that was actually capable of firing a projectile by the actual explosive which we don't have here for you reserve the rest of my time for a represent united states government the matter before the court today the sole issue before the court today is whether the district court clearly erred when it found by preponderance of the evidence that the object of mr smith's hand was a firearm in the sentencing guidelines section to be three point one b to see the sentencing guidelines define the term fire i'm a little bit more blocked broadly than counsel for mr smith has advocated when i read it to you a quick subsection one any weapon including a starter gun which will or is designed to or may be readily converted to expel or project by action of explosive so then subsection to a frame a weapon of such receiver so even just holding the frame or of such a weapon would suffice here that's not to say that we have the firearm therefore we're here today to decide if the government met its burden of proof by a preponderance of the evidence that the object was in fact more likely than not a firearm i did skip over something i want to correct with this court i noticed a mistake in my brief on page thirteen there's a sentence that says a five level enhanced meant for a firearm yields a seventy to eighty seven month sentence guideline range this is incorrect and it should have stated a five level enhanced it for a firearm yields a sixty three to seventy eight month sentence guideline range and mr smith was sentenced to seventy months which is in the middle of that range ok turning back to my argument my apologies the standard of proof as this court as has acknowledged is preponderance of the evidence and that means that the government had to prove with the greater weight of evidence  that such that the trier of fact in this case it was judge johnson believed that the existence of the fact is more probable than its nonexistence here the government met the preponderance standard because reliable victims were considered and consider that they were excuse me the district court determined that the victim statements were reliable and supported by corroborating evidence such that all of the evidence taken together which counsel for mr smith has or cited was enough to satisfy the district court that the government had met its burden of proof that the object of mr smith's hand was more likely than not a fire this court was a good amount of deference to the district court's finding because assessing credibility of witnesses is distinctly the province of the district court and so therefore it will only overturn as you have noted judge mathis and that upon a finding of clear air this morning as i know that the court found the the victim credible but i think of whether the fact finder can rely on a witness there's the credibility part of the assessment but there's also the ability of the witness to perceive  what it is they're perceived and it seems to me that here the victim can be honest as the day is long but whether she can detect and report the feature of this object that would make it a pharmacist different question and i'm wondering why the court could rely on her pleas to find that this is a far the district court made several findings noting that he in particular found this victim reliable and credible he noted that she's faced the defendant as he approached her with handgun with the gun drawn pointed at her and she remained facing him and composed unable to address to observe what was happening and then immediately called nine one one and her manager to report well i'm can we just zero in on what was there something about the object i mean it it sounds like her testimony would support a finding that something looked like a gun would maybe look like a firearm is looked like enough to get you there when the district court is reviewing evidence it may consider any reliable information and when that reliability is called into question then it may look to corroborating evidence so other cases have shown different crowd rating evidence there's a variety of crime writing evidence that can be considered by the district court what do you think is the best evidence here to get to get the government past the preponderance i think it's an integral that because this we don't have the firearm it's interpol to consider all of the evidence together if we parse it out into little pieces of course it's not going to look well right now i understand but and you've got to consider all of it together but in considering all of it together you also have to consider the pieces and some pieces are better than other pieces so what is the best piece i would say the surveillance footage is one of the best pieces in my personal opinion because it shows the defendant walking in he had the hand on hold and pointed at the victim for two full seconds then he approached and jumped the counter towards her in an aggressive manner and then he even knew which george to try and open i watched last night again just to review my memory and i noticed that he was particular he ok he went to open the exact door that had the cash register drawer in it and judge johnson found that as well he found that this defendant wasn't very credible because he has committed so many similar offenses and he was released from prison just a year and a little over a year before this offense occurred and he was currently on probation while he committed this offense and judge johnson in the record i think it's page sixty six he notes that the credibility any credibility the defendant had was was dissipated at that point for judge johnson's purposes furthermore the counsel for mr smith tries to group mr smith's criminal history into just a residential burglary it wasn't so simple it was actually that the three most recent residential burglaries were actually of firearms there were fourteen stolen firearms collectively in those burglaries and nine of those were found in mr smith's possession so this man had a familiarity with firearms knew how to handle them and knew their utility and judge johnson considered that a robberies are committed with objects that look like guns that aren't so that's that's actually an argument that counsel for mr smith brings up and while i mean i'm sure they advanced different are charged with different offenses they advance the same defense which is the fake on theory and that was rejected by the six circuit ultimately because it found that witness testimony which we have here and image based evidence which we have here is enough to find around a while he's probably seen a lot of robbery cases may be very if they're not as common in oil as those are but i'm just wondering why it's unreasonable for him to assume that something that looks like it is used like a gun is a good unless there's we're talking about probabilities here not talking about beyond a reasonable and unless consider all the pieces of evidence that judge johnson did considered to come to his finding so the victim statements being reliable and then corroborated by the surveillance footage the manner and use of mr smith's firearm and mr smith's criminal history and also he did note on page sixty six again how the defendant when he was in state custody his phone lines were you listen to and he was making a joke of his current he did not seem to be taking any of it seriously and he thought it was funny he thought he was that supported the determination of i think it went to his credibility rather than to the exact fact of whether or not he was holding an actual firearm i'd like to t turn the surveillance footage one last time and talk about how the district court found that that surveillance footage did corroborate what the victim had said and i'd like to highlight that oh are instances of circuit courts up holding district court firemen handsome and when they look to a variety of corroborating evidence there is no recipe set out in any case law that  have to have these five factors instead the guidelines themselves and case law says you look to any reliable information provided as a sufficient indicia of reliability and then you go to corroborating evidence and the district court here did that first the victim statements were taken and they were provided by an a t f agent who also gave her that it was a firearm and then they were supported and while touching a firearm and being familiar with guns are two factors that do and can corroborate victim statements they are not the only such such pieces of evidence does this court have any more questions well i am interested in in this gestures yes evidence  i'm trying to understand how it helps either way it seemed to me that if somebody comes in with a fake on and wants someone else to think that it's a real gun maybe the gestures would be consistent or more consistent with the unseen if they can suck but let me just put it this way can we take gestures off the table here i think it's important to consider all of the pieces of evidence together if i consider gestures why should i give it anything more than a zero in terms of moving the needle either way why wouldn't somebody do gestures with a firearm as here when judge johnson looked at the record he found that he saw something in the video and the video was how he reviewed the manner and circumstances of use of he noted that he saw a fire underneath the defendant's hand when he jumped over the front desk and he also noted that he disagreed with that fake firearm proposition he said he said why would we assume that it's a firearm when it's used as a threat and that's kind of where the fraud case goes also that same line of a reasonable doubt more likely than not and this court again has a standard of review of clear air so unless this court finds that this finding is not possible in light of the entire record on appeal it cannot overturn either any it was found that the defendant brandished a firearm however there may have been facts to support an even higher sentence oh ok yet the actually the guideline says if a firearm was this court reviews the district courts factual findings underlying a sentence enhanced meant with deference it will only overturn upon a finding that the district court's findings were clearly opponents without any factual support the record such that this court has a firm and definite conviction tha that's because the defendant in those cases was challenging the mis ability of hearsay evidence that's not the challenge that mr smith is bringing today we're not challenging the admissibility of any evidence or  credibility determinations the district court made really challenging the weight that the court gave that evidence in the inferences that he drew as far as judge hearts concerned about whether there's any evidence in the record about the frequency with which they guns or real guns are used there isn't not in there wasn't any evidence presented in the district court but neither did the district court rely on more lease expressive rely on his