morning rogers the name of steven babcock i'm from the federal defenders of montana i represent them in this manner richard read the facts of this case present a somewhat unique calculation of sentencing guidelines the cross referenced mr redfield pled guilty to one count of deprivation of government property which happened in the case is that going to be i officer responded to a disturbance at a residence when he responded to that residence mr redfield ran out the back of the house pursuant to to be one point one which is the guideline range for governor ridge and government property it was calculated pursuant to k two point one because of cross referenced the cross reference in to be one point one states that if a firearm was taken or if the taking of firearms at the object of this offense then you go to a particular garlock guideline that would be more appropriate than a firearm to farms were taken there were two firearms located within the vehicle there was  ar fifteen i guess december and magic weapon that was located in a locking mechanism on the top of the vehicle and there was a twelve gauge shotgun that was located in the back cargo area of the vehicle what was there and you'd be an individual with a scene of the guns there to start out with and going on your point here we are saying is all that knowledge is required in this case we're not only saying that knowledge is required in this case receiving that possession is required in this case and that would mean that if there had to be possession of firearms which is the guideline that was referenced to and we believe that that is mandated because of the language of them have possession here we believe that he did not have to get control of the vehicle control the vehicle however we don't have any idea if you had any ability to get the gun out of the locking mechanism we only know for certain he did not know that shock and was there that was locked away in the cargo area of the vehicle so i do not believe that he had possession in order for an individual to have possession of course they could have joint actual or constructive possession logically i would say the only possession that could be argued in this case would be constructive possession but in order for a constructive possession to be there this court has stated that there must be sufficient connection between the defendant and the firearm to determine the defendant exercised demeaning and control over the fire and i do not believe that occurred in this case he got in the vehicle he drove for half a mile he that the vehicle rolled down the hill the vehicles were located in the exact same position that they were left by officers now the a r fifteen was located in them up in the locking mechanism up above the twelve gauge shotgun was in the back of either one of them or moved whatsoever want to say that the defendant had knowledge that a firearm was taken yet and i would say that because you cross reference to a guidelines that requires for possession of firearms to have knowledge so yes that's why i would say the last line as appropriate would be pertin and if i if i couldn't move on to the other guideline question in this case is that mr redfield was given a four point enhanced since because the firearm was supposedly used in connection with another advance i do not think that that is appropriate at all in this matter three did not occur in applying the enhancement in this case the district court said the other offense was stealing of the car while the taking of the car was where the guns were wrapped he did not take the guns he that overpowered the officer to take the vehicle he didn't take the guns out of the vehicle and smashing and damaged the rest of the s u v there was there to intertwine so i do not believe at all and as far as this court has stated in relation to that in answer to that the burden of proof remains on defendant that the firearms were there that's one dispute and then a writing in of a possession requirement well as the court is aware from other guidelines if possession is what the sentencing commission wanted to require they can write the word possession they've done it in other guidelines here they stand a firearm was taken in this case we don't believe that there is in that language you can read in any requirement of intent or knowledge on the part of the defendant but in the alternative even if you do have to find that the just a court found by clear and convincing evidence that you just couldn't take this vehicle being a police vehicle with the location of the fire case that was not the object of the offense at all or certainly there was no proof of that either in the investigation or on this record the object of this offense was simply a man who was going to be arrested for possession of alcohol and only began used in connection with appellant argument but there is one other issue left in this case which is the language used by the court in imposing the sentence and after making his findings he says now you can make your arguments within the advisory guideline range of i didn't make that calculation that if that were strictly what would you want to let me i can i can make a stab at it because the can and the calculations i do have or without the cross reference we were at i believe eighteen to twenty four it was there was loads we're at ninety seven now for levels last i wish sometimes i have this guideline in my head i'm guessing it would be somewhere around four to six years i don't the second guideline more closely match the conduct that is being punched is certainly not what we have in this case we have in this case is a man who pled guilty to deprivation of government property and offer of proof for the change of  as far as the four level position is that the government has stated that the difference is that those those cases that i have cited relate to possession of firearms well that's what we have in this case for the hazard to apply there has to be  so i guess i feel to see how the logic of those cases don't lie well you know you talked about the use of the cross references when the policy issues of the cross referenced crime are more applicable don't you think that official victim so i think that that is taking care in that matter as far as the overlying sentence and whether or not it was reasonable or not it is clear from the record after the district court decided that the cross reference couple the statement was made to me before any of the thirty five fifty three a factors were discussed that i could argue with in the now guideline range clearly that should point out that the court had decided before going to be any of the other factors of thirty five fifty