good morning counsel good morning judge roeder judge smith judge rake off my name is david porter i'm going to system federal defender from the eastern district of california and i represent the appellant joe miller says we agree with the government that joan are assessing and possessed approximately half a gram of methamphetamine on the afternoon of october th two thousand and fifteen but congress did not prohibit possession when they just when they defined prohibited person and they used possession in different parts of the very same statute position of a firearm by a felon for example instead prohibited person is defined as one who unlawful used or is addicted to any controlled substance counselor i don't want to interrupt you too early on this but when you address the fact that you know your client made numerous  sentencing issue and the judge had in my judgment a lot of evidence front of him to decide that these the prohibited person to help me with that what what's wrong with that yes your honor i think though that we need to look at the record very very carefully one of the things that you said was there was an admission that he used meth there was no admission on the record ever that he used methamphetamine and what we need to do is  minute after the arrest he called a friend admitted that in quote he needs meth and unquote has a problem and that he has in quotes been using heroin and calls badly needed a twelve step program that is why you deny that's you know we don't deny that but it's said he needs meth not used meth and you said after the arrest it's important very important focus here but what if what if what did you what do you infer fer that he he dedes meth because he's a her when addict if so that satisfy such you to know your honor doesn't it what we need to satisfy is this to satisfy what the government needs to refers to was made and there are nothing there was nothing in those statements in those quote admissions that he made that tie us is unlawful use of a controlled substance to this time seven months earlier when he and michelle rest was made when he possessed the machine gun so is it your position that it's the burden of the government for sentencing purposes to show that at the very moment of his arrest they have to show that he was at that moment a drug addict or using drugs that he was an unlawful user of or addicted addict that they need this they need to be part of a twelve step program is not an indication of an ongoing addiction which would have also been true but what goes around with it but we don't know when that addiction started the rd and the common in the started so it could have started before it could have been during the possession on october th or could have began after october th what what is the if you will level of proof that the district judge needs to in making making a sentencing determination under the guidelines is a preponderance of the evidence but i suggest that your honor i cited a case called united states versus brown in my opening brief in which case the issue was whether there enhanced meant for endangering the financial security of over one hundred persons the th circuit this court reversed the sensing enhanced men in this case saying oh it's likely that that would have happened well over one hundred people were financially i want to stress how different use of methamphetamine which is always illegal is from the a prescription drugs that is a very very different type of drug abuse he was sober also for five years there is no dispute no record that he was really went on a rehabilitation program and was sober for five years so i think the court should consider the v nature of the drug use and addiction in this case and this is a very significant enhancement from thirty three months to fifty one months so i think the court should take that into consideration as well i reserve  well let's hear from the government it please the court cameron doesn't on behalf the district court did not abuse its discretion when it found by preponderance of the evidence that the defendant was a drug user and addict at the time he possessed the machine there really four categories of evidence in the record that support the district court's findings but before i describe those four categories i do want to address the defendant's main arguments that you raised here this morning you raised he really raised four arguments and self the  was the argument that there was a lack of a temporal nexus between the addiction and the statements in the conduct of addiction post arrest and the possession of the machine gun on october th two thousand and fifteen nd he argues that the types of drugs that are referenced throughout the record are not sufficient for the district court to support the district court's finding thirty argues that the timing of the relapse is not specified and that undermines it is records opinion finding and for a few argues that the possession of the drugs in the car does not show that mr ceci and was using the drugs and that that was a requirement for the government to find that addressing that last argument st case law is clear that the government does not need to prove that the defendant was actually using drugs at the moment he's caught in possession of a firearm and what got his reduced side who are i would say  have a defendant sitting in his own car he had been possessed that car for two and a half months there is a syringe and his glove compartment and he is in as the defense concedes in possession of methamphetamine a pipe and for use court could conclude could reasonably conclude based on location of those drugs the fact that the defendant sitting in the passenger seat and not driving that he possessed those drugs and that he had been using or would be using did he not say that everything in the him once he found out that the search found the drugs he then denied the drugs belonged to him there's a but there's a footnote in the pre sentence report that says that there was no evidence that he was under the influence of nafta at the time of the arrest or that he used intravenous drugs what do we do with that sort of there's nothing in that police report that states that anybody had used drugs on that day there's no evidence of intravenous drug use on the driver who also possessed a syringe and i would know that there's also a pipe that had been used that day so that obviously does not have physical but but the the sentencing guideline doesn't require the use at that time to have the they have to be a drug advocate basically write a regular drug you regular drug user so if you have regular drug use it's obviously not all going to be in the moment of arrest it's going to be over a period of time right correct and as i understand you was an indy show that he used drugs correct it's yours and turning to the temporal nexus argument which i think is a big focus for the defendant he is found in possession after he's arrested  drug test of methadone by the time the defendant possessed that pill by the time he tested positive for methadone the drug problem was serious it was a reasonable for the district court to conclude that the past serious drug problem that prevented him from staying in the drug treatment facility was necessarily preceded by prolonged drug use especially where the defendant admits that he relapsed into drug use in two thousand and fifteen i also  pills on a daily basis one argument the defendant also makes is that the variety of drugs and the types of drugs reference by his statement about relapse undermines the district court's findings when in fact the variety of drugs on the in the record actually support that finding there's possession of methamphetamine there's reference to methamphetamine there's reference to heroin there's possession of an opiate there's reference to doctor shopping for pills that the government submit supports the courts of finding that this defendant had a serious drug problem and was in fact using multiple types of drugs overall you're on i think your honour's i believe the defendant's argument really takes individual find individual facts in the records in isolation and proffers what the district court could have found but the question here is not what the district court could have found it's whether the district court's findings were illogical implausible or without statute that talked about what a prohibited person is and what the guideline added in two thousand and one i believe it is is that the crucial term here at that time you have to be an unlawful position that the arrest must literally take place when the person is using drugs at the time no no they don't have to be using that otherwise the statute or the guideline prison provision would say using a drug they have to be an unlawful user of or i did to i can't substance my mouth my mind is how if you were the government how would you prove this you're usually to be focused entirely on that moment but obviously if he is in fact a drug user it's extended over a period of time they provided evidence of that you think that doesn't work because at the time right you if you look at all the governments cases in this case purdy osa queta edwards there is plenty of evidence where people came in and testified that at the same time he possessed the weapon he was a user of control it was as it is said he was a user before and there was evidence that he was a user after and there was paraphernalia found in the car and you're saying that that's in at the time of his infer that he was easier at the time yes judge shorter in light of the other facts which i mentioned about how variable his abuse was that he was sober for many years and then apparently fell off the wagon in light of the fact that beginning when they said began in two thousand and fifteen his problem with persuade abuse of prescription occurred again and by the way the prosecutor said that was defendant's admission that he began using in two thousand and fifteen i submit that it's not on page seven using the drug that's evidence and it is evidence your honor but when we're talking about a specific time and when the sentencing commission says at this time of and it just says two thousand and fifteen there is no reference thank you thank you both for your argument in this case the case just argued us versus necessity