and mr were confederates she didn't offer a home for the packaging of the drugs or for the storage of the drugs she didn't go to new york buy the drugs she didn't get drugs on consignment she didn't get this conspiracy never she just can't be guilty of that there is insufficient evidence and nd under rose on the jury was correctly instructed on that on that count because they were dollars a is not restricted to the district court so is any circuit or district judge is not required to entertain such a motion and this court has also said that regardless of whether the parties concede jurisdiction in a district court every court has the requirement to determine st whether has jurisdiction to consider a matter or not so i don't think this court is prohibited by the government's action or the district court's consideration of this messiah and whether or not the prior twenty to forty one petitions that were filed in the district court and and they allee so then the question comes down to twenty dollars to fifty five dollars and again tell me if i read your letter right but i didn't take you to be contesting that that was jurisdictional so much as that we should be exercising our discretion or should be applying the abuse of the writ doctrine mccluskey vs xanth and ourselves choosing not to entertain this is that the right understand this is not a jurisdictional matter  i i looked at it from the way that i perceive all the decisions from the courts the core darrow and bruce and the others who have looked at it where they found this to court had it doesn't appear to bar a judge from considering it but you have to then go to the savings clause because at the end of two thousand two hundred and forty four it says except as provided in twenty to fifty five and should entertain so it's almost as if these arguments as a proceeded through the courts have been an either or proposition the court is not required to entertain it but even if they  did there would be no finding that the individual established that they were actually innocent under the standard and therefore the district court right so i think i said in my letter that twenty to fifty five is  saying that twenty two that language alone of twenty to forty four a was was not questions a little different army might be jurisdictional the circuits are split on that we have a footnote that kind of noted that circuit split but if it's allows these kinds of proceedings to go forward so do you take the position that twenty to fifty five b is a jurisdictional barda nd or successive petitions that otherwise properly belong under tw keep if you cannot establish actual innocence based on a subsequent subsequent i'm sorry subsequent substantive decision that makes conduct that was previously criminal non criminal then you cannot proceed ok you were positioned then is that there is a jurisdictional bar that has an exception for actual innocence but on these facts you don't believe actual innocence is satisfied but your position is there would be no jurisdiction a bar in a future case where someone was actually an asst yes i i can imagine advocating to the court that if somebody was able to establish that they were actually innocent that i on behalf of the united states would be advocating to the court that you couldn't consider that i know the supreme court has not w been decided we're going to cement the jurisdictional work is not doing any independent work this is going to collapse into the merits argument on your position so i might as well just get to the merits argument but that's that seems how i believe i even in my response to the court's letter i indicated that you actually have to get to the merits of it to decide whether or not you have it so you you never raised this before and you're  but why shouldn't it because the statute says a person has to be using the firearm during and in relation to a drug trafficking crime for which the person may be prosecuted so that statute must be referring to the same person who's using a firearm right so is she using the car the firearm in a drug trafficking crime for which she may be  the definition of a drug trafficking time in the statute is a felony is defined a has to be a felony but for her possession is a misdemeanor right it's a possession for personal use yes ok so she can't that can't be the predicate crime right her possession can't is not a felony and therefore it can't be the drug trafficking crime for which she can be prosecuted she cannot be absolutely clear other than the accomplice liability where and explaining what jeffrey holland had to do to being gauged in drug trafficking and then describing what it's what the elements are for an accomplice to be responsible for being involved in drug trafficking i think that was as it often if we're dealing with the actual innocence standard which which we are you look at the entire record as you suggested and the question then is whether or not in light of all the evidence to more likely than not that no reasonable juror properly instructed would have convicted him and in this particular case i think it's it is i that the stewart was getting drugs for her personal use if holland as a drug dealer which she testified she knew he was a significant drug dealer and requested a firearm this court has routinely instructed juries the firearms are tools of the trade assist in the drug trafficking so that if she got nothing out of it other than to during and in relation to holland's drug trafficking activities i think that's one way of doing it the other is when holland got the gun he is in possession of it in furtherance of his ongoing drug trafficking act that's what i want to ask is there evidence in the record that supports that after he received it that he was possessing the gun in furtherance of a drug trafficking crime can't meet evidence in the record if you think that you have something that supports that and if it fits together with jury instructions on that i don't have anything to record that he that somebody came forward and said i saw him two weeks later with that same gun but the question is based on all the evidence could jury infer that he didn't throw it away when he drove away we know he had a gun when he murdered jason  he did anything in the instructions director attention to that added to the prosecution argue that after he got it he was possessing it in furtherance anything like that no ok i mean it wasn't it wasn't necessary given the accompli liability instructions so little theory at trial and the instructions focused on the accomplice side bill of the idea that you were stitching together her use with his drug trafficking yet her her use prepared for something like this but we discussed that side bar with the court the application of smith to this case and the fact that holland was not the individual who was trading the gun for the drugs and we asked for the accomplice liability  think in this particular case the he had the opportunity to pursue on direct appeal he did not raise as he could have been the watson case if he thought that if so that's again that's another way of saying he forfeited it yes he's saying nevertheless he satisfied the promise of a lot obviously you're saying that wasn't ever but if there was an error or is there any reason to think it wasn't plain or didn't affect substantial rights yes if if you're talking about the error in this case having to do with whether or not as an accomplice he would be able to reasonably for see that drug or that a gun would be used in this transaction there is no doubt that a jury would convict in this particular case because that was the entire purpose of the transaction for the gun to be present there so it's it's my view there's there's no basis to make that argument and it's another way of said i think that's another way of saying there's no error so is there is there anything anything about the th prong here that would make it you know it doesn't really affect fairness or integrity if it were an ever other than the fact that he's serving a life sentence and this is a five year consecutive sentence and whatever occurs here would not impact on that but that's a that's a reasonable point maybe mr feldman can address that rebuttal let me ask you about this are you aware of other accomplice liability instructions that have this i mean the pejorative way would be to say frankenstein quality of stitching together and actus reus you know you know  well beyond the unique holding of it applying to an eight hundred and forty three b where the specific language of that statute contains the word facilitate but nine hundred and twenty four c doesn't contain anything like that and it's it's designed to address an entirely different harm the introduction of the firearm into the drug trafficking arena as opposed to somebody buying a rock or crack cocaine and picking up a phone to it there is this court has it as previously like i said it struck to juries on the tools of the trade of firearms and how you're trying to to prevent that from happening and in this particular case there is no misdemeanor offense of using or carrying a firearm in furtherance of drug trafficking and that's what was done here even if she didn't get anything an exchange for providing ha with a gun the fact that she provided it to a known drug trafficker for what the jury could infer would be for his protection would be enough to satisfy it so i think there were no instructions or argument that went to his being a known drug trafficker that it was for his protection right that wasn't the government's theory at trial that's correct but it but in the context or in were not on direct appeal when rocco adderall review and the issue was whether or not he can establish actual innocence in a court supposed to look at the entire record and what a reasonable properly instructed jury would have found our position it is they cannot establish that under these circumstances is more likely than not that no reasonable juror not jury no reasonable juror would vote to convict in this case so a properly instructed jury and all those theories looking back  that you would make the same response to mr felt a little argue rule lenity that that would might be a decent argument on direct review but here we are the actual innocence exception schlocky delo and all that you know really requires that you know if  this were retried before a jury you know there's no way that more likely than not the no jury would convict and your earth not in the jury right so it's limiting it to that so yes i agree and again it was worth pointing out that when holland had the opportunity on direct appeal from his conviction to present the issue that he objected to and preserve chose not to when when he had the opportunity to do so he raised it in the twenty to forty one context despite the court telling him you know you got to go through to twenty to fifty five so and i a loss for words like mr feldman it's contagious and i have too many papers in front of me what i based on everything that's presented here and given that standard actual innocence where he would have to establish that he did establish actual innocence and it was the best place to look in the record for that what do you think is the strongest support for what the the district courts clearest statement of his he discuss not actually innocent  in judge brands opinion where he talks about the merits of it and he discusses accomplice liability i would note that i would note that even though rosemont has been discussed rosemont was never raced rosemont was decided in two thousand and fourteen it was not raised in the twenty to forty one motion it wasn't raised until the briefs were filed on mr feldman quite properly candidly conceded that it never been a race so having been decided in two thousand and fourteen and the request for permission from this court to file a nd or successive twenty to fifty five's that were filed in two thousand and seventeen didn't mention rosemont and it's one hundred and forty one it was filed judge brandt did not mention rosemont either and this you know the district courts have held  that rosemont is not has not been held by the the supreme court to be applicable to cases on collateral review it goes not to the substantive criminal  interprets accomplice liability so i'm looking at judge franz opinion and i want to see because because the court didn't discuss this jurisdictional bar mall skeptical to the merits and the court just said he's not actually innocent not no reasonable juror could find him actually  opinion at sixteen a one thousand seven hundred and eighteen a that all is about accomplice i don't see anything about it being hey afterwards he was possessing it for his protection so i don't think this plan addressed that to the argument you're making now he he did not i don't see that i don't see that in there is there anywhere in the record any of the prior decisions i don't think they addressed that i don't think they got to this issue so that you know this is an argument i think you're making an appeal to the st time and not that we can't consider it because this is it if we find this is you know under the use of the river whatever preserved and we have findings on the accomplice theory it's just your backup theory now that he was a known drug trafficker who possesses for protection we have no fact findings from the district court correct we only affect findings on the accompli liability theory correct there was no hearing we we argued simply on the record from from the trial and did not ask for a hearing or make any argument to that effect but that is what could that be can that be because there's really nothing on the record to support that theory there would be argument are you know i know i get your argument but what facts on the record support that theory on this record i mean and this record it's and as as we're looking at this looking at it on collateral review as opposed to direct appeal the burden is on the defendant to show that under the facts of this case a properly instructed juror would no juror would vote to convict if properly instructed and based on this and the fact that the entire purpose of this transaction was to get the gun for this drug trafficker and he knew ahead of time that that was still the equitable abuse of the rich doctrine and your colleague makes an argument you know this is one we have the power to invoke i don't know if you have any authority on the contrary but like should we exercise our our our discretion here where he makes an argument that you know if the jury was properly instructed it would have found this guy's a drug trafficker plenty of business dog trucker you know it's a very high standard furtherance of drug trafficking crime or crime of our own there is no evidence use this gun for that purpose and that was never the theory of the of the government at trial or even in this in the city's petition is a possibility that these five years could in fact increase a sense of the recent increase the time yes of spend in prison and the reason for it is that mr home with sims two a life sentence because at the time he committed this offen at that time this is an automatic life sentence and mandatory by ten because he had to priors and the government filed the information you know stating aspires it was an automatic life sentence after  an extraordinary compelling for extraordinary and compelling reasons and i think that he has a colorful claim for that in this case that that this change the move off gives the district court the authority to lower his sentence under th  thing else with respect to rosemont it's true that this was not raised in the heaviest petition but as i said there was no reason to