when piri are present karl is johnson the opponent in this matter this case is an issue of first impression before the six circuit but it has been ruled on in a number of circuits already has been pointed out in the br essentially the error that we submit the district court in gauged in this analysis and at the sentencing hearing was disregarding application notes seventeen to two d one point one b twelve  their application note it requires the district court to engage in analysis of frequency which is a matter of time not just the extent of the crime the extent of what if it's a storage case storage case would also still involve frequency of the get any more frequent than having the room filled with marijuana all the time well of if an individual rents a storage locker or stored space for only that for words gets that storage place one hundred percent of the time it's used for that one purpose well and it's very frequent so how what percentage of the time were the relevant the relevant room not used for marijuana storage well obviously an individual isn't that just this case you know that kind of goes to one hundred percent no you are in fact it's more like five point six percent and i'll explain how i get to that number and say but surmise from the record in the record admittedly is not well developed it's essentially an uncontested sentencing hearing about the facts just contested about the law and how it's applied so the p s r is really our basis for all of this and based on the p s r we have a delivery three times to four hundred pittman and by through arkansas and the duration of the time period in which the marijuana is there against my eyes from the p is somewhere between one to two days on the march thirtieth delivery around seven days in the may twenty third to may thirtieth delivery and then about two days for the nov thirtieth conspiracy was not to distribute from that house to individual buyers in blight film or surrounding area the point was to unload it from a tractor trailer from texas briefly and then distribute to memphis and parts of the mid south by other individuals not out of the home but other lower level people on the chain of the conspiracy so essentially and there's a bedroom and the first house was a bedroom yes sure it's child most back into his bedroom then new delivery and you're going to go down to the basement here girl thing a marijuana what is the evidence shon terms of how that room was used the evidence unfortunately would only show what was used on december first because that's when law enforcement executed the warrant or got consent from mr johnson's wife at the four hundred pittman address and seized the are two twenty five lakewood sees me on the summer first and seized the marijuana and that that bone point it was in the master bedroom yes we can't assume that how it was always done but that's how it was done in december first so essentially we get roughly in there 's a force that shipment that is not contested that happened sometime in that eight month period but there's no discussion exactly of when that is in the p s r or the extent you know in terms of duration that the marijuana was present at the four hundred pittman address because again that was an uncontested subject that there was a for shipment and all these shipments were roughly the same amount of marijuana around three hundred pounds so all told i think your honor we can surmise that there was about fourteen days in which marijuana was present at either four hundred pittman or later at two twenty five liquid in fourteen days either two hundred forty six days which was the time period from march thirtieth two thousand and eleven to december first is about five point six percent of the time so factually mr johnson submitted that he is distinguishable certainly from the kind of prison in sanchez miller the two cases most primarily cited by the united states at the sentencing days but does the amount of volume in that i think you would agree that was a significant volume of marijuana so does that mean that obviously because the other way what how does how does it work i mean certainly it's one of the over five hundred kilograms of marijuana and that's why we have a level twenty eight base of those levels is that the largest marijuana case i've ever had journo but there are certainly smaller ones and bigger ones but this is does this why it's one factor and that's why the application note is clear that referencing age fifty six you know that's the directive from congress that it should be generally like the eight fifty six crime of maintaining a presence for th and then but then man a time was ten times longer so you the same volume at the end of the day ten times longer you think we ought to have a different result potentially are because the commission in formulating this enhanced myth from the director from congress focused on the frequency of the illegal conduct visibly the legal conduct at that location and that's that's what the district court failed to adequately assess they mention of dischord mention that well there this was a family home and they raised kids there but gave it essentially little wait which was error because the application note says it should be the other words it's one of the one of the factors it spells out and application notes are still controlling post book or they need to be addressed by the court they can eventually obviously be disregarded as a matter of policy and a variance can be how does this all reach out if if everything is the same except the room it's stored in is a room branded just for this but in terms of frequency and you really focusing on frequency but hanson to that case an individual that uses that location more frequently for one purpose and one purpose only would have obviously a harder argument to say that it is less free would have been a dr house if you just you know all you did is you just you just rented this from it's in some storage facility you ran it it you're running it the whole two hundred forty six days but it's only fourteen days where there's a marijuana store there then that individual rented it own basically hundred percent of the time for that purpose didn't use that storage facility for anything else that individual would be subject to the yes even though the free can that's why i think the coverage since he was still five percent well it's five point six percent of two hundred  forty six days of life but it's one hundred percent of the use of that facility and in this instance we don't have that we have obviously one hundred percent use of the of the home for them for the purpose of living jump there and show how the room the room or rooms were used when there wasn't marijuana there no boat when there's no marijuana there's no illegal conduct being done that's the whole point of the enhancement it's to punish individuals that use a residence for a substantial purpose being distribution selling storing of controlled substances if congress and the commission had wanted an enhancement to just penalize home owners or lease holders differently than street dealers they could have done that they could have said if the these marijuana is being stored sold or distributed from a home that you are the home owner or leaseholder of interest and somehow then you get a two level enhanced but they didn't do that they focused on the substantial nature of the crime but also the frequency of the illegal conduct and that's different what is the evidence tell us about there were these four transactions and there's a certain number of days about the fortuity of those numbers of days i mean do the evidence tell us anything about the record and the words about when the defendant was contacted is it just a fortuity that it was for only four times he was  it was always available for this purpose any time that context it was read does it record tell us anything about that i'm just focusing on maintaining a premises for the purpose of district distributing a controlled substance in other words were wiretaps or something that would show that he got that apartment or that home with that mindset or that he was willing to make his part has a portion of his home available for this purpose at any time it's just a fortuity that they called him four times and move the drugs with him wanted two days once in seven days another time anything at all that no not that i'm aware of your honor but certainly the point mr johnson's involvement was he was the person they would unload the tractor trailer somewhere in bl fill the last instance was a parking lot i think at a restaurant kind of in you know broad to light and then take it to the home in individual packages and keep it there briefly and then take it also he was a good location to be in intermediaries right off of fifty five and he was a good spot between the supplier and the ultimate distributor essentially but he there's nothing in the record that would suggest that he wasn't available any time they want of him or that he said no whenever they said we have a shipment coming no there's not anything like that in the record so essentially your honour's frequency frequently as used in the guideline application that should mean what it means plain language right and that is has to have any use anymore or are we going to just ab initio disregard it which i think is what miller says basically because it would lead to absurd results they don't the miller court just disregarded  basically are overruling all our premium post booker case law that says the application is controlling and the and that the dish courts must apply it properly arrive at a sensing range that's correct and then engage in that thirty five fifty three a analysis and determine whether any variance is appropriate that wasn't done in this case or are we respectfully submit that based on the facts it doesn't rise to the level of substantial use and the enhancement should not be a  it please the court kevin ritz of the united states the district court properly applied the enhancement in question the defendant stored for three hundred pound quantities of marijuana four times at his residence is the evidence also show that the drugs were repackaged and repackaged and even weighed for redistribution at that residence the amount of volume and frequency of the shipments demonstrated that the drug related activity was a primary or principal use not just a collateral use and the defendant cannot show clear error on this record would you agree that frequency factor itself is rather weak in this  case i'm not sure i would say i would agree with that your honor and i guess i mean you know i mean what is it or times over an eight month are going about a week total or something like that what we would say about the calculations that the appellant that submitted to the and if you get them read your way you could you could infer your honor the district the shipments came six weeks before these transactions you could infer that the drugs that he was caught with on december first had been there for three months there's really nothing in this record to demonstrate that they had just come a couple days before week before we would submit that you can you can read that either way so it's not really a stronger burden to show certainly our burden or misses thing a matter yes your honor no doubt that doesn't help you i mean we're probably back to fourteen days that right what we would submit does help us your honor is it's not just the volume which is large of these deliveries and not just the four times but there's also the evidence that he distributed marijuana his admission to supplement his income this was part of what he was doing to make money he made that admission the evidence of what he was found with at the end of this investigation on december first the firearm scales fifteen thousand dollars in cash in you know a substantial portion of that last and final delivery and those lot of those things show it was a drug house you're aren't sure those are tools it was a drug operation and  carrying on his role in that operation at his house and we would submit that's that's that's part of the what this enhancement is here for and i guess we would submit a couple you know if if we are if we're talking about why are we applying this enhanced meant i think we have enhanced myths for other people other people who play different roles and conspiracies people who are the enforcer and commit felonies and in furtherance of a conspiracy certainly the organizer or leader and there in part to penalize someone who is using the regional distributor the regional warehouse for the for the large scale operation there's also of course the consideration that and this is why the the idea that that it's also used for the family home cannot preclude application of the enhancement in fact in our view that supports application if you have certainly children not just other innocent people in this residence and you're exposing them not only to the risks of violence that are associated with drug trafficking but just the very practical risk of there's a lot of marijuana in the room and there's a risk that those people could be using those controlled substances it's also an offense against property the section eight fifty six makes that pretty clear that this is an if you don't section eight fifty six that is really a question for both of you but you know on the frequency point what's a good case assuming those cases under eighty six apply here to this and handsome and sane test and so forth what's the best case that shows either don't worry about frequency with this kind of volume or this is enough frequency or there's you know something about the inferences i would point to the actual the cases on the enhancement the miller case for example what we're we're talking about mrs miller here miss miller had five transactions five incidences where she received money at this residence over a twelve month period that was enough that triggered and in fact she played it was pretty clear she played a lot less and i will said five inches of receiving money correct at the residence in question in the miller case over a twelve month period here we have for over a six to eight month period depending on how you measure it and in that conspiracy was a lot more limited than mr johnson's role here as providing this place for them to be storing these large amounts miller was a family house it was your honor it was at least yes the seventeen year old son and the the couple  live there sanchez was also a case where it was a family home or at least you know family members live there that was similar in that in that case it was pretty clear that the defendant didn't keep the drugs there long as a cocaine case and there were large amounts of cocaine in the garage but they came in and out in an out and it was not it didn't matter at the end of the day the enhancement applied because of the scope and the volume of the drugs coming through the home and that's again what we have here i mean these are three hundred pound deliveries the evidence suggested that they broke this up the p s r does suggest that they brought this up into sixty pound kind of containers these plastic containers fairly heavy containers and that's go take up a pretty large portion of wherever room it's in and i will say that other than the final seizure of drugs on that final time there's really nothing in the record to show where in the residence these drugs were kept so i don't know that we can infer that it was in a bedroom it wasn't a bedroom on the fourth time but that you know at the end of the day it's a clear standard and we the taliban idea we think makes sense and this is a determination the district courts should be able to make that the reason these other cases are helpful is because they've kind of first of all to disabuse us of the notion that the fact that it's a family home precludes an application of the enhance use of this residence is not necessarily a zero sum game in other words if you use it one hundred percent of the time for your residence that doesn't mean there's only zero percent for other uses there could be several primary uses of the premises the residence or otherwise  submit here certainly a primary uses is as his family residence but it's also a primary use to carry on this illegal operation and the other reason these cases are instructive just in terms of fleshing out the scope and frequency in tandem and different facts come into play in different scenarios here again with the the amount of drugs that we're talking about the number of times over a six month period the paraphernalia that question about the statute versus i guess it's common to note seventeen so the statute talks about premises in purpose but the key word is premises then when you get to the setting it's common seventeen it says maintains a premises and then it qur'an zoe a building room or enclosure it's you know disjunctive so does that mean you can take a family house and then your principal purpose in corrie or a primary purpose inquiry is about the one room in the house that's the way it seems to read which you know you know maybe it's an either an aggressive reading of the statute or that's that's fine but the point i'm making is what do you generalize off of  generalize off of the primary purpose of the house or the primary purpose of a room within the house obviously it's easier for you if you're focused on the room that was used for storage and particularly for example is just a room that's used for nothing else premises versus room ok in the statute or now the guideline it refers to premises right in this one comment it says premises i e a building room or enclosure i see your sign take th out to take this case ace a bedroom do you just focus on how often that room is used for storing marijuana or do you focus on how the whole house i think it can be either your own  no i think it would depend on the case i mean that seem like a big difference seems like oh really lightens your load to allow the government to focus on just how one room in the house is used and whether a primary purpose of that room is marijuana storage you can imagine situations like well they don't use it for anything else but they sure were using the rest of the house for a lot of other things right your honor i'm not sure that at the end of the day it would make that much of a difference i guess because if you've got a very very large house with lots of rooms that i think at the end of the day the court can access how big houses which room was being used what part of the house or premises were being used and again it's not just houses we're talking about it's storage facility it's a it could be a business it could be all sorts of premises but here you know it's there is no real indication as to how big these houses were and again other than that final delivery there's nothing really to show exactly where in the house that was being kept it does seem as if these were not large places the cars were being backed up and and then they'd taken plastic containers and then take them out and then take them back to the parking lot for redistribution one thing i will say about a fifty six year honor is this court has interpreted fifty six a little bit more broadly than this suggests we should apply this and handsome and what i mean by that in the russell case this court determined that the test for an eight fifty six is whether the use is a significant use that's a little bit lower bar than here where the application no directs that it should be a primary or principal use but we would you think we should apply the fifty six cases to this guideline no i think they're instructive your honor but i do want to make sure it's clear that there's a little bit different test at least the way this court in most other courts have interpreted eight fifty six a one it's a fairly it's a little bit broader in our view  if we're looking for these similar types if the instruction is to model an enhancement after the statute then and this court has said the statute should be interpreted broadly than we are submitting that the enhancement should be interpreted broadly i was just trying to call just one of them specify there is a difference in the text of the commentary that's not present in this statute in the case law that this court as it how this court is interpreted that statu into effect and said storage is enough and here again this could be a different case if we only had one delivery could be different if we had two could be different if we had thirty pound quantities of marijuana as opposed to thirty three hundred pounds it would be different if we didn't have all this drug paraphernalia or if the defendant had not admitted that this was part of what he was doing for his income which these other courts that have talked about this and handsome and have found persuasive but we have all those facts here for those reasons we don't see any clear error on this record and ask point they just started watching the four hundred pittman residence and saw the delivery happen when it happens yes i'll go back and look but i mean so it it makes it clear in the p s r that you know three hundred pounds comes in and the same three hundred pounds goes out of two days in one instance or a course of approximately a week in one instance yes i think your owners can extrapolate based on that information the time period in which marijuana based on this conspiracy was stored at first the four hundred pittman address later the two twenty five liquid enters and what's your best case so on the frequency point the question i asked him what's the best case that shows that this just doesn't this is enough of a frequency problem that  use of the premises and the century the law is long as it's done more than once it triggers the crime and so certainly that wasn't what the commission had in mind in fashioning this guideline six and the guideline pretty similar or materially similar it sounds like it's the application note that maybe raises the bar a little that's correct but the application no guides the district court in determining  what facts are important to determine that this use of the premises was substantial for that purpose and that's higher as the united states concedes then just prosecuting an individual for maintaining