eigen brings two issues to this court today but i would like to focus in on one and that is whether mr monti possessed a firearm in furtherance of the underlying drug trafficking charge and congress informs this court that the mere presence of a firearm in an area where the criminal act occurs is not enough it's not sufficient for imposing this five year mandatory sentence rather the government must show specific thought to tie the in furtherance to the underlying crime so what we have here is the question of the nexus and congress set forth the inference that cannot be made and at from kraus to norwood and there has been a totality of the circumstances approach where just because the gun was in proximity to the drugs was not enough there has to be a strong  then where there were other drugs too and he took them to the gut and there was a gun so you got all those facts yes we do we have a lot of facts i think the strongest case is if we start with the legislative history and i think the to the range of cases because in each case what the court is struggling with there's not a bright line here it's it's fact pacific for each case so we can look at that make it more difficult for you the fact  first time that the ninth circuit had dealt with the in furtherance under section one hundred twenty four and in that case they actually looked for guidance to the sixth circuit judge gellman and they found that the inference of five firearms three of them loaded in proximity to a major amount of drugs would be an inference that they were using those firearms to protect those drugs then it rotates to man where you  have meth manufacturing tent and the defendants show up and they have a they have guns in a locked compartment in their truck the key is in the meth manufacturing tent poles are not really analogous to what they're not but what it goes to is what is the court concerned about in each case it varies based on the case and so let's go all the way down to norwood norwood it doesn't help us but i think if you look at what the court was concerned with it does so nor would it said it's a domestic violence call police walk in mr noir was lying on the bed they arrest him when they arrest him they find on his person cash and drugs when they search his bedroom there's drugs and a firearm between the mattress and the box spring what was judged tom in an oral argument what he was concerned about is that mr norwood was found lying on th bed and could have easily reached down and grab that gun what we have here let's let's look at the facts that we have here yet let's look at him because a rational jury could easily conclude in my view that mondrian prepared drugs for sale at his house with his loaded gun nearby for protection given that a large amount of drugs and cash that he possessed admitted to the government agents that a gun was in his apartment he consented to a search and led the agents to a walk in closet where they discovered a nine millimeter handgun inside a jacket pocket more ever and it was three to four feet away from a table containing methamphetamine packaging material a cutting agent a digital scale and thirty one hundred dollars the agents also recovered an additional one thousand seven hundred sixty grams of methamphetamine from the attic space and yet all of those we've got all those and there's also a cutting agent and work kit with scales scales found in the kitchen where there was no firearm there one hundred seventeen grams in the closet on the table there were seventeen hundred grams found in the attic and there was that just all argument why you're asking a jury to find him not guilty when you're when you're talking sufficiency of the evidence that we have to look at the inference is the jury could have me i mean what what i'm asking this court to do is look at this more as a legal sufficiency argue and to say as a matter of law with all those facts that well that it's insufficient welsh well but i think as a challenge any further right anyone's gone right i don't think so i would disagree and here's why if you look at the t circumstances which this court has done in each one of its cases you know that mr munder again was watched for fourteen months by federal agents and he did for sales to a confidential informant and detectives on the stand said that not once was he armed during those transactions then on the fifth time in the fourteenth month they set up another buy and on his way to that by agents pulled him over arrested him and all they found on his person was th that he planned to say oh there were no other drugs in the car there was not a firearm on his person there was not a firearm in the car there was no holster no missionary could have found him not guilty but however i think it goes back to in the legislative history what congress said is if this is like the bailey case which when they inserted the in furtherance language they were overturning bailey they said if as in the bailey case we have someone in a car with a gun with drugs and all the government can bring forth is general evidence of an agent expert on the stand to say what drugs and and drug the government has provided adequate evidence of a nexus between the fire arm and the drug crime by showing that the fire arm is in the same room and within easy reach stachel quantity  of traffic again i would point you to what was the court concerned about in that case and when that was presented in oral argument what judge tomine was stuck on is the fact of the easily accessible firearm when police found him lying on the hold you know that case that doesn't apply just to the facts but they are different and that mr norwood was found on the bed near the gun and he could have easily reached out and shot who knows who coming through that bedroom door in this case mr monterey and had been watch for fourteen months never armed and was pulled over and armed on his way to do his drug trafficking i see that i'm i'm cutting into my rebuttal time can i answer any more questions before agreed that the facts in this case differ from the facts and nor would your own of the facts in this case fit squarely within norwood's holding which is that when the government shows the question was do the facts in this case the facts in this case different than the fact in a meaningful way because the nexus between the drugs in the closet and the gun and the closet is just as strong as it was in norwood the question is when the defendant was sitting at that drug processing table was th gone easily accessible to him and the answer to that is yes it was three to four feet away but he wasn't at the time when the gun was discovered by the police he was not he was not lying on the bed he wasn't near the drugs or the weapon why doesn't that make a difference in our analysis because the underlying drug trafficking offense here is possession with intent to distribute on march first twenty ten and that possession charge encompasses not just the moment of his arrest but his possession of the drugs in the closet and in the attic of his house and so he possessed the drugs in the closet and that was part of the drug trafficking the underlying drug traffic offense on that same day the gun he possessed the gun four feet away from those drugs and norwood makes clear and lopez uncross makes clear that when you're looking at sufficiency of the evidence and a possession with intent to distribute charge you have a substantial quantity of drugs drug processing equipment and a gun with an easy access of those not his and he there's specific testimony that he never denied the gun was his he also doesn't have to own the gun we don't have to show that he had title to the gun he just has to possess it ancient jewels testimony for that in furtherance i don't think we need it  was helpful in the particular facts here because the argument that the defense was making was i went to this drug transaction without a gun how could you found that i find that i possessed it in furtherance of and so agent will explain why a drug dealer might make different judgments about when he wanted to possess a gun in furtherance of protecting his drugs and when he thought he was that different of more than hypothetical is it sort of pushing i think the judge in the district court said you're kind of pushing the envelope here you're on a dial back if you look at the colloquy at page one thirty nine of the supplemental excerpts of record you'll see that there was a back and forth because the government was explaining well there's additional evidence we we haven't been allowed to get in about why he might not have taken a gun with him to this transaction having to do with his  immigration status and there was a back and forth the judge did say at one point you're pushing the envelope but this is clearly within bounds under this court's and crime decision which recognizes that as long as the agent is speaking in the second person and speaking of a hypothetical how pathetically drug dealer it's fine to explain to the jury the methods a drug dealer might use in the judgments the drug dealer might use about when to possess a firearm and when not to if we were to disagree with you did you argue harmless error your honor we didn't make a specific argument with regard to harmlessness but i do think that's preserved in in our argument that there was sufficient evidence for the conviction and in particular as i've gone over that  evidence there's sufficient evidence with respect to both possession of the firearm and that the firm was in for that i also will say i don't think that this court can disagree with the district court's exercise of its discretion without creating a conflict with the outcome decision which approves remarkably similar testimony so i would like to point out that there was again a work kit and scale seized by the government that was found in the kitchen there was no chair at the table there is no evidence that the look of the drug activity was in that closet there was a jacket hanging where a jacket to hang in the closet the drugs the majority of the drugs were found in the attic where there was no firearm this is not like an crouse this is not like mosley where that of what the court called a cocked and ready to go firearm at the entrance to a stash it wasn't even on the jury have looked at i mean you say that because it was there were some in the kitchen there were some in the that really fall it was you know ready to have a lot of drugs it had a lot of drugs were not disputing that but what we are saying is that in like cases the concern of the court is with that firearm used in further ends of either protecting or drug trafficking those particular drugs or the drugs that were found on mr munder again and the answer here is no the nexus to tie mr mon dragon to that firearm in furtherance of his drug trafficking is not there is it president congress said the presence of a firearm just because you're a drug trafficker is not enough and what they suggest in the legislative history is general evidence of an expert for the government is not sufficient what they say what could be sufficient is additional witnesses that actually tie the defendant to the in further and to make the nexus for the drug trafficking at this point i think i'd like to use the rest of my time to really talk about oh i am in the ribs are all i'm so sorry your honor i will finish there i think you know the remedy you were looking at  thank you we just believe that in the range of cases that this court has decided i know this is a tough case when a jury has decided but what we are saying if you look at the legislative history it wasn't legally sufficient to go to the jury there wasn't enough