missing evidence of a shooting outside mr flowers home in march two thousand and sixteen where there was no evidence linking the shooting to any drug activity or any firearms the charges in this case mr flowers in a pretrial motion objected to the evidence is irrelevant as propensity evidence and a rule for four b and also under rule four  three on the ground that the probative value was substantially outweighed by its prejudice i can imagine a four three argument i do not understand the world for him and so the for a for b argument is i essentially that the government is presenting this evidence to show that mr flowers was involved in drug dealing in the past ok but there's no allegation mr flower he was the victim on that occasion right somebody came and the reason it was i mean the reason it's for for be somewhat related to their relevance argument is that the government used it to actually argue that that was evidence that he was actually dealing drugs in the pa government argument the government's argument that was probative of why he would have firearms yes they argue that but in the context that because he was a drug dealer he would have had firearms because it was a i'm just not really sure it reflected very well that poorly on your client at all well the i think in this case the evidence wasn't extremely strong the jury acquitted on count two that the drug that the guns were connected in furtherance of the drugs the firearms were actually in a locked safe you know the argument by the prosecutor was both and its initial closing as well as rebuttal and the question is is whether or not it would have influenced had any influence on the jury's verdict and we argue that because the government did and for size it a couple times in the overall closed case that may have influenced the verdict and he should get a new trial comes i don't want to use your time redirect you in a different way but the part that i'm most interested in this case is scuse me is the argument about the enhancement i maintain in my house yes and that's actually premises for the purpose of manufacturing of distributing a controlled substance they moved into the house to flowers house about eleven to twelve days before the search so they had there was evidence that the jury heard about the act drug use of the larkspur residence is that right that they were the short visits the evidence meth activity there was evidence of a number of visitors for short periods of time no evidence of what they were there for and there was evidence that the van smith was involved in at least two separate here when transactions in january and february so one in two months before so i was inferring that the officers got a search warrant for the larkspur residence and then when everyone all of the inhabitants the to get a search warrant for the larkspur they also were getting a course search warrant for the storage locker it's lockers and the commentary says that for the enhancement to apply that the manufacturing and distributing controlled substance need not be the sole purpose of the promises but must be one of the defendants primary a principle uses for the promises rather than an incidental or collateral use our argument is essentially that this was the flowers family home he lived there with his wife his children and the just and yvonne smith family yes and so so one question i had this this was as i was looking through the timeline did drives consistent incidental rather than a primary or principal purpose of the residence to store drugs for distribution and i will reserve my remaining two minutes for abo the court a list of best dinallo for the united states first just quickly to answer your question about the march twenty second activity that was after the family had moved to seclusion turning back to the question of the admission of the march seventh shooting district court did not abuse its discretion in admitting that evidence evidence that flowers had been the victim of a drive by shooting three weeks before execution of the search warrant was admissible to explain why he would possess drugs why he would possess guns in the house the expert had testified that drug trafficking is a dangerous business and that's indeed how the prosecutor argued this evidence to explain that because drug trafficking is dangerous as evidenced by this shooting that's why drug traffickers need to possess far arms and that's why this drug trafficker needed to possess far back to the enhancement yes i am troubled by the enhancement i think for some of the reasons they've been expressed there's there's the larkspur activity right in a now lot of complaints about what looks like drug activity but then they moved and and they hadn't been there very long at all only ten days right and so there isn't the same in and out activity at that place and i think the district court very conscientiously recognized this very close call and the government's got the burden and so you know that's that's why i'm focusing on it speaking for myself and there's this other sort of theme about these safes being carried back and forth in it and what we have is that the saves i think several things including some powder was that peaking in that transcript that portion the transcript or is he talking about the safe being opened in the storage container storage facility it's not clear from his testimony where he where he was when he was speaking  if i can answer your larger concern about the justification for the stash house and what seems to be the we're talking about story just at the government's theory or you talk about dealing storage primarily ok i'm  house and that's the house we're talking about at this point was where the drugs were found six one ounce balls of cocaine it's where the safes were found the safes that contained the guns the cash and the smell of cocaine in one of them right then safes went back and forth counts on kind of where this where his operation really stored stuff and where it was dealing and given that they were in this house alone a short time i think the district court is right to say this is a close call so what's your best shot i think what tips it over your honor is the packaging material because in the bedroom which is steps away from where the drugs are recovered and the same bedroom where the safes are found are the plastic bags one has the corner torn off which the expert explains is how small packages of drugs are packaged and the packaging material is found in the dresser drawer which smells of cocaine there's also the smell of cocaine  safe and notable to that stress excuse me also contains the weight for the scale but there's no question the house was used as the family residence but in the kitchen of this family residence the heart of any family home that's where the scales found in a mug with additional packaging material so i i recognize your court's concern about the safe going back and forth but the dish of the packaging material burger and the standard of proof here was only preponderance of the evidence and all of the district court rightly took this very look at this very carefully there was sufficient evidence to support that have i did the two points give me give it to the two points change the guidelines change the outcome they change the guideline range although the district court at sentencing and this is at page seventy four of the sentencing transcript departs upward from the guideline range and makes clear that it did not find that a got sense within the guidelines would be sufficient under the various thirty five fifty three factors i think i interrupted  agree that it is the only thing here that might make the distribution enhancement work because the packaging the paraphernalia related my questions are first off this is significant that  the those materials are normal household items and secondly it from a district court's perspective the base offense level really should represent kind of the heartland of cases and then the enhancements are there for mitigating or  enhancing purposes and this seems to me with just drugs and household items to still be kind of in the heartland of cases that most  courts deal with when people are convicted of possession with intent to distribute and so this is more a question of principle what really makes this  case an enhancement case there's no question that we're not manufacturing there's no question there's no drug distribution evidence in the record smith didn't even have drugs in is in the area that he wrote routinely occupied and he's the only one out there looking like he's distributing substances so why is this outside their heartland for purposes of enhancement for us to answer your point about these being household items one normally doesn't keep packaging material in one's dresser drawer that also smells of cocaine so this is more than simply ziploc in the kitchen drawer so in the bedroom close to where the cocaine is stored in unusual spot to be storing ziploc bags and the smell which indicates what they were used for and also the torn bag which the expert explains the significance of that but to your point about why isn't this in the heartland of cases the guidelines says that this enhanced when it's appropriate to apply this enhanced meant if one of the principal or primary uses of the house is for drug storage as long as it's not incidental it's appropriate to apply the enhancement and it wasn't incidental here when the evidence shows that this was an ongoing drug operation this wasn't just please come in one day there the drugs that's it the evidence showed that this had been going on for some time and that shown for example by the visits to and from the storage unit it's shown for example by the text messages going back to march seventh by the sheer amount of money involved i think that's all right i think it's all correct and that explains the at the convictions for sure and i'm really focused on this and han that the evidence that it was an on going drug operation supports the notion that the house is the base of the struck operation that it's not simply why is that why is that why isn't it why couldn't we equally draw the conclusion after all it is the government's burden to see that the storage unit is the common denominator in the divan smith is dealing out of the red car i would agree there's ample evidence of an ongoing operation i'm trying to figure out why the two point enhanced minutes appropriate for maintaining the home because drug dealers would have to live somewhere to who is going to have a home is one purpose and we have to figure out what the primary purposes one there's evidence that the home itself was used as a base of operations given workers testimony about seeing the safes in the house so it wasn't a front back and forth and he saw them in the storage unit right right and and  o i'm not sure why they were going back and forth but to me that suggests there's a reason to take them out of the how he's storing it elsewhere otherwise why would he take it out of there well the evidence there was evidence at trial that the reason he took it out of the storage unit was right for starters that he sometimes kept the safes in the house and sometimes kept them in the star gene or do we misunderstand that you're correct in that the safe move back and forth but the fact that the safes were sometimes kept at the storage unit doesn't preclude the fact that the house one of the primary purposes of the house was as a base for drug operation they're not mutually exclusive that when the safe throughout the storage unit that's where the whole enterprise is centered when the safes are at the house that's where the whole enterprise centered but moreover there's no evidence of any packaging at the storage unit that just makes sense that there be packaging at the storage unit because that's something for which you need privacy which you need security where people can't watch you people can't come and take your stuff as you packaging it and the fact that there was packaged material in the house so close to where the drugs were stored does sustain the government's burden which as you point out is on the government by a preponderance to justify the enhancement i think it does absolutely nothing this is probably what judge lisa was getting at in that we're all getting at it is certainly we've got evidence of an ongoing drug operation and we've got going at it are certainly ample evidence that the drugs were found at this residence so this is part of it we're trying to focus and la you know more than incidental use given that he clearly went back and forth and had this safes in the storage unit for for some part of the time so can you tell me what is your best shot at just meeting that burden for that that the house was really a primary purpose and more than incidental use forgive me because i'm going to call a combination rather than a second ok but the combination of the fact that this is an ongoing enterprise which is you know the evidence supports that inference an ongoing enterprise with substantial evidence found in the house that includes evidence of packaging of drugs but that the packaging you're relying on the packaging i think tips it over ok but it's not by any means the salt so just one quick related question went there to scales in the house no there weren't scale weights in the bedroom drawer the scale itself was in the kitchen thank you i'm over my time unless the court has any further questions that ask you to affirm the judgments of the district court thank you thank  you just briefly it would affect the guideline score because the group one guideline would go down from twenty to eighteen and depending on the grouping rules it would either make a difference a one to two levels and the fact that the district court departed up or is not determinative here if the guys i mean to course was lower and she did that the same degree of departure upward of a few months she should still get a very well may still get a lower sentence and the supreme court law is a general way that when there is a guideline error unless the district court makes a clear statement that would have posed the same satins that the error should go back for reason what's your response to the government's argument that there is no packaging material found in the storage area of the packaging material was found at the house indicating that any packaging or for distribution list and house and that that's a along with the other evidence is is a key factor in the caveat that at least one primary purpose of the house was for the dr and then my my other point would be while i'm looking at this would be that that it did appear that mr flowers had a relationship with the woman at the stor locker at the at the storage facility and then abruptly took things out of the stores locker and so i think the evidence from the search warrants etc was that if there was drug dealing going on it was primarily out of the storage locker and then the items were just temporarily the safes were brought over for short period of time it doesn't show that the