that this court continue to find he did not possess the rifle overturned the district court's re sentencing and reduce his base offense level from a level twenty down to a level fourteen the district we re court and upon re sentencing the district court looked at the determination that this court had made regarding the possession and immediately found that this court must to focus only on constructive possession and therefore if he did not in fact possess the weapon to remand it for a limited purpose of demonstrating that the guideline that he was originally sentenced under which was the basic sense level twenty one under the two k two point one a for be we actually knew what we were doing and we did know our actual position but we did decide to be whatever we were deciding conservative beyond a reasonable doubt verdict and you still have to  first appeal by this court indicating that he picked up the weapon to look at it in fact the government's own witness indicated that the only fingerprint that was on there for mr combs clearly indicated not that he was handling the weapon but merely looking at the weapon and based on that how a fingerprint could tell you that someone was looking at a weapon as opposed to handling and i think the fingerprint evidence was introduced to cooperate testimony i don't think there's or anything to that or he looked at it as if someone was handing someone else you know a paper to look at you touch it you look at it and handed it back so the only question it's this is not a weight of the evidence question it's a legal sufficiency i should write whether that's sufficient to constitute case under jefferies this court found that there was insufficient evidence to demonstrate that mr combs had possessed the weapon and the insufficiency is that any reasonable fact finder could not find though don't demonstrate as much as what i would say in all the cases that i looked at every one of them that talked about some sort of fingerprint the demonstrators talking about the thing of it was the fingerprint of i'm sorry i'm talking about any right to do anything with it other than that he couldn't use his girlfriend's weapon if he walked out with an archive to do anything else with that he had control of not right i believe that all the cases that talk about he actually bought the weapon at that point paid for it which seems to be a significant difference but they essentially healthy said we hold that picking up the weapon and holding it in his possession and distinguished possession of guns f knowledge alone is not enough to demonstrate possession and if if we are saying that one moment in time one of the keys is your money first and when you say should be the definition of this issue i think it should be car that was sitting on the street and put my hands up to it and looked inside the window my fingerprint ended on it would that mean that i possessed that car because i could render it in test drive was i went for a test i think if i went for a test drive there would be a little more of an argument saying that at that moment in time i very well may have possessed that car but i'm sure that the dealership would be very wary of me saying that i possessed the car at that time in oral argument during the first  appeal it was argued that if someone showed a gold necklace and someone looked at it for a brief moment oh that's an interesting necklace and then let go does that mean that person possessed it at that brief moment i think it's quite clear that that would take this argument of possession to be ridiculous it goes above and beyond what we ever wanted to now i think possession is one argument can allow it to accept more than you know fifteen bullets in it at one time i have no idea that's why it is the government's burden to be able to demonstrate that and in addition to that the guidelines also talked about at the time of the offen scotland i don't believe we waived that argument and i think that it's quite clear in that in the first appeal i believe that there was a confusion as to under what subsection of the guidelines it was going under because originally when asked on the first appeal an oral argument the government had indicated that he was sentenced under that level twenty because of his prior violent convictions now we know that that case law has obviously overturned that aspect of law regarding burglaries but then i don't believe that argument was waived in addition even if it was this was a re sentencing and upon re sentencing you look at guideline issues and you look to see if the guidelines good morning may it please the court adams like the united states the with respect to the possession issue if you can start with the law of the case argument that we've heard from opposing yes your honor i think that the law of the case  argument actually kind of begs the question in this case because if it's i mean if that is ultimately what the court decided then yes it is that was a lot of government was here the last time trying to defend the conviction what was this theory of possession that the only deciding constructive an actual position if that were true we never should have overturned and we never should have overturned that aspect of the conviction a tall right your honor i certainly don't think the court is dan i think that the district court judge was decision so i don't think the court was the district court was faced with the issue of whether we just had a fingerprint whether that would cut it but he did it he noted both things going in reaching him and what i'm trying to figure out is you're saying that you you the government know that the testimony that he held the weapon in his hands and are you in a right to defend the conviction relying on all of these cases that you're now providing no i don't believe we cited book at some point and so i'm trying to figure out if we in fact had been presented with that argument and had resolved it against the government in the way that your opponent is arguing it does seem to me problematic for us now to sort of reopen that that issue but i frankly don't remember this issue being heat up in the way on the first that i agree or i undisputed testimony from a savior and as to what he did the only question now is a legal one which would have been the same question right that was presented the first go around on the sufficiency of the evidence to support the conviction so it's either your position i think has to be that well maybe we made nods to actual possession last time but we really didn't present the issue to you you the panel in a way that caused you to resolve that issue adversative the government that's correct so  conclusion it's in it's in the statute itself what is required to be shown in the statute is that the person is felon that they possess the gun ok and what about and with regard to drugs i'm just not sure i'm not familiar with the right i haven't read the cases that i don't have with need the cases that they need of our guide in their brief when you know we don't necessarily have arguments for no reason and here there is an interesting kind of legal issue as we've been trying to explain to both of you which is not simply about this case all right what about the law the case problem on the night and seems to me that the standard in the earlier  opinion that  was that he didn't have the power and intent to excess arms control over hey born semiautomatic weapons you agree that in order to have to session you do have to have power an intent to have to have the power and intent to do it was to exercise control so if if exercising control was to say sing at the no holding it you know you have to do is have the power and intent to hold so since fact i did hold that you know we must've been awful dumb to have parent intent you are saying talk to hold it for thirty seconds at the power and pen to exercise control that is circumstantial evidence that comes up when the court of the dressing circuit but the control means the same thing in both circumstances right right but it when we're talking about circuits when we're talking about constructive possession by definition there's no actual possession and so we're talking about when we get into constructive possession and then we get into a power and intent to control and the whole issue that the court addressed and when we're talking about plain to me how it could be that if he held this in his hands for thirty seconds didn't have the power and intent to exercise control i'm going to i don't know i think that when the court made that statement in its in its prior pinion i think the district court correctly interpreted that to me correctly interpreted that statement in the context of constructive possession and not in the but i think that that this a court is correct that this issue this actually whether he showed actual possession whether we showed actual possession was was not addressed in the prior and then see one last question just on the magazine issue that certainly because you're you know way over your time your theory is that we're supposed to look at those pictures and be able to tell that the rifle itself can accept those magazines how would we know that without exactly i'm testing not exactly my theory is that the district court was the fact finder and the district court was able to look at those pictures and the district court was able to make a determination how i'm looking at the same exact picture and i frankly can't tell for the life of me whether that magazine can be accepted in that rifle so how would the district  like that there's that there's testimony that says this is how we found the gun there's testimony that there's the pictures themselves but i think the key thing for that is that this court is this is determining whether or not the end it's not as clear as i would like it to be but i think that it was pretty clear from ms bourne's testimony indicating that how the that there was a cable walk through it in addition she never she never said that at the time she handed it to i know and it's not clear and i think that's goes to the guideline argument also about the at the time of the offense if we are going to say today that he actually possessed it or he constructively possessed it then at the time of the offense were those  magazines there as well and that's completely void of any sort of indication whatsoever in the government has failed to present that as well but going back to your question i think the dominion and control issue is  really what helps you understand it and it's the dominion that here is a person ms he born who owned the weapon had the keys to the weapon had the keys to the lock for the weapon and briefly shows it to him and then he gives it back who had d hay born actually presented it to mr combs and he looked at it and put it back into the case so i'm not sure where it was we say it was at the house i don't think it's clear where that actually occurred but  little different than it was some stranger and something you're right to do it and he knew where the gun was after that even though he said he didn't possess it well i don't think it's clear he actually knew where the gun was after that i think there was a moment in time he knew right where the gun was he looked at the gun but after that i don't think it's i i think the evidence that you know i mean in lane even though the announcement seemed to be a blanket rule he actually had paid for the gun he owned the gun at that point him possessing the gun for a matter of minutes and when they walked up on him they threw it to i think under his jacket at the time but i think you know in every case that i've looked at always the actual possession issue has always been incorporated with someone actually seeing him possess it at the time of the arrest or that it being close proximity to him for the constructive possession i don't think with him touching i mean the question is if he put a fingerprint on it at some point in time i'm talking five you please let go of the take a fair enough so but i mean that's