part rests on our written pleadings but i would like to point the court's attention specifically to judge hamilton's comment in the twenty nine thousand dollars garcia case that if one starts from a presumption of guilt the context of the end of the evidence  to look like permissible entrance in this case be presumption of guilt was there from the start in our reply brief it's not entirely clear that it was actually committed there was a gun found in a neighbor's neighbor's gutter that really colors the entire presumption that the jury used here in making the speculative lea s trying to fill the voids of evidence specifically the lack of forensic evidence the d n a or fingerprints the fact that officer christensen testified that one cannot see a gun on the video the fact that officer christensen fully admitted this was in their opening statement to have it mistakes that very evening in his memory in it in the harris case in this court  conviction cannot simply be the piling of inference upon inference there has to be at least a solid means of of clear links that does not require the jury to fill the void ha questions on that rule twenty nine issue i'd like to move to the two sentencing issues criminal history points and offense level that being the case mr walker should have been in criminal history very for and i would start out by saying that our brief incorrectly stated that he should have gotten any points two thousand and fourteen fling in a live in case he should have gotten eleven points instead of two and that one point still would have taken taken him down to criminal history category four so i apologize for that oversight your honor having just seen the government's additional authority this morning  have it st of all is that it highlights the fact that the government waged this argument in the district court specifically during the sentencing hearing the government argued that the applicable law now the reason that really plays a big role here is that that argument from the government induced the district court to force a decision on which case mr wallace actually served  circumstance there are two cases one of which was dismissed and the question is what the time actually served on the dismissed case or what actually served on that is for which pled guilty another thing about that actual time served the application is very clear and it has a condition precedent to assigning any points which is a sentence was actually served issue by the sentence was fully suspender not that detector determines how long the sentence how many points it doesn't determine whether a sentence was actually served so in this case we would say that the government waived argument about about staples and that waiver induced the district court not to settle the dispute as required by rule thirty two i i th b and so that we believe is a procedural error that we're three mand in any event because the court this court can't review whether or not the district court had that question correct because there was no decision made now at the end of the our objections were granted it would have been a two hundred and thirty six percent increase i ended the guidelines and scored as several times where you fall in the guidelines higher or lower it needs to be  the guidelines now we understand that the united states versus ruth case from this july is controlling at the moment we do not wish to waive our argument and i would just note that we  still believe that on that score on the guidelines issue ruth should have followed the townsend line of cases in the nd half in the th circuit's instead of striking out on its own with the with the actual meaning to us without waiving that argument we do still believe that it isn't a controlled substance offense under the definition the natural meaning versus ward did necessary follow it but i understand the court's not revisit ruth at this point which is why i am arguing at this point your honor that we still went under ruth and the reason why is that rut overbroad are not psychoactive they attached a chemist report saying as much they have made that argument very explicitly in their own group now cycle activity is just a fancy way of saying behavioral  very substance that makes mr wallace is next mr wallace this conviction broader than the federal definition is the same substance that makes that broader than the conduct described in o substance that is not behavior altering if that's the definition and if we are applying a categorical approach there is no way to say that he necessarily that conviction necessarily entailed selling was raised argument was made from both sides the judge st back on some issues and there was a rule noted a waiver implies intentional relinquishment of known right mistruth did not use that right element the government introduced evidence regarding st of all the suspicious circumstances that sort of triggered their counter with mr wallace there was a late night nine hundred and eleven call an apparent altercation at ms cross residence and that christianson pointed out at the trial that he always pays particular attention to an individual's hands when he looks at them because the hands are what can hold a weapon and hands are what could kill him he was immediately trained in on that part of the encounter additionally the government introduced video evidence corroborating officer questions and story the government further presented evidence regarding an eastward chase of mr wallace from six time gold in butte to six o nine castleton to six hundred and twelve castleton where he was discovered there was evidence of his flight path including a rattling fence and a motion detector light which led to his discovery and when he was spotted when that light went on he was out of breath and sweaty and silver handgun matching the description prior and about officer christensen was then found in the gutter of the house at six well castleton which is exactly where mr wallace himself was found as well and the government also presented evidence that mr wallace was very concerned about why officers were looking in the area and told them that there would be absolutely nothing to find the wallace has argued that officer christiansen's initial misapprehension that he that he had so and now it's himself as police prior to diving for cover and seeing mr wallace with the guy and doesn't really change the truth or the substance of his testimony it doesn't discredit its accuracy this was a high octane encounter officer christians and had a gun pointed at him a slight discrepancy and sequence of events should not criminal history score based on some of counsel's comments we actually don't think that that's determinative of the issue anyway even if mr wallace didn't wave his challenge to his core the district court properly determined that his two thousand and fourteen conviction merited two criminal history points under section four a one dollar b of the sentencing guidelines under that guideline a prior sentence of imprisonment that has at least sixty days but equal to or less than one year and one month merits two criminal history points guidelines have focused on the sentence imposed but we do recognize that there is a requirement that the defendant have actually served some time on a sentence or we believe this court's decisions in actually served time on that sentence and the situation in stables is almost completely analogous it discusses the same application note we have a defendant who received a two hundred and fifty dollars days sentence for the prior conviction and issue  received credit of two hundred and fifty dollars days in relation for an unrelated probation violation and this court noted there's an important difference between a suspended sentence and credit for time served a defendant who receives a suspended sentence may never have never served any time in jail whereas a defendant who receives credit for time served has actually served time on the sentence and at consent has a similar posture as well as a defendant who had served seventy seven dollars days prior to the imposition of sentence and then received credit for that seventy seven days in his in a subsequent sentence and we don't believe the government and i know that that argument moments ago mr wallace argues that the government has waived that argument in district court the government noted that mr wallace had received one hundred and thirty six days sentence and spent significant time going into the details of why mr wallis had actually served one hundred and thirty six days so we don't believe that argument was waived as as your honour's have noted we believe that the controlled substance offense and the guidelines and hands meant under two k two point one is resolved by the court's decision in ruth as a court held in writ the term controlled substance in section four b one point two should be given its plain meaning any type of drug is possession and use is regulated by the law given that natural meaning  cocaine trafficking conviction is a controlled substance offense under the definition in the career offender guidelines and therefore also under two can two dollars which cross references it and then finally should this court determined in any way that the  that there was a guidelines calculation error any error was harmless because the district court indicated it would have imposed the same sentence regardless of its rulings and mr wallace's objections the district court engaged in a thoughtful thirty five fifty three dollars a based analysis noting sometime mr wallace his personal characteristics but also the danger of the encounter the government asked the court if it would have imposed the same sentence if it added in favor of the defendant's objections on the guidelines and the court said it would only interesting the court imposed a seventy eight month sentence a seventy eight month sentence for flex a guideline range which discounts those two criminal history points had mr wallace not received the additional point he would have his guidelines range would have been sixty three to seventy eight months the court clearly based on the danger involved in pointing a gun at a police officer opted to give him a sentence at the high end of that range and the court also explained the though i had didn't that deny the controlled substance objection it is very much consider that objection in sentencing however we believe that that objection wasn't valid anyways in light of this court's decision and with if there are no questions  pointing his hands directly out in front of them has the squaring off with with a handgun and we think the crime rating evidence in terms of observations and diving for cover immediately announcing that the suspect had a gun further backs up what he saw and what is reflected in that video as well as mr wallace's subsequent flight and the discovery of the gun in the very roof gutter of the house for he was found sweaty and out of breath moments later and there i should note also that the silver hand and describ was close match the silver handgun found in the roof gutter and matched the clothes that mr wallace was wearing and the description officer christianson had provided as well as the video that the motion detector light came on and i believe probably shortly after he had thrown it ok i think your honor ok now thank you very much without him committed no speculation you also asked on whether or not someone saw him throwing the gun on him and pressing because the police officers had conflicting testimony about that u he testified that he had thrown it up and over the house from the driveway to the back side of the back backside liar and officer mental testified on the video that he had from the back yard time said what we're looking for what there is to put on and that's what and this was the testimony that was played in the video before the jury right at the house with and was the last issue with regard to the two criminal history points versus what is the government says it was properly misapprehended what he was serving time on that dispute was never settle it was not at all because and i'm reading from the transcript i would note as well that the criminal history competition in the guidelines is based on the  time served that was the government's argument so the government used the district court not to rule on the actual dispute as required by rule thirty to be less interesting the fact that the judge said yes they would have made it same