in order for under the guideline the commentary in order for the four level enhanced meant to apply the government must prove by a preponderance of the evidence that the that the firearm  within the drugs were across the street correct but in flannery not only was the underlying felony a trafficking offense but the defendant was the defendant the the law enforcement witness the defendant leave his car go across the street deal drugs and go back to his car and then when they got back when they arrested him and searched his car they found in the car a firearm and drugs so so in that case  first of all the standard is different because it was a trafficking offense where so there are just mere proximity is enough in our case proximity isn't enough because just proximity doesn't show that it's going to facilitate not only does it not show that it's going to facilitate the possession but we would argue that it wasn't even that proximate it wasn't even that close the other interesting thing about flannery is that because the defendant was out in public with the firearm and the drugs it made sense to assume that he might be using the firearm to protect the drugs where in this case he was in his home they weren't even close to one another so it's hard to imagine what he would have been protecting against at six thirty in the morning so we have in order the order for you to where we have to be expressed finding the district was clearly erroneous correct and i think that even though even the district court said that they're not twenty nine of the sentencing transcript that the government has had demonstrated to any evidence presented any evidence that that firearm was actually even accessible in relation to the possession of the drugs so it seems it seems to me that actually the district court made its own finding that there wasn't evidence to support it but then for whatever reason chose in imposing handsome in any way the district court said again and again that they didn't show that there was proximate that it wasn't necessarily easily accessible that there might need he might need a ladder or stool that the government had presented any photos to show how far away the attic was from the kitchen there was no there were no photographs showing how high the ceiling was if mr gibbs would have been able to get into the attic without without a ladder they also the government  findings in mr gibbs is favor but don't reach the wrong conclusion that in fact the firearm was there to if there's an error why isn't it harmless well because we would we would argue that the district court cited to the higher guidelines range when she imposed his sentence she said that because of its history she was leaning towards the higher guidelines range so clearly she took into account that enhanced guidelines range so i would say that without an explicit statement that her sentence would have been the same without the enhancement that we have to assume that it wasn't harmless because without the enhancement he wouldn't have received the same sentence did the district judge aside from making the finding of facilitation explain why she believed that pills had a street value of twenty three dollars and that maybe perhaps he could use a firearm to protect that because that was of high value but we would argue that that's just not twenty three dollars a pill just isn't that much money and it seems unreasonable to think that someone would have a firearm in their home in a separate room to protect something that you know was only valued of forty six dollars and over the built well i mean i mean i guess the value depends on the depends on the defendant u record i think she was very careful in that she noted many times that there wasn't enough evidence to support the fact that that they were there were related but as i stated i feel she reached the wrong conclusion it references that he also regularly consumes marijuana laced with cocaine and that he does so on multiple time occasions during the week so undeniably when a law enforcement executed the search warrant at this house the district while they did only find a small amount of drugs in the house during the search what i can see of that if if he's charged with possession of marijuana laced with cocaine an had she did find that there was cocaine residue but what she did not find that the firearm facilitated other drug possession right it was the pill step that's correct you got her finding we have whether it's clearly erroneous or not finding that that's correct john or rather i will say i don't think it's been seriously disputed in the record that mr gibbs did distribute cocaine proceeding the search and that there was trace amounts of cocaine found on jug distribution paraphernalia  the house and so when assessing whether or not that firearm was there coincidentally considering the totality of the circumstances in this case i know the district court tied it specifically to the alprazolam but if you look at the totality of the evidence and considering whether or not that finding is undisputed that it was there and that there were teams controlled by is made from mr gibbs predating it understand it if the court didn't didn't think that there was sufficient evidence to base a finding on that in the united states we disagree with that we do think that just the evidence to have permitted the district court to rely on a drug trafficking of trafficking offense there was evidence to substantiate that mr gibson drug trafficking out of the house leadership or didn't think there was sufficient evidence i don't think she made a negative fact finding that i understand like i said at the time a search warrant was executed two pills were found and i think the government proffered that that was about twenty three dollars a pill but did a court seem to think that that would be enough and i don't think that that's clearly erroneous given that's  district seemed to think so asking you i think i think if you have an addiction to is to a substance or if you're so valley was just relative to the individual we don't place any sort of objective value on it if a drug dealer has one hundred thousand dollars in a stash but he's a multimillionaire because of the prost proceeds he's made a hundred thousand to him is not valuable and i would agree that hundred thousand is valuable in that circumstance i would think that it in drug cases greater value on that then maybe just the value of forty five dollars ask you one more think yes you are clearly erroneous standard is a very difficult standard for an appellant to meet but in this circumstance you've got five circuits that have reversed under that standard the application of this enhanced meant for a mere possession offense you've got the third you've got the circuits really haven't had an issue and what they've said is that the sort of influences the presumptions you get from proximity in trafficking offenses don't apply when all you're doing is possessing for personal use made a fact finding that was based solely on mere proximity and didn't weigh any other factors if you look at the eighth circuit i think it's the swanson case they affirmed that an instance where the defendant was in examinees possession cases contrary to what we have here in some of those cases the amount truly really was negligible i think in geoffrey's the court found that it was ten dollars i understand there's not a huge difference between perhaps ten dollars and forty three dollars but if you're addicted to a substance was it what they did or the two tablets legally possess they were not legally possessed your honor one up because he didn't have a prescription to possess them and i don't think that's been disputed in the record that his possession of the opera zone lamb was not was not legal but that does that matter the type of felony offense in other words if you're dealing with a substance that is illegal and cannot be obtained by prescription for example cocaine right or heroin do you draw more of an inference of facilitation than you do with something where the person could have gotten it with a prescription but didn't have a prescription for it i think it would depend on the facts of the case and the defense that if you were defendants relationship with that particular drug and i would hearken back to this case that it that no mr gibbs is admitted lee addicted to attic but the fire was stolen if you had an extended magazine with thirty one rounds of ammunition i don't think those are arbitrary facts and i know again that it was in the attic and we don't have a clear idea of the proximity between the firearm and the drug but mr gibbs did plead guilty to possession of that firearm and i think during sentencing that all parties agreed that the issue was going to have to stand on something to get on into the attic and i don't think that's really dispositive of this issue  because if you look at flattery or even the right case in that case there were firearms that were that were disassembled and unloaded and the court found and concluded that while they were excessive full enough they could have easily put it together and loaded the guy and they could have gotten ammunition and i would say in this case compared to flannery or compared to rind that this is a firearm that may be more easily accessible never strongly suggest a member of th described by the district court supported finding and i'd like to know and the case like here it's not that the firearm actually facilitated it's that the defendant would be willing to use the firearm to facilitate his simple possession offense and obviously that burden the inferences are much more powerful when you have a drug distribution crime but here we have a visual with a highly addictive substance that he's admitted addicted to and the question is could would is there reasonable inference that mr gibbs would use that firearm to protect his drugs that he had to to protect himself while he while he's using them and that is your court came to the conclusion that yes under the circumstances of this particular case that that he would be willing to to use the weapon  that our circuits precedent wasn't and it wasn't really altered by amendment six ninety one the standard has always been facilitate or the potential to facilitate but instance smith the facts were that the defendant standard or piece of evidence is clearly off the table here the proximity if you read the commentary the proximity standard of having the gun close to drugs well me let me think let me pick you connection and the end like the subset of cases that regard that had to do with facilitation and what they said was that in connection is actually a lower standard than facilitation but the language of if found in close don't have proximity in this case that again the government not established that the fire was necessarily in close proximity to the drug and also i would think that although they didn't specify it that in korea the important thing was it was a drug trafficking offense and they spent a lot of time in korea the court spent a lot of time talking about the difference between the facilitation standard and the just plain in connection standard and here really clearly this case clearly falls lot of the cases is when the when the one of the ways that a guy and or a firearm can facilitate a simple possession is wanted in bold ins a defendant out in public gives them maybe give them the confidence to be out in public or to know that they're protecting it from someone who might come up to them on the street and try and steal or drugs but that just wasn't the case here he was in his home and so so even if the gun had been let's say that the pills had distinction when they say proximity for trafficking but not for other felonies including drug possession if we're going to say that proximity is enough then then why do we have that the difference in the commentary i think that there needs to be more and i think that that's what's that's what's so important here is that you know the other circuits have really addressed in published opinions this very this very unique situation of just a felony drug possession so we would ask that that this court do the same in reverse and remand for resentencing