distribute with them to possess with intent to distribute methamphetamine my argument will focus on the st three issues in my brief and i'll rely on every four or five range of three hundred and twenty four two thousand four hundred and five months of his guideline sentencing range he was sent as on april th two thousand and nineteen to three hundred months the st issue in the br has to do with whether the possession the enhancement for possession of a weapon in connection with drug trafficking activity as applied to mr moreno violating the nd amendment activity like that that he should be enhanced to levels to events levels which is a fairly significant enhancement because someone with this kind of a guideline sentencing range the commentary to that guideline says that the and handsome it should be applied if the weapon was present unless it's clearly improbable that it was connected with your friends  case law i think in the st sort it says that you have to have a connection between the weapon the defendant and the drug activity and what we contend here is that there was not a can a connection in this case between mr moreno and the firearm in the drug activity he possessed weapons in his home and he possessed weapons in his guideline temporal and spatial connection were shown then there would be no nd amendment right to carry a gun into action with a drug offense so if you lose on the enhancement there's no nd amendment issue or do you disagree in spatially connected there were four guns in the house several were in the bedroom where the marijuana and the cocaine was found is that correct yes ok so that sounds like a temporal and spatial connection under our case law my own what i thought you were arguing was somehow it was clearly improbable that those were connected because of the type of guns they were ergo if you do well there are three there were three rifles both action rifles were also found that in the i think in the bedroom may have been in the living room next to it i'm not sure where they were found and i don't think those really had anything to do with the drug transaction and never seen a bold action so your argument is one that is clearly improbable that even though they were there at the same time in the same space the argument is it was clearly improbable they were connected to the drugs because of the nature of the guns is that the primary argument yes or that that is essential to the argument i think i think the question is the guns operable this is a an individual who had the right just i just heard interrupted just to pick up a much  of record reflect that they were operable the bolt action rifles the does not but the other record does reflect that there was no i mean ition for any of the bolt action rifles so in that sense i think they re the case other than that i think i think the issue though here's a person who had no prior felony convictions a person who had the right to possess firearms in his home  and in his vehicle in texas he had both of those rights so given the fact that he had both of those rights i think it is certainly possible that you could cite the before in his bedroom and there were some drugs in the bedroom the question is whether they were personal use or not i think that that's a debatable issue there but so he has to rights he has a right to possess firearms under the constitution under the heller case mcdonald case so he also then you say well that wait a minute if these weapons are in the presence of drugs doesn't that mean that it probable that that's what they were for and what we're arguing is that that is is  presumption from the sentencing guidelines the commentary to the sentencing guidelines is the device that makes presents the important d element in many of these drug cases i think the drug offense hate hate possessed them were saying in connection with the right to defend his home and hearth and that's why he possessed them so then the question becomes who or how do we separate the two out when this thing the commentary not the gardener commentary says if it's president then you should apply the enhanced print and what we're saying is the nd amendment it is my point is it did the commentary in presence even if there were any friction which i don't think the loss of words here he said he possessed them so the issue is he's good at leading guilty as a matter conspirator possessing guns there's no case on this as the nd amendment guarantees drug dealers the right to carry guns right right so the government your client has pled guilty to being on meth distributor conspirator and they arrest him possessing multiple guns in the same room what's your best case that says that they can handsome based stretch to say that heller would have some bearing on a drug dealer with with weapons when you know the statistics show and quite often they're it's cited in our opinions that you got drug trafficking you've got weapons that's not it's the common is the common methodology to have a weapon so that's like saying well let me buy a fifty c machine gun because i have a nd amendment right well i mean there are countless limitations or restrictions on nd amendment gun or weapon ownership i mean that goes so far back it's lost the clouds yes i think that i think that that's correct i think i think heller shows the importance and significance of the nd amendment to to our country into the traditions and so forth and i think what you have here is you have a right under the bill rights of the u s constitution that says this one million has committed over all of the offenses this man has the right to possess firearms in his home this man has a right to have one of his vehicle and then you say but wait a minute he had some drugs in his in this house he has some drugs apparently in his vehicle and in the so does that mean that he possessed those for the purpose of the drug offense and what we're saying is no because he still that whole time have the right under the nd amendment and so you have to do two different rice which one should take precedence in a case like that can you can you take a a commentary statement which to the circuit cour have said that's in effect a presumption can you take a presumption in a commentary to sentencing guidelines who are not active by congress not an actor by the legislature and have that over rule his nd amendment rights and what we're saying is no you can't unless unless the government shows that there was a connection in this case there was never a time when anyone saw him in possession of a firearm when he ever carried a firearm that anyone knows  have a specific factual question yes it seemed to me that the p s r stated that they found seventy eight grams of ice at the house and that you didn't object to that is it correct that ice in addition to cocaine and marijuana was found in the house yes i think it's correct in that there's an issue there is in several places in the p s are the pre sentence report there are statements about what was found or not found in the house there are different somewhat and so it's difficult to know which are correct when you look at that eleven place they say that there was eight tenths of one gram of methamphetamine gross weight found in the house in another place that it talks about ice i think what happened was the police officers came they searched the house after mr marino was arrested and they found certain things and they weighed them at the house i didn't see any evidence that they've later confirmed weights and confirmed what the percentage was was of ice or was it just methamphetamine a lot of people are fine in the drug business will refer to methamphetamine as i speak even though it may not really be ice it may be a lesser but if it's not nothing to me what is it but are you if it's not methamphetamine what is it when someone is referred to ice well it would be methamphetamine but it is i sir i'm saying is over eighty percent purity and whether it was or not i did not see in the discovery lab report that said specifically that in one of saying as many times when the of represent him when he pleaded guilty to distribution of methamphetamine right you know you represented it yes and so you you were at the sentencing hearing yes but you didn't put on proof to show that it wasn't methamphetamine in his house even though it pleaded guilty telephone conversations that were recorded between mr moreno and the dealer who supplied him the number one they found in the case and so they took the telephone record of which did not have any weights and they said well based on this we figured out how many dollars he went and delivered the money to the number one dollar guy and so they figured out how the many dollars was how much rain i was asking was you do have a separate issue on appeal disputing that the drugs they find when they searched the house were drugs they're being used to manufacture and distribute that brian a primary purpose of the house was to facilitate the distribution of manufacturing right and that's a difficult and handsome and because here they go in and they find it but your argument is that was for personal use right however if math was found there as well and this and he admits in the p s r that he was receiving that from mexico busting it down and then redistributing it seems to me it's a fair inference that the district court could make that he was storing it at home in order to then redistribute it right and if that's right then that issue is probably going to prevail well that it was that it was stored for the purposes of drug distribution there was absolutely no evidence of the ever distributed anything from that house the amounts of drugs that were found there were relatively speaking quite small there were three different things that were found marijuana mr marino was a user marijuana veiling user i think in most cases that's mostly what was found marijuana was not in the case nobody was sure roger marijuana there was a small amount of cocaine cocaine was not in the case there or there primarily heroin it and mess so what we're saying is no that was not the primary years of the house it was a residence he lived there with the son his stepfather and his girlfriend there was no one that ever came to the house if it was a storage place one would think that peta customers would become like you agree that the law doesn't require it to be the primary it is a prime like a body home and a place to store to distribute right and they do find the item that he pleads guilty distributing math they find their what's the case that says the district court can't infer from that storage to distribute with your best case that would overturn two point han i think there's a case  i don't i don't have the pocket in the brick case it's in my bed in my brain i think the case is that that it has to be stored for the purposes of distribution again one of the interesting things in this the storage was not in a guideline itself storage came in through the commentary and then they said storage in connection with distribution or no distribution i think even the government will admit there was nothing shown anything was ever distributed out house when they got to the other items there was interesting really almost no package it why don't think it was any packaging material they said there were there were a few sandwich baggie sized things with drugs and that looks more like personal use quantities anything else you didn't find boxes of baggies to break it down his what did the fact show about his distribution of mouth where was he distributed distributing them from his car he apparently he apparently did much of the distribution driving his vehicle around to distributing small quantities he said that he said most of his customers were an ounce or or less type because he distributing from his car in small ba so far as we know i mean that's only clear of from from the case and in the documents in the case but that's what i would assume there was a what they call a stash house the man who supplied him with drugs i'm in g that he probably used that stash house for some of these kinds of activities because there was no evidence that his house ever had any customers coming to a house there was no evidence that there was any substantial amount works package it packaging materials there were large quantities of drugs he would think of his storage for purposes of distribution and these were large amounts of distribution and work like that that there would be something like that there there was not  know it does not so that was left for sentencing respondents were correct yes so may it please the court and christina williams for the united states marina fails to show that the district court erred in applying the sentencing enhanced mintz for two reasons st the record says that the district court did not clearly err in deciding factual issues and that the evidence supported the enhancements nd to the extent marina raises legal and constitutional challenges those are easily resolved by found at the house that was three ounces of methamphetamine which is certainly not use or quantity moreover as to relevant conduct which counts for purposes of the premises and hence meant there is three five pounds of marijuana that is not in any sense of the word use quantity and then there's also the baggies of cocaine and these drugs are not found in one large box together they're found the methamphetamine is found in two small bag games that marijuana is found in vacuum sealed bags and a small baggie and the cocaine is found in small baggies it's the difficulty with this enhanced newsy you can be stretched for a bit as in this case one search into a house which everyone admits is his home if it were to just then find personally used amounts that clearly isn't storing to distribute so it depends on if you have no evidence of frequency they have monitored and seen him taking stuff out of the house you just have targeted a drug dealer who do choose to arrest him in the house then you find drugs they are the advancement doesn't automatically apply correct that's correct it's not an automatic what's the right line what's how do we distinguish so that we are turning every single drugs found per purposes of relevant conduct also count for the enhancement so we have to take the total mass of drugs that's found in the house along with the six weapons which this court has found that are clear markers of a drug trafficking and used to that we take those together along with you know there's much made up about the fact there's no paraphernalia will baggies themselves or paraphernalia this was not one him out there there were several that were packaged ready to go for him to take in his car to distribute somebody we also know that he is an admitted and pled guilty to a drug conspiracy to distribute and he admits to picking up kilogram quantities multiple times a month busting those down and then distributing those over a period of several days via his car and then you have with that the fact that the search there is distribution level quantity found and you know those together indicate that it was not improbable and implausible for the district court to conclude that that was not the only occasion that he stored drugs for distribution had me all full admit that he received deliveries someone hispanic from mexico yes he did which type of drug of the methamphetamine and how often he indicated that he received multiple kilogram quantities two dollars to three dollars times a month and the record shows that you and at one point he picked up fourteen kilograms so this was an ongoing thing in large amounts and he he says that he has alex customers since he's admitting that he's not buying this kilograms from a stash house getting in his car and immediately delivering that to somebody else he's busting it down somewhere turning it into these ounce quantities and given what was found in the house from the search was conducted it was certainly probable and not implausible that he that was not the only occasion that he stored those drugs at his house it is the actual guideline use distribution and maybe factor then the commentary says it can be stores in the case files as it can be stored because you store distribute guess that's already one level down usually there's evidence of sort of frequency of use of the house  there are in many cases however this court has affirmed in the united states st lopez an unpublished decision and two thousand and seventeen where there was only one known instance for certain of storage where the search was done and there were drugs found there along with guns and a scale and the court said there that while it may be a close factual question it was not clear error for the district court to apply the enhancement do you know if we've ever reversed this and i do not believe this court however the government's not advocating that it's an automatic but instead the government is advocating that the district court here did not clearly err in applying the enhancement because there was enough evidence to support that issue or court's finding and to not leave this court feeling that it was clear and convincing and a definite conviction that an error had been committed so next turning to the dangerous weapon enhancement unless the court has any more questions on the premises first of all if there were six gun found in the house the idea that the three rifles somehow can't be counted as dangerous weapons is simply not supported by record they were found behind behind a couch the defendant never in or put forth any evidence that those were in operable and even or that they were stored or somehow specifically delineated only for purposes of collection but even if there was that evidence this court has in previous cases affirm the enhancement st where the guns aren't loaded or where there's not  next to it or even when the gun is then a locked box so that simply doesn't pass muster to remove them from the calculation and again as i said there were not simply user quantities that were found in the house as were distribution quantities and this court's case law makes clear that where a significant quantity of drugs as there was here is found with dangerous weapons with the defendant admits to the fact that the drugs than the guns are his that were found in the same room and they're clearly connected with the offense because there is at least quantity of methamphetamine that the enhanced that applies and as to any nd amendment argument at least five circuits have held that the enhancement passes muster under the nd amendment and there is no case to the yes that's correct and that was included in the drug quantity and he makes no challenges to drug quantity purity or anything similar on appeal so we take that as it is and it's amply supported by the da investigation th as to the importation enhancement the government or lie on its twenty eight dollars day letter citing kirby that that's were closed in the circuit so if the court has no further questions the government would ask the court to affirm on all of the enhancements and i'll return the think the important thing here is the conflict between the nd amendments and the enhanced but this was a case where a mr moreno was enhanced for three different things to two levels for each one which added six levels to his offense level total offense level which almost doubled his sentence just these three enhanced votes two of them are very much wrapped up with the nd amendment issue the story joint event because again there was there was no showing at all that he distributed anything from his home there's no showing that there was any storage of anything other than personal use quantities so i think the question is does he continue to possess his nd amendment rights even if he's dealing drugs and i think the answer to that is yes if he commits no on lawful acts with the firearms in connection with the drug activity he still has a right under heller to defend his home his family using firearms if he is not a felon if he has no other disabilities from possessing owning a firearm he doesn't and he did that at that time so then the question is well ok he possesses a nd amendment right but he's a drug dealer should this override that and say he doesn't have the right to defend his family does have the right to defend himself and i think the answer to that is no he does have that right because heller and other cases say you still have that right if you weren't otherwise barred pro business come and he was not so then the question becomes i think the government has the initial burden to come in and show that these were used in connection with a drug activity that was never done there was never anything that showed that he ever carried a gun in any of the drug transactions there are people in the drug industry who are smart enough not to carry out a far only connection with drug activities he was never reported in any of the reports any of the d a reports having a gun one of the st things