sentencing court used his discretion and whether it's finding that they'll johnson should be held accountable for methamphetamine that he never received the supported by a preponderance of the evidence the objection that i make now and the argument that i make now is one that i made in the district court at the time the district court answered my objection that mr johnson not be held accountable for methamphetamine that was in fact removed from the package before it ever came to his house the district court's reply was the jury addressed that question and they determined that he knew the package was coming and on that basis the district court attributed the approximately eighty one i respectfully disagree your honor and i'm very glad that you brought up the point because i think it highlights one of the crux points of my argument that is taking these facts in the light most favorable that the government has think i have to assume and and concede at least for purposes of i think what i am bound by is a finding that he knowingly possessed and the jury found determined that he intended to distribute it but i think one of the questions posed by the jury is most telling in this respect it's often difficult to divine whether juries thinking when in this case they told us they posed the question very late in the deliberations that said your honor doesn't tend to distribute include  intent to use or share in parentheses with family or friends and that i believe was in direct response to what was the defense in my argument in the closing in this case which is that there's no government there are three points and this is what the government argues three points in time when it argues that mr johnson could be said to be guilty of the offense the first point in time would be those eleven minutes  mr johnson actually had in his hands in his house a package containing thankee with two point three grams of methamphetamine and about eighty one grams or so of another  substance vitamin b twelve which had a different color in this case the methamphetamine the sort of brownish into clumps the vitamin b twelve was white kind who carrying like powdered sugar and in this case if during those eleven minutes even though mr johnson had in his dresser an electronic scale that he himself testified had been used on prior occasions to weigh out drugs he said that it long to another person be that as it may despite the fact that there were bagley small baggies that are commonly used to package drugs during those eleven minutes that he actually possessed the drug there's no indication that he took any affirmative steps towards packaging it or delivering it and what's more important i think the difference i'm sorry your honor for interrupting i think the difference that it makes is that the quality itself is what's at issue given that there was only two point three grams of methamphetamine in his possession and although the ninth circuit  repeatedly that the amount of quantity in possession can be the basis of an inference that there was an intent to distribute was other evidence from which that inference could be drawn as you mentioned three grams as the best beginning officer from montana testified it's most commonly associated with a user the the term eight ball comes to mind and that's one that's the investigating officer mr johnson said that he thought that he had been set up he wasn't expecting this package but jodi blah and he had but he called and wanted his birthday present from that that actually came with a big happy birthday and that's another interesting point that  three hundred is that right there were two amounts of eight hundred dollars months before the evidence was in the case supported by both and the deputy and mr johnson testimony that the amount that he received would have passed him about three substantial difference he was ultimately sentenced to seventy six months i believe the point total was approximately twenty six and had the amount that was attributed to him that was ultimately removed before he got the package not attributed to him or the number of points would have been fourteen and i forgive me your honor i don't recall what that range would have been but it occurs to me that it was between two and three years and the guideline range  say that's a right or stand but i could be incorrect on that i think what's most important to note that even though mr johnson had the paraphernalia to wait package and so forth he did he did german i think you're right your honor and if he had received approximately eighty three grams a day instead of two point three or maybe even if he'd received twenty or thirty or maybe even ten grams then we can infer from the quantity itself that he had the inten cited by the government no evidence that mr johnson was aware of that the package was coming before it was actually in the possession of fed ex well this car your honor to fed ex came on the day it was delivered the package was actually in the possession of law enforcement the day before and there's i have a saying there was no evidence to show that mr johnson made a call from his house to southern california in the day or the days before that i see that my think your honor i would refer the court i think the brief was is certainly legally and in factually accurate to give you a good sense of the government's position on these issues the i think what the defendant fails to do  that if it had been me had that's one of the things you know that it would have considered because but mr banta weathering took the position and i think it's legally sufficient to say that where he's exercising control over the package then if the attempt merges with the actual possession as long as he can control it's it's course he's paid for the drugs or has an agreement to pay for the drugs i think that he is exercising constructive possession and that let's assume it's not just for the sake of follow up questions that should have been charged have been brought in as relevant conduct i mean even if you had it charged in the attempt and even if they charged only the two point seven the fact that there was eighty some other grams out there that was part of the same shipment would clearly have been relevant conduct would raise your drug amount anyway  because of what the jury necessarily found about his intention i mean it wouldn't matter that sentencing your honor even if they found the possession of two point eight like you say relevant conduct would have brought in a friend of mine down in billings i think where i have to part company with my colleague here is whether there was sufficient evidence to say that mr johnston knew of this eighty one and a half grams or so and whether it was foreseeable we know that he he knew there was a package coming we know he was given a tracking number we know he called up and said where's my questions or where's my birthday present what we don't know is the contents of that conversation we don't know if if this was the person sending that package from california who answered a question from mr johnson that said what's coming in the guy said well i think you'll be happy with it or of that there whether mr johnson was told well it's a birthday present surprise those are things that we just have to speculate about it's certainly not in the record and that's why i think that the argument i make is substantial that we're tribute to him the full amount when we can show that it was forseeable he was going to receive that actual mountains here thank you very much