formerly justice robert luck of the florida supreme court to our court and i believe this is his st week of oral argument with our court he's not a stranger to our court having car for our chief judge so we have four cases to hear this morning counsel we're from ill you're with your cases we've read your braves the authority cited in your praise and the limited time that's available to you you should feel free to go straight to the heart of your argument without having to familiarize us with with the background in maybe that in that limited time you won't be able to address everything that you want to address but anything gets covered in your brief remains preserved and will be under submission to the court when we finish we probably will have some questions  treat the read like as aspirational we have a traffic light system that's there to keep us on time so be observant to the traffic lights and if you're finishing enhancer to a question from one of us of course you can feel free to finish your answer but do be mindful of our time so we will begin this morning with united states versus martinez mr labonte good morning and may please the court in this case we're asking the court to hold that the four level in connection with enhancement under the two k to be sixteen b in the guidelines cannot be applied when it relates to a future event that may or may not occur a statement about a plan to commit another offense is not another felony offense under to pay twenty one dollars b sixty it is not even a crime here the district court held that the only eligible felony that mr martinez could be held accountable for was a potential exchange of a shotgun for a quote pound of dope unquote i just said the text of the guidelines says that if it was possessed that is the gun with knowledge intent or reason to believe that it would be used or possessed in connection with another felony offense that's that's a prospective look that's forward looking that it that and intent or reason to believe that it would be used or possessed and as i understand it that the gun was going to be traded for the dope this seems to me to fall squarely within the text of the guidelines what am i missing the guidelines says that the and has one applies when transferred the firearm and did i live with it would be used or possess in connection with another felony offense that doesn't mean that it has to be a completed offense does it i mean in the us so if you look at the definition of another felony offense it has to be any federal state or local offense other than explosive or firearms possession or trafficking offense punishable by imprisonment for term exceeding one year here a statement alone cannot qualify as if an action had occurred here his statement alone that at some time he planned to sell the gun that event may or may not occur so therefore the guideline can apply because if there is no other for another felony offense here there's no crime what's your best authority labonte for that proposition unfortunately i think that there is a lack of authority because every case that i've encountered inside of the government there is an action that's been taken by the defendant where they have shown up to a trade with  confidential informant they possess the gun while they're committing a crime here mr martinez was simply pulled over by law enforcement was possessing the firearm but the only reason that this is in play is because of his single statement that he planned to sell the shotgun for a pound of dope well let's go back to judge cryer's question the language of the guidelines says with the knowledge or intent or reason to believe that it will be used i mean isn't that necessarily perspective i don't believe so i think that is for if someone shows up to a transaction and they have a gun on them they have reason to believe that it could be used to protect them in the transaction that is for past mr martinez a statement that he planned to sell it at some unknown time that may or may not occur so that statement alone does not qualify under the no fourteen c's definition of another felony  one point one three deals with possession point one hundred and thirty five lists trafficking and there's a number of things that go into trafficking are there not yes there are a number of things and one of them is a purchase is a not right but again in this case there are several issues is that the shotgun is in the rear of the vehicle the scales are there it the record is very clear that mr martinez was addicted to methamphetamine use and had some step in further and of an act for an attempt i don't believe so because we don't i don't think that we know what he intended to purchase and you know that's a separate in the that's a separate issue if you answer the question i asked is that not an attempt to purchase some controlled substance will get to the dope part the the presence of the scales i don't think it's related to that to the fire on there i think there if you take his statement i wanted to use the gun to purchased oh a pound of dope he's driving in the car is brass knuckles the scale with residue on baggies with residue on it and his own personal stash it appears with some sort of residue and a pipe is that not infer some action in furtherance of the attempt at the record in this case that's not the government did not prove that he was on his way to a transaction i think this is just very circumstantial and to apply that hanssen in this case the circumstantial evidence is sufficient is enough it could be but in this case i think it is too attenuated for the for the evidence to prove that another felony offense was is an admission circumstantial evidence i don't know that it's an admission it's a statement about something that he intended to do but it's not implication let me see if i understand your argument so in looking at least six b i take it you would say that there has to be another felony another felony offense that occurred and the intent knowledge etc language just means you don't have to actually have used the gun in that transaction you only have to have intended is that if you're on it for a pastor presently occurring offense and i and that the evidence presented here the only evidence is his statement to law enforcement that he planned to sell the gun for a pound of dope we don't have any more information regarding what he planned to do to whom he planned to conduct the transaction so i don't that it can be a future event yes but to take that interpretation would open up this enhanced meant to just imagination of any offense that could occur in the future like it what it does is it allows a district court to consider evidence of that and to make draw a reasonable inference based on the preponderance of the evidence which which is what occurred here if we disagree with you about the text of the guideline that's that's my point that's the end of this right i believe in this case that another felony offense does not occur and one makes a statement of something that they plan to do that may or may not occur i  the gun was valued at anything worth a pound of any sort of illicit substance does not qualify as another felony offense so therefore the district court erred in applying the enhancement because to try to apply t offense and the nd clause addresses possession or transfer of a firearm when there is knowledge intent or reason to believe that it would be used in connection with such an offense that nd clause logically must in compas future planned intended events not not only because of the playing meaning of the terms but but logically if that nd clause were read to exclude intended future events found by a preponderance of the evidence at sentencing by the sentencing court then that nd clause would be superfluous because a present or past event would be included within the  clause of the enhancement and it's really that simple the issue in this case is simply whether there was a connection between a shotgun and the mr martinez admittedly possessed and admittedly planned to trade for a pound of dope how could there not be a connection mr martinez is counsel conceded at sentencing quote there is a connection between the guy and the prospective sale because martinez verbalize that he said i'm going to exchange this gun for the dope that's mr martinez his counsel speaking at sentencing on page forty four of the sentencing transcript now his counsel also conceded at sentencing we don't know that it would be a felonious sale because his statement was ambiguous in the sense that in his counsel's words dope could be cocaine or methamphetamine so at sentencing his counsel conceded that martinez is reference to dope at a minimum meant cocaine or methamphetamine and under florida law the simple possession of any controlled substance whether the the district court rested its ruling ultimately on the presence of the scale he said that in the transcript he did the district court did find that the presence of the scale supported the enhancement but if you look at page forty one dollars forty cents of this of the sentencing transcript you'll see that the court held that the enhancement was also justified under comment fourteen a to the guidelines facilitating that intended offense because in the courts words it was one half of the exchange which is proposed to occur now the court was plainly referring there not to the proximity requirement in application note fourteen b but rather to application note fourteen a which states that in this enhanced meant applies whenever a firearm facilitates or has the potential to facilitate another felony offense as the court found it did in this case on pages forty one and forty two of the sentencing transcript doesn't admit there's i was this is either subsequent discussion of the sale and then on page forty six the court says so anyway respective respectfully i'm going to overrule that objection based on finally the presence of the scale yes and i read that as an alternative independent factual finding and holding the courts at this this court need not address that because the district court's separate factual finding that mr martinez that the gunman had the potential to facilitate this admitted plan transaction that alone justifies the enhanced mint under comment fourteen county council and there appears to be a step in here missing now and that is that under fourteen dollars fourteen cents b for let me back up for fourteen b to apply doesn't have to be a drug trafficking offense the other felony has to be a drug trafficking fence fourteen b covers applies generally to drug offenses here's what it says i understand that's what the label says but subsection two states in the case of a drug trafficking offense in which the firearm is in close proximity to drugs materials or paraphernalia then you do x and then a applies to everything else that's not either burglary or a truck trafficking offense right well aim another felony offense that is any type of drug offense satisfies this in answer meant if that gun has the potential to facilitate that offense regardless of its proximity so in other words the common the plain language of the guidelines of the commentary application note fourteen a point let me ask you this is the other felony a drug trafficking offense it could be there are multiple other felonies here the simplest in the most obvious is simple possession because mr martinez admitted that he intended to purchase in the us of canaan possess a pound of dope what's the definition of a drug trafficking offense well under the florida statute that you referred to earlier your honor knowingly purchasing a distribution quantity but this is a this is a term of art used in the guidelines yes i know what the statute says but the guidelines to find that term do they not this particular guideline to cave one does not but the guidelines themselves to do that i believe they do i'm sorry let's not let's look at one point two which does define the term which states that the term means quote an offense under federal state or local law that prohibits the manufacture import export distribution or dispensing of or offer to sell a controlled substance or the possession of it with the intent to manufacture import export distributor dispense to that happened here yes because the question is whether the district court could have found by a preponderance of the evidence that mr martinez had reason to believe that the gun would be used in connection with such an offense and not only did he admit that he intended to swap it for the the drugs but he further admitted in paragraph seventeen of the p s r that the reason he did so was because he needed money for bills and to further his methamphetamine addiction so on appellate review or unclear or standard and under that standard it was a reasonable in ence the district court could have reasonably inferred that not only did he intend to go out and purchase a pound of dope for his own personal use but that he then further intended to traffic it or distributed by selling it to pay bills methamphetamine but again this court need not address that because the distributor's factual finding that the gun had the potential to facilitate even the simple possession offense that's sufficient well in is argument as i understand is that it only the guideline only applies to either a completed or our current offense and doesn't cover a future offense and he's agreed that if it if in fact it does cover a future offense it was that's that's my understanding of his argument and i would agree with that your honor for the reasons i stated at the outset being that if the nd clause is somehow interpreted not to cover planned or intended actions or conduct then it would be supreme superfluous sec certainly the ordinary case is a situation where the drug trafficking trafficking offense is pastor compare i mean yeah is pastor current right so this is an unusual case in that sense yes this is an unusual case because in most cases the defendant does not candidly admit that he intended to use the gun in this sort of a licit transaction which which  could always be used in some felony offense right so hat how do we limit it is the limit to the application that you're arguing for and that here there was an admission of intent to commit another felony in this case yes and  the limit would be the evidentiary standard that applies at sentencing hearings that the district court has to find facts by a preponderance of the evidence to support an enhancement and in this case the that the reason that this enhanced been applied was because the district court reasonably inferred from mr martinez and mr martinez his admission that he had knowledge intent or reason to believe that this gun that he admittedly planned to swap for drugs would be used in connection with with another felony offense what if the statement instead had been something like the one damn i committed a bank robbery with a gun while we would still be under clear air review and so the question would be rather the district court could have reasonably drawn that inference from the evidence from whatever the statement wise but your honor's point is well taken you can imagine more ambiguous last certain statements that are not is as clear cut as the statement was whatever ancillary facts support the finding in addition to just the statement in this case well i think the fact that as the district court mentioned several times that mr martinez had a history of drug use of methamphetamine use prior convictions  the drug paraphernalia in his car which which the district court further found was by a preponderance of the evidence likely connected to intended to be used with this intended truck tran what about the nature of the firearm itself meaning the fact that it was disassembled d inoperable stole yes that i think that also reasonably could have played in to the district court's finding in other words are going to change a firearm you don't do it where your name's written on the on it right absolutely right is there another case similar to this one where there was merely an and ninety one and in that case this enhanced was was upheld a sufficient connection was found between a firearm and a felony offense where the defendant's wife stated that the defendant had threatened to shoot her with the guy mean that you hit the gun in the sofa so it's not clear what it's not clear whether the other offense in that case was necessarily the threat itself or that's not entirely clear but that's the closest case that i've been able to find that that might touch on this but  again i think there's a dearth of authority on this point because this is such an unusual case but the fact that it's unusual shouldn't lead this court to ignore the plain meaning of the terms in in this an answer which covered intended which cover possession or transfer with knowledge intent or reason to believe that the firearm would be used in connection with another felony offense not not will necessarily be used but would be used thank you for here the court never made any findings that mr martinez's was on his way to commit the offense that there was an attempt to commit the offense or that he was in a conspiracy to commit the offense and reading t twenty one b six b i think it is important that we still focus on the fact that there has to be another felony offense in order for the enhancement to apply here the district court's findings i think you know  amount that's that sounds like a finding to me but then on page forty five dollars to forty six dollars he says that he has to make the effort inference that the scales are connected to the prospective sale so if you look at the connection to the scales i believe a reading of the record is that the court was relying exclusively on note fourteen b because if he thought that the gun was going to facilitate just this potential sale in the future he wouldn't have had to make the  scales and the scales come into play under fourteen b because it mentions drugs drug manufacturing materials and drug paraphernalia so based on the district court's finding i believe that it was relying exclusively on fourteen b and i did not rely the fourteen day again as i stated reading the definition that are two k twenty one b six b the other felony offense there is no other felony offense here because there is no finding that he made an attempt there substantial step as i stated earlier we don't know what a pound of dope means this firearm there is no determination that it was valued at a point where anyone would or someone could get a pound of any of this that substance that was just his plan it may or may not occur in order to apply this enhanced in this case this case is different than all the other cases cited by the government because in every case cited by the government there is some action taken either in the past or when the person is arrested generally in the case of confidential informants someone shows up to a deal and action is taken here all we have is mr martinez a statement we do not know when that was going to occur to apply the enhancement in this case and open up the door for that ship the enhancement to apply in any case where someone might have some sort of illicit idea of what they may do with a firearm would make would go against all the cases that have been held so far and would open up the enhancement to apply in almost every case because we're left only with one's imagination of what one can do when they have a firearm so for that reason we're asking th