appellant morning your honour's would asked to resign or three minutes for a bottle or we have raised several matters but i'd like to address if i might the jury instruction and then also the instruction that concern the instruction about which we're complaining the actual constructive possession and we certainly understand that the prior rulings of the circuit the smith case other rulings indicating if you have evidence more evidence if you will larger evidence relating to one theory of possession lesser or maybe even de minimus evidence on the other that it is not error to give both of those instructions or to give the instructions of both theories of possession it is our position though that the court did a year in that this is it in our opinion and i think the proof trial before this out that it is purely an actual possession case there is no dispute in the record that the government's theory was a shotgun that was actually  disassembled if you will or or made into two pieces of maybe a few little pieces parts if you will but it was broken down in a vehicle mr mr tyler was the passenger or another person who turned out to be an informant of the driver but the allegation of the government from our point of view and the proof at trial was that mr taylor obtained the firearm at a residen returned immediately the vehicle pulled up he goes in comes out basically very short time later according to the informants testimony has the gun it's broken down already gets back in his passenger seat the stopped minutes later actually as there's a video that was part of the trial evidence and the gun is at his feet basically or between his feet and the door sticking forward into the passenger compartment it's like a jeep cherokee it's an issue the type of vehicle it is our position that this is is factually very different from a case as we have certainly heard the court reference many times in the it's our position it does not and i will acknowledge that this may in fact be a close case factually on that issue which and i think the facts of any given case are obviously what this court is looking at in light of the instruction what we had was facts in our position that he possessed actually the firearm was it in his coat was it in his pants in his hand no at the time it was seized at the time it was found no but i think this is what it allowed the jury possibly to do and again this is not a case where we have jury questions back and forth to the court and then an instruction is given and here comes a verdict this is not the case it simply isn't but i think what and when we simply don't know because the verdict form simply read guilty or not guilty  it allowed the jury possibly to find that well if he didn't have it in his hand and admittedly he did not at the time that he was apprehended that it was they are which is could be constructive so therefore we convict him on my at and it is our position that there simply that the proof does not support that and again actual pro instructions and returned a verdict of guilty it undeniably but all of the evidence that was presented would substantiate actual possession rather than constructive possession in that the weapon was within your client's reach physically so that the actual possession and river was no constructive possession saw the evidence tends to support actual possession and the instructions from both the actual and constructive and he gets convicted what the what then is the we or our it's our position that the harm is that we simply standing here and even as as the verdict came back at that standing there at that time that we don't know which theory of possession the verdict was based upon and again the  instructions if you will the notations from this circuit clearly indicate if the only theory of possessions actual don't give the constructive in effect don't muddy the waters don't don't create an opportunity for a verdict that is not substantiated by the evidence when there is a clear theory and it's our position in this case the theory was always actual possession construct i would understand constructive possession if the far more at a residence my residence or the defendant's residence and example the court often be as if you leave something with a free and it belongs to you i want to leave this with you i'm going out of town but you have control to retrieve it back that's constructive possession it's not it's not in your reach basically although that's not the legal definition of actual but it in our and this case the gun wasn't elsewhere the gun was in the vehicle at tyler's feet when he was found so was it in his hand no but i would offer that's not constructive possession and when the notes are clear don't get it unless there is evidence of constructive possession may be part of the gun was found that at the house or or something like that that where you have maybe an effect to possessions actual of a gun and constructive of other parts of the gun that weren't assembled something like that i could see the instruction but in this case i think it simply don't like the term boilerplate we used in our and our brief but that it was simply given as if there had been additional proof of a gun being found elsewhere and i would offer that once there proof of of actual possession yes it's our position that's the only theory on which the government could proceeded but i think that in mind a vat given this circuit instructions about it that it it was error because what we have now is a is a simple verdict if you will guilty sorry the only reference i would make is what we've made in our file and which is the griffin case again indicating that in the absence of anything in the record i think in this case the evidence in the record is that the gun was actually possessed if this isn't a case where we have someone saying it was constructive someone saying it was actual and the jury had to decide had the only proof was actual so i think that that case supports a finding that the instruction was in error but if i might very briefly and again this is is largely in light of our twenty eight jail letter that was filed once again the arm career criminal act our rears its ugly head in in light of the residual clause waiting to see what the  decision will be on johnson versus us we objected below to that categorization and set out our reasons and our original filing of our position paper objecting to the tennessee simple robbery we understand that under the current authority from this circuit that argument is foreclosed under the mitchell case and other cases that have come since then but we nevertheless raised it we raised it again here and in light of the kentucky burglary statute which is a tiered statute has several different degrees of burglary but we object again to the categorization of our career criminal originally below even knowing that that argument was foreclosed he had in light of the mitchell case there wa sufficient authority below to put him in that category but in light of the johnson case that we're waiting on now so to speak it remains to be saying whether the residual cla remains valid at all and or the the act itself it's simply unknown where we will be his prior convictions were a third degree bur of tennessee back in eighty seven under an earlier sentencing scheme that it's been somewhat modified of a statute now a robbery out of tennessee a robbery out of tennessee both of those simple robber no surprise in the court below i think we referenced it mitchell forecloses as long as mitchell remains valid law the in that argument is for close before this panel we understand they are we raised it below we raised it here in an effort to maintain it in light of the johnson case we've come to call it now not knowing we understand no one knows what the ruling will be in that case but it's our there is a possibility maybe however slim that mitchell may be revisited in light of johnson depending upon the brett and the and the johnson ruling so that was the reason for our  raising that at this point thank you thank you course judge morbid as you correctly stated the smith use and boman case along with griffin and mari that there would be harmless error if it was given judge clay you did ask for one case in all in the james case so he had it in his hand the jury went out stayed out for some period of time then that kind back with the question is did the defendant actually have to have the gun in his hand at that point the court gave a constructive instruction the jury stayed out about five or ten minutes and came back with a verdict then james the court said that that was that that was there because the court gave that instruction the jury came right back i'm mediately with a verdict we didn't have that in anthony titers guys the judge gave the constructive instruction with all of the other instructions so there was never a raised about the johnson issue where the supreme court is considering whether the residual clause is unconstitutionally by a however the rule on that judge moore be out submit that totally correct on this it doesn't matter because oh mister tyler had not only the kentucky a first degree burglary conviction he also had two super robbery conviction in tennessee which under mitchell would be use your honors i did reserve time but i believe at this point i have nothing further to address so i would relinquish that very good thank you in the case just a minute probably the next case