outset is that unlike the usual way we do it judge beavis on the panel has a ten o'clock or argument so this is one of the few times we will probably stick to the a lot of time for argument fifty one yes ok and was or sixty months mandatory minimum there no your honor ok actually there may have been i you argue that in connection with this is not ambiguous but it seems to me in looking at this and we've spent quite a bit of time on it couldn't reasonable people disagree as to its meaning well your honor  it's it's been defined to mean at a minimum having some purpose or effect with respect to the crime and its press the gun present cannot be the result of accident or coup when couldn't i recognize that the government suggests this is a very broad a broad afraid that maybe a little bit vague but we know from the case law that broad does not mean ambiguous and they did not mean ambiguous the court was very clear way to point out that seeming ambiguity is not genuine ambiguity and that for example in connection with can represent a very broad always array of different types of relationships and we've seen that sort of play out when when we find out that a firearm doesn't have to be sort of used as a hold up it can be used as a method of exchange or to sweeten the pot in exchange so there are various types of relationships and in that sense it can be very broad but that doesn't mean that we don't understand what a relationship or what a connection is and if i could ask you the way i would  or step one if we're looking at whether something is ambiguous the language issue here is in connection with we happen to have the benefit of some case law where the courts have said this is really broad this can catch lots of relationship agree that at least the words in connection with error and begin with although we do have to court interpretation help us well your honor i think the court interpretation tells us that it is not genuinely ambiguous because george have been able to reach a consensus on what it means and there really hasn't been any there hasn't really been any challenge to that there hasn't been any question that in connection with means what it means where the confusion comes in comes when the commission decides once to decide whether we should stick with that meaning of in connection with or whether we should add a mere coincidence back into that so i would suggest there was never any sort of conflict about what in connection means it was whether we wanted more than smith the smith definition when it comes to the guideline that we look at what if you're if your position that consular does says we're not survive cause or step one and therefore we don't we would ignore the application and just use the language of the sen guideline assume that's the prism you would want us to follow and if we're going to use we would use the interpretations from smith and loney and the other binding precedent and apply those interpretations of the sat my correct yes if we were to do that then are we getting to the same result because among the things that laurie talks about is immediate accessibility and smith and loney talk about potentials of facility don't we end up in the same place as it relates to the appropriateness of or warding the enhancement rather i think we may we certainly may a district court needs to look at the facts of every case and take into account the  the circumstances and determine whether that inference can be made i do want to emphasize one of the problems with the way we look at the smith definition is people courts and i would say also the commission has taken potential the field to facilitate out of its context the smith did not use that phrase in a vacuum and on mord to the rest of its definition which is not accidental or coincidental and what that leaves us with is we can only interpret potential to fill a tape to be that the purpose of the firearms presents was for its potential potential to be still a tape has to be the reason for that possess in otherwise if we don't if we don't take potential to facility and read it in the context of the whole myth definition we run right up against the meaning of in connection with  effect of it's being visible right there is enough even though i'm given you know that there's no purpose whatsoever in his money why is that enough under the purpose or effect language in the president's to qualify for the enhanced your i think i think that's a very interesting interesting fact narrow and i and i believe you may be right there i think a assume you are and we disagree that this is a step one problem we say there's some need for interpretation here and you haven't cited anything that says that because it's vague rather than ambiguous that that distinction really matters we think enough interpretation still has to happen that is not a step one problem but we get to the step to issue to the extent that the primer is clear we still have to ask ok there's a range of meanings here but is this one of the reasonable ones now that's what you're getting at right now ok so tell me why if we get past it why we say there's interpretive work to do nevertheless why fourteen b is not a reasonable interpretation of the text well i think the answer actually still comes back to smith which is that we know what in connection with means we may not know the whole breadth of it we know what it means and when the guideline sweeps in a category of possessions that are accidental or coincidental it hits headlong right into that definition it's simply inconsistent and it expands the category of cases that will fit under the guideline of the stock answer to that i think and you judge previous brought this up in th the rule of lenity if it is that ambiguous and again i'm not conceding that this no would fall into the particular zone of ambiguity that you're referring to which is what connection means but if it were to do so and we go to the rule of lenity i believe as you stated in the series there's no compelling reason to defer to a comment that's harsher than the taxed so i think for both of those reasons for the contradiction and that it doesn't fall into the fourteen does is follow on smith to some extent follow on to our case and lonely with one possible exception of lonely says very physical proximity alone may be insuffici cases well your honor i think the problem is there's been no cuts the nd half of the nd part of that definition from smith off it doesn't take into account that accidental or coincidental possessions cannot be in connection with what the what the commission did and i'll speak specifically to note fourteen b with respect to drug trafficking rather than the entire no st is it completely cuts that out the commission has adopted it says it has adopted smith in new fourteen and then in the reason for amendment it says in addition so it says we've adopted the language from smith in addition the provisions apply in the case of a drug trafficking offense in which a firearm is found in close proximity so the commission is actually saying we're taking smith but we're also adding this other group of firearm possessions in the case of drug trafficking i o w i thought you argue though that smith operates almost a missing bounce around proximity meaning it can't yet around the proximity and that it can't be accidental or coincidental like i understood your argument to be zach that it's not it didn't work but i the parameters around that maybe i did or the north did i'm sorry do you mean that smith did or i'm spoke i'm focusing on your argument i understood your argument to be that application fourteen  assuming it has any effect from your point of view has to have some boundaries and you said psmith i understood you be saying misinformed as to what those boundaries are to be like can't be accidental or coincidental and i got that in part from your conversation with judge b of my wrong that's not your argument i think if we're if if the note is to be saved for lack of a better word you would have to impute in the  portion of the note that says facilitates or potential to facilitate you have to impute the rest of that definition from smith which is the note is not explicit about that which says excludes accidental or is an understanding that smith is the is the foundation of at least the c for some of this so doesn't say it absolutely is tethered to smith except it goes further  if we may be to explain a little better when the commission was proposed in the note it offered three proposals one was mere coincidence is sufficient in burglary and drug trafficking two was mere coincidence is sufficient in the case of drug trafficking or three mere coincidence is not sufficient which would be smith and if it appears and i can't get into the mind of the commission it appears that in fourteen the commission did adopt smith but then in section fourteen be added on that extra mere coincidence category or universe of cases so it is in part tethered to smith but i think really the crux of the argument is that fourteen b takes it a step further and goes too far with respect to drug trafficking u nless we have any other questions i'm going to suggest that we come back in rebuttal to order that i can keep some eye closed to any for the questions of my colleagues so thank you know ok thank you good morning i am a please the court rubber sounds from the half of the government i'd like to proceed by step one and then step two with respect to step one the question of whether there's an ambiguity we have to look at just the guideline text a guideline text by th the vagueness here enough or does it need to be in big you it which technically means two different meanings it has to be genuinely ambiguous this court said in this year taking it from the kaiser decision in the supreme court and if we look at the guideline text by itself it says in connection with it's hard to imagine an example of something that is more genuinely ambiguous than that and in fact this court has stayed in loney and in other cases that seven smith this court said and lonely in connection with is a mixed extremely expansive statement and when it comes to the application of a criminal penalty that is concerning it needs to be defined and the state that we were in before the two thousand and six amendment is that the courts have to take it on themselves to define what in connection with and that's why we get this long scholarly opinion by judge cowan in the law in the lonely decision to grapple with that and to come up with some kind of confining the sense of commission and then does its job but it's not i don't think it's fair for or correct for my friend miss martin to say well the court came around and did its job and so now everything is settled but as coincidental and it has to be tethered to a purpose or effect and then we'll get to rule on it later but i don't see those qualifications that we put down and loney at the end of loney you know it's own means well there are two things there your honor st of all i don't believe that the sentencing commission is bound to follow this court statement and loan in other words the agency has a role to play you think this is brand it can change what the meaning is and we're supposed to let it over all our precedent alone not exactly what i'm saying is that the agency is permitted to interpret its own genuinely ambiguous regulation and the fact  court tried to do that earlier and in fact courts disagreed which is one of the reasons that the sentencing commission had to act the fact that a court did it earlier does not bind the sentencing commission if it comes up with its own reasonable interpretation of it genuinely ambiguous regulation now as it turned out the sentencing commission did hugh very closely to what this court stated moni i'm sure that it examined loney as well as the other decisions and was influenced by but it certainly was not bound let's talk about that binding let's say there's a shotgun in the closet ok there's some junk piled up in front of the shotgun closet doors closed drugs are just outside the cos right so what's your position what's the government's position on whether or not the enhancement applause to that shotgun or hunting rifle in an unlocked closet behind a pile of junk thirst or some drugs just outside  the cost this is only it's a few feet away from the trucks so fourteen b suggested that enhancement automatically applies right i don't think so and in fact there are big cases along those lines that's a factual question for the court the court has to apply the sentencing commission's application note so it has to do factual work you're saying absolutely it's no let's talk about appendix we're not i don't see the court doing any factual work here the court did was parrot the words hypothetical you know the factual work involves a close proximity if something it may be a few it away few feet away but if it's buried under a pile of things of it's locked away in a safe or something like that a court could factually determine that it was would not be a person a rule and the sense of connection has never said that it was in this particular case there was no need for the district court to engage in their factual analysis because the argument wasn't being made that the guns were right there in the same room so i don't see the there i see the district court as having just checked a box at page one of nine and i don't see it as having articulated facts of the government having articulated facts so how is that how is that  on the government satisfied and hear what the government did present the facts than the facts that i have summarized there was no extensive discipline disagreement regarding the facts and so the district court reached its conclusion there is no requirement that it spell out chapter and verse how it reached that connection when this is a straightforward simple factual determination to be may be so i don't think that's really the appeal we had to sprinkle fitness year came down now we're in a different world so how does the district court's stinson check the box approach square with what we now say because this is a case director of you can't just get just rubber stamp it we have to apply the law that's clear on appeal how does that square with the phrase the landscape the legal landscape now in the seer that a judge has to do more your honor i do not believe the necessary changes the factual assessment in this case or any other that the court has the big one ness ear teaches is that a court has to determine whether the guide like a commentary is controlling or not and we apply kaiser and the genuine ambiguity principle and all those others once it's determined as i have argued that let's say we disagree with you and we think that the comment it doesn't have an exception for x and all coincidental we can't read proximity to mean something other than spatial proximity we think the comment doesn't merit cause or deference let's say it step two but it doesn't matter maybe  one is there anything left for the not just the note still have any weight under more difference does it inform the district court's factual and else is there anything left of it if it doesn't have this  at the end of the opinion that's the right place to look page to eighty eight dollars says what a district judge ten reasonably infer there is a relationship between the gun and the offense and on page twenty nine says you know but there are times when it's accidental and it doesn't have that so ten reasonably and far suggests a matter for the district judge is factual discretion which is a little different from what fourteen b says that it's as a matter of law or a commission the commission sees all of these cases they see hundreds of cases and they have made a determination based on their review that where a gun is located in proximity to drugs or paraphernalia that it has at least  potential of facilitating the offense that is a fair and reasonable interpretation of its regulation and that's why it should be applied at this point rejects that if this court sweeps that away and goes back to lowney then i acknowledge that the court has a little bit extra to do which is to decide factually in this particular case could it have been completely coincidental that one more important thing i need to say is that it even if my view is correct regarding the the commentary and essentially says you know game set and match it's in close proximity and what was in close proximity even me well it's just spatial or is it something else i don't think it's just a show i think that if in the average case it's a geographic thing i suppose as to the distance but it's certainly if there's a barrier in between the  in close proximity mean if you're reading this opinion because lonely says the end proximity itself may not be enough the proximity in as a general rule means distance but my suggestion is that that is defeated if there is a barrier or some reason to conclude that it's not immediately proximate and that a person cannot immediately access it when you know that something would also be cut off so to speak liability just based on coincidental or accidental possession and so it adopted the literal language from smith in it and fourteen f a which is that it has the purpose of facilitating another felony offense and then it's simply articulated for drug crimes this particular factual circumstance again based on it's from mary with this very common situation that occurs this is what the the commission does this is its purpose as the agency that is the expert body with regard to offense as opposed to a simple possession case quote we can presume a firearm in relatively close proximity is used in connection with that offense close quote so haven't we already articulated some presence of a presumption  proximity that is robot of all if you can show it was accidental or coincidental oh certainly i hope i was clear that the sensor commission adopted a presumption based on its familiarity with the theory common occurrence of guns clear rule which is that if it impacts every day because of the danger of guns because of the common use of drugs in connection with drug crimes because of the horrors that often result that if somebody has a gun in proximity to drugs which they have unknowingly cliff that's got the st question of a judge believes a hunting rifle coincidentally in the closet even though it's very close in terms of feet does not meet next to the drugs and of course the defendant says that's my hunting rifle that has nothing to do with my drug trafficking that so that i can go out hunting the next day the this application of this enhanced applies because you have an enhanced danger from the fact that a weapon whether that was your purpose for your own purpose but a weapon impacts somebody to drug trafficking is extremely dangerous and they having run that will have the clause is to apply the application we see we start with an ambiguous guideline we have a reasonable interpretation of it here based on our knowledge of this class of cases a miniature be inforced and in that rare instance in which it may produce an unfair result the court has a ready remedy which is a variance from the from the guideline range or departure and i want to talk briefly of just for a nd if i could about the rule of law in a day you know with respect to judge me versus concurring opinion  if we do i would actually respectfully request the opportunity to brief that further if the court is interested it's the government's position which i don't believe was fully briefed and  can you hear me now i can hear you but i think judge words is you're freezing out mr seismographs for an opportunity to submit for the briefing well if i put it like that if the court is focused on that this is a an interesting question as to sorry i didn't hear you did i beavis had none of the padding you froze up for a minute i didn't all i said was they want an opportunity to brief whether lenity applies to the guidelines if we get to live next thank you i just have one very quick question paragraph twenty four the pre sentence report describes observations by a confidential informant synchros sell drugs on the street and interacting with him later in the day and seeing a drop of fire in his waistband why was that not mentioned as a grounds for the enhanced in this case you know i don't recall  i believe was sort of an offhand comment by a confidential informant before the investigation began one of the interesting facts about this case is that mr was charged with nine counts of drug distribution none of them took place in the house and they all involved a particular group of co defendants who were involved with him in those distributions the the firearms sales were indicted separately and involved only mr per se inside his home i don't think that the court or the parties were looking back to  position on fourteen b is that it is absolutely a per se strict liability no discretion whatsoever requirement that an accidental or coincidental firearm be included and for that beyond it the conflict that the commission was resolving was between about seven circuits and followed smith and did not accept the accidental or coincidental and three circuits that said mere presence is enough and the commission was resolving that split whether to go above and beyond smith what it did was it adopted smith and then it added on this fourteen b which to my reading is a very clear strict you are saying this is a strict liability application and yet our case looks as if present presents a presumption how do you reconcile those this last with your with your view that is a strict liability application i'm not i'm not sure that the word presumption in west was the proper word to use i suppose it if they do call it a presumption but i don't see any daylight in the rule in fourteen be in order to rebut that i did try to sort of grasp onto that if we want to save the rule and allow some daylight so that it's not strict sales took place outside of the home in cars never in the home where as the guns which were also my basically my position is they were both held for sale in that room but they were not related in any way in terms of i think the example i used in my brief was that a grocery store sells apples next to oranges but they're not sold in connection with one another really quickly i just want to point out we talked a lot about the language in loney and specifically at the and i just wanted to point out that in rejecting it mr loney's argument that the connection has to be causal this court talked about the  says a person who holds a gun in reserve so there is some intention to that possession of the gun it has a potential potential to facilitate and that is the reason why it is there it is not there coincidentally or by accident so i just want to i want to clarify what loney said and that's a that's consistent with smith and that is why no fourteen be improperly expands all of that the commission of course can come back and change the language  the guideline we're not arguing that it can't expand smith were saying that it didn't do it the right way and therefore the no does not is not entitled to any deference if i know i think