with another felony offense and as the brief that we wrote indicates and explains to you all the trial court in this instance relied on two different theories  that he could do so unfortunately the trial court even though that's on file in the record and we refer to it the trial court almost said that she wasn't going to allow that to be submitted as part of the supplemental record are under ru ten but there's an indication that she may have had prior contact with him when he was previously prosecuted in the northern district of ohio based on the comments that he recalls are saying to him prior to his guilty plea but that judge in light of some of the things that have come to light on but in any event the trial court relied on the two theories the first theory was that the firearm that was found on mr holmes  person during a vehicle stop had been used in connection with a aggravated misdemeanor which is defined as a felony under the guidelines because it's on a hold my more than a year and that was that he had recklessly a discharge a firearm on a day or so before he was found in possession of it the government agrees that that theory of the trial court was not supported by anything in the record and that the the only evidence in the record is that the firearm was accidentally discharged in connection with some type of an off alter cation that that mr home had with another individual  it unless there's a question about that period don't want to really spend time addressing it the second theory what that the trial court relied on was that the firearm was possessed in connection with another fel court theorized that that prior possession number one that he knowingly possessed that small amount of methamphetamine even though the report really doesn't provide any real information about the circumstances of it in terms of its possession or its being found at the time of this arrest it merely says it was found that on that occasion in the in he was time and that further that prior possession because he had a firearm at the same time notwithstanding the factual stipulation of the parties on that there was no connection between his farm possession and any other offense that therefore it was possessed in connection with a felony possession and she found that it was a felony possession by taking into account qualifying aggravated misdemeanor or felony and those were the one from i believe california and a prior one i believe out of the northern district of iowa that the judge seemed to have some familiarity with based on her prior employment in that district and the fact that it was in the report but she also relied on two others that were in the pre sentence report there were iowa state convictions for possession those were certainly closer but in our view they also didn't qualify and the reason they didn't qualify as the enhancement under the possession statute in iowa which we cite to in our brief in the government refers to it as well requires th convictions be sustained by the defendant under particular statutory numbered provisions and the pre sentence report refers to these old convictions from the mid ninety's but it does not  indicate what statutory sections those convictions were attained under and there were there are several different provisions under iowa law where a person could be convicted of possession some of which we cite to in our reply brief and so there's no record as to the particular code provisions under which those priors were sustained by mr home although you cite chapter one twenty six which is the drug device and cosmetic act and the one fifty five a on pharmacy correct desir yes and you think those prohibit make a crime the possession of the drugs that are listed in that cocaine and methamphetamine controlled substances certain controlled substances but simple possession is a pretty good act it is under under certain circumstances under those coach afters and it was in the in the mid ninety's as well the point is that there is no way to tell in the trial court actually didn't make any findings she didn't take judicial notice of any watch i'm just trying to make sure these are possible bases for the conviction i thought the pharmacy might have been limited to prescription drugs well i don't know enough i think just in the cocaine or the methamphetamine would i think there are certain types of controlled substances that cross over on the schedules of controlled substances between the prescription type controlled substances and controlled substances that could never be obtained either even under a prescription and there have been  methamphetamine has been in certain forms a prescription type substance or or substances containing it have been the point is that there's no record in this case as to where those convictions were attained under what circumstances or what statutory provisions and that's part of the burden of proof before somebody could say that that element was a stablished to inhance on any alleged possession on the occasion of question to a  theory the court could have but the court did not do that the court merely said these are prior possessions and therefore that's it there was no statement that these are prior possessions or finding that these are prior positions on of these particular provisions of the code know as i understand judicial notice is the court is taking judicial notice of a fact and then once the court takes judicial notice of that fact it's a fact in the record that was really mark question of law i guess no think about right well in my shield law is there any basis in the eye of a cold for a conviction of possession methamphetamine other than the code section that triggers the enhancement well  that is no then why isn't doesn't follow that disqualifies i think you could look at it that way the way i read the one case that we cite to from the circuit this circuit on whether or not a prior is an enhanced apple or not enhanced will prior or the nature of it seems to say that that's a fact issue in this kind of an instance and therefore it has to be established somehow in the record through some method or methodology and that was the theft situation where as to whether or not this prior was a was a certain level of theft but in any event i see my time's up and i it is a very odd record because what happened to start with is the court ruled and then the it's very nice to have said well i still would like to be heard and so then he stood up and made a statement about some of these issues but the question think have all been adequately preserved because he did object that the prior or that even if it was a even if it was a even if it was a possession of methamphetamine that was being committed on the occasion when he had the firearm that he was being  objected to the circumstances of whether or not the firearm was possessed in connection with a possession that's clearly objected to and of course the government had well it's over ruled on the question of whether or not the government has to prove a connection versus whether or not improbably or hour whether or not they have to prove that it's clearly improbable and that issue was resolved in esky to the contrary they said you don't have the government doesn't have to prove a connection but as to the connection question that's the same under the law applies under the provision of the guidelines that i'm talking about so i think it's still at least persuasive authority on that question but i'd like to reserve my two and half minutes if i could let's yet other questions right now may please work just hours my name is andrew paul i'm an assistant u s attorney in the southern district of iowa this case that presents in the context of a negotiated plea agreement where the government had agreed that  did not apply most of the focus in the court below have to do with this incident at an apartment in boone iowa on may twentieth when a firearm was discharged as we've been indicated and can see that in our brief the officer who responded about twenty four hours later simply was not in a position to give any testimony about the circumstances of that discharge  establish that the discharge had been intentional or reckless there were three juveniles i believe present as well as a woman named jennifer  discharge yes i'll wear the record right when i get back in the office to rosa's testimony which is only probably about four or five pages the district court judge asked officer rose did you interview the juveniles officer rose says no i did not sergeant why bold conducted that interview as if he was he was the other one was there he was the other one who was there and the district judge after stated on the record that she did not need to call him as as a witness so while the government certainly appreciates the district court's instinct that the discharge of a firearm under any circumstances  d what was the basis for the stipulation that the four level adjustment doesn't apply based on the possession and the prior possessions and rival law together with the possession of the firearm and at the time he was arrested well sort of a twofold answer you frankly i think the discussions and concerns were focusing more on this incident on may twentieth and boone and our assessment of what witnesses would be available were they have a of all had they made inconsistent statements all we know i'm talking about the alternative basis for the stipulation did the government just overlook that is it your position or did you have a position on the merits as to why it wasn't warranted what i think you know on the merit i'd i don't want to mislead the court and thin k that that issue was something that was a matter of considerable deliberation when we entered into the stipulation as they the you know the focus of the discussions i think were on the other incident guarding the possession little bit arbitrary in that having a misdemeanor conviction under iowa law is enough to trigger that to become the simple possession to become felony possession whereas say the  felony conviction out of the northern district of iowa is not sufficient so when you say the office typically wouldn't seek it you mean because it's arbitrary you mean the government your office correct basically disagrees the guideline and therefore that doesn't seek to apply at we would we would typically not seek that guide to apply that i have and i think we also look at these things and they practical sense in that even if we had prevailed on that and contested that to the nth degree depending upon how the factual record developed and how the district judge felt about that particular case it may well have been discounted to some degree through a through a downward variance again when you're to go that's a different point you could say yes this guideline applies as a matter of law in the facts but we think the resulting range overstates the proper sentence and we recommend a variance but that's not what your office did here your office just said we think the guideline is we disagree with the guideline and so we're not going to seek it well i think to some degree that's twenty twenty hindsight you know because i you know i can i don't want so you're saying you didn't necessarily focus on exactly but but i thought you also said we typically don't quote this just exact thing that so walking back at it we still would have probably entered into that stipulation or a similar sort of recommendation because of the concerns about that why do you do it by norrin the guideline rather than through the mechanism you described which is to apply the guideline as it's written and then recommend a variance well in in this case i think there are there is at least a little bit of question about the facts in that the facts are not developed regarding where the personal since the guidelines arbitrary he wouldn't stipulate away the enhancement i think you know to to the extent it was thought through at the time we entered into the stipulation it was more or less what you know again what you did or you didn't do the evaluation if you did the evaluation why didn't the court get the benefit of that is of which i will possession of section was the underlying basis for the convictions we're talking about this morning if you did that evaluation prior to the stipulation why didn't the district court get the benefit of that well and and frankly i don't think i mean certainly there's nothing in the record that would indicate that there was a closer valu this is the all over the map well that mean there based on my understanding of and knowledge of how the pleaders gushing was handled i really don't think that particular issue was more all right but you seem to be saying the u s attorney for the district going forward would do the same thing again on the view that the guideline is arbitrary and the office doesn't want to i want to apply as that your representation as a matter of policy that would be the the way a state's attorney would intend to approach this sort of situation in the future and what does the u s attorney as a matter of policy have the option whether the guidelines should apply we certainly have the option i believe to determine our litigating position and determine what we wish to well the government graded the bad record because the government we learn doesn't agree with the with with things the guideline is arbitrary well i think regarding the record there are there  two pieces to it one is the finding of the methamphetamine either on homes person or in his vehicle or at least at the time that he was found in possession of a weapon and i and you know frankly i see this course cases as probably establishing a bright line for situations where the firearm and the personal use quantity works felony possession are  in public like in a car i mean i think that there there's an argument i suppose it could be made on this record that because it's not clear precisely where the methamphetamine was located that might or might not have been the only reason it's unclear is because you didn't choose to put the evidence into the record i am not entirely clear that that evidence would have ever been available in that the great you know we don't know all we know is that you declined to your office declined to fill the record on the question well although they did meet the plea pre sentence report essentially parrots the discovery material the probation the officer who wrote that resounds report had regarding that issue and i don't know you know particularly with two years i've gone by whether the officer who made the stop would have any independent recollection now as to where that methamphetamine was finally found i do think on a plane error that regarding which chapter of the i would code we're talking about that ought to be a playmate error review because that argument was not made as i understand chapters one twenty six one fifty five additional additional language as well but you know certainly based on my experience did it in the southern district of iowa and looking at iowa convictions the possession of fences would be most typically under chapter one twenty four and on a plain error standard i think the district judge would have been intitled to draw that conclusion to answer judge murphy's earlier question there is nothing in the record to indicate that the district court judge had any experience with this particular defendant during her tenure tenure either as a u s attorney previously as an assistant united states attorney in the northern district of iowa i believe the present report from the earlier northern iowa cases in the record is sense in exhibit one it was a nine hundred ninety eight case which means it would have come into that office  prior to judge rose's appointment as a united states attorney he was a case prosecuted out of that district's sioux city division and my understanding that judge ro was in the cedar rapids office throughout her entire career but there's a least nothing in the record to suggest that the district court judge had ever had any contact with mr home prior to affidavit not subject to any sort of cross examination and have that encounter occurred certainly trial counsel would have had the opportunity or should have had the should have put of routine unless as a situation where the government has breached the plea agreement and put something in front of the record that the census first sentencing judge shouldn't have seen i think in the first instance on a question recuse where disqualification that's something that typically is more death first by the district court judge in question and so i would think that if that were an issue that ought to be an issue that would be taken up by a district court judge and again to the extent that these reach usual kinds of issues are being raised they're really being they're being raised after fact it's of plain error well they were raised in so far as they've been raised which is a little bit unclear in the brief weren't they raised when the information came to light you say after the fact are you referring to the affidavit about the alleged encounter in the courtroom well i'm referring to perhaps three things i'm referring to the district judges of prior employment as a united states attorney in the northern district of iowa i'm referring to that count holm is raising questions about this employment related litigation and the fact that the united states department of justice through another office was handling that but you know if any of those things form the basis for which seems to be suggested in in in the briefs those facts were all known prior to the sentencing those were facts were available and as the record indicated in the baskin case the o i think just to sort of cover of a little bit of bases here number one i think what the reasoning was of the u s attorney's office etc that's been described here in arguments i don't think that that really got much to do with what we're here to decide there's no record of what their reasoning was there's a stipulation in the plea agreement and frankly i'm not in a position to talk about it because i wasn't involved in the go that in represent mr holm at that time but so i think that's a little bit problematical secondly at i think that it's not correct to say that any time a person is found in possession of a controlled substance knowingly which is an issue in this case and also contemporaneously in possession of a firearm and as connect convicted of felon in possession of a fire m as the offense that this enhanced meant that we're talking about this for level increase for possession of the firearm in connection with a felony assuming that the possession is enhanced to a felony always applies because in the smith case that this court has this court said in a different context all admit that because of the drugs in that case and i believe the gun were found in the house but they said  minimus amount of drugs and farms alone if we reject the district court's conclusion that the mere presence of drug residue i e a de minimus amount of drugs and firearms alone is sufficient to prove the in connection with requirement that's what the court said as the legal holding in the smith case subsequently other factual scenarios have been looked at where the gun and the drugs are outside the house on the persons person as cetera but there's at least oh my a significant fact question about whether or not in this case we're talking about apparently a half gram of methamphetamine found either in a vehicle or on mr holmes person where there's no evidence that he actually knew that that methamphetamine was there such that he could exercise dominion and control over it within the iowa legal standard for that which is very narrow particularly in the vehicle context and whether or not that would constitute i see my time's up whether or not that would constitute possession but the bottom line here is i think this case falls down to burden of proof and the burden of proof for this unhandsome it is on the party the government in this case because an enhancement and if the record fails to establish those things it fails in that regard to the extent the trial court may have felt deprived of facts i think reality is that there was another witness at the trial court chose not to call who could have testified about the circumstances of this vehicle stop and other things and the court the judge not to call it i can't remember the name but there was witnesses brought forth who could testify to the paragraphs in the report that in play i think there are paragraphs twelve to fifteen and the name of that witness was identified for the court it was stated they were available and then after calling the first witness on the apartment situation with the bullet hole in the wall the court said we won't need the other witness they can be excused and the first witness the court had called question cetera and then the second witness was available as requested by the court of the government and the court chose not to present that