the honorable the judges of the united states court of appeals for the fourth  to prove either mr butts was a person whose possession would be unlawful and the government agrees on appeal that it cannot meet that burden here because mr butts was not he did not have a prior felony conviction he didn't have a prior misdemeanor conviction of domestic violence he didn't have he was on the state status so the government agrees it can't meet its burden there so the only way for the enhancement to apply is for the government had to show that when he left the firearms with mr botts mr evans knew or had reason to believe that by doing so that would result in the transfer of those weapons to someone who would either possess the guns unlawfully or would use them in connection with some sort of unlawful activity now the problem for the government there they couldn't show that mr evans knew that that would happen in fact and absolutely that the district court's factual findings are reviewed for clear error well where you have have language why i had reason to believe that someone would this court and no other court that i've been able to find has ever held this enhancement where there is no evidence of criminal activity on the part of the recipient of the firearms because it's that sort of activity that places t lawfully so that would be in the nature of our forecast and hearing around are the only thing the government was able to show was that mr butts may have been a gang member clarify for me what is your position issue all the time in the trial court and i didn't bother to explain and some let me please take the opportunity now to validate someone asked again member of the north carolina department of public safety has a list of about twelve factors it looks at and these are things like have you ever admitted to being a gang member do you have a gang tattoo do have never been arrested in connection with gang activity did you wear gang colors things like   to be clear i know mr evans didn't didn't say i didn't identify but as a fellow gang member that was something the probation officer put in there however i agree with you that it wasn't specifically objected the most obvious lawful uses of guns i suppose or as the district pointed out target practice are hunting or whatever but when you have somebody or six guns and then they start high five each other and you can say what you want about those pictures but they are plenty revel at questions of law it just trying to take more and more sensing authority from district judges but i don't see how you get to a clear possessing firearms is not a normal topic of conversation among friends what is a normal topic of conversation among friends is where you work and what you do for a living and the evidence shows that mr evans worked upon store and one of his because these cons were not found with any gang members so none of the people that the guns were found with had any connection there was no evidence there was any connection to gang activity or that they were gang gang members and they had absolutely no connection to before so there are perfectly innocent explanations for every piece of evidence here the evidence show that mr evans chucked the firearms because for two things he wanted to pose on so he was using that guns to pose on social media to look cool to get with his friends and everybody looks just like the cover of a rap album or a hip hop album looks like every music video out there these are young men who like to appear cool for purposes of social media and he was also using them he sat on facebook that he wouldn't want to shoot the guns after he got off of work now he couldn't do that at home because mr evans lived at home with his parents and unlike most of our evans actually had came from a very middle class background both his parents were professionals and they certainly knew that he couldn't be around and so we had to find a place where he could enjoy these guns and that was that with his friend who had no felony convictions who could present lawfully that was a great place to get together with their friends pose with these pose with these pictures and make these photos for purposes  evidence regarding mr but aside from the pre sentencing report was there other evidence on the record of this association where the gangs there was not your honor there was no evidence of any particularly striking in this case your honour's is when you think about the amount of access that the government had to evidence in this case and how little they had to show for it at the end of the day the record shows that they searched mr evans home they searched car they went through his facebook account they searched the mr watson cell phone they interrogated both young men after doing all of that they could really only come up with these photos and you was not being shy about posting on social media about these guns you would think that then if they had plans for these guns if they were planning to do something with them there would your most significant problem is the standard of review which matters rich marriage greatly and then these kind of things because we often have facts from which two sets of inferences can burden of proof and the burden of proof here is on the government and you have to have to mill that in with the standard of review right so did the did the government carry its burden in showing that it's more likely than not that this defendant had reason to believe that the person to whom you gave the guns who is not validated as a gang member who's never committed any caring related offenses never committed any gun related offenses no evidence of gang related activity was going to turn around and use those gun that were recovered were valued at two thousand seven hundred ten dollars so he stopped valuable firearms and he promptly gave them to his friend who identified as a fellow gang member and one thing that i think is compelling different ways and maybe that's your point that you can look at it from the failures purpose but you could also look at that is silly like ten year olds that they are stupid things that are criminal i number of guns that were storing the the pictures which indicated a seller authority atmosphere over of someone who i mean he certainly had a prior relationship reach the same conclusion maybe we would maybe we were not but there is a difference in our role and the role of the fact finder of planners and sentencing and the more we try to first that used in connection with another affair would the government's position on that prong of the second hand smoke be essential eight the same as the trafficking offense  go back to the first paul and it is there any evidence in the record that that mr evans used these is warranted and i'm in my i don't understand that's if it's a burglary this was not a burglary and so i don't understand how if a gun as an object of a felony is normally enough to meet the in connection with standard then this this fourteen b application does no work at all the only reason it's necessary to single out burglary as a sort of exception is because the general rule is that it's not enough that you just find a gun during the course of some other non burglary offense if you don't use it in connection with the offense right on your reading of the general rule under the in connection with how long fortini does no work at all correct burglary because it's a not that you took the gun during the course of the felony than fourteen b is totally unnecessary it would apply obviously your general rule would also apply in burglaries the reason you need fourteen b is because that is not there could be trafficking in and firearms but when the trafficking actually enhances the potential or increases the potential that the traffic firearms are going to be put to unlawful use that merits a heightened a heightened penalty that congress is concerned here on the sentencing commission is concerned here about firearms trafficking and firearms being in being put in traffic not through law form channels or or there being something more than possession our convicted felon that's a classic nine twenty two g but you don't have here mere possession by a convicted felon you have trafficking that a district court in to have my eyes and blond myself to the fact of what is going over the fact of what i think is going on here and i don't think his record could say the defendant is asked of you know him to be naive to think that he could that these multiple guns could be placed in the hay as somebody who has of this preexisting relationship and that they could just be that evans wasn't a we know that but it's wasn't a prohibited possessors and he could have said to law enforcement yeah my friend you could have right away said yeah my friend bought over those firearms but no i think the evidence suggests that he knew they were stolen and i think the evidence also indicates that he was preparing to distribute those and specifically this idea that he was distributing them i think is made is a very reasonable and friends to be drawn from the exhibit i believe it's exhibit g where but has taken these days or even a post hiller world i mean you tell people when states try to pass restrictions like you can only buy one gun a month law whole gun owners like this is an outrage i need more than twelve guns a year this is you cannot restrict me this way and people are very much associated with criminal activity but these days large arson holes are held perfectly legally and very much celebrated by people on social media and so that is part of the trouble i'm having and i just if you could just sort of address  that why this picture of six guns is different and some other picture of six guns where it's an entirely lawful like how just from that picture we can infer something of six guns we can infer illegality and an intent to traffic illegally because i have to tell you there are a lot of people posting pictures of way more than six guns on facebook and they are entirely if you think the reason you can do that here is you need to put that picture in the context of the rest of this case certainly a picture of g felon gang member who steals thousands of dollars worth of firearms from his employers promptly hands them or her to his friend i think it's reasonable to infer that the purpose for that as to just review those firearms on the street we also now confirming the reasonableness of that in france is that three of these firearms were in fact found at crime scenes and i appreciate when you know i apologize i see that my time is up but ultimately i think that we need to not a part of our function i think is to respect friends like abuse of discretion and clearly clear air of which the supreme court has said the purpose of our phones is to showing these guns the evidence showed that they were not distributing these guns to anyone they were in keeping them for themselves to enjoy and  learned that the police were investigating these guns and learn for the first time that he was implicated in possessing stolen weapons he did what most people do and dump them in the nearest dumpster got rid of them but that doesn't mean that they had any explanation i suppose but i mean when you when you when the record shows that they ended up crime scenes that seems that someone could look at that and suggest maybe your explanation is not the only one of the person's intent at the time that the transfer of the firearms and i would not just you can you can have take a view of the evidence which is essentially divide and conquer you gotta take the evidence her have to react that way but i can see we're not when you were there when you were in the proposition is put to the trial court we are just enjoying of a nice little party here or a nice little celebration of of math elf and everything this record could say come on i wasn't born yesterday possessing the soul of firearms he pled guilty to stealing the firearms he pled guilty and is being punished for possessing the firearms as a felon if the if the government wanted an additional four level are actually eight level unha