some of us have tight schedules today on other matters so in whatever cases are being argued we'd appreciate it if if the advocates could stick to the time allot and if there's a amount like now that shows ten minutes for the st case being argue if you want to do if appellant wants to do a rebuttal argument try to save some time and you can ask us to remind you but it's ultimately the advocate's responsibility so without further ado let me say the st case not being argued is st case on the docket know they always do a great job and thanks for traveling so far especially in far good weather like this good morning your honor may  it's my great privilege to represent mr hunter today i'd like to reserve three minutes for rebuttal if i may mr hunter and i ask the court to reverse the application of the four point sentencing enhanced meant because mr hunter did not possess a shotgun in connection with another felony and secondly we asked the court to reverse the application of the two point enhanced meant for obstruction of justice if i might turn to enhancement only applies when the firearm or ammunition facilitated or had the potential to facilitate another felony offense or other offense respectively in this case the weapon was found underneath the back seat of the stolen vehicle in therefore didn't have the ability or potential the facilitate the the  ar or of the money now the district court found a nexus based on four facts but a close examination of those facts are inadequate to support the enhancement st the court found that the discharge of the gun there were discharges of the gun leading up to the eventual theft of the money in car in the testimony was about a month before that that it's on december the th mr hunter did discharge his firearm twice and he told ms winter who was the homeowner where he was living that he fired a shotgun because they were wires in people were listening in the room microphones and i think that that was a manifestation of what we later learned to be mr hunter's mental health problems with paranoid schizophrenia  about a month later on january well those those december six firings were totally unrelated to the theft that happened on january the th the nd fact that the district court found was on january the th there was some altercation with the landlord and the gun was again discharged and it's important to note that the district court found that the gun was discharged not that it was fired because the evidence was ms winters testified that if the gun went off not that mr hunter intentionally fired the gun so it the evidence shows that there was an accidental discharge of the gun so this is an intentional act which was committed prior to the theft of the money and in the vehicle doesn't show a nexus between the possession of a shotgun the rd fact was in mr hunter leaves with the firearm and steals the vehicle in the twenty seven thousand dollars well no doubt mr hunter took all these things at the same time took the money and loaded it into the car and hid the shotgun but the shotgun itself doesn't facilitate this because  vehicle and that when the police officer stop mr hunter the testimony is they don't they can't see the firearm they only eventually notice a firearm is there because the seed is somewhat a jaw hard so it's not thing to him because it's not excessive ball to him they the cases from this cord are pretty clear that mere possession of a firearm only proves possession it doesn't prove and in bolding discharge she is saying wine enough to go to sleep and during the night apparently mr hunter takes the money out of the microwave where it was hidden in in takes a car and then leaves so it's not accomplished by that time so as you pointed out the district court in applying the enhancement made these three factual findings and the district court made the findings and indicated that all these shows that context matters in terms of finding whether the gun was possessed in connection with the felony what level of deference must this panel apply to the court in terms of those factual findings and you the application of those findings to the legal question that's reviewed under abuse of discretion and that say hixson case i believe in under this course precedents if the findings of the court do not logically lead to its conclusion that there was a nexus in this case then this court will find an abuse of disc the why the why the particular facts do not establish a nexus under that under that standard of review that it doesn't logically follow from the court's findings for review is whether it was clearly erroneous for the district court to find that the firing of the gun the subsequent discharge and then follow up by taking the money and leaving with the card that sealing the gun that those are subject to clear air review no they're not they define doing that the car that the fire firearm was discharged his subject to clear air or if you we don't even dispute the fact that there was discharge the question is once we establish that with that all those factors basically provide context to support the finding that there was a nexus and that is what you review under an abuse of discretion standard my argument is these facts even if taken as true do not provide the nexus that is necessary under the court's precedents i see i only have two minutes left so i would like to reserve that final two minutes for rebuttal thank you thank made please the court chris that would appearing on behalf of united states on the st issue the shotgun embolden the defendant to steal the b m w and the twenty seven thousand dollars and that's true for three reasons st of all is this brandishing a discharging of the shotgun that's been mentioned where the defendant brandished a discharge a shotgun during an argument with the victim about the vehicle and the money the very items that he stole just hours later that fight happened to the earth during the early morning hours of january th between one and five am was the testimony and that's in the record and the defendant had been arrested already by eight hundred and thirty that same day so this all happens in a number of hours the  reason that supports the shotgun holding the defendant is that the district court found the defendant took the shotgun with him when he stole the b m w and the twenty seven thousand dollars that's notable because the defendant could have left that shotgun behind he's a convicted felon and he subjected himself to prosecution and prison and by simply taking that gun with him but he didn't leave it behind he took it with him and he took it with him for a reason it's also notable because implicit in the court finding that the defendant had the shotgun with him when he stole the b m w and the money is that he had an access to the shotgun some point he took all of his belongings from the house and he placed them into the b m w and so he had that shotgun with him and it was accessible to him when he placed it into the back seat of the b m w and if the victim the roommate miss winter or any of her friends or associates would have come along to interrupt that the defendant had that shotgun to facilitate and  potential to facilitate the theft the rd reason why the shotgun both in the defendant the rd and final reason and perhaps most importantly is that the circumstances surrounding the defendant's placing the shotgun w when he was arrested in the car was searched they found a suitcase with the defense clothing and his belongings in the trunk of the vehicle and so the defendant could have placed that shotgun in the trunk of the if he wanted it concealed he could have placed it in there if it was just coincidental he could have tossed it in there with his other belongings but he didn't he took the shotgun with him and put in the backseat of the vehicle and he didn't just place it in the backseat of the vehicle rather he went to some effort when they searched the car the record shows that the back seat cushion had been unlatched and picked up and the shotgun had been placed in the back seat and then that cushion had been placed back on top it wasn't really latched so it was just resting on top of the shotgun so it was more accessible and again the court found that that possession was not coincidental he went to some effort to hide that there doesn't does a record tell us how long it would have taken jim to get from the driver's seat to a position where he could retrieve this the shaft the record doesn't say that what the record does show is that this was a b m w sedan the defendant was six foot four and i common sense and experience can show us that it doesn't take a lot for someone to turn their upper body and reach into the back seat to retrieve that what the court did not find in the end the government will acknowledge that the court found that the shotgun was not readily accessible but the court did not find that the shotgun was not accessible and again i think common sense and experience tells us that something in the backseat of a sedan when you in the driver's seat is excessive pull and so the court did not find it was not accessible at all i think that the defendant wants this court to take a very narrow view of what's accessible and of course that's a relative term and so and also what this court said it was not readily accessible through and we agree it wasn't readily accessible but what is readily accessible being it was accessible i wouldn't argument is that the a shotgun can't be placed in a center console like in the root on case it can be placed in a government glove compartment and so the defendant place to the shotgun in the most accessible place possible while it was still concealed he wants it hidden at a plain view but he doesn't want it in the trunk he wants it near him where he can access it i would also note that the shotgun loaded it was found with seven shells loaded when it was searched and officers found it so given those facts and circumstances that supports the district court's conclusion that the defendant was emboldened the ro have a gun with him when he stole the car in fact he stole that excuse me drove that stolen car for two months he stole in january job until march until he actually acquired the firearm and then after acquired farm he kept it in the center console with him from march until april and the ro found that the defendants apparent efforts to maintain the accessibility of the gun permit the emperors that the going to hold him to continue his illegal conduct and that he would bring the gun with him and kept it a short distance from him and that's what we have in this case is the defendant you can see these efforts that the defendant has gone through not to keep the gun in the trunk but rather to lift up the seat and keep it in a more accessible place so that he can get to it didn't have the gun almost the whole time he was with miss winter that was the testimony it was his gun he had stolen it from another man named dean turner before the prior shooting in december so he had had it for over a month before this shooting in january th that's correct or the defendant was selling drugs at an intersection and he was seen during surveillance and selling drugs to multiple people at the at the intersection and he had his car in a nearby parking lot and when he was arrested officers found a gun in the cent console of the car and the blank of court in upholding the enhancement and finding that the gun emboldened the defendant stated although palumbo was not always within arm's reach of his gun like the defendant in return nevertheless he was selling marijuana in the vicinity of his car and thus could have availed himself of his gun at any time and that's similar to what we have in this case again we acknowledge that it's not as easy to reach in the back seat as it would be to reach into the center console but it's common sense and experience just can't you just can't say that that farm is not accessible to the defendant he went to great efforts to place that gun there for a reason for a purpose to the nd issue if i could just briefly address that the defendant argues well excuse me the court found that the defendant intended willfully obstructed justice by luck by leaving a threatening message for the probation officer who prepared the pre sentence report the st argument is that the defense claims the district court didn't correctly apply the law meaning he didn't apply that it was willfully the government acknowledges that the court could have been more specific in its findings but a review of the record reveals the court did apply the correct law this is an experienced district court and i believe that the supplemental excerpts of records page seventeen through nineteen clear this issue up quite easily in the context of this is that the government was pursuing two different bases for the obstruction answer minute sentencing one was that the defendant had after witness had testified in trial the defendant had stated he was going to snap his neck the nd was this threatening message that was left for the probation officer and as the court at sentencing the parties made their arguments and the sole issue really where the parties focus their efforts was whether or not this was willful the court ruled on these objections in turn and that starts on the supplemental excerpts of records page seventeen and the court stated i'm struck by the need for it to be willful and the court went on to find that the defendant's statements about wanting to snap the neck of a witness was not willful because the witness already testified and so the court found that the defendant wasn't willfully obstructing justice because he he's made these statements after rather than before the witness testified and then the court turned to this issue of the threatening message for the probation officer and so under those circumstances it's clear that the court was aware of what the standard was that it was he found it wasn't willful in one instance but he did find that this threatening message for the probation officer was willful the district court even went on to explain why it was willful that the defendant had waived his right and indeed refused to participate in the prisons process and so there's just really no reason for him to be calling the probation officer and then of course he left that made the statement that the district court referred to as the chilling statement where at the end of the message he said the defense stated that he looked forward to dealing with the probation officer in the future the court of course also was able to consider the defendant's underlying conduct in the case at hand as well as his violent history that was outlined in the pre sentence report including the fact that the defendant had a prior conviction for witness intimidation and so that court's factual finding was not clearly erroneous and so given all that the government respectfully request this court to affirm the district court's findings and conclusions thank you thank you clear that the district court judge in this case did not make an express finding that there was a specific intent for mr hunter to find to intimidate mr cruz or the  i investigator the government's argument is that we need to make a negative inference from a different ruling where the district judge didn't make a specific finding of  lack of intent because the person who was supposedly going to be intimidated was not present in the courtroom when the statement was made so i think that's quite a different situation and and and i agree with the government the judge when miller's a very experienced and thoughtful judge and when he has when he makes the factual finding he puts it on the record because he's very careful about that but in this particular case we do not see an express finding of a specific intent of mr hunter to intimidate the present investigator you know nor would there be sufficient evidence to make such a finding there's no evidence that mr hunter was even aware that mr kreuzer could change its report or that the probation officer would somehow make a recommendation to the court so there's absolutely zero evidence in the record that mr hunter had any idea whatsoever that any statements he made to mr kreuzer could have any effect at all on the eventual outcome appreciates the excellent advocacy on both sides of the case and we wish you a safe travels back to boise and come again