by making a specific finding that a high capacity magazine was in close proximity to his firearm to a firearm at the time of the offense close proximity is a multi factor test argument is pretty straightforward because we say there is no record evidence at all of the physical distance between a magazine and a firearm you will the court will note the district court did not make any sort of finding of distance like the magazine was ten feet or twenty five feet or fifty feet away from the firearm and the court could not make any such of the magazine what we have is a statement by a government's witness and i think a knowledge by all parties that the store does not want to have the  magazines readily assessable or install in a firearms when customers are in the store probably due to safety reasons i think that's a reasonable inference but but that works against the government because that also suggests that the magazines may have been stored in a different location they may have been locked up for safety purposes now there yes i don't think so but i don't think that helps the government's position because there has to be some evidence reproof that standard procedure would be followed what we have here  that this particular cell would have involved a high capacity magazine and that that was not done counsel her point counsel what difference would it make to your case i don't understand why you sitting some premises well what difference would it make to your case if when the sale went through the magazine was joined to be joined with the rocks i mean even if there was a stipulation that if the sal not whether and there's no there's no standard procedure that at the time you fill out the form the magazine and the rock award to get your argument ought to be a crime was committed forward the standard procedure would have gone into well that's true that i believe i did argue that in the briefs anna and i'll get to that now because as the judge the dish a court agreed with the defense counsel  that the close proximity has the judge at the time of the offense and i think that's that's correct that's specifically stated in the commentary to the guideline and at that point there was no evidence of the location of the magazine or  the distance between the magazine and the firearm and in to surveying the government's argument that had that had they had the sale been somehow completed that would be relevant conduct that's that's i believe that to be incorrect because relevant conduct is a factual finding which has to be made by the district court and that finding was not made because  recognized that standard has to be at the time of the offense and also if you look at the definition of harm in the guidelines arm includes bodily injury mup monetary loss property damage and any resulting harm resulting harm means actual harm that occurred and which did not happen in this case because the sale was never completed so we never did get to close proximity so that that's basically our argument on the on the st issue if there are no other questions i'll move oh i one more thing i would like to add there is a lot of discussion at the sentencing hearing and in the briefs about a form for and seventy three and and i think the government was argue that there is some information in that form that the defendant acknowledged he wanted high capacity magazine but that form was never introduced into evidence so there's that argument doesn't help the government turning to issues who are if there are no other questions if you two is very very interesting issue i think we argue that the district court erred and hansing the offense level by finding a prior conviction for a crime of violence and a crime is florida felony battery and of course this is the same battery that was the same crime that was issue at issue in the bail bell non bonked decision where the court held that florida felony battery necessarily requires use of force capable of causing physical pain or injury but in that case in the discussion of least couple conduct the aam backcourt said that mr bell belmont failed to show a realistic probability the statute would be applied to conduct it's out outside the qualifying definition of a predicate crime and the qualifying definition here is the elements clause this case is in direct contrast of l belmont because hair mr matthews can show in did show that as to him this felony battery statute was applied to conduct not amounting to use of force capable of causing physical pain or injury and mr matthews was allowed  do that to make that proof under both bell bell naan and the supreme court's doing it new anus alvarez case those cases say that when the focus is on the least couple conduct the defendant can go outside the statute now and refer to possibly other decisions of the state court which show the statute was a prime apply more broadly and most specifically he may show that the statute was so applied in his own case applied more broadly in his own case those statutes give the authority to the defendant to introduce evidence of the particular conduct say we hope the following in this circumstance and this crime you say that if some future defendant come up and say my  i know the court sitting on box specifically hale but i could not have been convicted of this crime unless i was found guilty by a jury of the four cell or put but that's court and say that was wrong well we're not actually challenging bill bell not of course you are because very well the law and said you can't be convicted of this without somebody having found the odd reasonable doubt or argument is he focuses too much on the relationship between the defendant and the items in the i don't nest case being the firearm in the magazine and not what the primary focus should be which is on the relationship between the firearm and the magazine itself i think that's pretty much what the gorgio case holds is about whether or not there's a cook close a close or clear connection between those two items and the other half there has to be also  magazine no no i agree fully with your honor but i think that's what the evidence in this case shows you thought he filled out the form with the intent to obtain a particular rifle that came standard with a high also also if it is standard that it would not come he is in the gun store with a capacity magazine and there is no evidence as to where the access to the magazine were kept far as we know he agent i've been testimony she did say that they review everything that the that comes with the firearm and part of that standard package included the magazine i'll go there but not but we know it doesn't come with a firearm at the time the committed and the time the crime was committed i'm sure you agree with when he filled out our son the purchases in montana i agree with that your honor but i think it has to be considered in the context of what  offense was which with filling out the form with the intent to obtain a particular firearm that comes standard with a high capacity magazine and i think the offense is more broadly construed than just the exact moment when you fill  out the paperwork the fact of the matter is he's not going to get the firearm or the magazine until the paperwork is processed it doesn't mean his in fence did not involve a firearm with a high prosody magazine the nature of this very offense was with that it's just this isn't like you know we don't have possession case so this guideline covers a wide range of firearm offenses and i think it needs to be considered in the context of what this offense was which is the false statement on the form and in in this case you know close proximity and i think what do you is instructive it's just words here in the possession case that we need to consider it in a context of this case and how those principles would translate to this sort of crime or i think the fact  we need to hope we look at the standard which is in the application and say is it man and if it's not math the fact that the government can't make it applicable in a broad range of factual situations is not really a relevant consideration but i would sit here and i think that the evidence shows that the firearm is sold with the know i agree but i think that the relevant so offense includes relevant conduct and relevant conduct is much broader than just the act of finding the forum and as we noted in our brief that also includes the harm that the object of the offense and its case the harm that was the object even beat every every one of these rifles that are sound or capable there but the enhancement doesn't apply every time someone buys one of these rounds you go to a gun show and buy one of these rifles i would say no your honor absent some evidence that the defendant intends to you obtain both those items together under guard you know the question is that is there a close connection and so in theory you could go to a gun store and buy it of a firearm it's capable of possessing or yet possessed or hip a ball you know working with a magazine a high capacity magazine doesn't mean you intend to there's not that i guess i would say there's no accessibility there right there's no intent contained everything that would be the defendant would be receiving with the firearm i believe there's also testimony that there's confirmation that the firearm was functioning properly and she said that when this process of goes on  defendant usually handle the weapon with the store employees to make sure that if it's working properly i don't think there was a specific testimony that that process included the magazine necessarily although i do think you can make a reasonable inference that if you're checking to make sure that the rifle a functional that you're probably going to also be accessing at the same time the magazine comes standard with it but i don't think the district court made that finding so so you're saying the checklist did not include start with kept an inventory in the same store i don't think there's any indication the record that this would be in exceptional circumstances that it wouldn't be kept in inventory in the store but if you think you can make that reasonable inference here and then as i recall isn't evidence testimony the check was processed would have included reviewing with the defendant everything that would have come with the rifle which would have included the standard magazine and i want to clarify marilee or statement i want to be clear that i'm not sure that the process the evidence indicates the process would have included physically manipulating those items but i do think agent evan testimony indicates that those would be coming with the rifle what he would perceive if this form was approved and when he shot clip thirty shots magazines are just simply said magazine we don't have i don't and the reason we don't know who is the government didn't put the document honor i don't understand why we have to speculate when the government has the means to prove in cho's or neglected to use well i would just refer back i guess the government defendant has an opportunity to show that a statue was applied in his own case to conduct that is more broad than the qualifying definition of the predicate crime and he can put  in hearing evidence or witness this is what he did in that crime and the government can call responsive witnesses say no he actually hit the lady over the head with a pot i don't know i don't know the breadth of the yes but in the alternative well let me let me play with the problem st of all i threw it but i was outvoted so we now have a holding that is based on that bond why is that not the case that's not the case because part of the on by court reasoning and bell down bill bell non is that when he considered the least couple conduct it decided that  that particular defendant could not show the realistic probability that the statute was applied more broadly in any case so it seems your position is if the court went to trouble effort and i think it's a decision that's generally a click couple but there may be exceptions because the supreme court gives every did fend in under doing this ali has the opportunity to show that the statute was applied in exceptional manners in his particular case and that is what we proved in this case thank you