questions the last two argument is a second sensing guideline issue and it's whether in this case the judge increased the guideline level on account of five firearms which were not charged in the indictment they were in the question is whether mr campbell possessed them the argument is that if he did not possess them they were not involved in the offense and should not have been counted those firearms were found at mr campbell's uncle's house in lincoln calif approximately was his own the argument is that while there was evidence that he had the power to control those firearms had chosen to give him his relationship with his uncle there was absolutely no evidence that he intended to do so and on that basis the argument is he didn't possess and they should not have accounted the second argument has to do with my request below which was denied to collaterally attack the validity of the state court order which underlies this federal prosecution  before this panel blown away on the due process argument by the decision of a prior panel and of this court since vs young which is cited in the government's brief but  with respect to whether i should have been allowed to collaterally attack the underlying state court order the contention is that i should have been allowed to collateral the attacker because as of the time mr campbell was indicted an order they had to be who would do this would you hope to showing your collateral attack well that the declarations issued in support of the extension request ha again the federal prosecution for not trying to undo the restriction on guns or whatever process the state might follow up on but i don't think it should have been used to aggravate a federal crime if it was invalid it was known that the under the richie case at the time of this indictment all i would have had to show was the transcript of the hearing the whole thing in richie versus conrad and the absence of any factual e behavior but there was no finding that he had ever committed any assaultive behavior mixed in with the allegations were claims that he was harassing her lawyer by faxing her several times a day or week  problem by changing the form so that's that's that's the argument on that with respect to the commerce clause argument the claim is that the government and said i need to get physical possession of my guns that the uncle would have resisted in any way there's no evidence one way or the other and tell me exactly how it happened  they told him that they had to search for firearms but they have to get a the uncle retrieved a key from inside his house which is four shed which is now building they unlocked it with that  key one of the officers attempted to open the safe with the combination and couldn't do it mr campbell then opened it and mr campbell given the officer the combination that the officer just couldn't do it  might go out there as well presumably but in some circumstances may take evidence to show that that was your state of mind or that was the an understanding between you and in possession ownership heard two different concepts they are that's government i will give you a chance to respond can you quote my nose in the actual language that the district court  court discussed he raised the judge to raise the analogy of the safety deposit box and that someone's can still have control and possession of a safe deposit box even though they have to go to another person a third party to  point or another such as to threaten the wife so i don't think i would be willing to go so far as to say construct possession includes a gun i own in china that if i travel to china i have the right to pick up so i suspect at some point now fifteen miles or so not china indeed are in the facts in this case certainly are very different from from your post hypothetical in this case it's only fifteen or twenty miles and when that event was first encountered at his home he says he mentioned to law enforcement question and i think i know the answer and i think the answer is no do you have anything besides a perfectly sensible hypothetical but you have a case that tells us that so it's some physical distance away held by somebody else and there's the key was willing to give it to you but did you have an analogous case that says that's constructive position within the meaning of the guidelines off the top of my head your honor no not on point but i know so much stuff you had means you've done some research and you can't find it you're out of there is that right yes right here the court's precedent however in this area is very clear that that as long as someone has power detention control and dominate that item possession can be and be found and certainly that the defendant did have access to the room within which the safe was and by simply asking there's no evidence that there's no evidence whatsoever that and i don't think either way we're going to know your honor there is actually there in that in this case we actually have  the fact that he has access to that safe has the combination and then when he opens the safe there are fifty people around fifty weapons in that safe in that if then it takes his time to personally identify which weapons are his and which weapons are not his for law a variety of those weapons indicates that he had the ability to control those weapons under your theory of the case let's assume we have a valid order against someone like mr campbell that says you cannot possess weapons mr campbell owns guess i guess you're saying that if he wants to comply with the guidelines and not because there's so much simply not enough for him to say listen i don't want physically to possess them i would prefer to give them to my uncle whom i trust i'll put them in a cabinet or a shed which only an issue here but here he has that ability because he has the ability simply to go drive fifty miles up the street and get those weapons out of the safe that he has the combination to and so his he's a power that the fact that he has the power to control whole yes your honor and the fact that there's no evidence there's no evidence to contradict no evidence the uncle wouldn't give them up and in fact i think one of the issues that was raised an alarm greg argument which the judge considered was the fact that this is simply a way to keep his weapons and get to graphic oh i see it what you're getting at i think it well the issue here was i mean that the uncle did not deny i didn't say no there was just nobody had the power of the thing no he certainly did but he did not in this case he suppress so it's not true that mr campbell had anything to do with showing an intent to control by going there and voluntarily getting the key or getting into the building with respect to your question about  compliance with the order of the state court order has a specific provision which is included among other places on page thirteen of my excerpts this says that divestment has to either by sale through a licensed firearm dealer or turn into the polic