prison for possessing a firearm without using it brandishing it or just charging at that sentence resulted in large part from a sensing enhancement for using a firearm in connection with another felony but mr hauck denies committing that other felony which was weeks prior involved a completely different firearm and was a completely different kind of offense and the district court clearly erred in finding without any evidentiary support that mr hasse disposed of the firearm from the shooting and got the firearm he was arrested for confessing quote because he was aware of what he had done on the day of the shooting this time think condition instructs that two offenses are in connection with one another when they are part of a single episode spree or ongoing series of offenses and the commission instructs courts to they involved in one case a shooting and another case of simple possession offense they occurred in different locations with different guns there were no other common facts with regard to regularity of the six circuit explained in  that the government has the burden to show that any error is harmless beyond a reasonable problem and here i don't think that it can properly be said until it's a district court had not believed that mr haas had participated in the shooting that is what he was supposed offense no i don't believe that that can be credited beyond a reasonable doubt of course that the district court does want to reach the same conclusion it can make an attempt to justify the extent of that variance on remand but i don't believe that in a situation where you have a defendant who are otherwise similarly situated one is found to have committed a murder and the other is not simply through a firearm into the questions i don't think that those two for me to see how one can upset that balance but to almost always left at the discretion of the district court i think your honor that respectfully that the shooting offense is the elephant in the room whether or not the district court case and they resulted three of those cases were misdemeanors and they occurred when mr hough was twenty two years old or younger so i don't think that that is sufficient to justify what would have represented a tripling of the advisory guideline range if the district court had erred in applying the in connection with enhancement so i don't think that under this court's cases that require the district court to justify both the fact of the variance and the extent of the v district court's reasoning is just fish and in this case i think that's especially borne out when you look at the way that the evidence was presented in this case the government had every opportunity to bring any witnesses that would like any introduce any evidence from what i believe to be murder in state court but it didn't do so instead it brought in a an agent who had only begun to review these records the day before this is not someone who had interviewed mr hasse or mr boyd wasn't someone who had interviewed any of the witnesses in this case and j a seventy said that he started going over reports the day before the hearing a j seventy four and he explained that he wasn't there at the date of the photo lineup at which mr boyd allegedly identified mr hof he explained that he hadn't seen the lineup then he didn't see the photographs he did not see the cell phone records that the government believed demonstrated that mr hasse had been at the scene of the shooting and that's a joint attend he also saw none of that the firsthand statements that were made that's julie eighty one so i don't think this is the situation where this court is meaningfully deferring to the district court's credibility determinations any evidence relied upon at sentencing bare sufficient and to show of reliability and here you're correct that mr boyd was allegedly identified mr haas in a photographic lineup but that was on the rd interview during the st two interviews he tattoos mr haas does not have an alias of hood he's five foot six inches tall he has no tattoos and again we had no evidence presented that the sense in caring as to what kind of autographs were presented or whether there was any concern that the photographic lineup truly suggestive there was also significant evidence by other witnesses there were approximately fifteen people at the scene of the shooting none of them with the exception of mr boyd on that rd interview identified mr haas including the mail man who said that it was someone wearing a do rag pickup two who said that it was two people who are both black both wearing do rags jose lopez who said it was a quote a black guy with shoulder length curly black hair with blondish tips at that that seventy eight dollars seventy nine cents and with more than fifteen people there nobody other than mr boyd identified mr hough and with respect to mr boyd's alleged statements all the district court had to rely on was the rd hand hearsay of agent there who had simply reviewed the reports of another officer because this is not a situation where i believe that the district court had sufficient intuition of reliability to come to the conclusion that by a be a generous interpretation of what happened in this case this is not a situation where you have the case agent describing the demeanor and statements of direct witnesses and this is a situation where you have an agent who has no familiarity with this case other than a cold record review testifying about facts he has no personal knowledge of and not even any sort of key specific knowledge of prior to his review of those reports i also think it's very significant that the district court purported to find as a fact and i believe there's no question that this is clearly erroneous this is that j a ninety nine dollars he found that mr hough dispose of the firearm from the shooting and got the firearm he was arrested for possessing quote because he was aware of what he had done  was a the shooting that is supported by no evidence the government never presented any indication that mr hasse had disposed of the firearm but three hundred and eighty dollars from the shooting gave no evidence on that point nor did it provide any offenses and even though these were two weeks apart that is not sufficient evidence of contemporaneous notes under amerson which finds that when the court is going to overcome a total lack of regularity or a total lack of similarity it's going to have to have very significant evidence of temporal proximity and that's usually a contemporaneous event it's science the cases of power and conway where firearms were possessed the same day of the offense that were going to be in connection with that felon in possession honors in this case the guideline range from mr haas should have been twenty one to twenty seven months and after the district court heard only the statements of an agent who began to review the records the day before he found by a preponderance of the evidence that mr hasse had committed that shooting and in fact that you know which would be evidence of a consciousness of guilt had disposed of the weapon to acquire the weapon in this case that was completely unsupported in the record again that's and j a ninety nine i don't believe that the district court can simply say whether or not been shooting was committed by mr hough i would impose the same sentence because i don't think that that properly accounts for this court's requirement that the consider that but that's again where i think that finding the surrounding is clearly around in factual finding and jane ninety nine is so important because if it were in fact proven by the government then of her house had disposed of the firearm used in the shooting i think that would be evidence of consciousness of guilt which would be additional evidence that mr haas in fact committed the shooting that occurred in april and i think that that would have provided additional evidence that mr hasse was district court can appropriately evaluate the evidence that was actually presented by the government considering the fact that there's no evidence to support that at all and we don't know from the district court's statements at the sentencing hearing how significant a factor that consciousness of guilt may have been the district court did say that i found by a preponderance of the evidence that mr haas was involved in the shooting but it didn't explain exactly which evidence it found persuasive and how it weeks that conclusion so i think that they could share and remit is the appropriate course again if the district court believes that it can get there without that evidence it can say so on the record and the court can evaluate that determination if it's appropriate at a later date but i don't think that on this record with such a significant clearly erroneous factual findings it's just court can can affirm what the district court did in this case i also wanted to emphasize the seven circuits language and read some law which i think is very helpful it talks about the purpose of relevant conduct and it states that that that the relevant conduct is allowed to be considered at sentencing so that the sentence can reflect the actual seriousness of an offense obviously in the ordinary course if the government wishes to prove that someone committed a crime they need to charge it based on probable cause prove it to a jury beyond a reasonable doubt and ultimately a sentence can be imposed relevant conduct is certainly a significant exception to that to that ordinary requirement but i don't think that under the criteria given by the commission that an unrelated shooting by it with a different gun with vigorously contested evidence that will in fact  tried in state court and sentenced if a program should be swept in under a preponderance of the evidence standard by testimony given by an agent who has no independent personal knowledge of this case i don't think that the commission intended for this to be how relevant conduct would be used to sweep in this significant of an offense at such a low bar by evidentiary standards to enhance a sentence by triple so i would ask honour's this morning is going to ask you to affirm the judgment of the district court and i want to begin by just going over some of the pieces of evidence that the district court relied on  do think the fact that the the the evidence showed that mr hough you know fled the scene of the scene of the shooting that when he was encountered a mere two weeks later driving the same kind of car that the witnesses said that he was driving on the day of the shooting and that he's found in possession of a different weapon i think it's a reasonable inference based upon those pieces of evidence how i read the record that's how i understand that statement that that was made by by the district judge but i just i do think it's important to emphasize some of the evidence that was before the district judge i mentioned the dark colored lexus both mr boyd and the other witnesses including the mailman talked about the suspect driving away in a dark colored lexus that is in fact the car that he was driving on the day that he was arrested on the day of the  incident he was described as a light complection black or hispanic male with a braided hair style very significantly mr boyd the shooting victim initially told the raleigh police department that the shooter was from new york and as we know that that a dental fine bit of information is corroborated from the defendant's criminal history you know that that he was a resident of new york he'd lived he from he was from queens talked again about the shoulder length of braided hair and you know he gave enough info and mr boyd did the shooting victim gave enough information for the raleigh police department to be able to put up a photo you know much has been made about the fact that the that the sole witness at the sentencing hearing was not the case agent involved in the investigation of that of that shooting but there's nothing improper about that hearsay is al quite often we can but you know the government actually invariably and sentencings will provide information on a hearsay basis through a summary witness and so there is nothing at all improper about that i would also say that since this was not a criminal trial there was nothing preventing the defense from calling the law enforcement officers who put together the photo array who questioned who questioned mr boyd before he died now they they made a strategic choice not to do that because of the pending charges in state court but i don't think that this forum ought to be used in order to really litigator a lot of the issues that were litigated before the district court on a on a preponderance of the evidence standard honor the other your honor the other significant piece of evidence tying mr mr hof to the shooting was the cell phone location data and i want to emphasize here that the record shows that this was not cell tower location data showing that maybe he was in the vicinity this was actual g p s coordinates showing him at the scene of the shooting on on you know the four thousand block of green road in  you know maybe you have your keys your wallet and your cell phone so again it is it is an inference that his cell phone was was there his car was there again the same car that he was driving the day that he was arrested honor is correct it is it is it that his cell phone was there not that he personally was there for that we have the identification of mr mr boyd and the other point i'd like to i'd like to make and i think this is an important one what we see in the record it's a very unclear picture of mr boyd because it's been photocopied and scanned numerous times keep in mind the district court was looking straight at mr boyd the sentencing occurred over two separate days that the district judge was looking directly asked at mr hof and he could see you know to what extent does this man standing in front of me does he match up with these descriptions that i i'm hearing in testimony from from the law enforcement officers so in view of all those bits of evidence i don't think it can be said that it is clearly erroneous forward for the district judge to have relied upon upon that upon that upon that evidence certainly in a trial setting there are plenty of arguments to be made holes in the evidence perhaps different inferences that the bet can be drawn all of those things that would happen in a trial setting but that's not kind of the posture that we're in now we're now looking back at what the district court didn't say and asking was it clearly erroneous for the district court to find based upon these pieces of evidence that that shooting was connected to the the possession of the firearm for which mr hough was was charged and i'd keep in mind you know with the emerson case that has been cited to by by the defense in that instance you had a three and a half month gap you also had a shotgun in one case you had a pistol in the other in one instance you had mr emerson being involved in a shootout in another instance you had  possession of firearms in in mr anderson's home so the underlying facts are very very different here we have a mere two week difference we have two pistols different weapons to be sure but factors the district judge i was deeply concerned about mr haas recidivist tendencies as the record shows he had a prior conviction in the eastern district of new york for  robbery involved mr hof kicking and pushing an elderly man to the ground when when they robbed the robbed a jewelry store and you know we understand the fact that he got a lenient sentence because of his extensive cooperation but i think what concerned the district court is that despite leniency despite being indicted in federal court in new york despite being convicted of a hobbs act robbery and getting a lenient sentence he's not deterred because he immediately returns to a life of criminality so it is it is on that basis again putting aside this this for level enhancement when you look at the assume harmlessness when you look at the record that was before the district court in terms of why it's why it varied upward if you're going to look at this is a variance as opposed to an up or departure it was his criminal parole that sort of thing that that's what was driving that was another that was another theme if you could say that that was driving the court's decision to impose the sentence that it ultimately chose to impose upon u and your honor we haven't touched very much on this on this question of criminal history you know as part of the departure there were there were two pieces of it there was the upward departure based on two k to be six befor use of this firearm in connection with another offense but there was also the upward departure based upon the inadequacy of the of the criminal history i've spoken at some length about this two thousand  all throughout all throughout mr haas life and in view of that the district judge we contend did not abused its discretion by varying upward to the to the sentence that  well your honor the final point that i would like to make is that i do think that the that that the district when you're looking at the assumed air harmlessness argument i do think the district court's findings on that are are owed some some deference and the court at length i mentioned already that the to be criminal history the court talked at length about the need to incapacitate mr hof and the district judge said that it was a quote certainty a certainty that mr haas would reus and and so i think when you look at all of that from the from the assumed error harmlessness standpoint i think the district judge did not abuse his discretion i believe that his decision to depart of ford is is due some some deference as you look at it in this forum and i also think going back to the issue of the of the up for departure again looking at the pieces of the evidence  again evidence can always be contested there's always a different argument to aid that's what litigation that's what the adversarial process is all about but when you do look at the evidence that the district court had in front of it i don't think it can be said that it was clearly erroneous  honor a few brief points as the court is considering this case i would urge you to consider what the effect of a ruling in favor of the government in this case would incentivize and ask yourselves is there a floor as to what can come in as relevant conduct sentencing hearings here we know that there is at least one clearly around the factual finding by the district court and it's a significant one that would indicate consciousness of guilt and that's disposal of the weapon to obtain another weapon at j ninety nine dollars that has no factual support and i think it's very concerning to infer that if the district court already believe that mr hasse had committed the murder it was ok for him to infer that he had then disposed of the weapon i think that gets it exactly backward i would ask this court to consider that culpability ultimate culpability for the shooting is on trains and so that are i don't think so your honor because we don't know that from what the district court said on the record we don't know what exactly caused the district court to believe that mr haas committed the actually committed the shooting those are two separate things i disagree your honor i think as i as i mentioned i do believe if it were proven it would be evidence of consciousness of guilt and the fact that it directly follows the district court's conclusion that mr hust is significant the district court doesn't cite the statements or identification made by mr boyd that is not sort of what is motivating at least based on this record its determination that mr hot shot mr boyd and so i don't think that this court has sufficient basis on the record to say that that clearly erroneous factual finding is in fact harmless again if the district court believes that it can justify its sentence based on other factors it's free to try to do that on reading and but i think that court at least should give the court the opportunity to revisit that conclusion with the knowledge and the understanding that there was no evidence presented in the record to support him i would also ask this court to consider that a shooting is and murder is an incredibly serious offense that's being swept into enhance much milder offense of selling and possession of a firearm and in that context i think the court needs to be particularly diligent about what kinds of evidence is presented here and i know the court asked about the cell phone records because records were not introduced in evidence at the sentencing hearing and in fact that testifying witness agent there hadn't even seen them so he believed that they showed that mr haas cell phone was at the scene but he hadn't seen them resentencing if for no other reason than to ensure that when these relevant conduct analyses are conducted they're conducted with some integrity and with sufficient addition of reliability to justify enhancing someone sentence by triple what the advisory guidelines would otherwise i reckon not and so i would urge this court to think carefully about the consequences of a ruling in the government's favor in this case and to you know reinforce that even if the standard is lower than it is court we'll take a brief break before hearing the next