p maintains that law enforcement did not have a reasonable suspicion that their safety was and at risk to support a patdown of mr bishop after they were moved in from the car during the traffic stop and progress if you too  bishop maintains that the district court erroneously applied before a level of hands meant for connecting possessing a firearm and possession with a drug trafficking offense the court only cited to proximity when it was deciding whether or not the possession was in connection with i had a felony offense and there was no reference to any evidence of drug trafficking that was a well let's talk about the  motion to suppress yesterday i note that we previously had united states versus white we set forth several factors for the courts to take into consideration and termin search supported by reasonable suspicion two of those factors are one is known criminal history and another is nervousness or a base of nurse on the part of the person who is being subjected to the pat down search the district court in this case found that mr bishop was nervous and defensive that agitated he was given the officers a hard time he would get out of the car he was given a hard time he was nervous more those factors clearly erroneous well i would certainly say that the message that officer dunsford recollection of seeing mr bishop in the jail previously i can't imagine why that alone would be enough there are a lot alone judge wilson said not alone right that's in combination with the agitation the nervousness especially in fact position to the other fellow who was immediately cooperative right right of course i was just trying to address them separately so  i would say that using the the the idea that they had seen him in the jail previously relying on that at all i believe was clearly erroneous so there was no basis for previously been arrested who said she was on her way to his house with heroin yes there absolutely is a clearly erroneous i mean that's just a fact but i don't know i mean there are i don't know how that would lend to say that they would think that he was a risk to officer safety just because someone with drugs on them is going to someone's house i don't know that that seems i don't i don't even know how that you could connect that office safety so let me ask you this you said a few minutes ago you said the reliance at all on the fact that dunsford knew this fellow from the jail how they could have relied on that even at all would that was impermissible but i mean one of the factors in the white test that judge wilson laid out in addition to criminal history and nervousness or evasiveness is where the suspect is known to law enforcement i mean we have acknowledged that the knowledge of people as people is a relevant consideration and i think now cops have to make these split nd judgments why wouldn't we allow intimate knowledge of an individual to inform that judgment sure i understand that but i will point out that in white the officer specifically said that the defendant was known to give them trouble and in this case like i said th officer stated on the record that they had a good report with bishop so this was that good report were from when they were to jail when they i assume i they they certainly didn't have a good report with him after that date and what i would i would argue that the officers description of the events was much more mild to them what the district court concluded in its order denying the motion to suppress it the officers made no comment about why they why he was in the jail what it was about him being in the jail previously that led them to believe that this time he was they didn't say well he was in the jail and you know started a riot or he was in the jail for already beating up a cop and so therefore we know that he has this was st of all the career low offense in korea was a trafficking offense not a conspiracy with possession to intent to distribute not possession case and there was quite a bit of evidence in that case connecting the defendant said in the past and more recently than what it said in korea where what about just what i thought i might have thought you would have said let's look at the plain language of the sentencing guidelines there is one provision that applies to crime generally and in the one provision that by its terms applies to drug trafficking offenses correct this is or is not a drug trafficking offense while we would argue that it is that connection in connection to is because the only factor that the judge cited at sentencing was proximity and the only way that proximity alone can be enough is if it's a trafficking offense but i would note that the government in their brief argues that the that the judge made the finding based on the  drug possession charge so my understanding you correct me if i'm understanding of the record was that there actually wasn't a finding about facilitation there was only a finding about proximity and that the district court said looking at career oh proximity is good enough because korea's got this kind of loose language on it that says drug offense but in fact the sentencing guidelines say drug trafficking offense of which this is not one right it's ok all right so but your but i'm right about the record that there wasn't a finding about facilitation there was not just nonsense civilisation and i will say that there also know nobody argued it there was no discussion about whether or not mr bishop was involved in any sort of trafficking offense so it's a little i do think that the record is a little bit muddy on that issue although the judge  cited to the paraphernalia that was found in the car there was nobody even argue that that was attributable to mr bishop it wasn't his car so how they could say that he possessed that firearm in connection with a tra offense that nobody claimed he was part of it i think it is confusing so i mean i have to confess if you haven't read it already i kind of like your argument in the plain language i do feel a little squeamish about it because it seems awfully formalistic i can't quite figure out when it is the proximity genuine proximity wouldn't also have the potential to facilitate a drug offense so if you're  basically it seems to be if you're a drug offense land you've got to show for potential to facilitate if you're in trafficking land you just have to show proximity right if there's genuine proximity i mean are we sort of not also in potential to facilitate land well so in this case so are you asking what argument would be with regards to whether or not if it's illustrated appear like let's i guess let's say we bust the sentence and we send it back what is the what is the hearing look like is the government on the same evidence and then just show  there was genuine you know potential to facilitate sentence so we would argue that that the gun was not loaded that it was not in the pocket with one pill and that a firearm would it seems improbable that a firearm would facilitate the possession of one dilaudid pill and there are cases to that effect that talk about you know for instance and gi well maybe the district court does but we need to have a finding to that effect thank you frank thank you counsel here from decision on that issue briefly with respect to issue one the search issue your honour's the record does so sport support that the tally of the circumstances known collectively by the officers at the time the stop supported a reasonable suspicion that mr bishop was armed and dangerous as the officers testified at the hearing mr bishop became agitated he became verbal a defensive suggesting to the officers they didn't have the authority to pull  up out of the car he begins shifting around in his seat coupling those actions those actions alone are sufficient to give the officer's reasonable suspicion but coupled with the other factors known by the officers as you mentioned judge wilson  that a mere three hours earlier one of the deputies had pulled over someone who said she was on her way to mr bishop's home to buy heroin and also with the fact that both the driver mr davis and the passenger the defendant in this case mr bishop were both known to law enforcement officers at the time of the stop all support that there was reasonable suspicion under the taliban of the circumstances to justify the search and based on those facts which suggest it was not error the district court defined as it did moving on to the nd issue that your honor the sentencing enhancement under the sensing guidelines to k the issue here is whether the  firearm was used in connection with another a felony offense and as the guideline shows there are two ways that the district court can find that the firearm was used in connection for a simple possession case as you mentioned judge there has there if the firearm the silicate id or had the potential to facilitate the simple possession it was used in connection with another felony offense and for drug trafficking of all the problem is that there was no facilitation finding by the district court your honor this core ultimately reviews the judgment of the district court and the government would suggest that as long as there is a sufficient fa record to support the district court's ultimate finding the finding that the firearm was used in connection with another felony offense this court can and should affirm the district court's judgment and we believe there finding ourselves no you are right i believe as long as there is a factual the finding was that the firearm was used in connection with another felony offense the district court made a finding but but but in the course of making that finding it do you acknowledge that's the wrong path respectfully your honor i believe that the factual basis in the record would support a finding of in connection under either past but do you did just so we're on the same sheet of music here do you acknowledge that proximity is the wrong path for a non trafficking drug offense i believe under this circuit's case law there would have to be an up factual support in the record to show that there was are the potential to facilitate proximity can certainly be one factor that the court considers in making that fight be so you don't think that career gets you all the way home the sluice language in korea that calls it a drug offense even though it was  trafficking offense you don't think that that gets you sort of the silver bullet through proximity to in connection with well i don't know why this court has never made a finding that proximity alone in a simple possession case is sufficient and i don't believe it is to make that finding in this case either and i don't believe it needs to make that because again the factual basis on the record would support the in connection under eat under either path either the possession path or the trafficking path because if we look at the facts in this case what mr bishop's counsel is termed as one to watch it all in three syringes the factual basis is actually more ample and more nuanced and because if you look at th that the district court considered yes you have on mr bishop person the firearm a loaded magazine with nineteen rounds in it you had the dilaudid pill in the syringes but in the car you also had a scale you also had a bag that contained numerous other smaller plastic bags items that you typically find and drug trafficking taken in connection with the evidence that mr bishop had previously been given drug traffic that he had worked in i believe this is this is this is like a prescription pill or get prescription for and i believe it's a slightly different focusing on more than the one pill your honor because the one pill would certainly support the facilitation of the simple possession charge the one pill three focus alone would be more candid a simple possession but when we look at the facts all of the facts on the record it could support  in the gun found in that it can what not but if we conclude that simple possession then we should go along with some of the other circuits that it laid out that test different factors including was it in the public good to have been in the public that kind of stuff are you saying that we need to remand the case in allow the district court to make it fact true oh wait the facts and make findings specifically concerning those factors no judge who are because i believe there is already a sufficient factual basis on the record that would in able the court to uphold the district court's finding that the firearm was possessed in connection with another felony if that it was it and then we wouldn't have to do it based on trafficking we could do it based on the possession charge but we would have to find and we would go through those factors ourselves you certainly could do that judge could work and i believe those factors would support affirming the district court's ruling because this case there is a sufficient factual basis it was in the public it was in a car the firearm wasn't down the hall from the defend it was on his person when they shook his pants leg it fell out of it at taken in conjunction with the fact that there was no other legitimate reason proffered by the defendant for possessing the fund he was addicted is a group he is regarded he had made at that at the time of his arrest he was addicted taking daily doses of heroin and methamphetamine he also said he would take morphine and roxy pills whenever he could get possession of them kup went out with the fact that he hadn't worked since two thousand and thirteen there's certainly a factual basis that would support upholding it under the simple possession pro also considering that at sentencing a letter was received from one of the children's grandmother that said that mr bishop bragged about using a guy and robbing other drug dealers and so there certainly would was any objection made to that letter there also a letter that he did take in the items of the from family members and so when i believe that was the same letter your honor some of the allegations were that in order to support his habit while one of his family members was have prior convictions for drug dealing he did your honor and in fact the officers who testified at the suppression hearing in this case both testified that they knew both the driver mr davis and the passenger mr bishop based on their here the problems like st go around that wasn't your theory you were kind of riding another theory you were right in korea and all we've got to show is proximity and so that's like all that happened in the district court the only findings that were made were with respect to proximity so what's the harm really  a sort of requiring the district court and the u s attorney i guess to turn square corners and do it the right way we say no no no you can't go under proximity for a simple possession offense you've got to go the tougher route the facility potential to facilitate route we bust the sentence we re manned and you do it and maybe you win maybe it turns out exactly the same way but what's the harm in us requiring the district court to make that funny in the st instance and so instead of as judge wilson says i'm doing it ourselves your honor because when i get it that it's easy if you go ahead and win now right i understand that it certainly is yeah but this court's case law is clear and it's been applied across the board for many many years that as long as there is a factual basis in the record there is nothing inappropriate or improper and it's not even necessarily going to easyjet to some that for this court to look at the facts and the record that the government has already put on and introduced by preponderance time i would just like to address the issue regarding reversing for the district court to make well i'm sorry whether or not this court can affirm for any reason that's in the record and i started with this issue when i was getting ready because it's i think it's very confusing so what the district court decided was that the drugs were i'm sorry the firearm was in close proximity weeks let you were about to answer your question can you go back and answer that question counsel for the government said that we've got basically an obligation to firm the district court if we can do so in the record for it is that true or not not in this case i  don't understand but generally speaking is that true yes ok go ahead you can explain so i but i feel like that it saying that is confusing what really happened here is that the district court's decision in this case was the firearm was found in connection with drug trafficking so we have to look if we're going to say that we believe that proximity wasn't enough and that the i'm sorry for going to say that the the judge made a decision based on trafficking and that it had to include other facts with the proximity then you need to consider other facts that weren't in evidence is there any dispute that your client had that one pail in his pocket no sir there's any dispute that when the police finding that the gun was used to facilitate a drug possession or that it was enough close enough any of those factors are not related necessarily to my client it's used or could have used right well that's for i'm standing ok so what i'm saying is that i feel like we're mixing apples and oranges so all of the evidence a lot of the evidence that you just described had to do with trafficking but we have a claim but what they are would there have been a difference went the one way and said this is a trafficking of fans or said absolutely this far this this person who's addicted to drugs has this one pill which would be an extremely valuable to him at the time because he had one pill and that the farm would have clearly been viable to him since he had it in his pants not like in another room that if there syria he could have used that to facilitate his continued possession of that is that not true and would it have made a difference if the court found that because supposed to be trafficking if the court had laid out all those factors then i think it would have made a difference but didn't would it have made a difference at all in other words would there still ban the sign enhanced been applied no i believe that the enhancement done would have been applied under the that even those factors that you just cited this court has previously said might not be enough so for instance in korea oh the court said the scope of the phrase potential for to facilitate the offense is limited to circumstances other evidence as well right current act so there may be some evidence that was not presented before that you would present on re sentencing that might convince the district judge that the firearm was not there to facilitate drug