please the court my name is scott martin i represent mr williams in this appeal of the ninety two months sentence of imprisonment that he received on his conviction for being a felon in possession of a firearm this appeal concerns the disick ords application of the firearms section before a on the ground that one of the three firearms which is specifically a ruger twenty two caliber revolver was stolen mr williams challenges both enhancements on the same ground he argues that the district court clearly erred when it found that he constructively possessed the stolen revolver which was found underneath a dresser in the bedroom of someone else's apartment your honour's what's what's the law here well when determining how many firearms were involved in an offense a district court should include only the firearms that were unlawfully sought to be obtained unlawfully possessed or unlawfully distributed possession of the actual or constructive to prove constructive possession the government must prove by a preponderance of the evidence that a defendant exercised ownership dominion or control of the firearm or the premises in which it was discovered jointly occupying a space is insufficient to show constructive possession and cases of joint occupancy like this case the relevant question is whether there was evidence supporting a plausible inference that the defendant had knowledge of and access to the was not mr williams apartment a man named charles watson lived there by permission of the lessee his name was jason garth watson apparently gave williams permission to be there and knew that williams had been bring friends over to hang out is there any evidence about other times that he was a frequent user of this apartment relationship extended back and this was more or less his room or something like that your honour's the i don't have any in the r what it says that watson stated that the defendant was the only person that should have been in the apartment but the defendant would bring his friends to hang out that's it that's all that he has are says so all we know really is that  they were hanging out at the apartment and unfortunately some of mr williams friends brought guns his friend had a friend a meet you brought a tech nine which is a nine millimeter pistol with a with a large magazine and he let williams handle that gun w went out on the balcony with that gun he's admitted to that his friend chris had a forty caliber pistol there's no evidence that chris let anybody handle that gun there apparently chris was firing this off the balcony at some point the police responded to a report of gunshots when the police arrived they saw williams out on the balcony or client holding a large firearm which we now know was the tech nine nine millimeter everybody ran back in the apartment somebody broke a window and everybody ran our client mr williams through the tech nine under the bed so when the police went into the apartment they found the tech nine on the bed in the bedroom they found a davis three eighty a thirty eight caliber pistol on a couch in the living room they found a ru er twenty two revolver underneath a bedroom dresser which is that's the the gun that's the subject of this appeal they have found a sort of ammunition in the apartment including twenty two caliber magazine and some unfired bullets but it's unclear where they found the ammunition they never found the forty caliber gun that chris was firing so they never found that there are arguments the government failed to present any evidence supported and it's about the twenty two other than the fact  that williams knew about the revolver and the government's basically asking us to speed the court to speculate that he knew about it you can see the photograph in its exhibit one which is record on appeal page one of six we think that that's the most natural lighting it's not you that this before they set up the little number of cards that shows that there's a gun if you look hard you can see the outline of a gun  in a shadowed area by a sneaker you have to look pretty hard to see it although from the photographer's perspective you can see that the government failed to present any evidence that williams when he was standing in the bedroom would have been a had a similar view of the dresser and  anything and in fact the district court in this case i did not make any explicit finding that the gun was in plain view i'm looking at the photograph and two photographs and one of them like  one that is most likely what it looked like when the police arrived and then if you look at exhibits two and three they've got the number of parts set up and it looks like they've blighted the area flash lighted the area for the record shows  there or take the picture it may have been it may not have been you know i don't know and i don't think the record other than the photograph i don't think the record says anything about the placement of a lamp other than that's the way it appears that it was not in the than the way to get in this in this picture right here ok but i do know that looking exhibit one it's also difficult to unless you're actually looking for a gun and you're and you're looking hard for a gun it's very hard to make out where the gun is in different exhibit number one williams post arrest statement always he does he did discuss a forty caliber pistol has told the one that chris brought and a gun with a large magazine which we know is the tech nine he didn't mention anything about the two twenty two revolver which we think it goes further towards our argument that he had no knowledge of the of the revolver that was under the dresser this case is maybe that's because it's stolen right he does want to claim the stolen on there's a plausible explanation why he might have been honest about the others and not down well i suppose that's one way of looking at but i think it's stronger the stronger view of it is that he didn't know about it and he was speaking freely about these other guns that were in the apartment i mean why would he i don't think that he would be thinking of syncing enhancements and that often into a federal case at the time to speak of but a stolen gun is much more problematic i mean forget sentencing an answer that everyone knows a stolen guns much more problematic but you know you cite a number of cases where we found a lack of evidence to support constructive possession are any of those cases in which it was clear that the defendant knew about some of the firearms in the house with the at the court concluded there was a  admitted to that gun he had possession of that gun but there were also guns that are found in a bedroom kitchen the hallway closet and court found that the defendant not actually or constructively disaster those other firearms because quote nothing in the sealy ever carried or handled these three firearms nothing suggests that the defendant even knew these firearms to which were hidden from view existed so argument the skew that here is that here like concealing nothing suggest that williams ever carried or handled or knew about the twenty two revolver under the dresser the owners if there is not any more questions i will reserve my time for say no doesn't specify what different types honestly and i think well in terms of judge lake a different view of how these guns were distributed and his view is equally possible with what you're saying about the way they were who should be there is williams but who knew that williams would bring friends over to hang out and in his post arrest statement williams towles people tells the investigators that he went over to the apartment after he left his residue on williams he wants from being close to a discharge firearm he admits that he tried to fire the enter tac with his friend miti but that gun was g m then again that when he spotted the police on the balcony everyone panicked and on it would it would not be everything you've just been saying about the incident when they're out there shooting guns on the balcony and all that's very troubling it given the discretion district judges now having the reason they have that discretion is that maybe in the into the senate  well did they actually see this little part of the gun and that you can see from the dress or not when you look holistically at everything that it just didn't seem that the technicality of whether this one gun as the handful should be attributed to him should make a difference in was the last one who was the resident excuse me was not there at the time of the shooting and told investigators that the only person who should be there is williams he knew and i quote williams would bring friends over to hang out which suggests that it's not an isolated occurrence and i think that's a stronger it's a stronger plausible in france when we consider the post arrest statements that william said that he went over to the apartment ever given the highly deferential review of this court to judge facts to judge lake's fact finding he consider all the evidence in the record recognize the private standards of a view it's possible in good possibility is he did it you did a better job of throwing this particular handgun under the dresser and it couldn't be seen at all would judge lake been in total say well that's the possibility and that even though he couldn't see it standing up maybe he threw it under there or maybe watson did or where the owner is waitresses possibility which is pure speculation it seems to me where it is possibilities and i got a somewhat better case that if you look real hard the maybe the weapon can be seen was not even necessary in your view i think under these facts it is necessary that there is some do you while i was wrong with my possibility analogy to what you're talking about well there are the cases that cite that there is no situation that he admits to at least three guns even without the roof three guns that were involved and all of the emission that's found in this apartment is a perfect match for all four of those weapons when you consider the a the standard here although it's clear air the government still has to prove the facts by a preponderance of the evidence so that's the important thing here it's not whether something is possible that is whether the group the government has proven access to the idea it's not this notice standard i think it comes from an out of circuits case that she cited in her brief which is not the no fit second case had said anything about notice of the question did your client have any of th knowledge that chris had a forty caliber pistol that he was out shooting there's no evidence that chris ever shared his forty with anybody else so we don't know that watson had access to chris's forty all those weapons came with the people who came that day chris and the others but that the ruger was likely there in its normal place that's that's that's my take on it we don't know where the we don't know where the hammer was we think that if someone had a review there that they would have the ammunition somewhere in the apartment as well so potentially that that ammunition was not brought in that day a question was asked about what the guideline range would ok this goes back to what it what i was talking about a minute ago with chris is forty although there is evidence that mr williams had knowledge of the forty forty caliber of caliber pistol there's no evidence that chris who had the forty caliber pistol gave mr williams access to it for all we know chris doesn't let anybody handle his forty caliber pistol and chris seems like he might be a pretty bad dude also so i probably wouldn't want to take it from him so court the governor is asking this court to make a lot of speculation in this case and our position is the government just simply hasn't met its burden on either enhancement and that arrest guideline range should be sixty three to seventy eight months and the ninety two months and it's that was imposed in this case is a full fourteen months higher than that in the court did not say with impose the same sense of the same reasons under the correct