may please the court counsel again my name is daniel tell us what the federal public defender's office there are present mr gates in this he challenges the district court's decision to impose a four level guideline enhancement for using a gun connection with another felony the other felony in this case was drug distribution and there are two drug transactions the neither support the enhanced i'd like to talk first about the transaction involving mr kellogg hall mr gates provided a marijuana like substance to mr hall mr hall promised to pay for it later mr hall didn't have money and so mr hall on his own initiative decided to bring collateral over to mr gates mr gates did not know that this was going to happen he did not request it and when the collateral came it was a gun it was an unforseen bet which is important under the guidelines this was not something that was requested or anticipated it was unfair seen so it was never a condition of the sale or any future sale that you received this gotten as collateral and that's important because the gunman didn't facilitate the instant transaction or a future transaction no koocher dealings were plan these two individuals so far as i'm able to determine from also the district court and this is important was unable to determine that the marijuana like substance was a controlled substance in fact it was something that the just record couldn't determine at all it's distribution if it's not a controlled substance isn't a felony so that again ties back into the implicit belief of the enhancement if it's not a controlled substance it's not a felony the transfer of the gun doesn't further and he fell it became a controlled substance in the course of this is deal and it's yes provided it's the same substance but that's none no but yes there's a later transaction where it does have the presence of this abd chemical that makes it a controlled substance but i think for the instant transaction the gun wasn't request was collateral we don't know what the substance was it was for the reasons i said not a basis  proper basis to use that transaction to end was that their gun that he was prosecuted for having the guy you know yes i guess he's already been penalized for the gun it's just now can we penalize him  sale is over and then he gives this amount away it's a discreet transaction it doesn't further anything it is something that he does at once the gun sale is concluded so again back to the enhancement it doesn't further anything it's not used in connection with the sale that got this something that is almost a random act that occurs separate in time it's not a basis for the enhancement the gun also it wasn't used to protect any drugs  drug proceeds it had already been sold been transferred and so the cases where the government cites that it's essentially the fortress theory where we assume that guns are used to protect drugs and drug proceeds we don't have that here the gun has been sold it's been dispossessed then we have drugs that are given and the sale of the gun is the only proceeds is left that isn't at the gun to protect the money or the drugs that point so it just doesn't fit the fortress theory doesn't apply here and it's not an instance under the other case law where this sweetens the pot which sounds like a bad special you know synthetic marijuana transaction but nevertheless it is the thought it's separate it's not something we're going to combine two different items for sale and say you know let's just price relatively or buy this now throw this in that's not circumstance the gun against a discreet transaction he gives away marijuana do we know how the government learned of the first yes that's right but again and that's when the gifting occurs unfortunate gifting occurred but and is it that the drug transaction we're focusing on the second drug is transaction is the gift and again this is the only time we're able to determine that is controlled substance so that much is here but it's all the other things that are missing that make the enhancement you know political in this case the discreet transactions the guns are to been sold transferring the guns no any felony it just doesn't apply to these facts and so the government for that matter agreed that these are discrete transactions and i point you to a record twenty eight where i think it's the government's commentar the gun transaction could be considered separate from the drug transaction so analytically i think we're sound on this these are unusual facts but it all goes to show one thing the enhancement was incorrectly applied but that doesn't make any difference the judge said this levels my guys my clients guideline range goes down precipitously the judge may have a different view now and especially given the chance to go back and re examine these facts and see that it doesn't apply but he seemed like a less egregious case peterson actually said a lot more than that he said if if i were to relieve mr gates from the effect of these enhanced minutes including the one that's challenge here we end up with a sentence that's just a power right now thirty six i mean that that seems to me a statement that the judge following our instructions to announce whether the sentences is right under thirty five fifty three a without regard to the guidelines range so i guess i'm hearing in the question two words that stick out more to me perhaps than now the question is intended but just about right doesn't mean right doesn't say definitely i give you the same sentence and you also encourage and pick the issue up on the appeal so i think the judges amenable to giving a different sentence ultimately were my client to prevail on this  if he absolutely thought it didn't matter i'm always going to give you the same sentence you wouldn't suggest the issue go up on the appeal and he wouldn't say it's just about right he would say it's not going to change my mind guidelines are a wonderful thing keep us in business i have nothing further twenty three of the united states i want to start off with something that mr ellison not address and that's what this guideline was this was meant to to target and that is the potential that firearms have tell me about the cases where the gun goes from collateral to being used to kill people although you haven't got a susan you're the supreme court of memory smith versus united states it's supreme court as noted in smith versus united states that a gun can be turned from currency to candidate well of course the gun can be used i'm asking you whether a case like that where a gun used as collateral is turned into a murder weapon or a threat weapon atop my head your honor i don't have a yeah well right so why why are you worried about this gun because of the sense he commissions worried about the potential that a fire tensional in luck if you do if you have a potential which after many years never becomes actual you forget about it true but this is you have not unless you have the just part of an alley has nothing to do anymore so it brings these trivial cases well with all due respect your honor i don't think it's trivial that the well i think that's totally trivial i mean it's one thing the sale semiautomatic weapon it's got an extended clip in it and it's in this garage in the very same place where he consistently sells and a weekly basis to both the confidential informant and to another person we know of johnny morse i don't know well says he's selling it too but there is the potential and or stand number two but when there's a dangerous weapon that's circulating among a community of people who are engaging in drug trafficking it poses a risk whether mr gates intended to shoot sort of currently there or is it has never materialized  theoretical it's the potential and that is that's what the guidelines requires a separate tension to facilitate a drug that's yes the first transaction doesn't count right because synthetic marijuana was not at that time a controlled substance list no your honor i don't think that that's quite right the the district court judge made a determination of finding that that the transaction did involve a controlled substances based on the fact that seven days later first transaction and the the evidence that he had that there's been three months of the drug dealing going on to come to the conclusion that that did involve a controlled substance is seen as something to eat and do we know that the first transaction list synthetic marijuana we know is that  one was was discussing this the sale of the gun with the kalahari and then ultimately that whole that that that that gun is sold so there's so there's mr gates statement that it was seventeen ten days earlier there's also the statement from ca to number two that it was actually seven days earlier so the court had to choose and i think it shows seven days as opposed to that seven to ten days so the court made a finding that this first transaction occurred on january thirtieth not a specific finding but i think it's a finding that had to be within within its within its its alternate filing finding that it was a controlled substance so it's not a specific finding that it occurred again that what we can eat that don't we to count the first transaction unexpectedly i don't know as the collateral not as not as payment he's expected to get he's expected to get cash at some point yes and there is a debt that arises and and at some point there's a gun that's given as collateral for that that correctly if we applies because there's a possession before it's handed over to see it to see a number two and that possession is the manufacturing and possession with intent to distribute synthetic marijuana is that what what is that based on the fact marijuana was gifted a person who has a gun license can you name it i'm trying to understand your question well if you have a gun license and you have a gun say your lawful possession can you use that as collateral for what from your transactions seven months and that that sentence would have been within the just guidelines and for those reasons your honor we think that the that this court should affirm that the judgment in the sentence in this case ok thank you very briefly the first transaction they don't know what that substance was they speculate that same substance but there are a lot of variables when somebody is making stuff in their house were in chemicals how much of what they combined to result in specific chemical sequence that makes the controlled substance is an inference that we just can't make there are too many unknowns here as for the second transaction the government says he intended to distribute the synthetic marijuana and had the gun therefore the properly applied the factual that he didn't intend to distribute he intended to sell the gun and then on the spur of the moment gifted the marijuana he was not holding the gun as some sort of protection for the ultimate  distribute the drugs that i understand it to be not an argument that there wasn't a distribution in the second transaction but that the gun didn't facilitate it is is that how to interpret what your argument is  think that is the fairest thing just trying to respond to what the government said but yes i don't think that the gun was used to facilitate a drug transaction as i began there were two discrete transactions there was a sale it was complete the gun was dispossessed and then the marijuana was gifted the gun could not have furthered anything the gun was already out of the equation and nothing more they were thank you very much to both counts