first case to be argued is zero three five zero one nine five united states versus daniel each side has ten minutes morning making efforts to avoid commission of a crime the government submitted but that departure was wrong for three main the main reasons first the facts of this case fall squarely within the heartland a felon in possession offenses the statute of conviction one twenty two june one in the applicable guideline here to change two point one both punish felons for possessing firearms regardless of how long they possess them or why they possess them the statute and the applicable guideline are both intended to keep guns out of the hands of people who are more likely to use them and that policy concern applies here with full force  fine he was trying that's exactly right your honor that's right and the policy concerns underlying the statute and the guideline apply here if you look at the facts in their the defendant was caught on the street with a firearm on his person the gun was concealed in his jacket pocket the gun had four rounds loaded and at the time the police caught the defendant he was attempting to evade the police in addition i would note that the defendant acknowledged below that he had been drinking that day were garbus of why the defendant had the gun or what he intended to do with it those facts raise just the sort of public safety concerns that congress and the commission had in mind when acted the applicable provisions suppose suppose they caught him with a welding torch or something trying to dismantle the gun take it apart or throw it into the river or something and that's what would that would that change it that would be a much closer case your honor and it would be closer to the van lear decision that the defense has relied upon but even that's just a scenario the government would submit that a downward departure wouldn't be appropriate and here's why if you look at section two k two point one and read that provision in conjunction with the policy statement governing lesser harms five k two point one one those two provisions to read together suggest that the commission did not c circuit's decision and reilly which is the decision that the government submitted one of the two decisions the government submitted in its rule twenty eight jail letter so as an additional matter the government would submit that that would be an appropriate basis for departure the government  defendant in the band leader actually dispossessed himself of the firearm and of course the defendant in this case did not do that despite having a clear opportunity to get rid of the gun the defendant continued to hold onto it if you've been paying three decision which is the second decisions i have in the government's rule twenty j matter that decision comes out of the eleventh circuit there the defendant like the defendant here was under financial pressure to defend it i had bills to pay he took his father's therefore he ought to deserve it he was deserving of lenient treatment the district court concluded based upon two case you point one that it was without discretion to depart the court of appeals affirmed on a slightly different rationale the court ogust on the fact that the defendant's reason for possessing the gun was an economic one he was under financial pressure and sentencing commission in section five k two point one two specifically precluded financial difficulties  town and he needed the money that's a precluded factor under the guidelines and just to get back to it to jeff's alderman's question again about whether a departure would be appropriate in that scenario to create two point one of the harley might do and how they might be used but even the examples in the lesser harm for vision don't actually involve prohibited persons people who are barred from having firearms were godless of what their purpose is because again you would not guilty that i believe that would be right your honor but as the rally court noted if you look at the examples in the lesser harms provision which is really the provision at the end we're relied upon those examples don't involve prohibited person they involve prohibited objects and that's why the sort of departure that the district court needs here was you know appropriate there was it was under subpoena below that this defendant didn't actually relinquish control of the firearm he didn't transfer it to cor kramer even though corey kramer paid him the money so what the departure comes down to is that he had the intent reportedly at some point to get rid of the gun and that isn't enough to support a downward departure the governments  even want to read the governor's brief i was wondering even now what my basis for filing across appeal on that would be that we we've got the departure that we don't dispute but we should've had more facts to get it to me it seems odd in that same well we're not sure we didn't object to the lack of notice in the district court we're not raising the issue on appeal and yet we want the court to look at this very small narrow group of facts to make a decision as to whether this is an appropriate a hopefully the court seeing things being done differently where it's getting more facts than it used to but in hindsight clearly mr daniel should have made an objection and asked for time to present more  light of what the standards are now that will give the court the opportunity to address this departure in the case law is clear that such a departure is appropriate as pointed out eventually or in the case of the family relies on the circuits decision  person takes temporary possession of a weapon to pawn it for money the briscoe case i think is just completely wrong decided by focusing on the economic motives of the defendant to on absent some fear of the police are going to are going to break down their door and they want to just get rid of that or other contraband and when a person fails transitory possession of a weapon he was giving it up that person was still guilty of being a c possession is not as culpable as the fallon who has a gun and has no plans on giving your guy didn't give it up all he did was take the money leave with the money and the gun rights in fact in the record suggest that he did it because he was nervous and the court  apparently credited that that that that he he didn't he wasn't trying to rob the three corey and the ultimate with some point was going to go through the with the sale the problem and again because this was something that the drug commission of a crime on the one hand and simply trafficking in advance on the other hand i don't i don't think that i know that the government down below argued that this is an illegal implausible on the record here what you have is you have mister mr daniel making a statement to police officers just presented to the court he didn't testify the right he did not testify he there is a supporting letter a declaration from his mother and a letter from his wife which all said he was planning on selling the gun and the courts chose to credit all of that the only thing in the evidence to contradict that was were the statements that mr kramer initially made to the think that the that the court can take that evidence and say that that's such overwhelming evidence contradicting the course actual finding that this is a rare case where confining such a fine need to be clearly erroneous if you're the criteria that it believes are relevant to the question of whether such a departure can be appropriate and then allow the district court in the first instance to decide the matter after giving the party adequate opportunity to present relevant evidence on those criteria  and then the other thing i think the court should like to do on remand i don't think that the government is is objecting to this anymore is that the government local district court should be allowed to consider the departure request that mr degree question partial moved his refusal to reach that issue should not be constituted them out as a denial obviously things are going to be different now one of the protect act where the court really has the obligation to rule on each and every departure or it may never be because we now and in this case should be limited in the exercise of the court's discretion as the matthews decision itself acknowledges that this court can exercise its discretion to mean and for limited and focused issues and that's why sure on it isn't that the usual practice but it's an appropriate thing to do here because there are no departures that would be warranted on these facts quickly to address the point about every man on these facts you mean because this is about getting rid of the gun that  also the only other alternative departure that was identified by the defendant below which was a departure to which rest here is the time that he served in state custody on the revocation sentence that wouldn't be an appropriate basis for departure either and here's why  conviction in this case is premised the court ruled well you're one of the just the court did not depart on that ground and under this court's prior decisions the government would submit that the best thing to do is to treat that as a discretionary denial and that zero three five five five three seven