the briefs was found in the home that mr pattens mother shared with her felon husband mr bergen in a dresser drawer in a room where in the words of the f b i agent who testified mr patten quote infrequently  emission in the drawer in the bedroom in his mother's and mr bergen's home as the home as a jointly occupied premises as this court held in the right case and twenty fourteen and the lemon case in two thousand and one possession to prove constructive possession the government had to present additional evidence of knowledge that mr patten knew the ammunition was there rather than merely presenting evidence showing his access and possible proximity to it which would have  he say owned the home and lived there alone or you know lived there full time why isn't there circumstantial evidence here in the sense that you know he identified the room as our own he has personal belongings were found around the ammunition why isn't that enough to infer knowledge here well he didn't admit the room was his own he admitted he stayed there from time to time not to be fair he has his actual address where his probation officer said he usually stables with his sister that was you know registered  officer didn't dispute that he lived there most of the time as to the personal effects the only personal effect they were testified to were the two pieces of mail themselves it's not entirely clear but whether they were opened or not one was from the missouri division  family services regarding some state benefit this is on page twelve of the transcript and something from the united states department of agriculture it's not clear from the transcript what that was either the mail doesn't suffice because there is no evidence to show who or what when either the male or the any mission were placed in the drawer it could have been done by any other occupant of the home at any time and mr pattens mother's boyfriend or sorry husband mr bergen admitted that the evidence that the mail got there some other way that your client might have put it there and that you know he might know at the very least know that the ammunition is a matter or why can't i can't the fact finder do that your honor i think your own word say why review you're using the word might you know you're using the word possibly that's speculation it's entirely speculation in the words of this court just last year in the ramos case what there can't be is that the evidence is it makes it equally possible that say in this case mr bergen had the ammunition that mr patten didn't know about under these facts using the words might it's equally possible that that's the case and as in ramos the court held that that's not enough no i appreciate ramos is actual felon in possession criminal case so the standard is beyond a reasonable doubt not preponderance of the evidence like we're dealing with here but think about the the few proponents cases frankly i was able to find there on here we're taking it down a notch even so which is that we say now preponderance of the abbotts and so there's that does that change things that make it harder for you to when of course it makes it harder for me when i don't dispute that at all and the  reason we have to rely on unfortunately a bunch of criminal cases proper criminal cases for beyond a reasonable doubt is there really isn't a whole lot of law about this kind of constructive possession with the preponderance of the evidence standard but the few things that there are the few cases that i was able to find preponderance of the evidence standard as well there a gun and drugs were found in a rolled up rug in a in a garage i just that the defendant admitted he used that it was his garage where he kept his car in a jointly occupied residence once again  under those facts without more without the heightened proof requirement that the court says that this court says in right and in lemon and in other cases require it is required when there is a jointly occupied  residence in jackson the ninth circuit applied exactly that and said this isn't enough simply the fact that he used this garage and it was his garage and that there's a that these items were found in that garage in a jointly occupied residence doesn't meet that heightened proof requirement and i think even more similar although we i know it's a state case so obviously it's probably less persuasive to this court than a ninth circuit case is the thompson case in the florida court of appeals and twenty fifth team there it's the defendant's own dorm room  although he shared i guess it was a dorm suite that he shared with a few other people and in the dresser that he admitted he used that contained his clothes attached to the bottom of one of the drawers is a knife and this is preponderance of the evidence because it was a probation violation under florida law and that's how they they approached it and what about you know i want to ask you tell me before your time expires what makes a big deal out of the fact that he was found in the actually there when the when the search occur and that he was in the proximity of where it was found it's west clear to me what the significance of that is what your argument against against that particular point well a couple of things first of all the state actually goes to strike the state government goes a lot further than argues actually that he exited the bedroom immediately before the search they say that repeatedly in the and i addressed this in our reply brief there's no such evidence of that at all none not a shred the f b i agent didn't testify that there it did say that on the probation officer violation report but the probation officer in the vial in the f b i agent didn't testify to the accuracy of that but let's say he was there at the time most of these other cases involve the defendant being there at the time it's still reversible error it's still as your honor put it might it's still equally possible under even if he is there i mean heck frankly even if he was seen exiting the room at the time you know the f b i is there searching the house and he comes out of that room even if that were the case it's still equally possible under this evidence without that heightened proof requirement applicable to these jointly occupy premises cases that mr bergen ha ammunition and mr patten didn't know about it just as mr bergen what additionally would have been required to move it from might to probably your argument is that it's my right now and all that needs to be shown is probably because  preponderance of the evidence what gets us there what is missing here in your view the best case about that is when the government actually cites the johnson case from this court in two thousand and seven where the defendant is found asleep in a crack house a bedroom next to an open box or slightly open box containing a gun with crack and fifteen hundred dollars in cash on his person and then other people say this belonged to him that's definitely something more that's more than probably i mean frankly that's probably beyond a reasonable doubt but at the very least had my client been found in the room next to an open drawer with the ammunition i probably wouldn't be standing here speaking to reuters right now no suspen killing me what did the florida court say about the knife under the door sorry forgive me your honor i didn't finish that they said that that wasn't enough the he said that just the fact that it was found in that room that other people had access to was not enough how we can read it ourselves i see i have thirty seconds left i'd like to reserve that you may name ms dunning will hear from you mean please the court my name is allison danny and i'm arguing this case on behalf of the government i want to talk about that johnson case just real briefly because in that case the defendant was a resident at a treatment facility it sounds like from the case although it was a real clear that he got into some sort of dispute with the treatment provider and so a search was done of his room in the the knife in that case was actually in a recessed underneath the drawers to me pull the drawer out yet it completely remove the drawer to be able to find it and what's different excuse me what's different from that case from this case and from other cases that have found evidence of fission is that in that case there was nothing that was considered a personal effect or an item a video and that's a phrase from the cruise case from the circuit where they said where they were items that were incriminating i think there were guns and drugs there were any items or personal effects that could be linked to two defendants have been convicted of possession of items in that house and so that was different and so johnson is not a key case  from the government's perspective and it's a it's outside the district but it is a it demonstrates that in a jointly occupied premises without that something tying this defendant to that contraband that's important for the court to know and that's not the situation here with regard to this particular home this was a jointly occupied home there were a number of people that resided there mr patten was violated on a supervised release because one of those was a felon and he also had not proved that residence with his probation officer what's different about this case though than some of the other cases is that this particular bedroom there was a comment and my colleagues argument about about the status of this room but there are it wasn't any evidence in this hearing that that room was ever stayed in by anyone other than mr patten granted he didn't stay there all the time it was a full time residents but when he described the room he described as his room he assisted officers investigating a bank robbery and diagram in the house and when it came to that southeast bedroom he acknowledged that was his room and when it was labeled on the diagram it was just labeled as the detective was writing so he said you instead of i or me but that was labeled as mr pattens room mr patten demonstrated an ability to identify other rooms in the house if they were jointly occupied at the actual room because he identified one of the other bedrooms as moms and greg's room and so this particular room and there was no record that any other anyone else was in that room at the time of this search i do want to talk about the time frame in terms of his presence in the room because that is something that's discussed in other cases where they have noted that this person was located in the room where the contraband was or that the contraband wasn't within arm's reach of the defendants i understand the arm's reach point but the  the room if you don't know something's there but you're in the room how does that how does that help but you know when might the fact that we already know that it's a separate fact that he stayed there he admits to stay there right well i think in the circumstances of the case when there's such an effort to sort of put him there so infrequently it's important to note that when he was in the house and he was observed in the house he was observed in the room and so it may not be the key element the court not suggesting that the court could find it based on that alone because that would be suggesting that  proximity would be sufficient but it's certainly a factor to consider that he was there and he was with them proximity to that to that item and the government did not necessarily make the argument that the have a tele attributes to us is  that the suggestion is that he was secreting the ammunition just before the search and didn't make that argument but but the reality of it isn't the reason that the government makes takes that position is that the evidence at the hearing a stablished there was a bank robbery on the twelfth of march at nine thirty six am officers follow g p s trackers put in the money to this house they located mr patten there with others arrested them that same day of the searches occurring that same day he was interviewed at the police station and there is the statement on cross examination where the special agent when asked to agree with the statement this is a picture of the room that mr patten had come out of and the agent says yes there's a discussion an a in the reply brief about well that doesn't really mean anything but it does because special agent for shoot who testified would only be able to comment on when mr patten came out of that particular room when law enforcement was there he would have no other connection or reason to be at the house to comment on any other time that he came out and so that's that's why the government references that but really the key one of the key elements in this case is that mail because that is an item it's a personal effects it's an item of venue i think is what the court and cruz was referencing that this was mailed one piece of mail just had mr patten name another piece of mail had his name in it was addressed to him at that location and that particular fact is something that stimulation in this case and it's not unknown what the mail is there was a fair amount of discussion about the mail and when it got there and who could have put it there because the special agent identified one of those pieces of mail and i think that was the one from the u s d a appeared to come with a debit card and it was his experience that that would be for some sort of state benefit he described why he thought it came with a debit card it had an insert that said like japan that sort of thing and so it's not unknown but it did it clearly was open h describing the contents it's not unknown when it arrived we can sort of stablish it was a relatively short period of time because he testified mr patten was only released about six weeks before and that he would assume based on his understanding of how these benefits are distributed that they would not have been back to that house to mr patten without verifying with him but that is where they should send it to and knowing that he would be there to receive it and so in other words the agent i agree with the comment that no i wouldn't expect that they would send that when he's still in custody and so there is something in this case with regard to the time timing of mail that's not present that the government's on any of the other cases that there's any requirement that we have to know when did that mail get to be in that place and how did it get there the fact that it was there was what was important and so in other words and in the other cases there's numerous cases are cited between the parties in this case about mail or identification but and none of those was there comment on when back came to be there was relevant that it was there that it was in the defendants name and it was in that address so for example some of the cases identify that the defendants identification or social security card were present those things that are common sense and just personal knowledge of the way the world works tells you that you can have those for many many years if not the age of those things of the fact of where they're located and some of the cases have stressed when it is the case that that i personally linking to the defendant is right there with the contraband some of the cases it's been sufficient when it's just in the same room to and you may have mentioned this but the dates on those letters  i didn't catch more they were they pretty recent letters or were they older letters they weren't dated but the evidence was from the special agent that because they seem to appear to relate to specials to public benefits for instance like food stamps or something like that that because mr patten had only recently been released from imprisonment he would have expected in his experience that they would have been mailed after that period of time and so we're just talking about about a six week period of time that he was on supervised re appellant and argument tarte about that it's it's either one or the other how do we figure that out but there is another option that is that it could be both of these cases is going to talk about that next that sometimes were determining is that this person or is it this person is it both or possibly as in cruises either that possesses this item so the fact that mr bergen claimed that property is really could establish joint possession it doesn't mean it doesn't negate the fact that mr patten clearly had knowledge and control over that contraband i want to just talk about a harmless their portion of the brief and in this particular case while the record does not set out four in this case so even if the court finds that there was error with the finding of a constructive possession that error is harmless because the record made by the district court is officially detailed to demonstrate that the district court understood the difference that it even if it's not t and that precise point what relevance is there that the district court actually went above the guidelines range and that there's it's unclear why they're you know why or whether the district court would have otherwise given given up or departure from the range i'm sorry the question what how do we know that oh no my question is what relevance is there to that i mean to your harmless argument which is that which is that it's unusual b one thing if we are looking at you know something look on the high end of the range but here we actually have a situation where there's a departure from the from the suggested range is that relevant in any way well with this particular case with the b violation looking at the revocation table the range of punishment that was announced as the correct range by the district court was twenty one to twenty seven months i believe and in looking at the revocation table which again the court is presumed to be aware of the only lesser violation would be a violation and at that same criminal history category which was a fix it would be a range from eight to fourteen and so the government's position is that if the defenses are at the appellant is arguing that and there was an error and therefore that resulted in the improper decision on their their range of punishment that the court made the sufficient record to schirmer would you care to make rebuttal is yes or you may we heard a lot about the government's case is just now i'll note that all except two cases the government relies on in their brief cruisin johnson or where it was the defendant's own residence are completely irrelevant to this case because there are no height requirements at issue we've already crews also i don't know why they rely on that because the court reversed the finding can of constructive possession the holding that the evidence was not sufficient and the other evidence that it wasn't just my client's room was the holster to the gun which wasn't his gun the gun was actually found in mr bergen's room itself what do you mean the other cases were cases where it was not the defendant's residence we're sorry even as opposed to this case where the government cites the claiborne boivin over and kodi cases from this court all in all of those cases it was the defendant's actual full time residents oldtimer your distinguishing enough full time residence and a part time resident in escape and more than just his full time residents in those cases it was the defendant clayborne the defend it was the only person who