evidence of actual possession in this case so the government had to prove that mr coleman had constructive possession of the firearm in order to do that the government had the burden of proving that mr coleman exercised dominion and control over the fire and that he had knowledge of its presence the government failed to meet that burden as a matter of law because the government and the district court relied on an inference that mr coleman had knowledge of the gun and control over the gun his alone there was contrary testimony of course but that's up to the trial court to deal with those conflicts but if you take it as true that was his bedroom there was one rooms within the house i think if the gun had been found for example in the kitchen in the apartment so maybe his grandmother went in there and hid her gun under his mattress well the grandmother or somebody else who might have had access to the apartment but that's speculation what we know from the probation officer is that this was his bedroom and there's no indication he shared it at the with his grandmother from his testimony well there's no indication that he shared it in terms of who's left  is indication that he did not have exclusive control over the bedroom there was women's clothing found within that bedroom and some of mr coleman's belongings were found in the north bedroom indicating that both residents of the apartment had the run of the place they could go in and out of the rooms as they wish i think we would have a different situation here if for example there had been a lot on the bedroom door and certain home you must have lived in a residence if it's my room and it's has never affirmed a finding of constructive possession in a jointly occupied residence without some evidence fingerprints photos witnesses paperwork showing ownership tying the defendant to as in cases where it's beyond a reasonable doubt and i'm referring to the cazares case which was a preponderance case where this court held that the analysis regarding constructive possession and joint occupant jointly occupied residences is the same arliss of whether the burden what i believe refers to the seriousness of the violation conduct if if you are correct about that the court can consider it i tell you what you're saying is a person as a term of probation is has commit is that correct your honor in my view that the way the statute is written in thirty five fifty to eighty three answer my question in your view the sentencing guidelines are in violation of the statute because they consider seriousness of the  opposed to the seriousness of the violation if indeed congress says you can't consider the seriousness of the violation that doesn't really make any real sense does it what you want to the way i read can't consider how serious the violation was because that makes theoretical sense do you even understand that much and i don't know that it makes the right of the sense to me but that's the way the statute is written is that portion of thirty five fifty three a was deliberately omitted from the statute by congress i understand thank you and i would like to reserve the rest of my time you may do that now from  good morning honors may please the court david willingham on behalf of the united states the record evidence supports the conclusion of the district court that the define it constructively possess the firearm that was found underneath his mattress in his apartment in his room on august in august of two thousand and five in this case there is more than sufficient evidence that this court can rely on to support the district court's conclusion first you had as the court has indicated in prior questioning two personal visits by the probation officer one in february of two thousand and four and one in july of two thousand and five in which the probation officer took direct questions from the defendant or answers from the defendant where he indicated that the grandmother occupied the other bedroom and that were found what the court was allowed to determine in this case is that he was the sole occupant of the bedroom and that was more than sufficient evidence for that finally because the defendant himself in written statements to the probation officer for a period from september of two thousand and four through exactly which guideline in order to receive appropriate advice or are there situations in which the failure to do that harm us and some sound the latter in this case your honor i think in this case the only real issue is whether it was a great be or great a violation and that was of some dispute in the lower court but in this case because the district court was aware of both guideline ranges and there's only really a there's only that difference and determine that a thirty from in his own words since the second grade while it may or may not be his fault for being such a member he clearly stated that his life was about territory money and colors record it's clear in this case regardless of whether it's a plane or very briefly your honour's with respect to the question of soul occupancy of the bedroom this court has ever held that so occupancy of a bedroom within a jointly occupied residence is sufficient to support a final constructive possession in the absence of  other evidence tying the defendant to the firearm itself not just the bedroom and with respect to the sentencing issues and the difference between the great and great the violation the court found that it was unnecessary to decide the difference because