would like to take the issues out of order by may the st one is that i'd like to discuss is the elder in possession conviction as the court knows this issue arises from the supreme court's prove beyond a reasonable doubt that there's defendant is where he knew of his status and in this case the status is that he's been convicted of a felony which well but he's been convicted of a crime for which a sentence of more stipulation that was entered into trial was not evidence of his knowledge the stipulation simply read that he had in fact been convicted of a crime punishable by a sense of over one year  it didn't say anything about his knowledge much less anything about his knowledge at the time he was regressed i think it's clear under this court's precedents that although this issue is considered under the plain error doctrine and the court is allowed to consider evidence that was in the record that was not presented to the jury in this case that evidence actually shows there fairly or in the government's  aware of where that evidence is i mean it wasn't it wasn't before in the district court no it wasn't but it is it is of course something of which under some circumstances we could take the full notice being a public record here we have off record information in the pre sentence report which was fully present sets of this report and that you can start and we can consider but i think beyond that and that's been asked could be and attack for additional gets four days less than a year and so not just the play transcript he may have been told what the maximum which is which i think is seven years but at sentencing maybe player he understood even though you got time sure that he certainly could have gotten more than a year at that he was actually was actually the fairness or integrity or the reputation of proceedings if you limited yourself to in indisputable evidence the sort of evidence you can take well your honor i just i think that that as i said there has been there has to be a limit and in this case the the evidence show that in fact mr f did get a search a sentence of less than a year and whatever was said to him about what could have been what he could have been sentenced so i'm not i'm not familiar with the materials you're citing what i lawful permanent resident citizen so i think any of these convictions have deportation consequences and therefore he would be to his benefit to eliminate any convictions that would be  this is an unusual case in the fact that the defendant was found traveling in his car and he was not there there was no drug selling operation per se that was evident from the facts the jury heard the the it's not sufficient as this court knows for the government to prove that a person involved with a drug selling  operation possessed the firearm there has to be a nexus between the firearm and the drug selling they have to show that the that the rifle in this case was possessed and furtherance of selling the drugs i don't think they feel they met that burden in this case because the there were no there was no evidence of defendants use of the the rifle there was no evidence of his him actually selling any drugs the drugs the rifle was found in the trunk of his car in a duffel bag secreted in the in the pant legs of clothes that he had in the duffel bag so it was not accessible to  and there was no evidence that if he had engaged in any selling of the drugs that were found on his person that he had gone into the trunk dug out the rifle and used it as a threat or in in in terms of protection it was not easily accessible to him so i believe for those reasons the the the government has not sufficiently proved the in furtherance of element they certainly have proved that he possessed the rifle and if it's also not sufficient for the government to prove that the the weapon was possessed illegally that doesn't shed any light on whether it was used to further the drug selling operation so for the reasons i have mentioned in my brief i would i would argue that the conviction should be challenge i do note that a panel of this circuit recently in the united states versus morale as a nineteen fed appendix fifty three did remain and first sentencing in a similar case reasoning that one may not know how the district judge would sentence  even if the guideline range were the same so it remains our position that that we sensing wouldn't change much if this case were remanded for that purpose because because the guideline a different ground which is that there was no one error because the defendant substantial rights were not affected and neither was the integrity fairness and reputation proceeding because we're going to get to that argument  correct your honor we did not make that argument although i've not sure that precludes this court from from taking that very action certainly there is a i do not have a clean transcript but i assume that that one is out there and that it might shed light on what the defendant knew at the time he entered his guilty plea to the grand larceny conviction  but i think there's some issues with that argument but it would centrally be based upon the dippy way she own a trial which to do with knowledge at all that's essentially what this case would boil down to right and we've never we've never said anyone who received was sent to less than a year cleaner analysis applies to i well i don't think this court has ever a pal or rather rejected a really high challenge when the person got actually served less than argument to be made that the stipulation alone is enough to create that inference of knowledge which i have a hard time with but your honor that we don't argue that that alone suffices but when you consider that plus the recency of the grand larceny conviction the fact that he was on five year felony probation and his conduct at the scene of the offense which the jury actually heard we believe that this court i don't buy that that he had i respectfully disagree in that in the sense that when you consider the fact that he hid the gun not only in the trunk but deep down in the trunk that his behavior yes drugs in the car the right drugs actually were on his he had he had  token amounts of marijuana on his person which here he provided to the police officer who told him hey if it's just marijuana it's no big deal the crack cocaine which with he was charged was actually on his his person  read with you that the company action of the stipulation and the savior and where he hid the gun and the various other things would would be sufficient to allow a properly instructed jury to find knowledge even if that were so here the jury was not instructed that knowledge was even an issue so isn't your burden higher don't you have to show and didn't we find in the cases where someone had actually spent more than a year in prison that any jury would virtually certainly have found that knowledge existed isn't that the burden you have to  without the government having requested it is to is to remain for more fact finding because there are additional facts out there can you explain what we are to make of the fact that he was at the time of  colorable defense here there's no miscarriage of justice if the court affirms even with instructional error and so from from our perspective chief judge livingston you know drugs much was made a trial and also now an appeal about the fact that this was in a vehicle and i respectfully submit that that's actually a closer nexus than in most cases where you know the gun is sometimes found in one room of the apartment and the drugs in another or in the basement or in an attic you know here in the loaded assembled semiautomatic rifle fairly substantial and intimidating gun safety switched off was less than a car away the way from that from the defendant and while it was was well head in and while it took a while for police to obtain it the defendant was the one who hid it so he knew where it was i also think somewhat unique to this case there's there's an admission it's not the most direct admission but it's certainly one the jury could have relied on and certainly one th was where the defendant said in sum and substance that he did not have the gun to go shoot rabbits so he's saying as i interpret it for the jury that from the officers perspective it was foolish to to ask him why he had the gun because it's criminal nature should have been obvious to the officers and men it will more or your honor see my time and thank you chief judge let me say and while the defendant had no burden to present any evidence this court should also look at the fact that no innocent use was suggested by the evidence actually presented  then i don't have a lot of time i'm going to respectfully adopt judge bianca on those comments about the felony possession charge that mr felipe certainly had many reasons to run away from the police apart from his being a felon in possession because he had the illegal for a firearm and he had a quantity of drugs on his body that would have been discovered he'd been arrested on what i think might have been time that he served was totally a function of the time he plead pleaded guilty in the time he was sentenced but if he'd done so three months earlier he would have gotten the same sentence because the the bulk of his sentence was a probationary one so i think it's just sort of a happenstance that he that he ended up serving just a little less than one year but for purposes of the argument it was definitely less than one year with respect to your question josh livingston  probation i am interpreting that as the idea of that if he was violated because of his arrest in this case that subject to a violation of probation they would have been sent back to could have happened in the future doesn't doesn't speak to his knowledge of what he was in what sense he could have obtained and he in fact did get a sense of was here finally on that nine hundred and twenty four to see argument i think the  i can't read my writing i think the government's analogy to finding a gun in a drug sellers apartment or is basement is completely an apt here because the gun was found in a car and there was absolutely no evidence that that my client had actually sold any of these drugs on his travels she was far away from home and so i think that you can't can join the drug selling operation with the gun found on the premises because there was no drug selling operation and finally with respect to my client's statement about hunting rabbits which is done an awful lot of attention it's clear from the evidence that he made this comment to his friend as a as a joke he said if the if an officer was silly enough to ask me why i had the gun then i would say in jest i had a for hunting rabbits was not it was far and away not as admission that he had possessed the gun in furtherance of a strict selling