United States v. Mah

439 F. App'x 653

• Court: Court of Appeals for the Ninth Circuit
• Decided: June 23, 2011
• Docket: No. 10-50568
• Status: Published

Opinion

MEMORANDUM

**

Kenneth Poon Mah appeals from the 60-month sentence imposed following his guilty-plea conviction for manufacturing marijuana and aiding and abetting, in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2. We have jurisdiction under 28 U.S.C. § 1291, and we vacate and remand.

Mah contends that the district court erred in determining that he was ineligible for safety-valve relief under U.S.S.G. § 5C1.2, because it applied a clearly improbable burden of proof. We agree. See United States v. Ferryman, 444 F.3d 1183, 1186 (9th Cir.2006) (the burden is on the defendant to prove by a preponderance of the evidence that he qualifies for safety valve relief).

The case is remanded for the district court to determine whether Mah can prove, by a preponderance of the evidence, that he qualifies for safety-valve relief. See United States v. Nelson, 222 F.3d 545, 550-51 (9th Cir.2000).

VACATED and REMANDED.

This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.