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U.S. Court of Appeals for the Ninth Circuit, 2011

United States v. Mah

United States v. Mah
U.S. Court of Appeals for the Ninth Circuit · Decided June 23, 2011
439 F. App'x 653

Counsel

Joseph S. Green, Assistant U.S. Attorney, Bruce R. Castetter, Assistant U.S. Attorney, Office of the U.S. Attorney, San Diego, CA, for Plaintiff-Appellee., Barbara Donovan, Donovan & Donovan, San Diego, CA, for Defendant-Appellant.

United States v. Mah

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Opinion of the Court

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.

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