United States v. Kenneth Mah

FILED NOT FOR PUBLICATION JUN 23 2011

MOLLY C. DWYER, CLERK UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 10-50568

Plaintiff - Appellee, D.C. No. 3:09-cr-01564-BEN

v. MEMORANDUM * KENNETH POON MAH,

Defendant - Appellant.

Appeal from the United States District Court for the Southern District of California Roger T. Benitez, District Judge, Presiding

Submitted June 15, 2011 ** Before: CANBY, O’SCANNLAIN, and FISHER, Circuit Judges.

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.

* This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2).

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.

Footnotes

[2] 10-50568