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NOT FOR PUBLICATION JUN 23 2011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.
2 10-50568