                            NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS                             FILED
                            FOR THE NINTH CIRCUIT                              MAR 24 2010

                                                                           MOLLY C. DWYER, CLERK
                                                                             U.S. COURT OF APPEALS

UNITED STATES OF AMERICA,                        No. 09-30073

              Plaintiff - Appellee,              D.C. No. 4:08-CR-00092-BLW-1

       v.
                                                 MEMORANDUM *
MARK PERRY,

              Defendant - Appellant.

                   Appeal from the United States District Court
                             for the District of Idaho
                 B. Lynn Winmill, Chief District Judge, Presiding

                       Argued and Submitted March 4, 2010
                               Seattle, Washington

Before: TASHIMA, FISHER and BERZON, Circuit Judges.

      Mark Perry appeals the denial of safety valve protection under 18 U.S.C. §

3553(f) based on a finding that he credibly threatened an informant. We affirm.

      In order to avoid an unnecessary constitutional question, we assume for the

sake of argument that the First Amendment applies to all aspects of sentencing and

that a defendant therefore cannot be denied safety valve eligibility on the basis of a


        *
        This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
“credible threat[] of violence,” 18 U.S.C. § 3553(f)(2), unless the defendant

subjectively intends “to communicate a serious expression of intent to commit an

act of unlawful violence to a particular individual or group of individuals.” United

States v. Cassel, 408 F.3d 622, 631 (9th Cir. 2005) (internal citations and quotation

marks omitted). Although the district judge applied a standard that was objective

in part, he also found that Perry intentionally threatened a confidential informant in

order to dissuade her from working with police in the future.

      The finding of an intentional threat was not clearly erroneous under the

subjective standard. Perry conceded at argument that the burden of proof to

establish all aspects of safety valve eligibility rests on the defendant. See United

States v. Ajugwo, 82 F.3d 925, 929 (9th Cir. 1996). As revealed by the audio tape,

immediately after the informant declined to use meth with Perry he asked her if she

was wearing a wire and said that if she were, he would “fucking kill” her. There

was evidence that it was a widely known local law enforcement policy that

informants are not permitted to use meth during controlled purchases. Moreover,

the informant had laid out plans for future drugs sales, so it was not unreasonable

for the district judge to find that Perry intended to dissuade her from cooperating

with the police.

      AFFIRMED.


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