                                                                               FILED
                            NOT FOR PUBLICATION                                 JAN 25 2010

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



                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                         No. 08-30410

              Plaintiff - Appellee,               DC No. CR 07-5346 RBL

  v.
                                                  MEMORANDUM *
LARRY EDWARD TARRER, II,

              Defendant - Appellant.


                   Appeal from the United States District Court
                     for the Western District of Washington
                   Ronald B. Leighton, District Judge, Presiding

                      Argued and Submitted January 12, 2010
                               Seattle, Washington

Before:       KLEINFELD, TASHIMA, and TALLMAN, Circuit Judges.

       Larry E. Tarrer, II, appeals his sentence of 120 months’ imprisonment,

imposed following his guilty plea to four counts of drug-related charges. We have

jurisdiction pursuant to 18 U.S.C. § 3742 and 28 U.S.C. § 1291, and we affirm.

       At sentencing, the district court determined, after an evidentiary hearing, that



          *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
the two-level upward adjustment under United States Sentencing Guidelines

Manual (“USSG”) § 2D1.1(b)(1) for possession of a firearm was applicable and

that Tarrer was ineligible for safety valve relief under USSG § 5C1.2 because

Tarrer possessed a firearm in connection with the offense.

      We conclude that the district court did not clearly err in finding that Tarrer

possessed a firearm during the commission of the offense, for the purposes of §

2D1.1(b)(1). See United States v. Lopez-Sandoval, 146 F.3d 712, 714 (9th Cir.

1998). Tarrer’s friend testified that she found the weapon at issue in a drawer she

allowed Tarrer to use for his personal belongings. Once possession was shown, the

burden shifted to Tarrer, who failed to demonstrate “that it [wa]s ‘clearly

improbable’” that his possession of the weapon was “in connection with the

offense.” See United States v. Nelson, 222 F.3d 545, 549 (9th Cir. 2000) (citing

United States v. Restrepo, 884 F.2d 1294, 1296 (9th Cir. 1989)).

      We also conclude that the district court did not clearly err in finding Tarrer

ineligible for safety-valve relief under § 5C1.2. See United States v. Ferryman,

444 F.3d 1183, 1185 (9th Cir. 2006). Tarrer failed to meet his burden of showing

by a preponderance of the evidence that he did not possess the weapon in

connection with the offense. See id. at 1186.

       The sentence imposed by the district court is therefore AFFIRMED.


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