                                                                              FILED
                            NOT FOR PUBLICATION                                JUN 11 2010

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



                            FOR THE NINTH CIRCUIT


HENRY ANICHI,                                    No. 09-72344

              Petitioner,                        BOP No. 05024-707

  v.
                                                 MEMORANDUM*
UNITED STATES PAROLE
COMMISSION,

              Respondent.


                     On Petition for Review of an Order of the
                                 Bureau of Prisons

                             Submitted June 8, 2010**
                               Pasadena, California

Before: D.W. NELSON and GOULD, Circuit Judges, and DOWD, Senior District
Judge.***




        *
             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).
        ***
             The Honorable David D. Dowd, Jr., Senior United States District
Judge for the Northern District of Ohio, sitting by designation.
      Petitioner Henry Anichi, a United States citizen transferred to the United

States to serve a sentence after conviction in Japan, appeals the United States

Parole Commission’s (the “Parole Commission”) release-date determination.

Though Anichi has been released by the Bureau of Prisons, he remains on

supervised release and, thus, may appeal his sentence. United States v. Verdin, 243

F.3d 1174, 1178 (9th Cir. 2001). We VACATE and REMAND for resentencing.

                                          I.

      We first reject Anichi’s argument that the Parole Commission’s Treaty

Transfer Determination is unconstitutional because his Japanese sentence

incorporated an additional 119 days of imprisonment due to Anichi’s inability to

pay a fine. Anichi’s Japanese sentence was relevant to his release date calculation

only for purposes of applying 18 U.S.C. § 4106A(b)(1)(C), and the Parole

Commission disregarded the 119-day supplement to Anichi’s sentence when

applying § 4106A(b)(1)(C).

                                         II.

      The Parole Commission did, however, err in denying Anichi the “safety

valve” reduction. See U.S.S.G. §§ 2D1.1(b)(11), 5C1.2(a). It is undisputed that

Anichi satisfies all requirements set forth in U.S.S.G. § 5C1.2(a) except the

requirement that “not later than the time of the sentencing hearing, the defendant


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has truthfully provided to the Government all information and evidence the

defendant has concerning the offense.” A defendant bears the initial burden at

sentencing to prove by a preponderance of the evidence that he qualifies for the

safety valve. United States v. Diaz-Cardenas, 351 F.3d 404, 409 (9th Cir. 2003).

Once he makes this showing, the burden shifts to the government to rebut the

defendant’s evidence by showing that the information the defendant supplied to the

government was untrue or incomplete. Id.

      Anichi met his initial burden by producing Japanese court documents

establishing that prior to sentencing he admitted to Japanese authorities that “he

committed this [offense] in connection with a smuggle-organization [sic] . . . , was

planning to hand over the above cocaine to ‘X’ who was Nigerian and lived in

Osaka[,] and . . . was asked to commit the crime [by] a person other than ‘X.’”

Neither the Parole Commission nor the Hearing Examiner who reviewed Anichi’s

objections to his Treaty Transfer Report attempted to rebut this evidence.

      The only adjudicator in this case who examined the safety valve issue was

the Probation Officer who compiled Anichi’s Treaty Transfer Report. The

Probation Officer recommended that Anichi failed to qualify for the reduction

because he was initially untruthful with Japanese authorities at the time of his

arrest. This recommendation contradicts our holding in United States v. Mejia-


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Pimental, 477 F.3d 1100, 1105 (9th Cir. 2007) (“[A]s long as the defendant

provides truthful, complete information before sentencing, previous lies and

omissions will not render him ineligible for the benefit of the safety valve.”

(emphasis added)). To the extent, if any, that the Parole Commission adopted the

Probation Officer’s erroneous recommendation, the Commission abused its

discretion. See, e.g., United States v. Hinkson, 585 F.3d 1247, 1262 (9th Cir.

2009) (en banc) (“[A] district court abuses its discretion when it makes an error of

law.”).

      We also note that the Parole Commission concedes that Anichi’s total

sentence exceeds the length of his foreign sentence in violation of 18 U.S.C. §

4106A(b)(1)(C). On remand, the Parole Commission is admonished to ensure that

Anichi’s sentence comports with § 4106A(b)(1)(C).

      VACATED and REMANDED.




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