                                                                           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                            NOT FOR PUBLICATION                             JUN 23 2011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
