                                                                            FILED
                            NOT FOR PUBLICATION                              JUL 22 2013

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



                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No. 12-30212

              Plaintiff - Appellee,              D.C. No. 2:11-cr-00296-JLR-2

  v.
                                                 MEMORANDUM*
GABRIEL GONZALEZ-PEREZ,

              Defendant - Appellant.


                    Appeal from the United States District Court
                       for the Western District of Washington
                     James L. Robart, District Judge, Presiding

                             Submitted July 12, 2013**
                               Seattle, Washington

Before: KLEINFELD, M. SMITH, and N.R. SMITH, Circuit Judges.

       Defendant-Appellant Gabriel Gonzalez-Perez appeals his conviction and

sentence for three counts related to his distribution of heroin. See 21 U.S.C. § 841.

Because the parties are familiar with the factual and procedural history of this case,


        *
             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).
we repeat only those facts necessary to resolve the issues raised on appeal. We

affirm.

      Gonzalez contends that the district court’s ruling limiting his questioning of

the government’s confidential informant denied him “a meaningful opportunity to

present a complete defense.” Holmes v. South Carolina, 547 U.S. 319, 324 (2006).

This argument fails because the district court’s ruling did not “infring[e] upon a

weighty interest of the accused” and was not “‘arbitrary’ or ‘disproportionate to the

purposes [it was] designed to serve.’” Id. (citations omitted).

      Gonzalez also contends that he is entitled to a new trial because the district

court erred by refusing to compel the government to grant use immunity to the

informant. We apply a two-prong test to determine whether due process requires

that “the district court impede on the discretion of the executive branch and compel

use immunity. . . .” United States v. Straub, 538 F.3d 1147, 1156 (9th Cir. 2008).

Specifically, the defendant must show that:

             (1) the defense witness’s testimony was relevant; and (2)
             either (a) the prosecution intentionally caused the defense
             witness to invoke the Fifth Amendment right against self-
             incrimination with the purpose of distorting the fact-
             finding process; or (b) the prosecution granted immunity
             to a government witness in order to obtain that witness’s
             testimony, but denied immunity to a defense witness
             whose testimony would have directly contradicted that of
             the government witness, with the effect of so distorting


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               the fact-finding process that the defendant was denied his
               due process right to a fundamentally fair trial.
Id. at 1162.

      Even assuming, arguendo, that the testimony Gonzalez sought to elicit from

the confidential informant was relevant, Gonzalez is not entitled to relief because

he cannot satisfy either element of the second prong of the Straub test. As the

district court properly recognized, the prosecution did not intentionally cause the

informant to invoke his Fifth Amendment rights. Nor did the prosecution grant

immunity to any government witness, or otherwise distort the fact-finding process.

Because the Straub test was not met, the district court properly denied Gonzalez’s

motion to compel the government to grant the informant use immunity.

      We also reject Gonzalez’s challenge to his sentence. Gonzalez contends that

the district court erred by denying him “safety-valve” relief under the Sentencing

Guidelines. See U.S.S.G. § 5C1.2; see also 18 U.S.C. § 3553(f). To be eligible for

safety-valve relief, a defendant bears the burden to establish that he meets all five

statutory qualifying criteria, including that “the defendant did not . . . possess a

firearm . . . in connection with the offense.” U.S.S.G. § 5C1.2(a)(2).

      Here, the district court reasonably concluded that Gonzalez possessed a

firearm “in connection with the offense.” Id. Gonzalez admits that he owned the

gun that law enforcement found in his stash house. He also admits that the gun


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was retrieved from a duffel bag that contained drug paraphernalia (i.e., a portable

digital scale). And Gonzalez admits that the gun was found in the same apartment

where law enforcement discovered a substantial quantity of heroin. Under these

circumstances, we simply cannot conclude that the district court’s decision that

Gonzalez possessed a firearm “in connection with the offense” was clearly

erroneous. See United States v. Ferryman, 444 F.3d 1183, 1185 (9th Cir. 2006)

(holding that “this court reviews for clear error the district court’s factual

determination that a defendant possessed firearms in connection with the offense of

conviction, making him ineligible for safety valve relief”).

      AFFIRMED.




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