United States v. Larry Tarrer, II , 363 F. App'x 479 ( 2010 )

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NOT FOR PUBLICATION JAN 25 2010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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