United States of America, Plaintiff-appellee, v. Garabet Zakarian, Defendant-appellant, 99 F.3d 1148 (9th Cir. 1996)

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U.S. Court of Appeals for the Ninth Circuit - 99 F.3d 1148 (9th Cir. 1996) Submitted Oct. 7, 1996. *Decided Oct. 15, 1996

Before: BEEZER, KOZINSKI and KLEINFELD, Circuit Judges.

MEMORANDUM** 

Garabet Zakarian appeals pro se the district court's denial of his petition for modification of sentence. We construe his petition as a motion brought pursuant to 28 U.S.C. § 2255, and affirm.

Relying on Bailey v. United States, 116 S. Ct. 501 (1995), Zarkarian contends that the district court erred in enhancing his sentence for possession of a firearm under U.S.S.G. § 2D1.1(b) (1) because he did not actively employ the firearm. Zarkarian's reliance on Bailey is misplaced. Bailey concerns the meaning of the term "use" under 18 U.S.C. § 924(c) (1), not "possession" under U.S.S.G. § 2D1.1(b) (1). See id. at 509. Accordingly, we affirm the district court's denial of Zarkarian's motion.

AFFIRMED.

 *

The panel unanimously finds this case suitable for decision without oral argument. Fed. R. App. P. 34(a); 9th Cir.R. 34-4

 **

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. 36-3

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