United States v. Garabet Zakarian

99 F.3d 1148 NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel. UNITED STATES of America, Plaintiff-Appellee, v. Garabet ZAKARIAN, Defendant-Appellant. No. 96-50142. United States Court of Appeals, Ninth Circuit. Submitted Oct. 7, 1996. * Decided Oct. 15, 1996. Before: BEEZER, KOZINSKI and KLEINFELD, Circuit Judges. 1 MEMORANDUM ** 2 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. 3 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…