United States of America, Plaintiff-appellee, v. Jose Maldonado-hernandez, Defendant-appellant, 962 F.2d 15 (9th Cir. 1992)

MEMORANDUM^*

An appeal was filed for Jose Maldonado-Hernandez by his court appointed counsel. The only issue is whether the trial court abused its discretion in sentencing the defendant to a term of six months in confinement upon receipt of the guilty plea instead of waiting the usual 70 days for the probation department to complete a presentence report.

Maldonado had admitted illegal re-entry after deportation, and admitted the correctness of the probation officer's worksheet which showed two prior convictions. There is no contention that the sentence did not conform to the guidelines. The only possible challenge that could be made is that the presentence report may have developed some information that would have prompted a sentencing judge to depart downward from the guideline sentence.

Maldonado agreed in open court that he would prefer to be sentenced at the time of his guilty plea without the ten-week delay that accompanies a presentence report. The trial court explained the options to Maldonado, who said he understood them, and, with counsel at his side, waived the presentence report.

The Sentencing Guidelines provide that the defendant "may not waive preparation of the presentence report." U.S.S.G. § 6A1.1. United States v. Turner, 905 F.2d 300, 301 (9th Cir. 1990). While the court should have stated that it was the court's decision, rather than the defendant's, it is clear from the whole transcript of the sentencing hearing that the court had all the facts that could be relevant to the appropriate sentence and it was the court that decided, at the defendant's request, to let the defendant start serving his six months sentence ten weeks earlier that would be possible if the court ordered the presentence report. The sentence has been served and Maldonado has been repatriated. On the whole record, there was no abuse of discretion, and if error, it was harmless.

AFFIRMED