United States v. Hernandez

9 F. App'x 638

Opinion

MEMORANDUM

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Maximino Hernandez pled guilty to three counts of possession with intent to distribute methamphetamine. 21 U.S.C. § 841(a)(1). He challenges the 210 month sentence imposed by the district court. Finding no evidence of error or abuse of discretion, we affirm. Because the parties are familiar with the facts and procedural history of this case, we will not recount them here.

1. Mr. Hernandez contends that at sentencing, the district court did not have a full and complete understanding of his role in the charged offense because of deficiencies in the presentence investigation report (“PIR”). Although he does not allege on appeal that any of the factual findings in the PIR were false, Mr. Hernandez contends that it was incomplete and thus exaggerated his involvement in the criminal scheme. The burden is on the defendant to present evidence that would cast doubt on the reliability of the PIR. United States v. Kimball, 975 F.2d 563, 567 (9th Cir. 1992). When given the opportunity to present additional facts at his sentencing hearing, however, Mr. Hernandez, represented by counsel, declined. Thus, he has not demonstrated that the information in the PIR was either false or unreliable, and we therefore must conclude that the district court’s reliance upon the PIR was proper. Farrow v. United States, 580 F.2d 1339, 1359 (9th Cir.1978).

2. Although the district court sentenced Mr. Hernandez to the maximum term allowable under the guidelines, that decision was purely discretionary and is not reviewable on appeal. United States v. Khaton, 40 F.3d 309, 311 (9th Cir.1994).

3. Therefore, we dismiss Mr. Hernandez’s appeal and AFFIRM the sentence imposed by the district court.

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