United States v. Garcia-Merino

MEMORANDUM ^**

Juan Manuel Garcia-Merino appeals his 72-month sentence, imposed after he pleaded guilty to being found in the United States after deportation, in violation of 8 U.S.C. § 1326. We have jurisdiction over the final judgment pursuant to 28 U.S.C. § 1291 and we affirm in part and dismiss in part.

Garcia-Merino first contends that the district court abused its discretion when it refused to consider untimely filed supplemental exhibits in support of his sentencing position. Because the supplemental exhibits were merely cumulative support for the arguments already submitted in his sentencing memorandum, and because Garcia-Merino was permitted to argue these issues at the sentencing hearing, he has failed to show how he was prejudiced by the district court’s refusal to consider these exhibits. Cf. Jauregui v. City of Glendale, 852 F.2d 1128, 1132 (9th Cir.1988) (stating that this court cannot reverse an evidentiary ruling absent some showing of prejudice).

Garcia-Merino also contends that the district court erred in concluding that he did not qualify for a downward departure for voluntary disclosure of his offense under U.S.S.G. § 5K2.16. The record shows that the district court exercised its discretion in denying this departure, so we lack jurisdiction to review the decision. See United States v. Webster, 108 F.3d 1156, 1158 (9th Cir.1997).

AFFIRMED in part and DISMISSED in part.

** This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3.