Garcia-Araiza

MEMORANDUM

Jose Garcia-Araiza appeals his 100-month sentence imposed following conviction after a jury trial to a single count of being found in the United States following deportation, in violation of 8 U.S.C. § 1326 . We have jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742 (a). We affirm but remand with instructions to correct the judgment.

Garcia-Araiza contends that the district court erred by denying his request for a continuance of the sentencing hearing to enable him to obtain a psychologist to testify concerning his diminished mental capacity. We review for abuse of discretion, United States v. Lewis, 991 F.2d 524, 528 (9th Cir.1993), and disagree.

The pre-sentence report indicated that a downward departure for diminished capacity would not be appropriate given his voluntary drug use. However, the presentence report stated that diminished capacity could be a mitigating factor warranting a sentence at the low end of the applicable Guidelines range. See U.S.S.G. § 5K2.13. At the sentencing hearing, Garcia-Araiza did not object to the pre-sentence report and conceded that a departure for diminished capacity would be inappropriate. Moreover, he was…