United States v. Stephenson

MEMORANDUM ** John William Stephenson, III appeals his 27-month sentence imposed following *544 his guilty-plea conviction for distribution of child pornography, in violation of 18 U.S.C. § 2252 (a)(1). We have jurisdiction pursuant to 28 U.S.C. § 1291 , and we affirm. Stephenson contends that the district court erred by finding that it did not have authority to depart on the basis he requested. A review of the record reveals that the district court made no such finding, but rather merely indicated that it would continue Stephenson’s sentencing hearing in order to provide both Stephenson and the government adequate notice of and an opportunity to respond to the sentencing issues each party had raised on the day of the hearing. To the extent that Stephenson has not waived appellate review of the district court’s decision by withdrawing his departure request and agreeing to proceed immediately with the sentencing hearing without the district court considering either party’s last-minute suggestion, we conclude that the district court did not abuse its discretion. See United States v. Zamora-Hernandez, 222 F.3d 1046, 1049 (9th Cir.2000), cert. denied, 531 U.S. 1200 , 121 S.Ct. 1208 , 149 L.Ed.2d 122 (2001) (reviewing the district court’s decision to grant or deny a continuance for abuse of discretion); United States v. Green, 105 F.3d 1321, 1322 (9th Cir.1997) (holding that the district court must give parties notice of intent to depart). AFFIRMED. 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 Ninth Circuit Rule 36-3.