United States v. Rivera-Cruz , 171 F. App'x 423 ( 2006 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 05-4950
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
CARLOS RIVERA-CRUZ,
Defendant - Appellant.
Appeal from the United States District Court for the Southern
District of West Virginia, at Charleston. David A. Faber, Chief
District Judge. (CR-03-286)
Submitted: February 28, 2006 Decided: March 20, 2006
Before MICHAEL and SHEDD, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Mary Lou Newberger, Federal Public Defender, Jonathan D. Byrne,
Appellate Counsel, Edward H. Weis, Assistant Federal Public
Defender, Charleston, West Virginia, for Appellant. Charles T.
Miller, Acting United States Attorney, Karen B. George, Assistant
United States Attorney, Charleston, West Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Carlos Rivera-Cruz appeals his twelve-month sentence
imposed following his guilty plea to one count of making a false
statement in an application for a passport, in violation of 18
U.S.C.A. § 1542 (West Supp. 2005). For the reasons discussed
below, we affirm.
Rivera-Cruz first contends that the district court erred
in sentencing him without an interpreter present. Because he
failed to object to his sentencing hearing on this ground, we
review for plain error. See Fed. R. Crim. P. 52(b); United
States v. Olano, 507 U.S. 725, 731-32 (1993).
Pursuant to the Court Interpreter’s Act, 28 U.S.C.
§ 1827(d)(1) (2000), the district court must utilize the services
of an interpreter if the court determines that a party “speaks only
or primarily a language other than the English language . . . so as
to inhibit such party’s comprehension of the proceedings or
communication with counsel or the presiding judicial officer.” The
record in this case reveals that Rivera-Cruz both understands and
speaks English and that his comprehension of the proceedings was
not inhibited by any language problem.*
*
We note that an interpreter was present at Rivera-Cruz’s Fed.
R. Crim. P. 11 colloquy and at his initial sentencing hearing.
Rivera-Cruz declined, however, to utilize the interpreter’s
services except for a brief statement that he made to the district
court at the end of the initial sentencing hearing because he was
reportedly “too shy” to address the court himself. Although we
have considered the fact that an interpreter remained on hand in
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Although Rivera-Cruz claims that the district court erred
in failing to make even an inquiry at sentencing into the possible
need for an interpreter, we conclude that such an inquiry was
unnecessary given Rivera-Cruz’s past assurances that he could
understand the proceedings in English, his apparent understanding
of those proceedings, and the district court’s prior inquiries into
Rivera-Cruz’s competency in English. See United States v. Black,
369 F.3d 1171, 1175 (10th Cir. 2004) (finding district court did
not err in failing to inquire into the need for an interpreter
where there was no indication that any communication difficulties
were apparent to the district court); United States v. Perez, 918
F.2d 488, 490 (5th Cir. 1990) (holding that once a magistrate
inquired into defendant’s English speaking abilities and determined
that defendant was competent to proceed in English, district court
was not required to repeat such inquiries). We therefore find that
the district court did not err in conducting the sentencing hearing
without an interpreter present.
Rivera-Cruz challenges the reasonableness of his
sentence, contending that it is greater than necessary to comply
with the factors set forth in 18 U.S.C.A. § 3553(a)(2) (West 2000
the prior proceedings, we find that the transcript of the Rule 11
colloquy clearly reveals that Rivera-Cruz is sufficiently
proficient in English. Rivera-Cruz never utilized the services of
his interpreter at the colloquy, he asked that the proceedings be
conducted in English, and he was able to understand and answer
fairly complex legal questions posed by the court.
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& Supp. 2005). We find, however, that the district court sentenced
Rivera-Cruz only after appropriately considering and examining the
sentencing guidelines and the § 3553(a) factors, as instructed by
United States v. Booker, 543 U.S. 220 (2005). The court then
sentenced Rivera-Cruz within the applicable guideline range and
well below the ten-year statutory maximum. We cannot conclude
under these circumstances that Rivera-Cruz’s twelve-month sentence
is unreasonable. See United States v. Green, F.3d , , 2006
WL 267217, at *5 (4th Cir. Feb. 6, 2006) (finding that a sentence
imposed within a properly calculated guidelines range is
presumptively reasonable).
Accordingly, we affirm Rivera-Cruz’s sentence. We
dispense with oral argument because the facts and legal contentions
are adequately presented in the materials before the court and
argument would not aid the decisional process.
AFFIRMED
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