United States v. Garcia-Perez , 190 F. App'x 461 ( 2006 )

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 06a0522n.06
Filed: July 26, 2006
No. 03-6678
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
UNITED STATES of AMERICA,
Plaintiff-Appellee,
v. ON APPEAL FROM THE UNITED
STATES DISTRICT COURT FOR THE
PEDRO GARCIA-PEREZ, EASTERN DISTRICT OF KENTUCKY
Also Known As JOSE ASTORGA-TORRES,
Defendant-Appellant.
/
BEFORE: GUY, DAUGHTREY, and CLAY, Circuit Judges.
CLAY, Circuit Judge. Defendant Pedro Garcia-Perez, also known as Jose Astorga-Torres,
appeals the December 19, 2003 judgment of the United States District Court for the Eastern District
of Kentucky convicting and sentencing Defendant for illegal re-entry into the United States by an
alien who had previously been deported subsequent to a conviction for the commission of an
aggravated felony, in violation of 8 U.S.C. §§ 1326(a) and 1326(b)(2). For the following reasons,
we AFFIRM the judgment of the district court.
No. 03-6678
I. BACKGROUND
A. PROCEDURAL HISTORY
On September 4, 2003, a federal grand jury indicted Defendant on one count of illegal
reentry by an alien who had been previously deported subsequent to a conviction for commission
of an aggravated felony, in violation of 8 U.S.C. §§ 1326(a) and 1326(b)(2). On September 12,
2003, Defendant pleaded not guilty to the count. On October 24, 2003, the district court rearraigned
Defendant and Defendant pleaded guilty to the count. Defendant did not have a plea agreement with
the prosecution, inasmuch as Defendant wished to have the right to appeal his conviction and
sentence. On December 12, 2003, Defendant filed a motion to have the district court sentence
Defendant below the then-mandatory range provided by the Federal Sentencing Guidelines
(“Guidelines”). On December 19, 2003, the district court denied the motion. That same day, the
district court sentenced Defendant to ninety-six months imprisonment, the maximum allowed by the
Guidelines, and three years of supervised release. On December 29, 2003, Defendant filed a notice
of appeal.
B. FACTS
Defendant is a native and citizen of Mexico. He first came to the United States in 1976, and
he eventually settled in the state of Washington. Defendant was first deported from the United
States on July 9, 1992, after Defendant was convicted in state court of possession of cocaine.
Defendant subsequently returned to the United States and Washington, where, in 1993, he was
convicted in state court of delivery of cocaine. After serving a prison term, Defendant was deported
on May 25, 1994. Defendant again returned to the United States, this time settling in Kentucky. On
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October 23, 1999, Defendant was arrested by state police for criminal trespass. Defendant was
subsequently identified as an alien who had been previously deported. Defendant was convicted in
federal court of illegal reentry by an alien who had been previously deported subsequent to a
conviction for commission of an aggravated felony. After serving his prison term, Defendant was
again deported on March 6, 2002. Defendant returned to the United States and Kentucky. On
December 12, 2002, Defendant was arrested for striking his girlfriend in the face with a beer can.
Defendant was identified as an alien who had been previously deported subsequent to the conviction
of an aggravated felony, i.e., the delivery of cocaine in 1993.
II. DISCUSSION
A. THE VIENNA CONVENTION
1. Preservation of the Issue
Defendant failed to object to the district court’s plea colloquy on the ground that the district
court failed to inform Defendant of his right to contact his citizen country’s consulate. This will
affect the standard of review in this case.
2. Standard of Review
Because Defendant failed to object to the plea colloquy, this Court reviews the district
court’s decision for plain error. United States v. Denkins, 367 F.3d 537, 545 (6th Cir. 2004) (citation
omitted). Plain error analysis requires four steps:
First, we are to consider whether an error occurred in the district court. Absent any
error, our inquiry is at an end. However, if an error occurred, we then consider if the
error was plain. If it is, then we proceed to inquire whether the plain error affects
substantial rights. Finally, even if all three factors exist, we must then consider
whether to exercise our discretionary power under Rule 52(b), or in other words, we
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must decide whether the plain error affecting substantial rights seriously affected the
fairness, integrity or public reputation of judicial proceedings.
United States v. Thomas, 11 F.3d 620, 630 (6th Cir. 1993).
Defendant bears the burden of demonstrating plain error. United States v. Abboud, 438 F.3d
554, 588 (6th Cir. 2006) (citing United States v. Murdock, 398 F.3d 491, 496 (6th Cir. 2005)). As
the Supreme Court explained: “When an appellate court considers error that qualifies as plain, the
tables are turned on demonstrating the substantiality of any effect on a defendant’s rights: the
defendant who sat silent at trial has the burden to show that his ‘substantial rights’ were affected.”
United States v. Vonn, 535 U.S. 55, 62 (2002) (citation omitted).
3. Analysis
The district court did not commit plain error in failing to inform Defendant of his right to
contact his citizen country’s consulate under the Vienna Convention on Consular Relations, Apr.
24, 1963, 21 U.S.T. 77, 596 U.N.T.S. 261 (“Vienna Convention”). Under this Court’s interpretation,
the Vienna Convention does not create enforceable individual rights. United States v. Emuegbunam,
268 F.3d 377, 394 (6th Cir. 2001). Moreover, Defendant has failed to demonstrate how the failure
of the district court to inform Defendant of his rights under the Vienna Convention led to an
involuntary or unknowing guilty plea, so as to affect Defendant’s substantial rights.
a. Legal Framework
A guilty plea is more than just an admission of guilt; it is a waiver of the constitutional right
to a trial by judge or jury. Brady v. United States, 397 U.S. 742, 748 (1970). As a result, a
defendant must enter a guilty plea knowingly, voluntarily, and intelligently. Id. The district court
must verify “that the defendant’s plea is voluntary and that the defendant understands his or her
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applicable constitutional rights, the nature of the crime charged, the consequences of the guilty plea,
and the factual basis for concluding that the defendant committed the crime charged.” United States
v. Webb, 403 F.3d 373, 378-79 (6th Cir. 2005) (citing United States v. Goldberg, 862 F.2d 101, 106
(6th Cir. 1988)).
The Vienna Convention is a mutilateral treaty that governs the consular relationships
between the signatory nations. Emuegbunam, 268 F.3d at 388. The relevant portion of the Vienna
Convention in the instant case is Article 36, which, in its entirety, states:
Communication and contact with nationals of the sending State1
1. With a view to facilitating the exercise of consular functions relating to nationals
of the sending State:
(a) consular officers shall be free to communicate with nationals of the
sending State and to have access to them. Nationals of the sending State
shall have the same freedom with respect to communication with and access
to consular officers of the sending State;
(b) if he so requests, the competent authorities of the receiving State shall,
without delay, inform the consular post of the sending State if, within its
consular district, a national of that State is arrested or committed to prison
or to custody pending trial or is detained in any other manner. Any
communication addressed to the consular post by the person arrested, in
prison, custody or detention shall also be forwarded by the said authorities
without delay. The said authorities shall inform the person concerned
without delay of his rights under this sub-paragraph;
(c) consular officers shall have the right to visit a national of the sending
State who is in prison, custody or detention, to converse and correspond with
him and to arrange for his legal representation. They shall also have the right
to visit any national of the sending State who is in prison, custody or
detention in their district in pursuance of a judgment. Nevertheless, consular
1
The “sending State” is the nation of the arrested individual, whereas the “receiving State”
is the arresting nation. Emuegbunam, 268 F.3d at 388 n.3.
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officers shall refrain from taking action on behalf of a national who is in
prison, custody or detention if he expressly opposes such action.
2. The rights referred to in paragraph 1 of this Article shall be exercised in
conformity with the laws and regulations of the receiving State, subject to the
proviso, however, that the said laws and regulations must enable full effect to be
given to the purposes for which the rights accorded under this Article are intended.
Vienna Convention, art. 36 (emphasis supplied).
In Emuegbunam, this Court held that the Vienna Convention did not “create a right for a
detained foreign national to consult with the diplomatic representatives of his nation that the federal
courts can enforce.” 268 F.3d at 394. In that case, the defendant, a Nigerian citizen, was arrested
for conspiracy to import cocaine into the United States. Id. at 384-85. Before trial, the defendant
complained that “prosecutors had not honored his rights under the Vienna Convention.” Id. at 387.
The district court ordered the prosecution to contact the Nigerian consulate. Id. Both the
prosecution and the defendant contacted the Nigerian consulate. Id. The defendant asked the
Nigerian consulate for assistance in procuring two witnesses and evidence. Id. In response, the
consulate stated that it could not secure the witnesses in time for the defendant’s trial. Id. The
defendant filed a motion to dismiss the indictment, on the ground that the denial of earlier contact
with the Nigerian consulate prejudiced his defense. Id. The district court denied the motion. Id.Following a trial, the defendant was found guilty of the charge. Id. at 385. The defendant appealed,
based in part on the claim that the district court violated the Vienna Convention.
This Court affirmed the defendant’s conviction. With respect to the defendant’s claim under
the Vienna Convention, the Court initially noted:
As a general rule, . . . international treaties do not create rights that are privately
enforceable.
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A treaty is primarily a compact between independent nations. It depends for the
enforcement of its provisions on the interest and honor of the governments which are
parties to it. If these fail, its infraction becomes the subject of international
negotiations and reclamation, so far as the injured parties choose to seek redress,
which may in the end be enforced by actual war. It is obvious that with all this the
judicial courts have nothing to do and can give no redress.
Id. at 389. The Court then explained that even if the Vienna Convention created enforceable
individual rights, the defendant could not seek the remedy of the dismissal of the indictment under
the law of this circuit. Id. at 390 (citing United States v. Page, 232 F.3d 536, 540 (6th Cir. 2000)).
The defendant also sought the remedy of the reversal of his conviction under the Vienna
Convention. The Court found that such remedy was also inappropriate, because the Vienna
Convention did not create “any judicially enforceable right of consultation between a detained
foreign national and the consular representatives of his nation.” Id. at 391 (citing United States v.
Jimenez-Nava, 243 F.3d 192, 198 (5th Cir. 2001)). The Court pointed out that the Preamble to the
Vienna Convention specifically stated: “[T]he purpose of such privileges and immunities is not to
benefit individuals but to ensure the efficient performance of functions by consular posts on behalf
of their respective States.” Id. at 392 (alteration in the original) (internal quotation marks and
citation omitted). The Court recognized that the Vienna Convention spoke of the detainee having
certain rights; however, the Court found:
[T]hese references are easily explainable. The contracting States are granting each
other rights, and telling future detainees that they have a “right” to communicate with
their consul is a means of implementing the treaty obligations as between States.
Any other way of phrasing the promise as to what will be said to detainees would be
both artificial and awkward.
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Id. at 392 (quoting United States v. Li, 206 F.3d 56, 66 (1st Cir. 2000) (Selya, J. & Boudin, J.,
concurring)) (internal quotation marks omitted). This Court “conclude[d] that the Vienna
Convention does not create in a detained foreign national a right of consular access.” Id.The Court also noted that “the State Department has consistently taken the view that the
Vienna Convention does not create individual rights.” Id. In practice, most countries remedy
violations of Article 36 with investigations, apologies, and efforts to ensure that future violations
do not occur; “[a]pparently, no country remedies violations of the Vienna Convention through its
criminal justice system.” Id. at 392-93 (citing Li, 206 F.3d at 65).
In Sanchez-Llamas v. Oregon, the Supreme Court did not answer the question of whether
the Vienna Convention created enforceable individual rights. — S. Ct. —, 2006 WL 1749688, at
*7 (2006). The Supreme Court assumed without deciding that the Vienna Convention did create
such rights.2 Id. Thus, Emuegbunam remains the controlling law of this Court.
b. Application to This Case
i. Plain Error
The first two steps in the plain error analysis address whether the district court committed
error, and whether that error was plain. In our view, the district court did not commit plain error by
2
The holding of Sanchez-Llamas does not control the instant case. In Sanchez-Llamas, the
Supreme Court held that, assuming the Vienna Convention created enforceable individual rights,
suppression of evidence via the exclusionary rule was not an appropriate remedy for violation of the
Vienna Convention. Id. at *11. The Supreme Court’s analysis was crafted specifically for the
remedy of suppression of evidence via the exclusionary rule, and not for any other form of remedy.
See id. at *9-11. The Supreme Court also held that a claim under the Vienna Convention was
subject to state procedural default rules. Id. at *17. The instant case does not involve the
suppression of evidence; instead Defendant claims his guilty plea was not knowing, voluntary, or
intelligent. Additionally, the instant case does not involve state procedural default.
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failing to inform Defendant of his “right” under the Vienna Convention to contact the Mexican
consulate. As explained, supra, Emuegbunam stands for the proposition that a foreign detainee does
not have an enforceable individual right to consular access under the Vienna Convention. Defendant
may not fault the district court for failing to inform him of a right that he does not have.
Defendant relies heavily on this Court’s decision in Deitz v. Money, 391 F.3d 804 (6th Cir.
2004), for the proposition that the Vienna Convention creates enforceable individual rights. In that
case, this Court remanded to the district court the issue of whether the petitioner’s counsel was
ineffective for failing to raise a claim based on the authorities failure to notify the Mexican consulate
as required under the Vienna Convention. Id. at 811. Defendant argues that an implication of this
decision is that the Vienna Convention creates enforceable individual rights, such that the district
court in Deitz, on remand, could have found ineffective assistance of counsel based on counsel’s
failure to raise this claim. Assuming arguendo Defendant’s interpretation of Deitz is correct,
Defendant’s argument falls short, however, because:
It is the well-settled law of this Circuit that a panel of this Court cannot overrule the
decision of another panel. The prior decision remains controlling authority unless
an inconsistent decision of the United States Supreme Court requires modification
of the decision or this Court sitting en banc overrules the prior decision.
LRL Props. v. Portage Metro. Hous. Auth., 55 F.3d 1097, 1105 n.2 (6th Cir. 1995). Thus, to the
extent Deitz conflicts with Emuegbunam, Emuegbunam controls, as that decision preceded Deitz.
Defendant’s reliance on Medellin v. Dretke, 544 U.S. 660, 125 S. Ct. 2088 (2005), is likewise
misplaced. The Supreme Court in that case dismissed a writ of certiorari as improvidently granted.
Id. at 2089. Defendant relies on language supplied by the dissent to that decision to support his
position that the Vienna Convention creates enforceable individual rights; however, that language
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is not binding on this Court, while Emuegbunam is controlling authority. In sum, the district court
did not commit plain error by failing to inform Defendant of his right to consular access under the
Vienna Convention, because Defendant has no such right.
ii. Substantial Rights
Even assuming Defendant has demonstrated plain error, Defendant has failed to demonstrate
an effect on his substantial rights. Under this prong of the plain error inquiry, the defendant
normally must demonstrate that he was prejudiced in some way by the district court’s plain error,
in the sense that the error “affected the outcome of the district court proceedings.” United States v.
Olano, 507 U.S. 725, 734 (1993). In the instant case, Defendant argues that the district court’s plain
error resulted in a guilty plea that was not knowing, voluntary, and intelligent. This argument lacks
merit. As explained, supra, a guilty plea is a waiver of the constitutional right to a trial by a judge
or jury; an invalid guilty plea would thus affect the substantial rights of Defendant. Defendant’s
argument must fail, however, because he never demonstrates the logical connection between the
district court’s failure to inform Defendant of his right to contact the Mexican consulate and the
purported invalidity of the guilty plea. Defendant never explains what information the Mexican
consulate could have supplied3 that was not supplied by Defendant’s counsel or the district court,
such that the lack of access to that information rendered his guilty plea unknowing, involuntary, or
unintelligent. See United States v. Ademaj, 170 F.3d 58, 67 (1st Cir. 1999) (rejecting the defendant’s
claim under the Vienna Convention on the ground that the defendant failed to demonstrate how
3
We will assume that had the district court informed Defendant of his right to contact the
Mexican consulate, Defendant would have in fact contacted the Mexican consulate.
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contact with his citizen country’s consulate would have assisted in his defense). In fact, Defendant
fails to allege any misunderstanding of any provision of his guilty plea, let alone a misunderstanding
that could have been alleviated by contacting the Mexican consulate. In his brief, Defendant does
not spare a single word as to how he misunderstood his guilty plea, or how a misunderstanding of
the guilty plea rendered said plea unknowing, involuntary, or unintelligent.
Instead of demonstrating any lack of understanding as to his guilty plea, Defendant makes
the general argument that the Vienna Convention “assures the pressures inherent in being
incarcerated in a foreign country and appearing in judicial proceedings in a foreign tongue are
mitigated such that the knowing and voluntary plea can be taken with assurance by the trial court.”
(Def. Br. 12.) We agree that being incarcerated in the United States may generally create anxiety
and pressure for a foreign citizen greater than that created for a United States citizen; however,
Defendant has extensive experience with the American criminal justice system. Defendant first
came to this country in 1976, and, besides the three previous deportations, Defendant has resided
in the United States since that time. According to his presentence report, Defendant has been
arrested and convicted thirty-seven times in the United States. Defendant consequently has been
imprisoned numerous times. To say that Defendant’s incarceration for the charge in the instant case
created pressures unique to Defendant’s status as a Mexican citizen strains logic; Defendant has
resided primarily within the United States for the past twenty years and is well-acquainted with
incarceration in this country.
Moreover, even assuming that Defendant was subjected to additional pressure through his
incarceration due solely to his status as a Mexican citizen, Defendant fails to demonstrate how
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contacting the Mexican consulate would have addressed this additional pressure, such that his guilty
plea sans contact with the consulate was unknowing, involuntary, or unintelligent. The Tenth
Circuit rejected a similar argument in United States v. Cazares, 60 Fed. App’x 223 (10th Cir. 2003)
(unpublished decision). In that case, the defendant was a Mexican national who had resided in the
United States for twenty years. Id. at 225. The defendant pled guilty to a narcotics offense, but later
challenged the guilty plea as involuntary due to the district court’s failure to inform him of his rights
under the Vienna Convention. Id. The Tenth Circuit disagreed:
[The defendant] argues that because he is a foreign national, he lacks an
understanding of the criminal justice system in the United States. [The defendant]
further argues that his lack of understanding would be remedied by the assistance of
the Mexican consulate. This court, therefore, will construe [the defendant’s]
arguments as a challenge to the plea on the grounds it was not knowingly and
voluntarily entered. Although [the defendant] alleges a lack of understanding of the
criminal justice system in the United States, [the defendant] fails to allege the
particular aspects of his plea that were entered into unknowingly. After reviewing
the record, this court concludes that there is nothing in the record indicating [the
defendant’s] plea was not knowing and voluntary.
Id. at 227. Likewise, Defendant fails to point to what exactly he misunderstood with respect to his
guilty plea, where such misunderstanding would not have occurred had he spoken with the Mexican
consulate. The point is simple: Defendant does not allege any shortcoming of the district court or
his counsel with respect to Defendant’s understanding of his guilty plea that could have been
remedied by contacting the Mexican consulate.
Moreover, not only does Defendant not allege any shortcomings with respect to the district
court and his counsel in ensuring Defendant understood his guilty plea, the record affirmatively
proves that Defendant in fact understood his guilty plea. As the government notes, the record
demonstrates that the district court complied with the requirements of Federal Rule of Criminal
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Procedure 11. As stated, supra, the district court must verify “that the defendant’s plea is voluntary
and that the defendant understands his or her applicable constitutional rights, the nature of the crime
charged, the consequences of the guilty plea, and the factual basis for concluding that the defendant
committed the crime charged.” Webb, 403 F.3d at 378-79. Defendant understood his constitutional
right to a trial and the rights attendant to that right; Defendant understood the charge being made
against him; Defendant understood the potential punishment that could arise from the guilty plea;
and Defendant understood the factual basis of the government’s case against him. Indeed,
Defendant admitted the factual basis of the government’s case. The record amply demonstrates that
Defendant knew the nature of the guilty plea, that he voluntarily pled guilty, and that his decision
was intelligent. In short, Defendant has failed to demonstrate how the district court’s failure to
inform him of his right to contact the Mexican consulate caused Defendant’s guilty plea to be
unknowing, involuntary, or unintelligent so as to affect his substantial rights.
This case is therefore similar to Breard v. Greene, 523 U.S. 371 (1998). In that case, the
Supreme Court found that, assuming the Vienna Convention created enforceable individual rights,
the defendant still failed to demonstrate prejudice:
Even were [the defendant’s] Vienna Convention claim properly raised and proved,
it is extremely doubtful that the violation should result in the overturning of a final
judgment of conviction without some showing that the violation had an effect on the
trial. . . . In this action, no such showing could even arguably be made. [The
defendant] decided not to plead guilty and to testify at his own trial contrary to the
advice of his own attorneys, who were likely far better able to explain the United
States legal system to him than any consular official would have been. [The
defendant’s] asserted prejudice–that had the Vienna Convention been followed, he
would have accepted the State’s offer to forego the death penalty in return for a plea
of guilty–is far more speculative than the claims of prejudice courts routinely reject
in those cases w[h]ere an inmate alleges that his plea of guilty was infected by
attorney error.
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Id. at 377 (internal citations omitted).
Likewise, in the instant case, Defendant was represented by counsel who most likely knew
more about the United States legal system than any Mexican consular official. Moreover, the district
court explained Defendant’s legal rights and the legal consequences of his actions in pleading guilty.
In order to prove prejudice, Defendant must demonstrate that had he contacted the Mexican
consulate, his decision to plead guilty would have been affected, such that his guilty plea was not
knowing, voluntary, or intelligent. This result is not only speculative but it is also unlikely.
Defendant admitted that he was guilty of the crime for which he was charged. When asked if the
government would be able to prove its case, Defendant replied, “Yes, of course. Why not, it’s true.”
(J.A. at 48.) Defendant knew that the case against him was strong; there simply is no reason to
believe that Defendant would not have pled guilty had he spoken to the Mexican consulate. By
pleading guilty, Defendant was able to decrease his base offense level for acceptance of
responsibility; by not pleading guilty and going to trial, Defendant would have foregone the decrease
in his base offense level and faced a near-certain conviction, as both he and his counsel
acknowledged. It bears repeating that Defendant does not allege that the Mexican consulate had
information otherwise unavailable to Defendant, and that had Defendant been privy to such
information, Defendant would not have pled guilty, despite the higher sentence he faced if he went
to trial. Even assuming the district court committed plain error, Defendant has failed to demonstrate
that his substantial rights have been affected.
B. THE COURT INTERPRETERS ACT
1. Preservation of the Issue
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Defendant did not object to the interpreter he received before the district court. This will
affect the standard of review.
2. Standard of Review
Because Defendant did not object to the interpreter he received before the district court, this
Court reviews the appointment of the interpreter for plain error. United States v. Camejo, 333 F.3d
669, 672 (6th Cir. 2003) (citation omitted); see also United States v. Gonzales, 339 F.3d 725, 728
(8th Cir. 2003). Plain error analysis requires four steps, as described in the preceding section. See
Thomas, 11 F.3d at 630.
Defendant bears the burden of demonstrating plain error. Abboud, 438 F.3d at 588 (citation
omitted). As the Supreme Court explained: “When an appellate court considers error that qualifies
as plain, the tables are turned on demonstrating the substantiality of any effect on a defendant’s
rights: the defendant who sat silent at trial has the burden to show that his ‘substantial rights’ were
affected.” Vonn, 535 U.S. at 62 (citation omitted).
3. Analysis
The district court did not commit plain error in their appointment of an interpreter to
Defendant. Defendant has failed to demonstrate that the appointed interpreter was in fact a non-
certified interpreter. Defendant also has failed to demonstrate any inadequacy of the appointed
interpreter’s performance such that his guilty plea was unknowing, involuntary, or unintelligent.
a. Legal Framework
A guilty plea is more than just an admission of guilt; it is a waiver of the constitutional right
to a trial by judge or jury. Brady, 397 U.S. at 748. As a result, a defendant must enter a guilty plea
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knowingly, voluntarily, and intelligently. Id. The district court must verify “that the defendant’s
plea is voluntary and that the defendant understands his or her applicable constitutional rights, the
nature of the crime charged, the consequences of the guilty plea, and the factual basis for concluding
that the defendant committed the crime charged.” Webb, 403 F.3d at 378-79 (citation omitted).
The district court must be especially careful in accepting a guilty plea from a defendant who
does not have a firm command of the English language. As the Fifth Circuit recognized:
The likelihood of imprisonment following a guilty-plea conviction “demands the
utmost solicitude of which courts are capable in canvassing the matter with the
accused to make sure he has a full understanding of what the plea connotes and of
its consequence.” Boykin v. Alabama, 395 U.S. 238, 243-44 . . . (1969). The record
on appeal must reflect that a defendant was apprised fully of his constitutional rights,
and specially instructed on the rights and privileges which he waived by entering the
guilty plea. Fed. R. Crim. P. 11(c), (d). An adequate understanding of the English
language is a threshold requirement for a voluntary plea.
United States v. Perez, 918 F.2d 488, 490 (5th Cir. 1990) (emphasis supplied).
In order to insure that defendants who are not sufficiently competent in the English language
understand the judicial proceedings against them, Congress enacted the Court Interpreters Act
(“Act”), 28 U.S.C. § 1827 (2006). The Act states, in relevant part:
The presiding judicial officer, with the assistance of the Director of the
Administrative Office of the United States Courts, shall utilize the services of the
most available certified interpreter, or when no certified interpreter is reasonably
available, as determined by the presiding judicial officer, the services of an otherwise
qualified interpreter, in judicial proceedings instituted by the United States, if the
presiding judicial officer determines on such officer’s own motion or on the motion
of a party that such party (including a defendant in a criminal case), or a witness who
may present testimony in such judicial proceedings--
(A) speaks only or primarily a language other than the English language; or
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(B) suffers from a hearing impairment (whether or not suffering also from a speech
impairment)
so as to inhibit such party’s comprehension of the proceedings or communication
with counsel or the presiding judicial officer, or so as to inhibit such witness’
comprehension of questions and the presentation of such testimony.
28 U.S.C. § 1827(d)(1) (emphasis supplied).
b. Application to This Case
i. Plain Error
The first two steps in the plain error analysis address whether the district court committed
error, and whether that error was plain. The district court has wide discretion in determining
whether an interpreter is appropriate in a given case. United States v. Markarian, 967 F.2d 1098,
1104 (6th Cir. 1992) (citation omitted). That said, when the district court exercises its discretion and
determines an interpreter is appropriate, the district court must follow the strictures of the Act. As
the Eighth Circuit noted:
The language of the Court Interpreters Act is clear: once a district court decides to
use an interpreter, it is obligated to use a certified interpreter, unless a certified
interpreter is not reasonably available, in which case another qualified interpreter is
to be appointed. . . . The certification requirement of the Act was intended to provide
a procedural safeguard for non-native English speaking defendants during legal
proceedings.
Gonzales, 339 F.3d at 728 (internal citations omitted). In Gonzales, the Eighth Circuit found that
the district court’s use of a non-certified interpreter was error, and that the error was plain, under the
first two steps of plain error analysis. Id. We agree with that analysis; however, in this case, it is
unclear from the record whether the interpreter utilized in Defendant’s case was in fact a non-
certified interpreter. As stated, supra, Defendant has the burden to demonstrate plain error.
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Defendant has not carried this burden, as Defendant has failed to present any evidence that the
interpreter in his case was indeed a non-certified interpreter.
ii. Substantial Rights
Even assuming that the district court appointed a non-certified interpreter, Defendant has
failed to demonstrate an effect on his substantial rights. Defendant claims that the lack of a certified
interpreter rendered his guilty plea unknowing, involuntary, or unintelligent. As stated, supra, a
guilty plea is a waiver of the constitutional right to a trial; as a result, an invalid guilty plea would
affect the substantial rights of Defendant. Defendant, however, fails to demonstrate how the
appointment of the non-certified interpreter caused his guilty plea to be invalid.
From the outset, we note that Defendant does not allege any inadequacies as to the
performance of the non-certified interpreter. Defendant does not point to any misunderstandings
that he had about the guilty plea that resulted from the use of a non-certified interpreter,
misunderstandings that would not have occurred had the district court appointed a certified
interpreter. Thus, there is no nexus between the district court’s plain error and Defendant’s
argument that the guilty plea was unknowing, involuntary, or unintelligent. We reiterate that
Defendant bears the burden on plain error review in demonstrating that his substantial rights have
been affected. Defendant has not met this burden; there is simply no evidence in the record that the
use of a non-certified interpreter negatively affected Defendant’s understanding of the guilty plea,
such that the guilty plea was unknowing, involuntary, or unintelligent. As the Eighth Circuit viewed
a factually-similar circumstance:
[T]here is no indication in the record that the interpreters and [the defendant] had
communication problems, or that any confusion on [the defendant’s] part stemmed
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No. 03-6678
from any translation error; the plea hearing transcript supports that [the defendant]
ultimately understood his . . . plea and desired the benefits it yielded; and counsel
offers no other evidence that the plea was not knowing, voluntary, and intelligent.
United States v. Aispuro-Guadiana, 97 Fed. App’x 76, 77 (8th Cir. 2004) (unpublished decision).
Defendant seems to advocate a per se rule: if the district court fails to appoint a certified
interpreter, a defendant’s guilty plea cannot be knowing, voluntary, and intelligent: “The failure of
the record to show that a certified interpreter was used makes it impossible for the trial court [to]
assure [Defendant’s] guilty plea was properly taken . . . .” (Def. Br. 22.) We disagree with this
proposed rule. “The purposes of the Act are to ensure that a party has comprehension of the
proceedings and to provide the means to communicate effectively with counsel.” United States v.
Sanchez, 928 F.2d 1450, 1455 (6th Cir. 1991) (citation omitted). “[T]he ultimate question is
whether the translator’s performance has rendered the trial fundamentally unfair . . . .” United States
v. Huang, 960 F.2d 1128, 1136 (2d Cir. 1992) (citations omitted). Defendant’s per se rule is
therefore not well-taken; this Court must determine whether the use of a non-certified interpreter so
subverted the purposes of the Act such that the proceedings against Defendant were fundamentally
unfair. Defendant has not raised a single iota of evidence demonstrating that the use of a non-
certified interpreter, as opposed to a certified interpreter, affected his guilty plea such that the
proceedings against him were fundamentally unfair. In short, Defendant has failed to demonstrate
that the use of a non-certified interpreter caused his guilty plea to be unknowing, involuntary, or
unintelligent.
C. CUMULATIVE ERROR
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No. 03-6678
For the reasons set forth in the preceding sections, Defendant’s claim of cumulative error
also fails. Defendant asserts that the cumulative impact of the district court’s plain errors
demonstrates that his guilty plea was unknowing, involuntary, or unintelligent. We disagree.
Defendant has failed to demonstrate that the district court committed error, let alone plain error, for
his claims under the Vienna Convention and the Court Interpreters Act. See supra. Moreover, even
assuming plain error under both of these claims, Defendant has provided no evidence that the district
court’s plain errors affected the validity of his guilty plea. See supra. Since Defendant has failed
to provide evidence of an effect to his substantial rights under either claim, there is no evidence to
cumulate to determine whether, under the totality of the circumstances, Defendant’s plea was
invalid.
D. RESENTENCING
1. Preservation of the Issue
Defendant did not object to his sentence on the ground that judge-found fact increased his
maximum sentence.4 This will affect the standard of review.
2. Standard of Review
Because Defendant failed to object to his sentence on the ground that judge-found fact
increased his maximum sentence, this Court reviews Defendant’s sentence for plain error. United
States v. Barnett, 398 F.3d 516, 525 (6th Cir. 2005). This Court engages in a four-step plain error
4
The only objection that Defendant made to his sentence was that he believed that the
Guidelines violated the Double Jeopardy Clause of the U.S. Constitution, as the Guidelines “double-
counted” because it increased Defendant’s base offense level for a crime for which Defendant had
already served a term of imprisonment, and the Guidelines also increased Defendant’s sentencing
range based on Defendant’s criminal history. Defendant does not pursue this argument on appeal.
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No. 03-6678
inquiry: (1) whether there was error; (2) whether that error was plain; (3) whether that plain error
affected substantial rights; and (4) whether that plain error seriously affects the fundamental fairness,
integrity, or public reputation of judicial proceedings. Id. (citing Johnson v. United States, 520 U.S.
461, 466 (1997)).
3. Analysis
The district court did not commit plain error in its sentencing of Defendant. While the
district court treated the Guidelines as mandatory, the record demonstrates that the district court
would not have given Defendant a lesser sentence had it treated the Guidelines as advisory.
a. Legal Framework
In United States v. Booker, the Supreme Court held that the mandatory scheme under the
Guidelines was unconstitutional, as it violated the Sixth Amendment. 543 U.S. 220, 244 (2005).
The Court reaffirmed the holding in Apprendi v. New Jersey, 530 U.S. 466 (2000): “Any fact (other
than a prior conviction) which is necessary to support a sentence exceeding the maximum authorized
by the facts established by a plea of guilty or a jury verdict must be admitted by the defendant or
proved to a jury beyond a reasonable doubt.” Booker, 543 U.S. at 244.
In order to correct the Guidelines’ unconstitutional nature, the Court severed the portion of
the federal sentencing statute that called for mandatory application of the Guidelines. Id. at 245-46.
Thus, the Guidelines stand on constitutionally firm grounds as advisory rules. Id.
b. Application to This Case
By treating the Guidelines as mandatory when sentencing Defendant, the district court
committed error, and that error was plain. Barnett, 398 F.3d at 525-26. This Court presumes that
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No. 03-6678
the plain error affected Defendant’s substantial rights, see id. at 527-28, and, if this presumption
holds, this Court will also find that such plain error seriously affects the fundamental fairness,
integrity, or public reputation of judicial proceedings, so as to warrant this Court’s discretion in
granting relief, see id. at 530.
The presumption that the plain error of the district court affected Defendant’s substantial
rights is rebuttable. “[W]here the trial record contains clear and specific evidence that the district
court would not have, in any event, sentenced the defendant to a lower sentence under an advisory
Guidelines regime,” the presumption that the district court’s plain error affected Defendant’s
substantial rights is destroyed. Id. at 529. The record in the instant case contains clear and specific
evidence that the district court would not have sentenced Defendant to a lower sentence had it
treated the Guidelines as advisory. First, at the sentencing hearing, the district court stated, “The
motion to sentence below the Guidelines will be denied. The calculations are correct, they’re
appropriate, and they conform to the law as it now exists, and so–as a matter of fact, I was thinking
about sentencing above the guidelines.” (J.A. at 54) (emphasis supplied). Second, the district court
commented that “this is the defendant’s fourth illegal re-entry into the country and his second federal
conviction for this. His criminal history includes violence, a deadly weapon, weapons, drugs, he is
an alcoholic and is a danger to the community.” (J.A. at 55.) Finally, the district court sentenced
Defendant to the maximum sentence then allowable under the Guidelines, ninety-six months.
These facts are clear and specific evidence that the district court would not have given
Defendant a lower sentence under an advisory Guidelines scheme. Indeed, we are somewhat
puzzled by Defendant’s insistence that his case be remanded for resentencing, as it seems clear that
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No. 03-6678
the district court will in all likelihood impose a higher sentence. This case is factually analogous
to this Court’s decision in Webb, where the district court considered an upward departure from the
Guidelines, found that the defendant was a “menace” who the community did not want to “have
around,” and sentenced the defendant to the maximum time allowed under the Guidelines. 403 F.3d
at 382. Under such facts, this Court “conclude[d] that this is an exceptional case where the record
contains clear and specific evidence that the district court would not have sentenced [the defendant]
to a lower sentence under an advisory Guidelines regime.” Id. at 382-83. Like Webb, the instant
case presents a situation where “the district court would have imposed the same sentence, if not a
lengthier one, had the district court known that it was not bound by the Guidelines.” Id. at 383. We
therefore will not remand this case for resentencing.
III. CONCLUSION
For the foregoing reasons, we AFFIRM the judgment of the district court.
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