FILED
NOT FOR PUBLICATION MAY 08 2012
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S . CO U RT OF AP PE A LS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 10-10400
Plaintiff - Appellee, D.C. No. 1:08-cr-00124-OWW-7
v.
MEMORANDUM *
PIOÏUINTO LARIOS SANTACRUZ,
Defendant - Appellant.
Appeal from the United States District Court
for the Eastern District of California
Oliver W. Wanger, Senior District Judge, Presiding
Argued and Submitted August 30, 2011
San Francisco, California
Before: WALLACE, BERZON, and BYBEE, Circuit Judges.
The district court sentenced Pioquinto Larios Santacruz to 188 months'
imprisonment based on a jury verdict of guilty on counts of conspiracy to distribute
and/or possess with intent to distribute, distribution of, and possession with intent
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
to distribute methamphetamine and/or cocaine. We have jurisdiction under 28
U.S.C. y 1291, and we affirm.
Santacruz first contends that Agent Kuehnlein's testimony regarding
Santacruz's statements made through interpreter Deputy Davalos were
inadmissible hearsay and a violation of the Confrontation Clause. In United States
v. Nazemian, we held that before reaching Confrontation Clause and hearsay
issues, we must determine whether an interpreter's statements should be attributed
to the interpreter or the defendant. 948 F.2d 522, 525-28 (9th Cir. 1991). We
identified four factors to consider in this analysis: (1) who supplied the interpreter,
(2) whether the interpreter had a motive to mislead or distort, (3) the interpreter's
qualifications, and (4) whether the defendant's subsequent actions were consistent
with the translated statements. Id. at 527.
In this case, although the government provided the translator, there was no
prior relationship between Deputy Davalos and Agent Kuehnlein, and Santacruz
µnew that Deputy Davalos was provided by the government at the time of the
interview. See id. at 527-28. Additionally, Santacruz presented no evidence
supporting an assertion that Deputy Davalos was liµely to mislead or distort the
translations, and merely having a law enforcement bacµground is insufficient to
prove such bias. See id. Next, Deputy Davalos had significant experience
2
speaµing Spanish and interpreting. Just as experience may serve as the basis for
establishing an expert's qualifications, United States v. Alatorre, 222 F.3d 1098,
1104 (9th Cir. 2000), experience may be the basis for establishing a translator's
qualifications, see Nazemian, 948 F.2d at 528. The fourth factor is either neutral or
inapplicable because the retrospective nature of the statements maµes it impossible
for the statements to be corroborated through future events.
Consideration of these factors supports a finding that Deputy Davalos was a
'language conduit' or agent of Santacruz's and that the statements should be
attributed to Santacruz. Thus, no additional level of hearsay was created as a result
of the interpreter's presence. Id. at 528; see also United States v. Ushaµow, 474
F.2d 1244, 1245 (9th Cir. 1973). The statements therefore are admissible as party
admissions. See Fed. R. Evid. 801(d)(2)(A).
Because, under Nazemian, Agent Kuehnlein's testimony consisted of
Santacruz's own statements, with Deputy Davalos acting merely as a language
conduit or agent, no Confrontation Clause issue is presented. See Crawford v.
Washington, 541 U.S. 36, 51 (2004) (explaining that the Confrontation Clause
applies to witnesses against the accused, i.e., someone other than the accused). In
any event, Santacruz was given the opportunity to cross-examine Agent Kuehnlein,
3
which he did, and Deputy Davalos, which he declined. Accordingly, the district
court did not abuse its discretion by admitting the statements.
Santacruz next argues that the district court applied the wrong evidentiary
standard in maµing its drug quantity determination. Preponderance of the evidence
is the proper standard for maµing drug quantity determinations, see United States
v. Reed, 575 F.3d 900, 924 (9th Cir. 2009), and the district court applied the correct
evidentiary standard.
Next, Santacruz argues that the drug quantity determination raised his
offense level such that he was exposed to a sentence greater than the statutory
maximum, resulting in a punishment that exceeded the seriousness of the offense
as understood under 18 U.S.C. y 3553(a). The high end of the advisory sentencing
guideline range that Santacruz faced was less than 240 months, the statutory
maximum under 21 U.S.C. y 841(b)(1)(C). See United States v. Sanchez-
Cervantes, 282 F.3d 664, 669-70 (9th Cir. 2002). Therefore, no Apprendi
violation resulted from the drug quantity determination. See Apprendi v. New
Jersey, 530 U.S. 446 (2000).
AFFIRMED.
4
FILED
United States v. Santacruz, No. 10-10400 MAY 08 2012
BERZON, Circuit Judge, concurring: MOLLY C. DWYER, CLERK
U.S . CO U RT OF AP PE A LS
I concur with the caveat I explain in more detail in my separate opinion in
United States v. Hieng, No. 09-10401 (9th Cir. May ÁÁ, 2012): Although I agree
with the conclusion that United States v. Nazemian, 948 F.2d 522 (9th Cir. 1991),
is not so 'clearly irreconcilable,' Miller v. Gammie, 335 F.3d 889, 900 (9th Cir.
2003) (en banc), with Crawford v. Washington, 541 U.S. 36 (2004), as to permit a
three-judge panel to overrule Nazemian, I believe the continued vitality of
Nazemian after Crawford is an issue that merits en banc review in an appropriate
case.