# United States Court of Appeals **for the Fifth Circuit**

____________ No. 22-50742

____________ United States of America, Plaintiff—Appellee ,

versus Fidel Gutierrez-Garcia, Defendant—Appellant

.

______________________________ Appeal from the United States District Court for the Western District of Texas USDC No. 4:21-CR-1073-4

______________________________ Before Willett, Engelhardt, and Oldham, Circuit Judges

. Per Curiam: * After a bench trial, the district court found Fidel Gutierrez-Garcia guilty of possessing with intent to dist ribute marijuana and sentenced him to two years of imprisonment. On appeal, Gutierrez argues the district court abused its discretion when it denied his motion to dismiss the indictment. Finding no abuse of discretion, we affirm.

_____________________

* This opinion is not designated for publication. See 5th Cir. R. 47.5. United States Court of Appeals Fifth Circuit 

### FILED September 13, 2023 Lyle W. Cayce Clerk Case: 22-50742 Document: 00516894019 Page: 1 Date Filed: 09/13/2023No. 22-50742

2 I. Border Patrol agents found Gutie rrez and three other suspects with backpacks near the Texas-Mexico border. The packs held about 108 kilograms of marijuana. Gutierrez was indicted for importing one hundred kilograms or more of marijuana, see 21 U.S.C. §§ 952(a), 960(a), (b)(2), and possessing with intent to distribute one hundred kilograms or more of marijuana, see 21 U.S.C. §§ 841(a)(1), (b)(1)(B). At his initial appearance, Gutierrez told the court, through a Spanish interpreter, that his primary language was Tepehuan (a dialect spoken by certain indigenous people in Mexico). Gutierrez also stated that he spoke “a little” Spanish and was able to unders tand the interpreter “a little bit.” ROA.133. Gutierrez subsequently moved to dismiss the indictment without prejudice. He argued that he was un able to understand the proceedings against him or to communicate with his attorney absent a Tepehuan interpreter. The district court held an evidentiary hearing on Gutierrez’s motion to dismiss. At the hearing, Gu tierrez called his attorney, Bob Garcia. Garcia, a fluent Spanish speaker, testif ied that he had discovered during his first meeting with Gutierrez that his na tive language was Tepehuan and that he spoke limited Spanish. Garcia stated that, in his opinion, Gutierrez was unable to understand the legal concepts and rights needed to participate in his defense. Gutierrez also called Luis Navarro, a Spanish interpreter who had previously interpreted for Gutierre z at his initial a ppearance. Navarro testified that he was unable to commun icate the necessary legal concepts with Gutierrez in Spanish. Navarro also stat ed that his attempts to locate a Tepehuan interpreter had failed. The Government called interpreter Christian Saenz, who interpreted for Gutierrez in Spanish during his p ost-arrest interview. Saenz noted that Case: 22-50742 Document: 00516894019 Page: 2 Date Filed: 09/13/2023No. 22-50742

3 Gutierrez gave comprehensible Spanish responses to his Spanish questions. He noted that Gutierrez did not give lo ng answers but did give interpretable phrases in Spanish. The Governmen t also called one of Gutierrez’s codefendants, Guadalupe Arguelles-Quintero. Arguelles testified that he remembered Gutierrez speaking Spanish with himself and other members of their group during their six-night backpack ing trip from Mexico to the United States. Gutierrez then voluntarily took the stand and testified with the help of a Spanish interpreter. ROA.219. Gutie rrez testified that he understood he had been arrested by the police becaus e he “was carrying pot.” ROA.221. He answered additional questions about his role in carrying the drugs and said he thought he would be paid to carry them into the United States. And he indicated he understood the maximum sentence he could face if convicted.
The district court denied Guti errez’s motion to dismiss the indictment. The court concluded that Gutierrez’s testimony was the best evidence of his ability to speak Spanis h. ROA.78. The court reasoned that Gutierrez “was able to communicate via the [c]ourt’s Spanish interpreter with ease, despite being asked long complex questions.” ROA.78. And the court concluded that its observatio ns of Gutierrez communicating in Spanish, buttressed by the testimony of Arguelles and Navarro, supported the denial of the motion to dismiss. The court explained that Gutierrez’s inability to understand legal concepts wa s less troubling than “not being able to understand the language . . . we ’re interpreting . . . in.” ROA.229. During the subsequent bench tria l, the parties stipulated that Gutierrez possessed with intent to dist ribute marijuana. The district court found Gutierrez guilty of possessing with intent to distribute 100 kilograms or more of marijuana. The district co urt sentenced Gutierrez to two years imprisonment, a bottom-of-the-Guidelines sentence, and three years of Case: 22-50742 Document: 00516894019 Page: 3 Date Filed: 09/13/2023No. 22-50742

4 supervised release. Gutierrez timely ap pealed, arguing that the district court failed to provide an appr opriate interpreter.
II. We review the decision to ap point an interpreter for abuse of discretion. United States v. Bell , 367 F.3d 452, 463 (5th Cir. 2004). A court abuses its discretion when “it bases its decision on an error of law or a clearly erroneous assessment of the evidence.” United States v. Handlon , 53 F.4th 348, 351 (5th Cir. 2022) (quotation omitted). When a defendant “only or primarily” speaks “a language other than” English, the Court Interpreters Act requires that a district court “utilize the services” of an interpreter “i n judicial proceedings instituted by the United States.” 28 U.S.C. § 1827(d )(1)(A). A defendant’s statutory right to an interpreter under the Act is viol ated where the lack of an interpreter inhibited a defendant’s comprehension of the proceedings or communication to such an extent that the procee dings were “fundamentally unfair.” Bell , 367 F.3d at 464 (quotation omitted). This is “a two-step inquiry.” United States v. Hasan ( Hasan I ), 526 F.3d 653, 666 (10t h Cir. 2008) (Gorsuch, J.) (quotation omitted). “First, the di strict court must assess whether comprehension or communication was inhibited.” Id. If so, then the court must ask whether the proc eedings were rendered fu ndamentally unfair as a result. Id. We analyze each step in turn.
First, the district court did not clearly err in concluding that Gutierrez could understand Spanish well enough to understand the proceedings against him. See United States v. Tapia , 631 F.2d 1207, 1209 (5th Cir. 1980) (acknowledging “that the necessity for . . . an interpreter is a question of fact”); United States v. Hasan ( Hasan II ), 609 F.3d 1121, 1127 (10th Cir. 2010) (“Under the abuse-of-discretion standa rd, we review the district court’s factual determinations for clear error. ”). “There is no clear error if the Case: 22-50742 Document: 00516894019 Page: 4 Date Filed: 09/13/2023No. 22-50742

5 district court’s finding is plausible in light of the record as a whole.” United States v. Johnson , 14 F.4th 342, 349 (5th Cir. 2021) (citation omitted). Here, the district court held an evidentiary hearing and heard from multiple witnesses before denying Gu tierrez’s motion to dismiss. The district court observed Gutierrez testif ying through a Spanish interpreter at the evidentiary hearing firsthand. From its firsthand observation, the district court concluded that Gutierrez was able to communicate through the Spanish interpreter “fluidly,” “quickly,” and “with ease.” ROA.78, 220-26. During the hearing, Gutierrez explained thro ugh the Spanish interpreter that he understood he was arrested “[b]ecau se [he] was carrying pot.” ROA.221. Gutierrez further explained that he wa s offered a job “[t]o pick the pecans” but that, when he arrived in Chihuahua, he learned that the job was actually smuggling marijuana. ROA.222. The dist rict court concluded that Gutierrez could understand Spanish sufficie ntly well that he was capable of understanding and answering “long complex questions” in Spanish, ROA.78, such as whether he underst ood that the maximum penalty for his crime is 20 years, ROA.223. We have said before that the district court “who is in direct contact with the witnesses, [a]ppellants, and the interpreters must be given wide discretion” in determin ing whether an interpreter is needed. Bell , 367 F.3d at 464 (quotation omitted). That is, of course, because the district court was “in the best positi on to assess [Gutierrez’s] language usage, comfort level[,] and intelligi bility” at the evidentiary hearing. Hasan II

, 609 F.3d at 1127 (quotation omitted).
The district court also relied on th e testimony of additional witnesses at the evidentiary hearing in denying Gutierrez’s motion. According to those witnesses, when the Government agen t conducted Gutierrez’s post-arrest interview through a Spanish interprete r, Gutierrez understood Spanish and gave “complete phrases to interpret, ” so that “the interpretation was flowing orderly.” ROA.202. The agent le arned from all three of Gutierrez’s Case: 22-50742 Document: 00516894019 Page: 5 Date Filed: 09/13/2023No. 22-50742

6 co-defendants that they spoke to Gutierrez in Spanish during the backpacking expedition. ROA.13, 191–92 . Additionally, the testimony of one of Gutierrez’s co-defendants at the ev identiary hearing corroborated that information. True, there is evidence in the record that Gutierrez did sometimes struggle to understand legal concepts. Bu t there is ample record evidence to support the district court’s conclu sion that Gutierrez’s inability to “understand legal concepts” did not st em from his inability to “understand the language” that the proceedings we re being interpreted in. ROA.229. The record indicates that Gutierrez never a ttended school. Further, the district court’s staff interpreter testified that Gutierrez could not understand legal concepts in any language because those concepts do not exist in the Tepehuan language or culture. And agai n, the district court is in the best position to weigh those challenges agains t the rest of the record to determine whether Gutierrez’s comprehension an d communication were inhibited by the lack of an interpreter

. See Bell , 367 F.3d at 464.
Second, even assuming Gutierrez’s comprehension and communication were inhibited, the proceedings below were not fundamentally unfair. See id. at 463 (“The ultimate issue is whether the use of the interpreter made the trial fundamen tally unfair.” (quotation omitted)). “[A]n inquiry into fundamental fairne ss focuses on whethe r the purposes of the Act—comprehension of the proceedi ngs and the ability to effectively communicate—were adequately met.” Hasan I , 526 F.3d at 667 (quotation omitted). “Minor deviations from idea l communication therefore have been held not to render a proceeding fundamentally unfair.” Id. Here, Gutierrez knowingly and voluntarily admitted his gu ilt to the charge of possession of marijuana with intent to distribute . He was able to explain the facts underlying his crime and accepted resp onsibility for them. He also repeatedly said that he understood the punishment he faced. Any deviations from ideal Case: 22-50742 Document: 00516894019 Page: 6 Date Filed: 09/13/2023No. 22-50742

7 communication in the proceedings belo w were sufficiently minor that they did not render the proceedin gs fundamentally unfair.
AFFIRMED. Case: 22-50742 Document: 00516894019 Page: 7 Date Filed: 09/13/2023