# United States Court **of Appeals**  **f or the Fifth Circuit** 

**____________** No. 22

- 50151 Summary Calendar

**____________ United States of America,**  Plaintiff

— Appellee **,**

versus
**Tomas Herrera**

**- Quinones,**  Defendant

— Appellant

**.**

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

- CR

- 849 -3

**______________________________** Before **Smith, Higginson,** and **Engelhardt,** Circuit Judges

**. Stephen A. Higginson**  **,** Circuit Judge : *****
Tomas Herrera

- Quinones was convicted , following a jury trial , of one count of conspiracy to distribute 100 kilograms or more of marijuana, in violation of 21 U.S.C. §§ 846 and 841(a)(1) & (b)(1)(B), and one count of possession with intent to distribute 100 kilograms or more of marijuana, in violation of § 841(a)(1) & (b)(1)(B) and 18 U.S.C. § 2. Herrera

- Quinones

**_____________________**

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

### FILED January 29, 2024

Lyle W. Cayce Clerk Case: 22-50151 Document: 00517047678 Page: 1 Date Filed: 01/29/2024No. 22

- 50151

2 initially pled guilty , changed his plea to not guilty, went to trial, unsuccessfully moved to suppress an interview and confession on the grounds that he could not have voluntar il y waived his Miranda rights in Spanish because of his limited understanding of that language as he is a Tepehuan speaker , and was convicted

. On appeal, he seeks reversal of the conviction and a remand for a new suppression hearing, trial, and sentencing hearing. Herrera

- Qui nones argues that the district court erred in conducting a suppression hearing, jury trial, and sentencing hearing with a Spanish interpreter

— rather than a Tepehuan interpreter

— and in not advising him of his right to an interpreter. We review a district co urt’s decision to appoint an interpreter for abuse of discretion

. United States v. Bell , 367 F.3d 452, 463 (5th Cir. 2004). W e do not decide whether Herrera

- Quinones’s claim should be reviewed for plain error because he failed to preserve the issue for a ppeal b ecause we conclude that his argument fails under the less exacting abuse of discretion standard

. 1 An abuse of discretion occurs if the district court “bases its decision on an error of law or a clearly erroneous assessment of the evidence.” United States v. Chambliss , 948 F. 3d 691, 693 (5th Cir. 2020) (internal quotation marks and citation omitted). “[T]he necessity for .

. . an interpreter is a question of fact.” United States v. Tapia , 631 F.2d 1207, 1209 (5th Cir. 1980). The Court Interpreters Act requires, in pertinent part, the appointment of an interpreter when a judge, either sua sponte or on the motion of a party, determines that the defendant “speak[s] only or primarily a language other than the English language” and that fact would “inhibit such

**_____________________**
1 Nor do we decide whether the motion to suppress and statements made at the pretrial proceedings were sufficient to preserve this issue. Case: 22-50151 Document: 00517047678 Page: 2 Date Filed: 01/29/2024No. 22

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3 party’s comprehension of the proceedings or communication with counsel or the presiding judic ial officer.” 28 U.S.C. § 1827(d)(1)(A). In other words, an interpreter should be appointed when the district court finds that the “defendant’s ability to comprehend the proceedings or communicate with counsel is inhibited by language or hearing problems. ” United States v. Perez , 918 F.2d 488, 490 (5th Cir. 1990) (internal quotation marks and citation omitted). A magistrate judge stopped Herrera

- Quinones’s plea hearing because he was concerned that Herrera

- Quinones could not understand the proceedings wi th a Spanish interpreter rather than an interpreter who spoke Herrera

- Quinones ’s native language of Tepehuan. At a subsequent hearing before the magistrate judge, the court conferred with Herrera

- Quinones through a Tepehuan interpreter and Herrera

- Quinon es entered a plea of not guilty. A s this court has explained, “the need for translation of the pretrial proceeding put [s] the district court on notice of the need to make inquiry regarding the defendant’s language competency

. ” Perez , 918 F.2d at 490 (discussing Tapia ).
At the hearing on the motion to suppress Herrera

- Quinones’s confession, the district court had the following colloquy with Herrera

Quinones’s trial counsel: The Court: [H]ave you been able to communicate with your clie nt? Counsel: In this particular case, I have been able to communicate with him through a Tepehuan interpreter, and we have had very limited success with any other type of interpretation. The Court: Okay. And we have a Spanish speaker interpreting today. We also have a Tepehuan interpreter standing by, I think, which we will use if we get to that point. Suppression Hr ’g Tr. 4: 23

- 5: 7 , ECF 184. Case: 22-50151 Document: 00517047678 Page: 3 Date Filed: 01/29/2024No. 22

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4 Following this, Herrera

- Quinones opted to proceed with only a Spanish interpreter and testified at the hearing that he understood

— through the use of only the Spanish interpreter

— what was said at the hearing including the testimony of the four witnesses against him that day

. On appeal after trial and conviction , Herrera

- Quinones fails to explain how , given the

unac cepted offer of a Tepehuan interpreter and Herrera

- Quinones ’s testimony that he was able to understand the proceedings through a Spanish interpreter, the district court abused its discretion. We therefore **AFFIRM**

. Case: 22-50151 Document: 00517047678 Page: 4 Date Filed: 01/29/2024