                FOR PUBLICATION

  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                No. 14-10400
                Plaintiff-Appellee,
                                           D.C. No.
                v.                      4:14-cr-00444-
                                         CKJ-BGM-1
ADALBERTO MURGUIA-RODRIGUEZ,
AKA Adalberto Rodriguez-Murguia,
             Defendant-Appellant.          OPINION


     Appeal from the United States District Court
              for the District of Arizona
     Cindy K. Jorgenson, District Judge, Presiding

                Argued and Submitted
      August 11, 2015—San Francisco, California

                 Filed March 1, 2016

  Before: Stephen Reinhardt, A. Wallace Tashima, and
         Consuelo M. Callahan, Circuit Judges.

             Opinion by Judge Reinhardt;
              Dissent by Judge Callahan
2         UNITED STATES V. MURGUIA-RODRIGUEZ

                           SUMMARY*


                          Criminal Law

    The panel affirmed a conviction, vacated a sentence, and
remanded for resentencing in a case in which the district court
took the defendant’s statement that the sentencing proceeding
could proceed in English as a waiver of his right to have an
interpreter during that proceeding.

    The panel held that the defendant did not validly waive
his right to an interpreter, and that the district court dismissed
his court-appointed interpreter without complying with the
procedural requirements of 28 U.S.C. § 1827(f)(1), depriving
the defendant of his right to an interpreter in violation of the
Court Interpreters Act. The panel declined to exercise its
discretion to consider whether the district court’s error was
harmless.

    The panel affirmed the conviction for reasons discussed
in a concurrently filed memorandum disposition.

    Dissenting, Judge Callahan wrote that the defendant failed
to object to any error at his sentencing and appeal, and that
the majority absolves the defendant of his burden to show
prejudice, granting relief that he doesn’t seek.




  *
    This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
         UNITED STATES V. MURGUIA-RODRIGUEZ                    3

                         COUNSEL

Daniel L. Kaplan (argued), Assistant Federal Public
Defender, and John M. Sands, Federal Public Defender,
Phoenix, Arizona, for the Defendant-Appellant.

Carmen F. Corbin (argued), Assistant United States Attorney;
John S. Leonardo, United States Attorney; Robert L. Miskell,
Appellate Chief, United States Attorneys’ Office, Tucson,
Arizona, for Plaintiff-Appellee.


                          OPINION

REINHARDT, Circuit Judge:

     The Court Interpreters Act protects the rights of federal
litigants with limited English proficiency by requiring that
courts utilize the services of certified interpreters in
proceedings instituted by the United States when the failure
to do so would inhibit the party’s ability to participate fully
in the proceedings. The Act also provides procedural
safeguards to ensure that any waiver of this right is done
knowingly, intelligently, and voluntarily. Prior to his trial,
Defendant Adalberto Murguia-Rodriguez stipulated that law
enforcement officers found marijuana in the truck he had
been driving. At trial, with the assistance of an interpreter, he
explained that he had borrowed the vehicle and did not know
that there was marijuana inside. He was convicted of
possession with the intent to distribute marijuana. He was
then sentenced to 55 months in custody. He did not,
however, have an interpreter at the sentencing proceeding,
because the district court took his statement that the
4             UNITED STATES V. MURGUIA-RODRIGUEZ

sentencing proceeding could proceed “in English” as a waiver
of his right to have an interpreter during that proceeding.

    On appeal, Murguia-Rodriguez challenges his conviction,
arguing that the district court erred by failing to ensure that
his stipulation was knowing and voluntary. He also contends
that the district court erred at sentencing by, among other
things, dismissing his court-appointed interpreter contrary to
the provisions of the Court Interpreters Act.             In a
memorandum disposition filed concurrently, we hold that the
district court did not err in concluding that Murguia-
Rodriguez entered into his trial stipulation knowingly and
voluntarily. In this opinion, however, we hold that the district
court dismissed Murguia-Rodriguez’s interpreter without
adhering to the procedures required by the Court Interpreters
Act.      Accordingly, we affirm Murguia-Rodriguez’s
conviction, vacate his sentence, and remand for a new
sentencing hearing.

                           I. BACKGROUND

    Interpreters play an important role in protecting the rights
of non-English speaking persons. Over 60 million people in
the United States speak a language other than English at
home. U.S. Census Bureau, Language Use in the United
States: 2011 at 3 (Aug. 2013).1 Of that number, 15.4% speak
English “not well” and 7% (over 4 million) speak English
“not at all.” Id. Effective language assistance is necessary to
ensure that these individuals have meaningful access to
government entities and programs. See Guidance to Federal
Financial Assistance Recipients Regarding Title VI
Prohibition Against National Origin Discrimination Affecting

    1
        Available at: https://www.census.gov/prod/2013pubs/acs-22.pdf.
            UNITED STATES V. MURGUIA-RODRIGUEZ                               5

Limited English Proficient Persons, 67 Fed. Reg. 41455,
41457 (June 18, 2002). Such assistance is of particular
importance in the courtroom where individuals must
communicate in “precise language” under stressful conditions
and key determinations affecting the individual’s personal
liberty or financial well-being are often “made based on
credibility.” Id. at 41471. This is especially so in criminal
proceedings.

     The Court Interpreter’s Act of 1978 was designed to
accommodate individuals with limited English proficiency
and to ensure that they could fully “understand and
participate in their own defense.” H.R. Rep. 95-1687 at 4
(1978). The Act requires that a certified interpreter be
utilized in proceedings instituted by the United States when
a party “speaks only or primarily a language other than the
English language . . . [thus] inhibit[ing] such party’s
comprehension of the proceedings or communication with
counsel or the presiding judicial officer[.]” 28 U.S.C.
§ 1827(d)(1).2 The Act also restricts the party’s ability to
waive his right to an interpreter. A party may waive that
statutory right if, and “only if,” (1) the waiver is made
“expressly on the record” by the party, (2) “after opportunity
to consult with counsel,” (3) the presiding judge has
explained to the party “the nature and effect of the waiver,”
and (4) the waiver is approved by the presiding judge. 28
U.S.C. § 1827(f)(1).3


  2
      The law also requires use of an interpreter for hearing-impaired
individuals.
  3
     As to condition (3), the explanation of the nature and effect of the
waiver must be made through “the services of the most available certified
interpreter, or when no certified interpreter is reasonably available . . . the
6         UNITED STATES V. MURGUIA-RODRIGUEZ

    Murguia-Rodriguez was charged with (1) the knowing
and intentional possession with the intent to distribute
marijuana and (2) the knowing possession of ammunition as
a previously convicted felon. Murguia-Rodriguez, a legal
permanent resident of this country for many years, could read
English, but only understood spoken English “about 60
percent” of the time. The presiding magistrate judge
determined at Murguia-Rodriguez’s initial appearance that he
required a Spanish-language interpreter, and one was
appointed for him.

    Before trial, Murguia-Rodriguez stipulated that (1) law
enforcement officers found 60 kilograms of marijuana in the
truck that he had been driving, (2) law enforcement officers
also found 45 rounds of .32 caliber ammunition in that
vehicle, and (3) he had previously been convicted of a crime
punishable by imprisonment for a term exceeding one year.
At trial, with the assistance of his court-appointed interpreter,
Murguia-Rodriguez testified that he was unaware of the
presence of the drugs and ammunition in the vehicle. The
jury returned a mixed verdict. It convicted Murguia-
Rodriguez of Count 1, and found that the offense involved 50
kilograms or more of marijuana. The jury acquitted Murguia-
Rodriguez on Count 2, the possession of ammunition. Based
on Murguia-Rodriguez’s offense level and criminal history,
the probation officer calculated a guidelines range of 51 to 63
months.

   Murguia-Rodriguez filed a sentencing memorandum in
which he urged the court to consider the “effect of [his]


services of an otherwise competent interpreter.” 28 U.S.C. § 1827(f)(1).
We need not consider the additional language because the judge made no
explanation at all in this case.
         UNITED STATES V. MURGUIA-RODRIGUEZ                   7

imprisonment on third parties.” He noted that he was in an
11-year common-law relationship with a woman named
Belinda Angulo, with whom he had a 12-year-old son. He
further noted that he helped raise Angulo’s teenaged children,
and that prior to his arrest, he “use[d] to take them and pick
them up from school” and was “actively involved in their
lives providing guidance and support.” He concluded his
sentencing memorandum with a request for 33 months of
incarceration.

    At the outset of his sentencing hearing, the district judge
said to Murguia-Rodriguez: “[J]ust before the case was
called the interpreter indicated that you had indicated you
prefer to proceed in the English language this morning. Is
that correct, sir?” Murguia-Rodrigez replied affirmatively.
The judge then asked: “Do you want the interpreter to remain
in case you have any difficulties, or is it okay with you if she
leaves the courtroom?” To which Murguia-Rodriguez
replied, “She can stay.”

    The judge then urged Murguia-Rodriguez to let the
interpreter cease performing her duties, stating: “But do you
need her—she has other duties. Do you need her to stay, or
do you feel comfortable proceeding in English?” Murguia-
Rodriguez answered “I am comfortable proceeding in
English,” and the judge promptly dismissed the interpreter.

    Ultimately, the judge accepted the probation officer’s
guidelines calculation of 51 to 63 months. She sentenced
Murguia-Rodriguez to 55 months of custody, followed by
three years of supervised release. She entered judgment that
same day, and Murguia-Rodriguez filed his notice of appeal
three days later.
8        UNITED STATES V. MURGUIA-RODRIGUEZ

                        II. ANALYSIS

    Murguia-Rodriguez challenges his sentence on three
grounds: (1) that the dismissal of his court interpreter
violated the Court Interpreters Act, (2) that the district court
erred procedurally by failing to address his non-frivolous
argument in support of a below-Guidelines sentence, and (3)
that the court should reconsider his sentence in light of recent
retroactive amendments to the Sentencing Guidelines. He
also challenges his conviction on the ground that the district
court failed to ensure that his guilt-phase stipulation was
entered into knowingly and voluntarily, an argument that we
address in the memorandum disposition filed concurrently
with this opinion.

    When a court becomes aware of a criminal defendant’s
potential difficulties in understanding or speaking the English
language, it has a mandatory duty to make a determination on
the record whether an interpreter is required, and if so, to
appoint a certified individual. See, e.g., United States v. Si,
333 F.3d 1041, 1044 (9th Cir. 2003). Any waiver of the right
to a certified interpreter, whether before or after that
determination, must comply with the express provisions of
the Court Interpreters Act. 28 U.S.C. § 1827(f)(1).

     At the outset, we note that this case is unlike the other
Court Interpreters Act cases that we have previously
encountered. Those cases have typically come before us in
one of two postures. First, we have considered cases in
which the defendant’s need for an interpreter was overlooked
by the district court and an interpreter was never appointed.
Rather than decide whether an interpreter was required for the
first time on appeal, we have regularly remanded these cases
to the district court to make an initial determination whether
           UNITED STATES V. MURGUIA-RODRIGUEZ                             9

the defendant should have been provided with an interpreter.
See, e.g., Si, 33 F.3d at 1043 n.4 & 1044; Mayans, 17 F.3d at
1179–81; United States v. Lim, 794 F.2d 469, 470 (9th Cir.
1986).

    Second, we have encountered cases in which the
defendant challenges the district court’s explicit decision not
to appoint an interpreter. See, e.g., Gonzalez v. United States,
33 F.3d 1047, 1050 (9th Cir. 1994). In those cases, we
review the district court’s determination for clear error and
make a determination on the merits. Id.

   This case does not fall into either of the above categories.
Here, the magistrate judge presiding over Murguia-
Rodriguez’s initial appearance determined that an interpreter
was required, and one was appointed for him.4 The district

  4
       Although very little was stated on the record about why Murguia-
Rodriguez required an interpreter, this appears to be consistent with
congressional intent. As the House Report on the Court Interpreters Act
states, “[i]t is anticipated that the need for formal proceedings to make an
initial determination of whether the appointment of an interpreter is
required will be minimal.” H.R. Rep. 95-1687, at 6 (1978). The
procedures here may have been minimal, but the magistrate judge clearly
determined that an interpreter was required. The dissent suggests that an
interpreter may have been appointed in an abundance of caution, but that
is irrelevant. There is sufficient evidence to support the finding that an
interpreter was “required” because Murguia-Rodriguez could understand
English only about “60 percent” of the time, which the judge could surely
find “inhibit[ed]” his “comprehension of the proceedings or
communication with counsel or the presiding judicial officer.” 28 U.S.C.
§ 1827(d). The dissent also notes that Murguia-Rodriguez asked for a
remand to determine whether he needed an interpreter at sentencing.
Remand is the remedy we have granted in previous cases—cases in which
the court failed to determine whether an interpreter was required and the
case proceeded to a final decision without one. This case, however, is not
about whether an interpreter should have been appointed, but about what
10         UNITED STATES V. MURGUIA-RODRIGUEZ

judge continued to use an interpreter throughout Murguia-
Rodriguez’s trial, and indeed, an interpreter was present in
the courtroom ready to provide services to him at the
sentencing hearing. After a colloquy with the defendant, the
district judge appeared to conclude that the defendant was
willing to have the hearing held without an interpreter,
although she made no finding that the original appointment
of an interpreter was erroneous or should be vacated.5 The
question in this case, therefore, is not whether Murguia-
Rodriguez required an interpreter, but whether he validly
waived his right to an interpreter. We conclude that he did
not.



procedures the court must follow before finding a waiver. It presents a
question of law which requires no factual development, and thus no
remand is necessary.
  5
     The dissent tries to scrape together pieces of Murguia-Rodriguez’s
testimony to suggest that a hypothetical judge might have determined that
an interpreter was not needed, but the only finding of fact actually made
in the proceedings was that an interpreter was “required.” We typically
review findings of fact for clear error, and do not substitute our own
findings for the district court’s. If, as the dissent suggests, an interpreter
was no longer necessary at the sentencing hearing, the district court would
have been required to find as much on the record. No such findings were
made, and it appears that the district judge intended to proceed with an
interpreter at the sentencing hearing until she erroneously concluded that
Murguia-Rodriguez was willing to waive his right to one. Furthermore,
contrary to the dissent’s suggestion, Murguia-Rodriguez has not
“conceded” that there was no fact-finding in this case regarding whether
he required an interpreter. Rather, he suggested that the district court
“might be entitled to deference” if its decision to dismiss the interpreter
had been based on a finding that he could “understand the proceedings and
express himself clearly without an interpreter. But the court made no such
finding here[.]” Obviously, Murguia-Rodriguez’s contention is not that
there was no fact-finding as to whether he required an interpreter, but that
there was no finding of fact that an interpreter was no longer required.
         UNITED STATES V. MURGUIA-RODRIGUEZ                  11

     The Court Interpreters Act is unambiguous on the point
at issue. A party may waive his right to utilize an interpreter
“only if” the waiver has been made “expressly by [the party]
on the record,” “after opportunity to consult with counsel,”
and “after the presiding judicial officer has explained to such
individual . . . the nature and effect of the waiver.” 28 U.S.C.
§ 1827(f)(1). Then, and only then, may the presiding judicial
officer approve a waiver.

    Murguia-Rodriguez did not validly waive his right to an
interpreter. To begin with, Murguia-Rodriguez never asked
to dismiss his interpreter. Instead, he asked if he could
proceed in English, and, when questioned by the district
judge, he indicated that in case he had any difficulties, he
wanted the interpreter to remain present. At no point,
however, did Murguia-Rodriguez “expressly” state his desire
to waive his right to the interpreter. He merely stated that he
wanted to “proceed in English”—in other words, that he
wished to make his allocution in English—perhaps in the
hope that doing so would make the sentencing judge more
sympathetic to him and to his argument. Murguia-
Rodriguez’s statement did not convey either expressly or
implicitly a desire to no longer have an interpreter to help him
comprehend the proceedings generally or to communicate
with his lawyer specifically. That the defendant chose to
make his sentencing statement in English does not signify in
any way that he no longer needed or wanted help in
comprehending statements made by the judge, including the
court’s pronouncement of his sentence, or by the prosecutor.

    Moreover, rather than explain to Murguia-Rodriguez the
nature and effect of his waiver, the judge indicated to him that
she wished to dismiss the interpreter: “She has other duties.
Do you need her to stay or are you comfortable proceeding in
12         UNITED STATES V. MURGUIA-RODRIGUEZ

English?” The requirement that judges explain the nature and
effect of the waiver is not a hollow technical command. By
explaining to defendants the nature and effect of any
prospective waiver, a judge not only ensures that the waiver
is knowing and voluntary, but also that the judge and the
defendant have a shared understanding as to its scope. A
waiver, after all, can come in many forms. A defendant may
wish, for example, to waive all translation, or he may merely
want to waive the right to a certified translator in favor of
having a family member translate. By failing to comply with
the procedural safeguards of 28 U.S.C. § 1827(f)(1), a judge
unnecessarily risks misunderstanding the defendant’s
intentions, and therefore risks depriving him of an interpreter
without his consent, as the judge did in this case.6

    It goes without saying that in Murguia-Rodriguez’s case
not only did he not make a waiver “expressly on the record,”
but the district judge did not explain to him “the nature and
effect of the waiver.” Instead, she presented him with a false
choice: whether he was “comfortable proceeding [with his
allocution] in English” or having the interpreter remain and
continue to perform her duties. Murguia-Rodriguez quite
properly initially indicated that he preferred both, but the
district judge erroneously refused to accept this answer and
continued to press him to do one or the other. In the end,
there was, of course, no waiver at all.




 6
    The difference between the dissent’s interpretation of the words “she
can stay” (that she could stay if she wants), see Dissent Op. at 21 n.2, and
our own (that he actually wanted her to stay) highlights this risk of
potential misunderstanding—especially when dealing with individuals
who have limited English proficiency.
         UNITED STATES V. MURGUIA-RODRIGUEZ                  13

    In sum, we conclude that because the judge clearly erred
in failing to comply with the procedural requirements of 28
U.S.C. § 1827(f)(1), Murguia-Rodriguez was deprived of his
right to an interpreter in violation of the Court Interpreters
Act.

    Although the government failed to raise the issue of
harmlessness in its brief, and thus waived that issue, the
dissent asserts that we should hold that the deprivation of
Murguia-Rodriguez’s rights was harmless. As a general and
consistent rule, “when the government fails to argue
harmlessness, we deem the issue waived and do not consider
the harmlessness of any errors we find.” United States v.
Kloehn, 620 F.3d 1122, 1130 (9th Cir. 2010) (quoting United
States v. Gonzalez-Flores, 418 F.3d 1093, 1100 (9th Cir.
2005)); United States v. Varela-Rivera, 279 F.3d 1174, 1180
(9th Cir. 2002); United States v. Vallejo, 237 F.3d 1008, 1026
(9th Cir. 2001). This is true even when the government
“mentions” that harmless error applies in its brief but fails to
advance a developed theory about how the errors were
harmless, Gonzalez-Flores, 418 F.3d at 1100 n.4, as well as
when the government makes no argument whatsoever as to
harmlessness in its brief, see United States v. Dreyer, 804
F.3d 1266, 1277 (9th Cir. 2015) (en banc) (“[A]n appellee
waives any argument it fails to raise in its answering brief.”).

    We have discretion to consider the issue of harmlessness
nostra sponte in “extraordinary cases.” Gonzalez-Flores, 418
F.3d at 1100–01. This case is not, however, an extraordinary
one. The error committed by the district judge, although
motivated by a concern for judicial efficiency, is precisely the
type of error the statute was designed to prevent. The Court
Interpreters Act seeks to protect the basic rights of litigants
who are summoned into court by the United States and cannot
14       UNITED STATES V. MURGUIA-RODRIGUEZ

fully comprehend the proceedings. Moreover, sentencing is
a critical part of the judicial process, especially in an era
when the vast majority of convictions result from pleas rather
than trials. Notwithstanding the sentencing guidelines, an
individual’s explanation to a judge as to why his sentence
should be less than the judge may be considering plays an
important role in the sentencing process. Conversely, the
ability of the defendant to fully comprehend why the judge
has chosen the sentence he has is essential to the proper
functioning of the criminal justice system. The court’s
explanation of its reasons is intended to encourage the
defendant and perhaps others to refrain from further unlawful
conduct and to become law-abiding individuals following the
period of incarceration. Further, resentencing will not require
more than the expenditure of minimal judicial resources and
provides a far better resolution of the issue than expanding
the doctrine of harmlessness, which will only encourage the
government’s laxness and failure to follow this court’s clear,
applicable precedent. Finally, it would be exceedingly
difficult in the ordinary case for a court to determine on
appeal what effect the lack of an interpreter had on a
defendant’s ability to understand the entire course of the
sentencing proceedings. Cf. Gonzalez-Flores, 418 F.3d at
1101. Accordingly, we will not exercise our discretion to
consider whether the district court’s error was harmless.

    The dissent also suggests that the plain error doctrine
applies to the issue before us because Murguia-Rodriguez
failed to object to the district court’s dismissal of the
interpreter. Once again, the dissent relies on an issue not
raised by the government. The United States has never once
suggested that Murguia-Rodriguez did not preserve this issue
or that the plain error doctrine is applicable to the question of
the failure of the district court to follow the statutory
           UNITED STATES V. MURGUIA-RODRIGUEZ                             15

procedures. Indeed, the government consistently stated that
clear error applies to that issue, even though it asserted that
plain error applies to two of the three other errors that
Muguia-Rodriguez raised on this appeal.7 As we stated in
United States v. Kortgaard, and as a number of other circuit
courts have agreed, the government may waive the argument
that an error was not objected to and was therefore forfeited.
Without a forfeited error, plain error does not apply. United
States v. Kortgaard, 425 F.3d 602, 610 (9th Cir. 2005)
(treating a potentially forfeited error as preserved because the
government “elected to address the merits” without
addressing whether the defendant had raised the issue below
and declining to apply plain error because the government
therefore “‘waived’ any waiver argument it may have had”).8
The First Circuit follows the same rule. It has held that when
the government “fails to request plain error review, we, and
many of our sister circuits, review the claim under the

 7
    The government is correct to suggest that clear error is the appropriate
standard to apply when reviewing a district court’s determination whether
an interpreter is required. See Mayans, 17 F.3d at 1179. Here, however,
where the only question is whether the district court complied with the
waiver provisions of 28 U.S.C. § 1827(f)—a question of law—there is a
strong argument that the standard should be reviewed de novo. We need
not decide this question, however, because the result would be the same
under either standard. We can state unequivocally that we have a definite
and firm conviction that the district court clearly erred by failing to follow
the statutory procedures contained in 28 U.S.C. § 1827(f).
     8
      This is not inconsistent with the dissent’s point that the burden of
showing prejudice under the plain error standard is on the defendant, not
the government. See United States v. Olano, 507 U.S. 725, 734 (1993).
The plain error doctrine applies only when an error has been forfeited, or
in other words, not appropriately preserved by the defendant. See Fed. R.
Crim. P. 51 & 52(b). If the error is not forfeited, or if the government has
waived any contention that it is forfeited, the government has waived the
waiver, and plain error does not apply.
16         UNITED STATES V. MURGUIA-RODRIGUEZ

standard of review that is applied when the issue is properly
preserved below.” United States v. Encarnación-Ruiz, 787
F.3d 581, 586 (1st Cir. 2015) (listing cases); see also United
States v. Paulino-Guzman, 2015 WL 8284615, *2 n.5 (1st
Cir. Dec. 9, 2015) (reiterating the rule). As the Sixth Circuit
put it, “we will not apply the plain-error standard unless
requested to do so by one of the parties.” United States v.
Poulsen, 655 F.3d 492, 502 n.1 (6th Cir. 2011). Finally, in a
case that closely resembles ours, the Seventh Circuit stated,
“when a party fails to raise an issue in the trial court, we
generally review for plain error. However, the government
asserts that in this case we review the district court’s
determinations . . . for clear error. It therefore has waived its
right to rely on plain error review.” United States v. Salem,
597 F.3d 877, 884 (7th Cir. 2010).9


 9
    The First, Sixth, and Seventh Circuits have explicitly held that a court
may decline to apply plain error review when the government has failed
to assert that the challenged error was forfeited. The Fifth and D.C.
Circuits have indicated their approval of this holding. See United States
v. Jeffries, 587 F.3d 690, 691 n.1 (5th Cir. 2009) (declining to apply plain
error and noting that “[t]he Government does not seek plain error
review”); United States v. Cyr, 29 F. App’x 1, 4 n.3 (D.C. Cir. 2001)
(unpublished) (“[B]ecause the government does not argue for ‘plain error’
review, we consider only whether the error was ‘clear.’”). A number of
these circuits, moreover, recognize our circuit as applying this rule. See,
e.g., Encarnación-Ruiz, 787 F.3d at 586. Even the concurrence in United
States v. Williams, which criticizes the majority’s decision not to apply
plain error, and questions the decisions by other circuits adopting that
position, describes Kortgaard as: “holding that plain error is waivable
because litigants can waive waiver arguments.” 641 F.3d 758, 772 (6th
Cir. 2011) (Thapar, District Judge, concurring). Our dissenting colleague
cites no circuit cases to the contrary. Finally, while the dissent is correct
to note that “[a] party’s concession on the standard of review does not
bind the court,” Dissent Op. 27 (quoting United States v. Bain, 586 F.3d
634, 639 n.4 (8th Cir. 2009) (emphasis in original)), that is not
inconsistent with our holding. “The ‘waiver of waiver’ doctrine” that we
           UNITED STATES V. MURGUIA-RODRIGUEZ                           17

     Our rule, of course, is discretionary, and there may well
be good reason to apply plain error in a particular case, even
if the government has failed to assert that the error has not
been preserved. In this case, however, there is no such
reason. The government expressly chose to argue that plain
error applied to two of the three other issues in Murguia-
Rodriguez’s appeal, but chose not to do so with respect to the
district court’s failure to follow the statutory commands.
Moreover, many of the reasons why we decline to consider
harmlessness apply with equal force to the plain error
question raised sua sponte by the dissent. We particularly see
no reason to exercise our discretion in this sentencing case in
which a remand for resentencing requires minimal
expenditure of judicial and prosecutorial time and resources.
Thus, without applying the plain error standard, but applying
either clear error or de novo, we vacate Murguia-Rodriguez’s
sentence and remand for a new sentencing hearing. Because
this remedy obviates the need to address the other asserted
sentencing errors, we do not consider them here.

                          III. CONCLUSION

    For the reasons discussed in the concurrently filed
memorandum disposition, we affirm Murguia-Rodriguez’s
conviction. We hold, however, that Murguia-Rodriguez was
deprived of his right to an interpreter at sentencing in
violation of the Court Interpreters Act. Accordingly, we
vacate Murguia-Rodriguez’s sentence and remand for a new
sentencing hearing at which Murguia-Rodriguez may utilize


apply here is “like waiver generally—a discretionary doctrine.” See
United States v. Macias, 789 F.3d 1011, 1017 n.3 (9th Cir. 2015). Thus,
the court may exercise its discretion to apply plain error, and is not bound
by any concession made by the government.
18       UNITED STATES V. MURGUIA-RODRIGUEZ

the services of a certified interpreter unless appropriately
waived through the required procedures of the Court
Interpreters Act or the presiding judge makes a proper
determination on the record that an interpreter is no longer
required.

  AFFIRMED in part, VACATED in part, and
REMANDED for proceedings consistent with this opinion.



CALLAHAN, Circuit Judge, dissenting:

    I agree with the majority that interpreters play an
important role in our criminal justice system. But the
majority’s opinion does not safeguard defendants, it punishes
inarticulate district courts and rewards “gotcha” tactics.
Murguia-Rodriguez was convicted of drug trafficking after a
jury rejected his story that he “did not know” anything about
the 130 pounds of marijuana in his truck as he was crossing
the United States-Mexico border. After his full trial on the
merits with an interpreter, Murguia-Rodriguez, a bilingual
defendant, requested to proceed in English at his sentencing
hearing. The district court granted his request and excused
the interpreter. The court then listened to arguments from
Murguia-Rodriguez’s counsel, heard from Murguia-
Rodriguez himself, and sentenced him to a middle-of-the-
guidelines sentence.

    Armed with new counsel on appeal, Murguia-Rodriguez
claims that the district court erred by not explaining the
nature and effect of his waiver of an interpreter prior to
dismissing the interpreter. But while the district court may
have erred, Murguia-Rodriguez failed to object to any error
         UNITED STATES V. MURGUIA-RODRIGUEZ                 19

at his sentencing and on appeal he fails to show prejudice.
Our Supreme Court and Ninth Circuit precedent informs us
that the correct standard of review is plain error review, and
the record demonstrates that any error was not prejudicial
under any standard. The majority sets the wrong standard of
review, flouting relevant Supreme Court and Ninth Circuit
precedent.      They also ignore Murguia-Rodriguez’s
concessions on appeal and engage in improper appellate fact-
finding. The majority thus absolves Murguia-Rodriguez of
his burden to show prejudice and grants relief that he doesn’t
seek. I respectfully dissent.

                       I. Background

    Alberto Murguia-Rodriguez was born in Mexico but
relocated to the United States when he was a young child. He
has lived in Arizona, Wisconsin, California, and Nevada. He
attended high school through at least the 11th grade in
Tucson, Arizona, where he played football. He has been
married and has several children. He has worked at a
carwash, construction companies, and restaurants. He has
owned cars and has credit accounts. He has four adult
siblings who also live in the United States. Unsurprisingly,
he is bilingual and literate in both Spanish and English.

   In 2014, Murguia-Rodriguez was caught at the Arizona-
Mexico border in a truck that had over 130 pounds of
marijuana in the back of its extended cab as well as
ammunition in the center console and driver’s side door. He
was indicted for possession with intent to distribute marijuana
and being a felon in possession of ammunition. Murguia-
Rodriguez stipulated to the marijuana’s presence in the truck,
20        UNITED STATES V. MURGUIA-RODRIGUEZ

but he denied having known about the marijuana or having
ever seen it.1

    A short jury trial was conducted which lasted less than
two days, including voir dire, opening and closing arguments,
four witnesses’ testimony, jury instructions, and jury
deliberations. The jury convicted Murguia-Rodriguez of
possession with intent to distribute, but acquitted him of the
felon in possession of ammunition charge.

     Although Murguia-Rodriguez used interpreter services at
trial, at his sentencing hearing he requested to proceed in
English:

         MR. BOURS: Good morning, your Honor.
         Ricardo Bours on behalf of Adalberto
         Murguia-Rodriguez.

         THE COURT: Good morning. And Mr.
         Murguia-Rodriguez, just before the case was
         called the interpreter indicated that you had
         indicated you prefer to proceed in the English
         language this morning. Is that correct, sir?

         THE DEFENDANT: Correct, ma’am.

         THE COURT: All right, so you’re
         comfortable conducting these proceedings in
         English today?



     1
      We hold that Murguia-Rodriguez entered into this stipulation
knowingly and voluntarily in a concurrently filed memorandum
disposition.
           UNITED STATES V. MURGUIA-RODRIGUEZ                          21

         THE DEFENDANT: Oh, yes, I am, your
         Honor.

         THE COURT: Do you want the interpreter to
         remain in case you have any difficulties, or is
         it okay with you if she leaves the courtroom?

         THE DEFENDANT: She can stay.

         THE COURT: But do you need her -- she has
         other duties. Do you need her to stay, or do
         you feel comfortable proceeding in English?

         THE DEFENDANT: I feel comfortable
         proceeding in English.

         THE COURT: All right. Then thank you, Ms.
         Garcia. You may be excused. And Mr. Bours,
         if you want to come on up with your client,
         and we’ll proceed with sentencing.

    Thus, at the outset of the sentencing, Murguia-Rodriguez,
without any prompting from the court, affirmatively
requested to proceed in English. The district court confirmed
his request on the record, asked if Murguia-Rodriguez was
comfortable proceeding in English, and Murguia-Rodriguez
answered in English that he preferred and was comfortable
proceeding in English.2



 2
    While the majority suggests that Murguia-Rodriguez’s statement that
the interpreter “can stay” meant that he wanted the interpreter to remain
present, it seems more likely that he meant that the interpreter could stay
if she wanted to.
22        UNITED STATES V. MURGUIA-RODRIGUEZ

    Additionally, Murguia-Rodriguez’s counsel acceded to
his client’s request to proceed in English and to the district
court’s excusing the interpreter. Counsel then argued several
cogent points in favor of mitigation during sentencing.
Murguia-Rodriguez allocuted in English at the sentencing,
expressed regret for his actions, expressed concern for his
family, and promised to rehabilitate. At no time during the
hearing did counsel or Murguia-Rodriguez express any
concern that Murguia-Rodriguez could not understand the
nature of the proceedings or communicate. The district court
sentenced Murguia-Rodriguez to 55 months of imprisonment,
reflecting a sentence in the middle of the guideline range.
The sentencing hearing lasted 27 minutes.

                      II. Legal Standard

    In judicial proceedings instituted by the United States, the
services of an interpreter shall be used “if the presiding
judicial officer determines . . . that such 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 . . . .” 28 U.S.C. 1827(d)(1). A defendant
may waive an interpreter but “[s]uch a waiver shall be
effective only if approved by the presiding judicial officer
and made expressly by such individual on the record after
opportunity to consult with counsel and after the presiding
judicial officer has explained to such individual, utilizing the
services of the most available certified interpreter . . . the
nature and effect of the waiver.” 28 U.S.C. § 1827(f)(1).
            UNITED STATES V. MURGUIA-RODRIGUEZ                              23

A. Plain Error Review Applies

    Because Murguia-Rodriguez failed to raise any issue with
the Court Interpreters Act before the district court, we review
for plain error. See United States v. Mayans, 17 F.3d 1174,
1180 n.4 (9th Cir. 1994); see also United States v. Jimenez,
258 F.3d 1120, 1124 (9th Cir. 2001) (reviewing defendant’s
claims for plain error when an “inadvertent forfeiture of
[defendant’s] right to object occurred”).3 “Such review
permits us to notice and correct a district court’s deviation
from a legal rule only if three conditions are met”: (1) there
is error; (2) the error is plain or obvious; and (3) the error
affected the defendant’s substantial rights (i.e., the error must
be prejudicial). Jimenez, 258 F.3d at 1124 (citing United


  3
    Other circuits have applied plain error review to alleged violations of
the Court Interpreters Act. See, e.g., United States v. Batista, 684 F.3d
333, 341 (2d Cir. 2012) (“Even if the argument were not waived, we
would find that the District Court did not plainly err.”); United States v.
Gonzales, 339 F.3d 725, 728 (8th Cir. 2003) (“Because Gonzales failed
to raise this issue before the district court, we review for plain error.”);
United States v. Osuna, 189 F.3d 1289, 1292 (10th Cir. 1999) (applying
plain error review to purported violation of Court Interpreters Act when
“Osuna did not raise the issue to the trial court”); see also United States
v. Maytin-Caballero, 532 F. App’x 875, 877 (11th Cir. 2013) (per curiam)
(unpublished) (applying plain error review to purported violation of Court
Interpreters Act “[b]ecause Maytin–Caballero did not raise this issue
before the district court”); United States v. Amador, 214 F. App’x 303,
305 (4th Cir. 2007) (unpublished) (applying plain error review where
appellant did not object to his sentencing hearing on the ground that “the
district court did not obtain his waiver of the right to an interpreter directly
from him and did not employ an interpreter to explain the consequences
of this waiver pursuant to the Court Interpreters Act”); United States v.
Garcia-Perez, 190 F. App’x 461, 470 (6th Cir. 2006) (unpublished)
(“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.”).
24       UNITED STATES V. MURGUIA-RODRIGUEZ

States v. Olano, 507 U.S. 725, 734 (1993)). “Should all three
conditions be met, we have discretion to reverse the district
court if the error ‘seriously affects the fairness, integrity or
public reputation of judicial proceedings.’” Id. (quoting
Olano, 507 U.S. at 736). “The defendant bears the burden of
showing that the forfeited error was prejudicial.” Id. at 1126.

    Plain error review applies because, as the majority admits,
the provision that Murguia-Rodriguez asserts that the district
court violated was procedural in nature. Maj. Op. 13 (“[T]he
[district] judge clearly erred in failing to comply with the
procedural requirements of 28 U.S.C. § 1827(f)(1).”). The
Supreme Court has held in a similar context that a defendant
is required to object to a district court’s failure to provide
procedural admonishments. United States v. Vonn, 535 U.S.
55, 73 (2002). In Vonn, the Court held that a defendant who
seeks to change his plea to guilty must object to any
deficiencies in the district court’s advisements provided
pursuant to Federal Rule of Criminal Procedure 11 at the time
they are given. Id. Moreover, we have held, en banc, that we
are bound by Vonn, and have applied plain error review
where a defendant did not object to a district court’s failure
to provide sufficient advisements in a proceeding to establish
prior convictions under 21 U.S.C. § 851(b). United States v.
Severino, 316 F.3d 939, 947 n.7 (9th Cir. 2003) (en banc).

    The majority contravenes both Supreme Court law and
our en banc decision by not applying plain error review.
Worse yet, the majority appears to hold that any violation of
the waiver provisions of the Court Interpreters Act is per se
reversible error. Such a broad holding, however, has no
support in the text of the Act or the case law interpreting it.
To the contrary, Congress has directed federal courts
reviewing criminal convictions to “give judgment after an
         UNITED STATES V. MURGUIA-RODRIGUEZ                  25

examination of the record without regard to errors or defects
which do not affect the substantial rights of the parties.” 28
U.S.C. § 2111. This rule, as well as the Federal Rules of
Criminal Procedure, requires that we disregard errors that are
not prejudicial. See Neder v. United States, 527 U.S. 1, 7–8
(1999); Fed. R. Crim. P. 52(a)–(b). By ignoring the
applicable legal standard, the majority vacates Murguia-
Rodriguez’s sentence without addressing his failure to argue
that any error prejudiced him and his failure to meet his
burden on appeal.

    Moreover, this is the precise situation to which plain error
review should apply. The Supreme Court in Vonn explained:

       [A] defendant could choose to say nothing
       about a judge’s plain lapse under Rule 11 until
       the moment of taking a direct appeal, at which
       time the burden would always fall on the
       Government to prove harmlessness. A
       defendant could simply relax and wait to see
       if the sentence later struck him as satisfactory;
       if not, his Rule 11 silence would have left him
       with clear but uncorrected Rule 11 error to
       place on the Government’s shoulders. . . .
       [T]he value of finality requires defense
       counsel to be on his toes, not just the judge,
       and the defendant who just sits there when a
       mistake can be fixed cannot just sit there
       when he speaks up later on.

Vonn, 535 U.S. at 73.

  The Supreme Court’s cautionary tale is exactly what
Murguia-Rodriguez did here. Murguia-Rodriguez did not
26         UNITED STATES V. MURGUIA-RODRIGUEZ

preserve the error below, or in any way suggest that the
district court somehow violated the Court Interpreters Act.
As discussed, Murguia-Rodriguez affirmatively asked to
proceed in English, and he was represented by competent
counsel at sentencing who never objected to his request to
proceed in English or when the interpreter left. Instead,
Murguia waited to raise his argument that the district court
failed to comply with the waiver provisions of the Court
Interpreters Act until after he received his sentence and was
armed with new counsel. The Supreme Court and our court
have rejected such “gotcha” tactics. See id.; see also
Gonzalez v. United States, 33 F.3d 1047 (9th Cir. 1994) (“To
allow a defendant to remain silent throughout the trial and
then . . . assert a claim of inadequate translation would be an
open invitation to abuse.” (citation omitted)).

B. A Party’s Concession on the Standard of Review Does
   not Bind the Court

    The majority contends that the government waived its
right to rely on plain error review by failing to raise the plain
error doctrine in its brief, citing United States v. Kortgaard,
425 F.3d 602, 610 (9th Cir. 2015).4 This would be a fair


  4
    Kortgaard is very different case in a very different context. At issue
in Kortgaard was whether the district court had violated the Sixth
Amendment in sentencing the defendant, specifically by granting an
upward departure on the ground that the guideline range calculation
inadequately represented the seriousness of the defendant’s criminal
history. 425 F.3d at 610. The Ninth Circuit held that because the district
court sentenced the defendant under the then-mandatory sentencing
regime, any sentence greater than the maximum of the guideline range had
to be based on facts admitted by the defendant or found by a jury beyond
a reasonable doubt. Id. at 608–10. Because the district court found facts
to support the upward departure, the panel held that the departure violated
           UNITED STATES V. MURGUIA-RODRIGUEZ                            27

point, except that “[a] party’s concession on the standard of
review does not bind the court.” United States v. Bain, 586
F.3d 634, 639 n.4 (8th Cir. 2009); see also United States v.
Macias, 789 F.3d 1011, 1017, n.3 (9th Cir. 2015) (“Which
standard of review to apply is a pure issue of law, and,
exercising our discretion, we apply the plain error standard of
review notwithstanding the government’s failure to argue that
it should apply.” (citation omitted)), cert. petition filed;
Vizcaino v. Microsoft Corp., 120 F.3d 1006, 1022 n.4 (9th
Cir. 1997) (en banc) (O’Scannlain, J., concurring in part,
dissenting in part) (“[A] party cannot, by waiver or estoppel,
change the applicable standard of review.”); United States v.
Ameline, 409 F.3d 1073, 1111 (9th Cir. 2005) (en banc) (Bea,
J., concurring in part and dissenting in part) (“[W]e must not
abdicate our responsibility as the reviewing court to
determine whether plain error has occurred.”); United States
v. Williams, 641 F.3d 758, 763-64 (6th Cir. 2011) (Tharpar,
D.J., concurring) (“plain error review ought to be
unwaivable”). For example, no appellate court would apply
an abuse of discretion standard of review to evaluate whether
a district court properly granted summary judgment,
regardless of whether a party argued that abuse of discretion
should apply. Similarly, the majority errs when it refuses to
apply plain error review notwithstanding the government’s



the Sixth Amendment. Id. at 611. Even though it appeared that Kortgaard
had not preserved the Sixth Amendment error below, the Ninth Circuit
considered whether the departure violated the Sixth Amendment anyway,
declining to apply plain error review. Id. at 610. During Kortgaard’s
appeal, the Supreme Court issued the watershed cases Blakely v.
Washington, 542 U.S. 296 (2004), and United States v. Booker, 543 U.S.
220 (2005), revolutionizing criminal sentencing jurisprudence. Thus, the
Ninth Circuit’s decision to overlook the defendant’s failure to object to his
sentence in Kortgaard has little bearing on this case.
28          UNITED STATES V. MURGUIA-RODRIGUEZ

ostensible failure and Murguia-Rodriguez’s failure to argue
that plain error review should apply.5

 III. The District Court Never Determined Whether
Murguia-Rodriguez’s English Skills Limited His Ability
  to Communicate in or Understand His Sentencing
            Proceedings, as He Concedes

    Regardless of what standard of review applies, it is not
clear that the district court erred in excusing the interpreter at
Murguia-Rodriguez’s sentencing hearing. Under the Court
Interpreters Act, if Murguia-Rodriguez was not entitled to an
interpreter at his sentencing proceedings, then no error
existed when the district court at sentencing relieved the
interpreter after he requested to proceed in English. See, e.g.,
United States v. Si, 333 F.3d 1041, 1045 (9th Cir. 2003);
United States v. Lim, 794 F.2d 469, 470 (9th Cir. 1986).
Here, there was no finding that Murguia-Rodriguez’s English
language skills “inhibit[ed] [his] comprehension of the
proceedings or communication with counsel or the presiding
judicial officer.” See 28 U.S.C. § 1827(d)(1). He admits the
district court was never asked to determine and never
determined whether he needed an interpreter. Indeed, on


  5
    The majority also admits that this “waiver of waiver” doctrine is a
discretionary one. Maj. Op. 16–17 n.9; see also Ruiz v. Affinity Logistics
Corp., 667 F.3d 1318, 1322 (9th Cir. 2012). I would exercise discretion
to confront this issue of pure law: what standard of review to apply when
a district court fails to articulate the nature and effect of a waiver prior to
excusing a court interpreter. The parties’ confusion as to the correct
standard of law favors our consideration of this issue. Both parties,
relying on our circuit’s case law, cited the “clear error” standard. But
those cited cases addressed whether the district court had appropriately
determined whether an interpreter was required, not whether the district
court complied with the waiver provisions in 28 U.S.C. § 1827(f).
           UNITED STATES V. MURGUIA-RODRIGUEZ                           29

appeal Murguia-Rodriguez seeks only a “remand [of] the case
to the district court with instructions that it determine whether
Mr. Murguia-Rodriguez’s language abilities inhibited his
comprehension of, or ability to express himself clearly in, the
sentencing hearing – and if so, that it conduct a de novo
sentencing hearing at which an interpreter will be available to
assist him.” The majority ignores this concession.

    Instead, the majority insists that the district court had
already determined that Murguia-Rodriguez was entitled to
an interpreter because a docket entry from his first
appearance noted that an interpreter was “required.” Maj.
Op. 9. The majority thus concludes that the only way the
district court could excuse an interpreter at the sentencing
was if it fully complied with the waiver provision in 28
U.S.C. § 1827(f)(1). But the single reference in a docket
entry that an interpreter is “required” is not a sufficient
factual finding as to whether Murguia-Rodriguez’s English
language skills inhibited his comprehension of the
proceedings or communication with counsel or the judge.6
The transcript reveals no evidence that the district court
assessed Murguia-Rodriguez’s English language or
comprehension skills, let alone determined that they inhibited
his ability to understand the proceedings or communicate.
Dist. Ct. ECF No. 58.




  6
    Busy district courts will likely be surprised to learn that a mere court
clerk docket entry that an interpreter was “required” at a criminal
defendant’s first appearance is sufficient in itself to allow the Ninth
Circuit to hold that defendant’s English language skills inhibited his
comprehension of and ability to communicate in sentencing proceedings
under 28 U.S.C. § 1827.
30         UNITED STATES V. MURGUIA-RODRIGUEZ

    Although the court used an interpreter at Murguia-
Rodriguez’s first appearance, district courts are advised to
appoint an interpreter out of an abundance of caution if a
defendant’s English language skills are in doubt. See, e.g.,
Federal Judicial Center, Benchbook for U.S. District Court
Judges 1 (6th ed. 2013) (“If you have any doubts about the
defendant’s ability to speak and understand English, consider
appointing a certified interpreter in accordance with 28
U.S.C. § 1827.”); id. at 27 (“If the defendant has an attorney,
ask counsel if he or she has been able to communicate with
the defendant. If you doubt the defendant’s capacity to
understand English, use a certified interpreter.”).

    In fact, at Murguia-Rodriguez’s next appearance, his
detention and preliminary hearing, his attorney represented
that he was “English speaking.” Dist. Ct. ECF No. 59 at 2
(“Ricardo Bours, Your Honor, for Adalberto Murguia-
Rodriguez, present, in custody, English speaking.”).7
Moreover, after his trial, the U.S. Probation Department
interviewed Murguia-Rodriguez and described him as
“bilingual and literate in both Spanish and English” in his
pre-sentence report. There is no indication that Murguia-
Rodriguez objected to the description of himself as bilingual,
and the district court adopted the facts in the pre-sentence
report as true.

   Murguia-Rodriguez’s testimony at trial that he understood
60% of English and spoke 60 to 70% of English is not
conclusive that his language abilities impeded his ability to
communicate or understand his sentencing proceedings. At


  7
    Mr. Bours represented Murguia-Rodriguez in his pretrial matters,
during trial, and at sentencing, but he is not Murguia-Rodriguez’s attorney
on appeal.
           UNITED STATES V. MURGUIA-RODRIGUEZ                           31

most, the potential conflict between Murguia-Rodriguez’s
trial testimony, his attorney’s representation that he spoke
English, and the Probation Department’s conclusion that he
was bilingual, underscores the need for the district court to
make an express factual finding under the Court Interpreters
Act as to whether his English language skills inhibited his
ability to understand or communicate at his sentencing
proceeding.

    Because the district court never determined whether
Murguia-Rodriguez’s English was limited and because
Murguia-Rodriguez concedes that the district court never
made such a finding, I dissent from the majority’s sua sponte
appellate fact-finding. If there are questions regarding
Murguia-Rodriguez’s language skills, the proper remedy is a
remand to the district court for fact-finding, not a vacatur of
his sentence.8 See Si, 333 F.3d at 1045 (9th Cir. 2003)
(“remand[ing] the matter to the district court solely for the
purpose of determining . . . whether Si’s language abilities
inhibited his comprehension of the proceedings or his ability
to communicate with counsel and the court”); Lim, 794 F.2d
at 470 (remanding to district court “for further findings and
appropriate further evidentiary proceedings” where “it was
very difficult to determine whether any lack of interpreter’s


   8
      The majority objects that the district court appeared to present
Murguia-Rodriguez with a choice to either (1) proceed in English without
the interpreter or (2) proceed in Spanish with an interpreter. Maj. Op. 12.
The majority would require that the district court explicitly state that
Murguia-Rodriguez had a third option: proceed in English with the
interpreter present in case he needed something translated. There is no
such requirement in the Court Interpreters Act. Moreover, nothing
prohibited Murguia-Rodriguez or his counsel from requesting that the
interpreter stay for that precise reason, or requesting that the interpreter
return to the sentencing proceeding after it had begun.
32       UNITED STATES V. MURGUIA-RODRIGUEZ

assistance affected the ability of any of the defendants to
understand the proceedings or communicate with counsel”);
cf. Gonzalez v. United States, 33 F.3d 1047, 1050 (9th Cir.
1994) (no remand necessary because “the district court judge
here specifically determined that Gonzalez’s language
difficulties did not constitute a ‘major’ problem”). The
majority grants relief that Murguia-Rodriguez has not even
sought.

 IV. Even Assuming That The District Court Plainly
Erred, Murguia-Rodriguez Has Not Met His Burden of
             Demonstrating Prejudice

    Even ignoring Murguia-Rodriguez’s concession on
appeal, remand would not be required. Murguia-Rodriguez
has not met his burden of demonstrating any prejudice. See
Olano, 507 U.S. at 734. As noted previously, because
Murguia-Rodriguez failed to raise any issue with the Court
Interpreters Act before the district court, he bears the burden
to show that any error affected his substantial rights (i.e., the
error must be prejudicial). See Mayans, 17 F.3d at 1180 n.4;
Jimenez, 258 F.3d at 1124 (citing Olano, 507 U.S. at 734).
But he does not argue that if the district court had explained
the “nature and effect” of waiving an interpreter he would
have insisted that the interpreter remain. See 28 U.S.C.
§ 1827(f)(1). Nor does Murguia-Rodriguez assert that if an
interpreter had remained that his sentencing would have
changed in any way. Murguia-Rodriguez allocuted in
English at the sentencing, expressed regret for his actions,
expressed concern for his family, and promised to
rehabilitate. He does not claim that he was unable to
understand the proceedings, or proffer any additional
information that he would have been able to express if an
interpreter had remained.
         UNITED STATES V. MURGUIA-RODRIGUEZ                 33

    Although the government only belatedly argues that any
error was harmless, this does not excuse Murguia-Rodriguez
from his burden to establish prejudice. As the Supreme Court
stated in Olano:

       In sum, [defendants] have not met their
       burden of showing prejudice under [plain
       error review of] Rule 52(b). Whether the
       Government could have met its burden of
       showing the absence of prejudice, under
       [harmless error review of] Rule 52(a), if
       [defendants] had not forfeited their claim of
       error, is not at issue here. This is a plain-error
       case, and it is [defendants] who must persuade
       the appellate court that the deviation . . . was
       prejudicial.

507 U.S. at 741. Here, Murguia-Rodriguez has not even
attempted to meet his burden of demonstrating prejudice.

    In any event, we have discretion to overlook a failure to
argue harmlessness when “the harmlessness of any error is
clear beyond serious debate and further proceedings are
certain to replicate the original result.” United States v.
Gonzalez-Flores, 418 F.3d 1093, 1100 (9th Cir. 2005).
Applying the factors in Gonzalez-Flores, any error here was
harmless. First, the record is not lengthy or complex. The
majority’s sua sponte discovery and citation of the docket
entry regarding a “required” interpreter emphasizes this point.
Second, as previously discussed, the harmlessness of the
district court’s failure to explain the nature and effect of
Murguia-Rodriguez’s waiver is beyond doubt as he sought to
proceed in English and even he does not contend that he was
unable to communicate in or understand his sentencing
34        UNITED STATES V. MURGUIA-RODRIGUEZ

proceedings. Thus, ordering new sentencing proceedings
requires “ultimately futile proceedings in the district court.”
See id.

                          *        *       *

    “[T]he value of finality requires defense counsel to be on
his toes, not just the judge, and the defendant who just sits
there when a mistake can be fixed cannot just sit there when
he speaks up later on.” Vonn, 535 U.S. at 73. The district
court may have erred by not explaining the nature and effect
of waiving an interpreter prior to dismissing the interpreter at
Murguia-Rodriguez’s sentencing. But Murguia-Rodriguez
failed to object at his sentencing and fails to show any
prejudice. Our Supreme Court and Ninth Circuit precedent
informs us that the correct standard of review is plain error
review, and the record demonstrates that any error was not
prejudicial by any measurement.

     District courts are already overwhelmed with the need for
interpreters. The District Court of Arizona alone conducts
over 56,000 proceedings per year with the assistance of a
Spanish interpreter.9 The majority’s approach will waste
judicial resources and encourage mischief and manipulation
in the district courts, likely without benefit to either Murguia-
Rodriguez or future defendants. It may impede bilingual and
multi-lingual defendants from proceeding in English at
sentencing hearings, even if that is their preference. District
courts may insist that defendants use interpreters or that
interpreters remain present even though they are not needed


  9
    See Interpreter Usage by District Courts, 2014, United States Courts
for the Ninth Circuit, 2014 Annual Report at 77,
http://www.ce9.uscourts.gov/publications/AnnualReport2014.pdf.
           UNITED STATES V. MURGUIA-RODRIGUEZ                          35

or wanted for fear that a hyper-technical violation of the
Court Interpreters Act will result in an automatic reversal of
a lawfully imposed sentence. Worse yet, the majority’s
approach may encourage defendants to allow the informal
dismissal of an interpreter, thereby assuring an issue on
appeal, exactly the scenario proscribed by the Supreme Court
in Vonn. Accordingly, I dissent.10




  10
     As I find no error and no prejudice by the district court with respect
to the Court Interpreters Act, I would reach Murguia-Rodriguez’s other
appellate challenges to his sentence, which I find to be without merit. I
would affirm the district court in all respects.
