                     FOR PUBLICATION

    UNITED STATES COURT OF APPEALS
         FOR THE NINTH CIRCUIT


 UNITED STATES OF AMERICA ,                      No. 12-30074
             Plaintiff-Appellee,
                                                   D.C. No.
                   v.                           3:08-cr-00385-
                                                     RE-2
 JERONIMO BOTELLO -ROSALES,
           Defendant-Appellant.                    OPINION


        Appeal from the United States District Court
                 for the District of Oregon
         Anna J. Brown, District Judge, Presiding

                   Submitted April 25, 2013*
                     Pasadena, California

                        Filed July 15, 2013

      Before: Harry Pregerson, Kim McLane Wardlaw,
          and Milan D. Smith, Jr., Circuit Judges.

                        Per Curiam Opinion




  *
    The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
2            UNITED STATES V . BOTELLO -ROSALES

                           SUMMARY**


                           Criminal Law

    Reversing the denial of a motion to suppress post-arrest
statements, vacating a conviction, and remanding for further
proceedings, the panel held that the Spanish-language
warning administered to the defendant failed to reasonably
convey his Miranda rights, where the detective incorrectly
used the Spanish word “libre” to mean “free,” or without cost,
and where the phrasing of the warning – that a lawyer who is
free could be appointed – suggests that the right to appointed
counsel is contingent on the approval of a request or on the
lawyer’s availability.

    The panel held that the fact that the officer had previously
administered correct Miranda warnings in English does not
cure the constitutional infirmity, absent government
clarification as to which set of warnings was correct.


                             COUNSEL

Michael R. Levine, Levine & McHenry LLC, Portland,
Oregon, for Defendant-Appellant.

S. Amanda Marshall, United States Attorney, District of
Oregon; Kelly A. Zusman, Appellate Chief, Assistant United
States Attorney; Leah K. Bolstad and Jennifer J. Martin,


  **
     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 . BOTELLO -ROSALES               3

Assistant United States Attorneys, Office of the United States
Attorney, Portland, Oregon, for Plaintiff-Appellee.


                         OPINION

PER CURIAM:

    Jeronimo Botello-Rosales appeals the district court’s
denial of his motion to suppress his post-arrest statements to
law enforcement officers. After the district court denied the
motion to suppress, Botello entered a conditional guilty plea
to conspiracy to manufacture marijuana in violation of
21 U.S.C. §§ 841(a)(1), 841(b)(1)(A)(vii), and 846, and
possession of a firearm by a person unlawfully in the United
States in violation of 18 U.S.C. §§ 922(g)(5) and 924(a)(2).
We have jurisdiction under 28 U.S.C. § 1291, and we reverse.

    The district court erred in denying Botello’s suppression
motion because the Spanish-language warning administered
to Botello before he was interrogated failed to “reasonably
convey” to Botello “his rights as required by Miranda [v.
Arizona, 384 U.S. 436 (1966)].” Florida v. Powell, 130 S. Ct.
1195, 1204 (2010) (internal quotation marks omitted)
(quoting Duckworth v. Eagan, 492 U.S. 195, 203 (1989);
California v. Prysock, 453 U.S. 355, 361 (1981) (per
curiam)). The district court correctly found that Detective
Salas gave the following Miranda warning to Botello in the
Spanish language:

       You have the right to remain silence.

       Anything you say can be used against you in
       the law.
4           UNITED STATES V . BOTELLO -ROSALES

         You have the right to talk to a lawyer and to
         have him present with you during the
         interview.

         If you don’t have the money to pay for a
         lawyer, you have the right. One, who is free,1
         could be given to you.

As the district court concluded, this warning failed to
reasonably convey the government’s obligation to appoint an
attorney for an indigent suspect who wishes to consult one.2
See Powell, 130 S. Ct. at 1204; Miranda, 384 U.S. at 473;
United States v. Perez-Lopez, 348 F.3d 839, 848 (9th Cir.
2003).

    The detective used the Spanish word “libre” to mean
“free,” or without cost. After hearing testimony from lay and
expert witnesses, the district court concluded that this usage
of “libre” to mean “without cost” was not a correct
translation. “Libre” instead translates to “free” as in being
available or at liberty to do something. Additionally, the
phrasing of the warning—that a lawyer who is free could be
appointed—suggests that the right to appointed counsel is
contingent on the approval of a request or on the lawyer’s
availability, rather than the government’s absolute obligation.
See Perez-Lopez, 348 F.3d at 848 (“To be required to ‘solicit’
the court, in the words of [the] warning, implies the


    1
   The detective used the word “libre” to indicate “free.” As explained
below, the district court found that this was not a correct translation.

    2
   The Government concedes that the district court’s further conclusion
that “it is more probable than not that Botello actually understood his
Miranda rights” is irrelevant.
             UNITED STATES V . BOTELLO -ROSALES                          5

possibility of rejection.”). While no “talismanic incantation”
is required, Prysock, 453 U.S. at 359, such an affirmatively
misleading advisory does not satisfy Miranda’s strictures.
See Perez-Lopez, 348 F.3d at 848.3

     That officers had previously administered correct
Miranda warnings in English to Botello does not cure the
constitutional infirmity. Even if Botello understood the
English-language warnings, there is no indication in the
record that the government clarified which set of warnings
was correct. See United States v. San Juan-Cruz, 314 F.3d
384, 388, 389 (9th Cir. 2002) (“When a warning, not
consistent with Miranda, is given prior to, after, or
simultaneously with a Miranda warning, the risk of confusion
is substantial, such that the onus is on the Government to
clarify to the arrested party the nature of his or her rights
under the Fifth Amendment.”). Absent such a clarification,
Botello cannot be charged with “sufficient legal or
constitutional expertise to understand what are his . . . rights
under the Constitution.” San Juan-Cruz, 314 F.3d at 389
(citing Miranda, 384 U.S. at 472).

    Because the warnings administered to Botello did not
reasonably convey his right to appointed counsel as required
by Miranda, his subsequent statements may not be admitted
as evidence against him. See Miranda, 384 U.S. at 479. We
therefore reverse the district court’s denial of Botello’s
motion to suppress. Because Botello’s guilty plea was
conditioned upon the right to seek review of the adverse


 3
   Because we reverse on the basis of the inadequate warning of the right
to appointed counsel, we do not reach Botello’s contention that the
detective’s warning failed to reasonably convey the second Miranda
warning, that anything he said could be used against him in a court of law.
6         UNITED STATES V . BOTELLO -ROSALES

determination of his motion to suppress, we vacate Botello’s
conviction and remand to the district court with instructions
to allow Botello to withdraw his guilty plea and for further
proceedings consistent with this disposition.

    REVERSED; VACATED; REMANDED.
