                           NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS                            FILED
                            FOR THE NINTH CIRCUIT                               AUG 30 2011

                                                                          MOLLY C. DWYER, CLERK
                                                                            U.S. COURT OF APPEALS

UNITED STATES OF AMERICA,                        No. 10-30069

              Plaintiff - Appellee,              D.C. No. 3:08-cr-00385-RE-2

  v.
                                                 MEMORANDUM*
JERONIMO BOTELLO-ROSALES,

              Defendant - Appellant.


                  Appeal from the United States District Court
                           for the District of Oregon
                James A. Redden, Senior District Judge, Presiding

                       Argued and Submitted July 14, 2011
                               Portland, Oregon

Before: PREGERSON, WARDLAW, and M. SMITH, Circuit Judges.

       Jeronimo Botello-Rosales appeals his conviction of conspiracy to

manufacture marijuana in violation of 21 U.S.C. § 841(a)(1), and possession of a

firearm by a person unlawfully in the United States in violation of 18 U.S.C.




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
§ 922(g)(5). We have jurisdiction under 28 U.S.C. § 1291, and we remand to the

district court for a new evidentiary hearing.

      Botello entered a guilty plea following the district court’s denial of his

motion to suppress statements he gave law enforcement officers. Botello argues

that the district court erred in denying the suppression motion because the police

officer violated Miranda v. Arizona, 384 U.S. 436, 473 (1966), by preceding his

interrogations with a mistranslated Spanish-language warning that failed to convey

the government’s obligation to appoint counsel for indigent defendants. An officer

translated the warning into Spanish from memory, the interrogation was not

recorded, and no Spanish-certified court reporter was present at the suppression

hearing, which itself was not recorded. Therefore, where the officer testified about

what he remembered saying to Botello, the record states simply: “(The answer is

then given in Spanish.)”

      To determine the adequacy of a Miranda warning, we must examine the

words used to determine if “the warnings reasonably ‘conve[y] to [a suspect] his

rights as required by Miranda.’” Florida v. Powell, 130 S. Ct. 1195, 1204 (2010)

(alterations in original) (quoting Duckworth v. Eagan, 492 U.S. 195, 203 (1989)).

Our case law in this area makes clear that, at a minimum, this inquiry requires a

finding of fact as to what was actually said. See Doody v. Ryan, — F.3d —, 2011


                                          2
WL 1663551 at *2, *13 (9th Cir. May 4, 2011); id. at *35–*39 (Kozinski, C.J.,

concurring in the judgment); United States v. Perez-Lopez, 348 F.3d 839, 842, 848

(9th Cir. 2003); United States v. San Juan-Cruz, 314 F.3d 384, 386–87, 389 (9th

Cir. 2002); United States v. Connell, 869 F.2d 1349, 1350–51, 1352 (9th Cir.

1989).

      As there is insufficient record evidence to determine whether police

adequately administered the Miranda warning, we REMAND this case to the

district court for additional fact-finding as to the content of the Spanish-language

warning administered to Botello, and whether the words used adequately conveyed

to Botello his Miranda rights.

      REMANDED




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