                                                                           FILED
                            NOT FOR PUBLICATION                             APR 29 2013

                                                                        MOLLY C. DWYER, CLERK
                     UNITED STATES COURT OF APPEALS                      U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



UNITED STATES OF AMERICA,                        No. 12-30074

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

  v.
                                                 MEMORANDUM *
JERONIMO BOTELLO-ROSALES,

              Defendant - Appellant.



              Appeal from the U.S. District Court for Oregon, Portland
                     Anna J. Brown, District Judge, Presiding

                             Submitted April 25, 2013 **
                                Pasadena, California

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

       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),

        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
        **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
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.

      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.




      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
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 possibility

of rejection.”). While no “talismanic incantation” is required, Prysock, 453 U.S. at




      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.

                                            3
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



       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.

                                           4
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 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.




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