                                                                             FILED
                            NOT FOR PUBLICATION                               MAY 08 2012

                                                                         MOLLY C. DWYER, CLERK
                     UNITED STATES COURT OF APPEALS                        U.S . CO U RT OF AP PE A LS




                            FOR THE NINTH CIRCUIT



UNITED STATES OF AMERICA,                         No. 10-10400

              Plaintiff - Appellee,               D.C. No. 1:08-cr-00124-OWW-7

  v.
                                                  MEMORANDUM *
PIOÏUINTO LARIOS SANTACRUZ,

              Defendant - Appellant.



                    Appeal from the United States District Court
                        for the Eastern District of California
                 Oliver W. Wanger, Senior District Judge, Presiding

                       Argued and Submitted August 30, 2011
                             San Francisco, California

Before: WALLACE, BERZON, and BYBEE, Circuit Judges.

       The district court sentenced Pioquinto Larios Santacruz to 188 months'

imprisonment based on a jury verdict of guilty on counts of conspiracy to distribute

and/or possess with intent to distribute, distribution of, and possession with intent




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
to distribute methamphetamine and/or cocaine. We have jurisdiction under 28

U.S.C. y 1291, and we affirm.

      Santacruz first contends that Agent Kuehnlein's testimony regarding

Santacruz's statements made through interpreter Deputy Davalos were

inadmissible hearsay and a violation of the Confrontation Clause. In United States

v. Nazemian, we held that before reaching Confrontation Clause and hearsay

issues, we must determine whether an interpreter's statements should be attributed

to the interpreter or the defendant. 948 F.2d 522, 525-28 (9th Cir. 1991). We

identified four factors to consider in this analysis: (1) who supplied the interpreter,

(2) whether the interpreter had a motive to mislead or distort, (3) the interpreter's

qualifications, and (4) whether the defendant's subsequent actions were consistent

with the translated statements. Id. at 527.

      In this case, although the government provided the translator, there was no

prior relationship between Deputy Davalos and Agent Kuehnlein, and Santacruz

µnew that Deputy Davalos was provided by the government at the time of the

interview. See id. at 527-28. Additionally, Santacruz presented no evidence

supporting an assertion that Deputy Davalos was liµely to mislead or distort the

translations, and merely having a law enforcement bacµground is insufficient to

prove such bias. See id. Next, Deputy Davalos had significant experience


                                              2
speaµing Spanish and interpreting. Just as experience may serve as the basis for

establishing an expert's qualifications, United States v. Alatorre, 222 F.3d 1098,

1104 (9th Cir. 2000), experience may be the basis for establishing a translator's

qualifications, see Nazemian, 948 F.2d at 528. The fourth factor is either neutral or

inapplicable because the retrospective nature of the statements maµes it impossible

for the statements to be corroborated through future events.

      Consideration of these factors supports a finding that Deputy Davalos was a

'language conduit' or agent of Santacruz's and that the statements should be

attributed to Santacruz. Thus, no additional level of hearsay was created as a result

of the interpreter's presence. Id. at 528; see also United States v. Ushaµow, 474

F.2d 1244, 1245 (9th Cir. 1973). The statements therefore are admissible as party

admissions. See Fed. R. Evid. 801(d)(2)(A).

      Because, under Nazemian, Agent Kuehnlein's testimony consisted of

Santacruz's own statements, with Deputy Davalos acting merely as a language

conduit or agent, no Confrontation Clause issue is presented. See Crawford v.

Washington, 541 U.S. 36, 51 (2004) (explaining that the Confrontation Clause

applies to witnesses against the accused, i.e., someone other than the accused). In

any event, Santacruz was given the opportunity to cross-examine Agent Kuehnlein,




                                          3
which he did, and Deputy Davalos, which he declined. Accordingly, the district

court did not abuse its discretion by admitting the statements.

      Santacruz next argues that the district court applied the wrong evidentiary

standard in maµing its drug quantity determination. Preponderance of the evidence

is the proper standard for maµing drug quantity determinations, see United States

v. Reed, 575 F.3d 900, 924 (9th Cir. 2009), and the district court applied the correct

evidentiary standard.

      Next, Santacruz argues that the drug quantity determination raised his

offense level such that he was exposed to a sentence greater than the statutory

maximum, resulting in a punishment that exceeded the seriousness of the offense

as understood under 18 U.S.C. y 3553(a). The high end of the advisory sentencing

guideline range that Santacruz faced was less than 240 months, the statutory

maximum under 21 U.S.C. y 841(b)(1)(C). See United States v. Sanchez-

Cervantes, 282 F.3d 664, 669-70 (9th Cir. 2002). Therefore, no Apprendi

violation resulted from the drug quantity determination. See Apprendi v. New

Jersey, 530 U.S. 446 (2000).


      AFFIRMED.




                                          4
                                                                            FILED
United States v. Santacruz, No. 10-10400                                      MAY 08 2012
BERZON, Circuit Judge, concurring:                                       MOLLY C. DWYER, CLERK
                                                                          U.S . CO U RT OF AP PE A LS

        I concur with the caveat I explain in more detail in my separate opinion in

United States v. Hieng, No. 09-10401 (9th Cir. May ÁÁ, 2012): Although I agree

with the conclusion that United States v. Nazemian, 948 F.2d 522 (9th Cir. 1991),

is not so 'clearly irreconcilable,' Miller v. Gammie, 335 F.3d 889, 900 (9th Cir.

2003) (en banc), with Crawford v. Washington, 541 U.S. 36 (2004), as to permit a

three-judge panel to overrule Nazemian, I believe the continued vitality of

Nazemian after Crawford is an issue that merits en banc review in an appropriate

case.
