                           File Name: 11a0593n.06
                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION

                                            No. 09-5937
                                                                                              FILED
                           UNITED STATES COURT OF APPEALS                               Aug 22, 2011
                                FOR THE SIXTH CIRCUIT
                                                                                  LEONARD GREEN, Clerk
UNITED STATES OF AMERICA,                              )
                                                       )
       Plaintiff-Appellee,                             )      ON APPEAL FROM THE
                                                       )      UNITED STATES DISTRICT
v.                                                     )      COURT FOR THE EASTERN
                                                       )      DISTRICT OF TENNESSEE
CESAR MEJIA-RUIZ,                                      )
                                                       )      OPINION
       Defendant-Appellant.                            )
                                                       )


Before: KEITH, GIBBONS, and WHITE, Circuit Judges.

       JULIA SMITH GIBBONS, Circuit Judge. Defendant–Appellant Cesar Mejia-Ruiz pled

guilty to possessing a firearm while illegally in the United States. He appeals the 120-month

sentence of incarceration imposed by the district court on the grounds that (1) the use of an

interpreter who spoke Spanish rather than Kanjobal at sentencing violated Mejia-Ruiz’s right to due

process and to confront witnesses; and (2) the prosecutor improperly and repeatedly referred to

Mejia-Ruiz’s silence during the sentencing hearing, in violation of his right to remain silent. For the

reasons discussed below, we affirm the sentence imposed by the district court.
                                                  I.

       On July 11, 2008, Chattanooga police responded to a 911 call claiming that a Hispanic male

with a gun was pursuing two Hispanic subjects. The police found Armando Francisco (“Francisco”)

and his wife Maria (“Maria”) hiding outside the residence of Paula Neal. The Franciscos reported

that they had been kidnaped at gunpoint in Oklahoma two weeks before. Minutes after finding the

victims, Neal alerted officers to Mejia-Ruiz and identified him as the gunman who had been chasing

the Franciscos. Police then apprehended Mejia-Ruiz.

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United States v. Mejia-Ruiz
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          In September 2008, a grand jury issued a seven-count superseding indictment against Mejia-

Ruiz, charging him with kidnaping for ransom, forceful seizure, illegal entry into the United States,

unlawful transportation of illegal aliens, unlawful possession of a firearm by an illegal alien, and

possession of a firearm in furtherance of a violent crime. In February 2009, Mejia-Ruiz pled guilty

to a single count, unlawful possession of a firearm by an illegal alien, in violation of 18 U.S.C. §

922(g).

          The United States Probation Office then prepared its presentence report for Mejia-Ruiz.

Pursuant to U.S.S.G. § 2K2.1(c)(1)(A), the report concluded that a cross-reference to U.S.S.G.

§ 2A4.1 should be applied in relation to the kidnaping offense, even though Mejia-Ruiz had not pled

guilty to that count. The report subsequently calculated a total offense level of 38 and criminal

history category of I. Mejia-Ruiz objected to the presentence report, contending that he did not

commit the alleged kidnaping offense or physically restrain the victim. Based on these objections,

the court concluded that an evidentiary hearing was necessary to determine whether there was

sufficient evidence to support the report’s determinations.

          The government first called Armando Francisco; given that Francisco was not a native

English speaker, his testimony was translated by a Spanish interpreter. Francisco testified that he

and Maria Francisco (“Maria”) moved to Oklahoma City in July 2008. In Oklahoma City, he met

two Spanish-speaking men who offered him work. Francisco and Maria followed them to a house,

where the men kidnaped both of them for approximately ten days, holding them in a bathroom.

Francisco testified that the men, one of whom was Mejia-Ruiz, had guns and had demanded $10,000

for their release. According to Francisco, after ten days, both he and Maria were forced into a car

at gunpoint and driven from Oklahoma to Chattanooga. The day after arriving in Chattanooga,

Francisco said both victims were placed in another car. Mejia-Ruiz and another captor drove the car

to a store and exited the vehicle; at that moment, Francisco and Maria escaped from the car and ran.

Mejia-Ruiz pursued the Franciscos on foot, with a gun visible. On cross-examination, counsel


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No. 09-5937


suggested that Francisco had actually entered Mejia-Ruiz’s vehicle in Oklahoma voluntarily because

Mejia-Ruiz had agreed to take him to Chattanooga. Francisco denied this charge and denied that he

had fled the vehicle to avoid paying Mejia-Ruiz gas money.1

       After testimony and arguments, the court made its factual findings. It concluded that “in

isolation the Court would have difficulty accepting [Francisco’s] testimony,” in part because “he had

a great deal of difficulty comprehending the questions asked for each side.” However, the court saw

no reason for doubting Francisco’s motive and reasoned that had Francisco been fabricating the

story, “then he would be exhibiting a higher degree of sophistication than we have seen.” The court

explained that if the standard of proof “was proof beyond a reasonable doubt, I think that the Court

would give [Mejia-Ruiz] the benefit of the doubt.” As this was not the standard at a hearing

conducted during the sentencing stage, however, the court concluded that there was clear and

convincing evidence that Mejia-Ruiz had kidnaped the Franciscos. The court therefore found that

Mejia-Ruiz was involved in an effort to kidnap Francisco and concluded that the presentence report

had properly calculated the total offense level, including the cross-reference increase. Noting that

the guideline range for an offense level of 38 and criminal history category of I was generally 235

to 293 months, the court acknowledged that the statutory maximum offense for 18 U.S.C. §

922(g)(5) was 120 months’ incarceration. The court then sentenced Mejia-Ruiz to 120 months’

imprisonment. Mejia-Ruiz appeals this sentence.

                                                 II.

       Mejia-Ruiz first argues that, because Francisco’s native language was Kanjobal (a Mayan

dialect spoken primarily in Guatemala and part of Mexico), his constitutional rights to due process


       1
         In addition to Francisco, the government called Neal, who testified that she saw Mejia-Ruiz
across the street from her house on the day in question and identified him to the police. The
government also called Officer Diaz of the Chattanooga Police Department. Diaz testified that he
responded to the call at the Neal house and interviewed Francisco. The defense stipulated that
Francisco told Diaz the same story that he testified to at trial.

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and to confront witnesses were violated when the court employed a Spanish interpreter to translate

Francisco’s testimony. During his testimony, Francisco expressed some difficulty in understanding

certain questions asked by both the government and Mejia-Ruiz’s counsel. After Francisco’s

testimony, the government clarified during arguments that Francisco’s “native language” is Kanjobal

and that “[h]e speaks Spanish as a second language.” This linguistic barrier, Mejia-Ruiz argues,

denied him an adequate opportunity to cross-examine Francisco.

        Mejia-Ruiz concedes that he failed to object to Francisco’s testimony in Spanish during the

sentencing hearing. As a result, we only review this claim for plain error. United States v. Bostic,

371 F.3d 865, 872–73 (6th Cir. 2004). “When reviewing a claim under a plain error standard, this

Court may only reverse if it is found that (1) there is an error; (2) that is plain; (3) which affected the

defendant’s substantial rights; and (4) that seriously affected the fairness, integrity or public

reputation of the judicial proceedings.” United States v. Barnes, 278 F.3d 644, 646 (6th Cir. 2002).

                                                    A.

        The Supreme Court has explicitly held that the Due Process Clause applies to the sentencing

process. Gardner v. Florida, 430 U.S. 349, 358 (1977). Similarly, this court has accepted—at least

when reviewing a credibility determination in the immigration context—that “obvious

misunderstandings based on translation mistakes” could serve as the basis for a due process claim.

Kaciqi v. Holder, 349 F. App’x 58, 62 (6th Cir. 2009); see also Ahmed v. Gonzales, 398 F.3d 722,

727 (6th Cir. 2005). However, this court has accepted such translational claims only where the

appellant “was prejudiced by interpretation or translation errors.” Id. In Amadou v. INS, for

instance, this court found that a party had been “deprived of his due process right to a full and fair

hearing because of the incompetence of the interpreter.” 226 F.3d 724, 726 (6th Cir. 2000). In

Amadou, a variety of exchanges during the proceedings revealed that the translator was having

difficulty understanding the witness and had incorrectly translated some of the witness’s statements.

Id. at 727. The court also found that the “record indicates that the interpreter’s faulty translation


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directly prejudiced [the petitioner]” because the immigration judge had found the witness not

credible in part due to the witness’s inconsistency and lack of clarity. Id.; see also Ahmed, 398 F.3d

at 727–28 (finding asylum applicant was denied a fair hearing where the immigration judge made

adverse credibility findings against in part based on misunderstandings of the applicant’s oral

testimony). Because we review Mejia-Ruiz’s claim for plain error, he too must show prejudice in

order to prove his substantial rights were affected. United States v. Gabbard, 586 F.3d 1046, 1051

(6th Cir. 2009) (noting the substantial-rights prong of plain error review requires a showing of

prejudice).

       In this case, Mejia-Ruiz overstates the degree to which language actually inhibited cross-

examination. First, the entirety of Francisco’s testimony suggests that, while Spanish was not his

native language, he speaks the second language fluently. Though Francisco had some difficulty

understanding some questions asked of him, the district court attributed the difficulty to Francisco’s

limited education, not to any linguistic barrier. Second, while Francisco was sometimes not able to

comprehend a question asked of him, a simple rephrasing of the question by counsel corrected the

misunderstanding and Francisco was able to answer.2

       Moreover, Mejia-Ruiz was not harmed by the errors in translation here like the asylum seeker

in Amadou was. The district court found that Francisco’s difficulty with certain questions bore on

the witness’s credibility, which helped Mejia-Ruiz’s case. The court explained that it would not find

Francisco’s testimony sufficiently cogent to prove beyond a reasonable doubt that Mejia-Ruiz

kidnaped Francisco; given the lower standard of proof during a sentencing hearing, however, the

court found it adequately persuasive. Mejia-Ruiz has not offered any evidence that he was harmed

by the alleged difficulties in translation, and Amadou and other cases like it are distinguishable.



       2
          For example, the following exchange took place during cross-examination: “Q. Mr.
Francisco, what is your education? A. You mean, like, schooling? Q. School, yes. A. I only got
to the fourth grade.”

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       Because Mejia-Ruiz cannot show that a difficulty in interpretation prejudiced him during the

sentencing hearing, we find that the sentencing court made no plain error affecting Mejia-Ruiz’s due

process rights.

                                                 B.

       Mejia-Ruiz also argues that the use of a Spanish translator violated his constitutional right

to confront Francisco. The government first responds by arguing that no right was violated because

Mejia-Ruiz does not have a constitutional right to cross-examine a witness during a sentencing

hearing. The Supreme Court has not yet decided whether the Sixth Amendment’s Confrontation

Clause applies to sentencing, United States v. Fell, 217 F. Supp. 2d 469, 486 (D. Vt. 2002), though

broad language of this court’s prior opinions suggest that it does not.3 As the government concedes,

however, most of our opinions dealing with the Confrontation Clause’s application in sentencing

proceedings only consider the admission of testimonial hearsay, not the right to cross-examine a

testifying witness. Here, we need not answer definitively the questions of whether the Confrontation

Clause applies at sentencing or whether it applies to the sort of claim made here, because Mejia-Ruiz

has not demonstrated any infringement of a right to cross-examine.

       The Sixth Amendment guarantees the right of a criminal defendant “to be confronted with

the witnesses against him.” U.S. Const. amend. VI; see also Pointer v. Texas, 380 U.S. 400, 407

(1965). Cross-examination is a “primary interest” secured by the Confrontation Clause; indeed, it



       3
          On multiple occasions, this court has rather unequivocally stated that “the Confrontation
Clause does not apply at sentencing.” United States v. Moncivais, 492 F.3d 652, 665 (6th Cir. 2007);
see also United States v. Christman, 509 F.3d 299, 304 (6th Cir. 2007); United States v. Hamad, 495
F.3d 241, 246 (6th Cir. 2007); United States v. Stone, 432 F.3d 651, 654 (6th Cir. 2005); United
States v. Silverman, 976 F.2d 1502, 1511 (6th Cir. 1992) (en banc). Other circuit courts have issued
similarly broad language denying the Confrontation Clause applies during sentencing proceedings.
See, e.g., United States v. Powell, --- F.3d ---, 2011 WL 1797893, at *1 (4th Cir. May 12, 2011);
United States v. Dyer, 589 F.3d 520, 532 (1st Cir. 2009); United States v. Robinson, 482 F.3d 244,
246 (3d Cir. 2007); United States v. Martinez, 413 F.3d 239, 242 (2d Cir. 2005); United States v.
Navarro, 169 F.3d 228, 236 (5th Cir. 1999).

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United States v. Mejia-Ruiz
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“is the principal means by which the believability of a witness and the truth of his testimony are

tested.” Davis v. Alaska, 415 U.S. 308, 316 (1974). But while “the Confrontation Clause guarantees

an opportunity for effective cross-examination,” it does not guarantee the right to “cross-examination

that is effective in whatever way, and to whatever extent, the defense might wish.” Delaware v.

Fensterer, 474 U.S. 15, 20 (1985) (emphasis omitted).

        Here, however, Francisco unequivocally was available to Mejia-Ruiz, and Mejia-Ruiz had

the full opportunity to cross-examine the witness. Mejia-Ruiz seems to imply that a linguistic barrier

essentially made Francisco unavailable for cross-examination. Even assuming that Francisco’s

difficulty with Spanish created a genuine difficulty in cross-examining him, such difficulty did not

rise to the level of a total deprivation of the opportunity to conduct a meaningful cross-examination,

and no case law suggests this complication would amount to a constitutional violation.4 In sum,

Mejia-Ruiz has no claim under the Confrontation Clause, and the district court committed no error

by allowing Francisco to testify in Spanish.

                                                  III.

        Mejia-Ruiz also argues that the prosecutor improperly made repeated references to Mejia-

Ruiz’s silence, in violation of his Fifth Amendment right against self-incrimination. Mejia-Ruiz

acknowledges that he failed to object to the prosecutor’s statements during the sentencing

proceedings, warranting plain error review. United States v. Henry, 545 F.3d 367, 376 (6th Cir.

2008). Plain error results from prosecutorial misconduct when the prosecutor makes improper

comments that are so flagrant in context that they “undermine the fundamental fairness of the trial


        4
          In his brief, Mejia-Ruiz also mentions the Court Interpreters Act (“CIA”), 28 U.S.C. § 1827,
in apparent support of his Confrontation Clause claim. The CIA, however, “was not enacted to
‘create new constitutional rights for defendants or expand existing constitutional safeguards’; rather,
it was intended ‘to mandate the appointment of interpreters under certain conditions and to establish
statutory guidance for the use of translators in order to ensure that the quality of the translation does
not fall below a constitutionally permissible threshold.’” United States v. Johnson, 248 F.3d 655,
661 (7th Cir. 2001) (quoting United States v. Joshi, 896 F.2d 1303, 1309 (11th Cir. 1990)).

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United States v. Mejia-Ruiz
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and contribute to a miscarriage of justice.” United States v. Young, 470 U.S. 1, 16 (1985). In the

context of prosecutorial remarks made to a jury, this court has developed four factors to determine

if the prosecutor’s comments are so flagrant that they threaten fundamental fairness: “(1) whether

the conduct and remarks of the prosecutor tended to mislead the jury or prejudice the defendant; (2)

whether the conduct or remarks were isolated or extensive; (3) whether the remarks were deliberately

or accidentally made; and (4) whether the evidence against the defendant was strong.” United States

v. Modena, 302 F.3d 626, 635 (6th Cir. 2002) (internal quotation marks and citation omitted).

       Here we initially note that the potential for prejudice to Mejia-Ruiz was minimal. The

remarks in question were made to the judge during a sentencing hearing. While the prosecutor’s

remark that “[i]t’s not a question of Mr. Mejia Ruiz’s story, which, by the way, he never took the

stand” was improper, it hardly amounts to constitutional violation.5 The transcript evidences no

prejudice based on the statement. The district court never mentioned Mejia-Ruiz’s silence during

its factual finding and instead focused almost exclusively on the credibility of the government’s

witnesses. The court was of course aware that it should not consider Mejia-Ruiz’s silence. Because

the court appears to have been unaffected by the government’s statements, the first prong of the test

does not weigh in Mejia-Ruiz’s favor. As to the second prong—whether the conduct or remarks

were isolated or extensive—the record indicates that only one statement made by the government

improperly referenced Mejia-Ruiz’s silence.




       5
         Mejia-Ruiz points to two other prosecutorial statements that Mejia-Ruiz argues “obliquely
referred to his silence.” First, he flags the prosecution’s remark that the testimony offered by
witnesses “has not been controverted by anything from Mr. Mejia Ruiz.” He also claims the
statement “we haven’t seen any evidence today that refutes Mr. Francisco’s story” was an improper
reference to his silence. Both remarks, however, only discussed the evidence adduced during the
hearing, and neither referred to Mejia-Ruiz’s decision not to testify. Joseph v. Coyle, 469 F.3d 441,
474 (6th Cir. 2006) (“‘[G]eneral references to evidence as uncontradicted, while not recommended,
may not reflect on the defendant’s failure to testify where witnesses other than the defendant could
have contradicted the evidence.” (quoting Byrd v. Collins, 209 F.3d 486, 534 (6th Cir. 2000)).).

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United States v. Mejia-Ruiz
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       The third and fourth factors—whether the remarks were deliberately or accidentally made

and whether the evidence against the defendant was strong—also do not support Mejia-Ruiz. There

is no evidence offered that the prosecution’s improper remark was purposeful, and the singular,

passing nature of the statement suggests it was accidental. The evidence marshaled against Mejia-

Ruiz was also relatively strong. The district court found the statements of all government witnesses

relatively credible; similarly, he found that Mejia-Ruiz’s possession of a firearm tended to undermine

his story that he had only been acting as a driver for Francisco.

       Given the isolated nature of the government’s single improper remark, the lack of effect that

statement seemingly had on the district court’s decision, and the evidence offered against Mejia-Ruiz

during the hearing, Mejia-Ruiz has failed to show plain error. We therefore affirm the sentence

imposed by the district court.

                                                 IV.

       For the foregoing reasons, we affirm the sentence imposed by the district court.




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