                           NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                        FEB 6 2020
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,                       No.    18-50380

                Plaintiff - Appellee,           D.C. No. 3:17-cr-01649-MMA-1

 v.                                             MEMORANDUM*

BRAYAN GUTIERREZ-DIAZ,

                Defendant - Appellant.

                   Appeal from the United States District Court
                      for the Southern District of California
                   Michael M. Anello, District Judge, Presiding

                           Submitted January 22, 2020**
                              Pasadena, California

Before: RAWLINSON, LEE, and BRESS, Circuit Judges.

      Brayan Gutierrez-Diaz appeals the district court’s denial of his motion to

suppress post-arrest statements. We have jurisdiction under 28 U.S.C. § 1291, and

we affirm.

      1.     We review de novo the adequacy of a Miranda warning. See United



      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
States v. Loucious, 847 F.3d 1146, 1148-49 (9th Cir. 2017). In reviewing the

sufficiency of a Miranda instruction, “courts are not required to examine the words

employed as if construing a will or defining the terms of an easement,” but rather

“simply whether the warnings reasonably convey to a suspect his rights.” Florida

v. Powell, 559 U.S. 50, 60 (2010) (citation omitted). Miranda does not mandate a

“precise formulation of the warnings given a criminal defendant.” California v.

Prysock, 453 U.S. 355, 359 (1981).

      Gutierrez-Diaz argues that the Spanish translation of the Miranda warning he

received was deficient because of the claimed inherent ambiguity of the Spanish

pronoun “le,” which can mean either “him/her” or “you.” He maintains that he

understood the warning (which was both read to him and presented to him in writing)

to mean that an attorney could be appointed before Gutierrez-Diaz asked that

attorney questions (rather than that he would be appointed an attorney before

government agents asked him questions). Gutierrez-Diaz thus claims that the

warning failed to adequately inform him that he had the right to have an attorney

appointed prior to interrogation.

      Even assuming Gutierrez-Diaz offers a correct translation — which the

government disputes — the Miranda warning that he received was adequate. Under

his proffered version, Gutierrez-Diaz was informed of his rights to: (i) “consult an

attorney”; (ii) “have an attorney present during the interrogation”; and (iii)


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“appointed” counsel if he was “unable to pay for the services of an attorney.”

      Collectively, these statements provided Gutierrez-Diaz with sufficient notice

of his right to appointed counsel prior to interrogation. See Prysock, 453 U.S. at

356-61 (unnecessary to explicitly state when an attorney could be appointed, if the

Miranda warning conveys a general right to counsel before and during an

interrogation). Indeed, this court rejected a similar challenge in People of Territory

of Guam v. Snaer, 758 F.2d 1341, 1342-43 (9th Cir. 1985) (right to counsel before

interrogation is inferred when a Miranda instruction conveys both a general “right

to consult with a lawyer” and the more specific right to “have a lawyer present with

you while you are being questioned”). In addition, contextual clues such as the

waiver of rights section — which Gutierrez-Diaz signed — make clear that the

Miranda instruction, including the attorney appointment clause, pertains to

Gutierrez-Diaz’s rights in connection with being questioned.

      2.     We review a district court’s ruling on whether to conduct an evidentiary

hearing on a motion to suppress for an abuse of discretion. See United States v.

Howell, 231 F.3d 615, 620 (9th Cir. 2000). Gutierrez-Diaz seeks an evidentiary

hearing for the sole purpose to determine which party’s translation of the Miranda

warning is correct. Because we agree with the district court’s conclusion that the

Miranda warning sufficed even under Gutierrez-Diaz’s translation, the district court

did not abuse its discretion in declining to conduct an evidentiary hearing.


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AFFIRMED.




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