IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

S))))))))))))))Q No. 91-4987 Summary Calendar S))))))))))))))Q

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

ANA YUBY PAYAN PAZ,

Defendant-Appellant.

S))))))))))))))))))))))))Q Appeal from the United States District Court for the Eastern District of Texas S))))))))))))))))))))))))Q

(December 29, 1992)

Before GARWOOD, JONES, and EMILIO M. GARZA, Circuit Judges.

GARWOOD, Circuit Judge:

Defendant-appellant Ana Yuby Payan Paz (Paz) was convicted, on

her plea of guilty, of conspiring to possess with intent to

distribute cocaine contrary to

(a)(1), 846. Paz

now brings this appeal alleging that her plea was involuntary

because the district court did not provide a certified interpreter

during her plea hearing and that the district court did not inquire

into the interpreter's qualifications or Paz's ability to

understand English. As Paz has shown no reversible error, we

affirm. Facts and Proceedings Below

Paz, along with several other individuals, was arrested on

November 2, 1990, in Port Arthur, Texas, based on a criminal

complaint alleging a conspiracy to distribute 500 grams or more of

a mixture of a substance containing a detectable amount of cocaine,

in violation of

(a)(1), 846. On May 15, 1991, Paz

was charged in two counts of a seven-count second superseding

indictment. She was charged in count one with conspiracy to

distribute five kilograms or more of a mixture of a substance

containing a detectable amount of cocaine in violation of

(a)(1), 846; and in count five with use of a communication

facility to facilitate a drug crime in violation of

(b).

On August 20, 1991, Paz's plea of guilty to count one of the

second superseding indictment was accepted by the district court,

the plea being pursuant to a plea agreement under which, inter

alia, the government would dismiss count five. She was

subsequently sentenced to 151 months of imprisonment to be followed

by 5 years of supervised release.

Paz had retained counsel since her arrest, at least since

November 13, 1990, and during the plea hearing a court interpreter,

Nellie Isuani (Isuani), was provided for Paz and a co-defendant,

Daisy Candelo Estancia Fields (Fields), in order to translate

Spanish into English. Although the record does not affirmatively

so reflect, Paz now contends, and the government does not dispute,

that Isuani was not a certified court interpreter as defined by the

2 Court Interpreters Act,

et seq. No objection was

made during any of the proceedings below concerning the court

interpreter.

Discussion

Paz now appeals, contending that the district court erred in

failing to provide a certified court interpreter and in failing to

inquire into the interpreter's qualifications or whether Paz

understood English. Paz maintains that as a result of these errors

she lacked the comprehension necessary to make her guilty plea

freely and voluntarily. Fed. R. Crim. Proc. 11(d).

Paz argues that the district court erred by not providing her

with a certified court interpreter during her plea hearing as

assertedly required under section 1827. Congress enacted that

statute to ensure that a defendant has comprehension of the

proceedings and can effectively communicate with counsel. United

States v. Tapia,

(5th Cir. 1980). The

certification process serves as a safeguard to guarantee that the

court interpreter is competent. However, the court may select an

otherwise qualified interpreter if no certified interpreter is

reasonably available.1

1 The pertinent provisions of section 1827 read:

"(d)(1) The presiding judicial officer, with the assistance of the Director of the Administrative Office of the United States Courts, shall utilize the services of the most available certified interpreter, or when no certified interpreter is reasonably available, as determined by the presiding judicial officer, the services of an otherwise qualified interpreter, in

3 Paz claims that she needed a Spanish interpreter and, since

her proceedings were conducted in a Texas federal judicial

district, a certified Spanish interpreter must have been reasonably

available. Concerning this claim, we note that a district court is

given wide discretion in matters regarding the selection of a court

interpreter. Tapia,

. Such decisions will not be

overturned unless the district court abused its discretion. United

States v. Martinez,

(5th Cir. 1980); Tapia,

. In the case sub judice, Paz did not give the

district court the opportunity to demonstrate that (or determine

whether) a certified Spanish interpreter was not reasonably

available because Paz failed to object to the interpreter provided.

Therefore, we cannot say that the record reflects that the district

court abused its discretion by choosing an otherwise qualified,

although uncertified, interpreter.

Paz also claims that the district court erred by not

determining whether the uncertified interpreter was competent or

that Paz was sufficiently versed in the English language. This

error supposedly resulted in Paz's lack of comprehension. Since

judicial proceedings instituted by the United States . . . if the presiding judicial officer determines . . . that such party (including a defendant in a criminal case), . . .

(A) speaks only or primarily a language other than the English language . . .

. . .

so as to inhibit such party's comprehension of the proceedings or communication with counsel or the presiding judicial officer, . . . ."

.

4 Paz failed to object in the court below, her alleged error is

reviewed under the plain error standard of Fed. R. Crim. P. 52(b).

United States v. Lopez,

(5th Cir. 1991). The Lopez

court held, "'Plain error' is error which, when examined in the

context of the entire case, is so obvious and substantial that

failure to notice and correct it would affect the fairness,

integrity or public reputation of judicial proceedings."

. A review of the record of the entire case does not indicate

such "obvious and substantial" error.

Neither Paz nor her attorney ever indicated below that the

interpreter was inadequate.2 Also, nothing in the record reflects,

and Paz never asserted below, that she could not understand the

proceedings; and throughout the proceedings the court's inquiries

to Paz were fully answered by her without any indication that she

was experiencing any difficulty comprehending the court. When the

trial court asked if Paz could "understand the proceedings today,"

her attorney responded that she could. Paz stated that she was

satisfied with her attorney and acknowledged that she had read the

plea agreement with her counsel, that she understood it, and that

she voluntarily agreed to it. Her attorney also acknowledged that

Paz's decision to enter into the plea agreement was "an informed

and voluntary one." Finally, when asked by the trial court at the

2 Paz's failure to object at trial is a factor that weighs heavily against her claim of inadequate comprehension. United States v. Perez,

(5th Cir. 1990). Otherwise, "To allow a defendant to remain silent throughout the trial and then, upon being found guilty, to assert a claim of inadequate translation would be an open invitation to abuse." Valladares v. United States,

(11th Cir. 1989).

5 close of the proceedings if there was anything further, Paz's

attorney replied that there was not. The record simply does not

indicate that the interpreter was inadequate or that Paz lacked

comprehension.3

Furthermore, the district court did not err in failing to

ascertain whether Paz could comprehend the English language. In

the Perez case, the defendant indicated to the district court that

he had some difficulty in understanding the English language.

However, the defendant "twice assured the magistrate that he

understood the proceedings and did not require an interpreter."

Perez,

. Therefore, because the district court "was

not put on notice to the contrary either directly or indirectly,"

it did not need to make a finding that the defendant's

comprehension was inhibited by language difficulties.

.

In the case sub judice, the district court asked Paz's counsel if

Paz understood the proceedings and asked Paz if she understood her

plea agreement. Both answered in the affirmative. In these

circumstances, the district court was not required to sua sponte

also make a separate, express finding that Paz understood the

English language.

3 In fact, there is ample evidence that Paz did not need an interpreter. The Presentence Report (PSR) does not indicate that she could not understand English. The PSR states that she came to the United States "to learn a second language in order to increase her market ability as a commercial secretary," and that she had been living in the United States for several years. The PSR also indicates that she was in the process of earning her GED while incarcerated. Prior to her arrest, Paz worked for three years as a receptionist at Nelson's Body Shop in Houston. These facts tend to indicate that at a minimum Paz had a working knowledge of the English language.

6 Conclusion

Paz has failed to show that her plea was involuntary due to

her asserted lack of comprehension of the English language.

Accordingly her conviction is

AFFIRMED.

7