Case: 11-12665   Date Filed: 08/13/2013   Page: 1 of 6


                                                        [DO NOT PUBLISH]

           IN THE UNITED STATES COURT OF APPEALS

                   FOR THE ELEVENTH CIRCUIT
                     ________________________

                           No. 11-12665
                       Non-Argument Calendar
                     ________________________

                D.C. Docket No. 1:08-cr-20163-DMM-1



UNITED STATES OF AMERICA,

                                                            Plaintiff-Appellee,

                                 versus

JOEL MAYTIN-CABALLERO,

                                                        Defendant-Appellant.


                     ________________________

                           No. 11-12666
                       Non-Argument Calendar
                     ________________________

                D.C. Docket No. 1:08-cr-20855-DMM-1



UNITED STATES OF AMERICA,

                                                            Plaintiff-Appellee,

                                 versus
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JOEL MAYTIN-CABALLERO,

                                                                  Defendant-Appellant.

                            ________________________

                    Appeals from the United States District Court
                        for the Southern District of Florida
                           ________________________

                                  (August 13, 2013)

Before CARNES, Chief Judge, BARKETT, and FAY, Circuit Judges.

PER CURIAM:

      Joel Maytin-Caballero pled guilty to 4 charges at a consolidated

change-of-plea hearing, based on an original indictment charging him with

(1) manufacture and possession with intent to distribute 100 or more marijuana

plants, in violation of 21 U.S.C. § 841(a)(1), (b)(1)(B), and 18 U.S.C. § 2; (2) use

and maintenance of a place for the purpose of manufacturing and distributing

marijuana, in violation of 21 U.S.C. § 856(a)(1) and 18 U.S.C. § 2; and

(3) possession of a firearm in furtherance of a drug-trafficking crime, in violation

of 18 U.S.C. § 924(c)(1)(A)(i); and a separate indictment charging him with

(4) failing to appear for trial in relation to Count 3 of the original indictment, in

violation of 18 U.S.C.§ 3146(a)(1) and (b)(1)(A)(i). On appeal, Maytin-Caballero

argues that the transcript of the change-of-plea hearing did not establish that a




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Spanish language interpreter was present, and, therefore, it is not clear that his

guilty pleas were voluntary.

      Following the filing of his merits brief in this Court, the government filed a

Fed.R.App.P. 10(e) motion to supplement the record with the district court,

requesting that the court confirm that a Spanish language interpreter was present at

Maytin-Caballero’s change-of-plea hearing. The district court granted the

government’s motion, finding that it was “clear that a Spanish interpreter was

present at the defendant’s plea hearing,” and that an interpreter was present at

every hearing where Maytin-Caballero was present in court. It noted that, although

the transcript of the hearing did not reflect that an interpreter was present, the

docket and the clerk’s minute entry form did, and the government since had

confirmed with the Interpreter’s Office for the Southern District of Florida that an

interpreter was assigned to the hearing. The government then filed a “Motion for

Summary Affirmance and to Stay Briefing Schedule” with this Court, arguing that

there is “no dispute” that Maytin-Caballero had a Spanish interpreter at his

change-of-plea hearing, as the district court confirmed this fact. Maytin-Caballero

has not responded to this motion.

      After consideration of the parties’ filings on appeal and review of the record,

we grant the motion for summary affirmance and dismiss as moot the motion to

stay the briefing schedule.


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      Summary disposition is appropriate either where time is of the essence, such

as “situations where important public policy issues are involved or those where

rights delayed are rights denied,” or where “the position of one of the parties is

clearly right as a matter of law so that there can be no substantial question as to the

outcome of the case, or where, as is more frequently the case, the appeal is

frivolous.” Groendyke Transp., Inc. v. Davis, 

, 1162 (5th Cir. 1969);

see United States v. Martinez, 

, 1173-74 (11th Cir. 2005) (construing

the defendant’s “unconventional” motion as a motion for summary reversal,

granting the motion, vacating the defendant’s sentence, and remanding the case for

resentencing where the district court had committed plain error by treating the

Sentencing Guidelines as mandatory).

      “The appointment of an interpreter, both under the Court Interpreters Act[,

28 U.S.C. § 1827,] and as a constitutional matter, is committed to the sound

discretion of the trial judge.” United States v. Edouard, 

, 1337

(11th Cir. 2007). We review a district court’s determination as to the use of an

interpreter for an abuse of discretion, to determine whether the failure to provide

an interpreter made the proceeding fundamentally unfair. Id. Because

Maytin-Caballero did not raise this issue before the district court, however, we

review only for plain error. United States v. Raad, 

, 1323 (11th Cir.

2005).


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      Federal Rule of Appellate Procedure 10(e) provides that:

      (1) If any difference arises about whether the record truly discloses
      what occurred in the district court, the difference must be submitted to
      and settled by that court and the record conformed accordingly.

      (2) If anything material to either party is omitted from or misstated in
      the record by error or accident, the omission or misstatement may be
      corrected and a supplemental record may be certified and forwarded:

            (A) on stipulation of the parties;
            (B) by the district court before or after the record has been
      forwarded; or
            (C) by the court of appeals.

      (3) All other questions as to the form and content of the record must
      be presented to the court of appeals.

Fed.R.App.P. 10(e).

      There was no plain error in the lack of a Spanish language interpreter at

Maytin-Caballero’s change-of-plea hearing because the record is clear that there

was, in fact, a Spanish language interpreter at the hearing. Specifically, (1) the

district court confirmed upon the government’s Rule 10(e) motion that there was

an interpreter at the hearing; (2) the minute entries for the hearing, which were

signed by Maytin-Caballero and his counsel, reflect that the hearing was conducted

in Spanish; (3) the docket entries indicate that a Spanish language interpreter was

present; and (4) the Supervisory Interpreter for the Interpreter’s Office for the

Southern District of Florida submitted a signed declaration that a Spanish language

interpreter was assigned to the hearing.


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      We AFFIRM Maytin-Caballero’s convictions and sentences, and we

DISMISS as moot the motion to stay the briefing schedule.




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