Case: 13-15430   Date Filed: 07/18/2014   Page: 1 of 6


                                                         [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                            No. 13-15430
                        Non-Argument Calendar
                      ________________________

               D.C. Docket No. 4:13-cr-00198-VEH-PWG-1



UNITED STATES OF AMERICA,

                                                              Plaintiff-Appellee,

                                  versus

ALFONSO GONZALEZ-FLORES,

                                                         Defendant-Appellant.

                      ________________________

               Appeal from the United States District Court
                  for the Northern District of Alabama
                      ________________________

                             (July 18, 2014)

Before TJOFLAT, WILSON and ANDERSON , Circuit Judges.

PER CURIAM:
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      Alfonso Gonzalez-Flores was charged in one count with conspiracy to

distribute and possess with intent to distribute 500 grams or more of

methamphetamine, in violation of 21 U.S.C. § 846, and in another count with

possessing, with intent to distribute, 500 grams or more of methamphetamine, in

violation of 21 U.S.C. § 841(a)(1) . He entered into a plea agreement and pled

guilty to the conspiracy count, and the District Court sentenced him to a prison

term of 108 months, at the bottom of the Guidelines range of 108 to 135 months. 1

He now appeals his conviction, challenging the District Court’s failure to record

and have transcribed during his guilty plea hearing (1) the English-to-Spanish and

Spanish-to-English communications between him and the court interpreter, or (2)

the interpreter’s identification, qualifications, or oath. He argues that the Court

Reporter Act’s “verbatim” requirement in 28 U.S.C. § 753(b), Federal Rule of

Evidence 604, and the Court Interpreters Act in 28 U.S.C. § 1827 necessitate that

these portions of the hearing be recorded or transcribed, and that the absence of

such has prevented his new counsel on appeal from reviewing the record to

determine the voluntariness of his plea.

      We review issues not raised before the district court for plain error. United

States v. Madden, 

, 1319 (11th Cir. 2013). Establishing plain error

requires that a defendant show (1) an error (2) that is plain and (3) that has affected


      1
          See Presentence Report at ¶ 46.

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his substantial rights. 

Even if a defendant meets this burden, we need

not remedy the error unless it “seriously affects the fairness, integrity or public

reputation of judicial proceedings.” 

An error is plain if it

is obvious and clear under current law. United States v. Gandy, 

,

1240 (11th Cir.), cert. denied, 

(2013). “It is the law of this circuit

that, at least where the explicit language of a statute or rule does not specifically

resolve an issue, there can be no plain error where there is no precedent from the

Supreme Court or this Court directly resolving it.” United States v. Lejarde-Rada,

, 1291 (11th Cir. 2003).

                                           I.

      The Court Reporter Act provides, in pertinent part, that:

      Each session of the court and every other proceeding designated by
      rule or order of the court or by one of the judges shall be recorded
      verbatim . . . , subject to regulations promulgated by the Judicial
      Conference and subject to the discretion and approval of the
      judge. . . . Proceedings to be recorded under this section include [] all
      proceedings in criminal cases had in open court . . . .

28 U.S.C. § 753(b). Section 753(b)’s requirement that district courts record

“verbatim” all criminal proceedings held in open court is “mandatory.” United

States v. Cashwell, 

, 703 (11th Cir. 1992). Moreover, in trial settings,

a defendant has a “right to a record on appeal” as a matter of due process, which

includes the right to a “complete transcript of the proceedings at trial.” 

“merely technically incomplete record, involving no substantial or


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significant omissions,” is insufficient to warrant reversal. 

defendant

is represented by counsel different on appeal than at trial, a new trial is required

only if there is a “substantial and significant omission” from the trial transcript.

United States v. Charles, 

, 1283 (11th Cir. 2002).

      Section § 753(b) explicitly qualifies its “verbatim” requirement by stating

that it is subject to regulations promulgated by the Judicial Conference. 28 U.S.C.

§ 753(b). The Judicial Conference regulations indicate generally that “the

transcript must contain all words and other verbal expressions uttered during the

course of the proceeding.” 6 Guide to Judiciary Policy § 520.40.10. The

regulations expressly except from this requirement, however, testimony made

through an interpreter. See 

In such cases, the regulations

provide that “it will be assumed that answers are made in a foreign language and

interpreted unless a parenthetical ‘(in English)’ is inserted.” 

transcript, which covers the testimony of a Spanish-speaking defendant, includes

only English translations of the defendant’s testimony via the court interpreter. See

5A.

      Neither the Supreme Court nor any of our published decisions have

interpreted either § 753(b) of the Court Reporter Act or the right to a complete

transcript in the context of a recording or transcription of guilty plea hearings. As

to the cases cited by Gonzalez-Flores in his brief, in Selva, the former Fifth Circuit



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applied these rules to the District Court’s omission altogether of closing arguments

from the transcript of a defendant’s trial and concluded that such failure to

transcribe that portion of the trial was reversible error where appellate counsel was

different from trial counsel. United States v. Selva, 

, 1304-06 (5th

Cir. 1977). In addition, in Charles, we considered whether the District Court’s

admitting a defendant’s out-of-court statements to an interpreter during an

interview with a customs official violated the Sixth Amendment’s Confrontation

Clause, and held that it did not. United States v. Charles, 

, 1322-32

(11th Cir. 2013).

      Here, the District Court did not plainly err in not recording or transcribing

during Gonzalez-Flores’s plea hearing the Spanish-to-English and

English-to-Spanish exchanges between him and the court interpreter because there

is no binding authority requiring such, the plain language of § 753(b) of the Court

Reporter Act does not address it, and the Judicial Conference regulations provide

to the contrary.

                                          II.

      Section 1827 of the Court Interpreters Act provides, in pertinent part, that:

      The Director of the Administrative Office of the United States Courts
      shall establish a program to facilitate the use of certified and
      otherwise qualified interpreters in judicial proceedings instituted by
      the United States . . . . [and] shall prescribe, determine, and certify the
      qualifications of persons who may serve as certified interpreters . . . .



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28 U.S.C. § 1827(a), (b)(1). The section does not explicitly mention the need to

identify or establish in a transcript or recording the qualifications of a designated

court interpreter. See 

however, provide that, upon a party’s motion,

“the presiding judicial officer shall determine whether to require the electronic

sound recording of a judicial proceeding in which an interpreter is used under this

section.” 

Federal Rule of Evidence 604 explicitly states that

“[a]n interpreter must be qualified and must give an oath or affirmation to make a

true translation.” Fed. R. Evid. 604. Rule 604 does not reference recording or

transcription of an interpreter’s qualifications or oath, however. See 

Supreme Court nor any of our published decisions have interpreted either

§ 1827 or Rule 604 in the context of recording or transcription of guilty plea

hearings.

      The District Court did not plainly err in not recording or transcribing during

Gonzalez-Flores’s plea hearing the court interpreter’s identification, qualifications,

or oath because there is no binding authority requiring such, and the plain language

of § 1827 of the Court Interpreters Act and Rule 604 likewise does not compel the

inclusion of that information in the transcript.

      AFFIRMED.




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