KELLY, Circuit Judge.
A jury convicted Ler Wah Guide of possession of a firearm by a prohibited person, in violation of 18 U.S.C. § 922(g)(9). Guide appeals, arguing that he was not prohibited from possessing firearms because he did not knowingly and voluntarily waive his right to a jury trial when he pleaded guilty to misdemeanor domestic abuse in 2013. We affirm.
Guide cannot speak or read English, but instead speaks and reads only the Karen language. In 2013, he pleaded guilty to misdemeanor "simple assault-domestic abuse" in the South Dakota Third Judicial Circuit Magistrate Court, located in Beadle County, South Dakota (Beadle County court). In the Beadle County court, defendants who need interpreters are directed to sit in the jury box, Spanish speakers on one side and Karen speakers on the other. Each defendant is handed a typewritten waiver form, which lists various rights — including the right to a jury trial — in English as well as the defendant's primary language. A magistrate judge then orally informs the defendants of their trial rights en masse, typically reading from the English version of the waiver form. Two interpreters simultaneously translate the magistrate judge's announcement to the groups of defendants. Each defendant is then called to address the court individually. Guide underwent this process when he pleaded guilty to misdemeanor domestic abuse in 2013. And he entered guilty pleas in Beadle County court on two other occasions: In May 2010 and December 2012, he pleaded guilty to "driving or controlling vehicle with alcohol in blood."
In 2015, law enforcement officers discovered a shotgun in the trunk of Guide's car, and he was later indicted on one count of possessing a firearm as a prohibited person. He moved to dismiss the indictment, arguing that he was not prohibited from possessing firearms under § 922(g)(9) because he had not knowingly and voluntarily waived his right to a jury trial when he pleaded guilty to misdemeanor domestic abuse in the Beadle County court in 2013. The district court
The district court denied Guide's motion. Specifically, the district court found that Guide's hearing testimony was not credible, given that the Beadle County court had advised him of his jury trial rights at least three times before he entered his plea in the 2013 domestic abuse case alone. The district court also reasoned that Guide had a "more general understanding" of his right to a jury trial from his experiences in his 2010 and 2012 misdemeanor cases. Central to the district court's finding that Guide had knowingly and voluntarily waived his right to a jury trial was the fact that he was advised of that right in Karen, both orally (through the interpreter) and in writing (via the waiver form). The district court noted that the waiver form instructed defendants to ask their interpreter, attorney, or the court any questions they had about their rights.
The presentence investigation report (PSR) recommended that Guide not receive any reduction for acceptance of responsibility because he elected to go to trial. Guide did not object to this recommendation; instead, he sought a downward variance, emphasizing that he had cooperated with police to turn over the shotgun and admitted his offense conduct during his PSR interview. Noting that Guide had twice appeared at change-of-plea hearings in this case, neither of which resulted in Guide pleading guilty, defense counsel indicated, "I'm not sure I could have ever gotten [Guide] through a plea hearing under any circumstances."
The district court adopted the PSR's 18 to 24 month advisory Guidelines range, but varied downward, sentencing Guide to one year and one day in prison. Notably, the district court explained:
On appeal, Guide argues that the district court erred by denying his motion to dismiss the indictment based on its finding that he knowingly and voluntarily waived his right to a jury trial in his 2013 misdemeanor domestic abuse case. He also argues that the district court's statement about a "language barrier" during sentencing contradicts its finding of a knowing and voluntary waiver.
Section 922(g)(9) generally prohibits persons who have been convicted of
"We review factual findings by the district court for clear error and the determination of whether a waiver of rights was voluntary de novo."
The district court did not err in determining that Guide knowingly and voluntarily waived his right to a jury trial when he pleaded guilty to misdemeanor domestic abuse. We recognize that language and cultural barriers can, in some circumstances, affect a defendant's ability to understand, and thus to knowingly and voluntarily waive, constitutional rights. This may be especially so when they are advised of those rights as a group. But here, the district court expressly discredited Guide's testimony that he did not understand he was waiving his right to a jury trial when he pleaded guilty to misdemeanor domestic abuse. On this record, such a finding was not clearly erroneous. And given this adverse credibility determination, the district court's ultimate conclusion that Guide's waiver of his right to a jury trial was knowing and voluntary was not erroneous. The Beadle County court had advised Guide of his right to a jury trial on at least three occasions before he entered his guilty plea.
Accordingly, we affirm.