Unpublished Disposition, 921 F.2d 282 (9th Cir. 1990)

MEMORANDUM^* 

Appellant Guillermo Sierra appeals from his convictions of six counts of distributing cocaine and one count of possession of an unregistered firearm. He also challenges his sentence and a fine of $75,000 imposed pursuant to the federal Sentencing Guidelines.

Sierra's principal contention on appeal is that the district court abused its discretion in refusing to appoint an independent translator to assist Sierra at trial and to provide translations of incriminating tape recordings. 28 U.S.C. § 1827(d) (1) authorizes a federal court to appoint a certified interpreter where the court determines that a party or witness "speaks only or primarily a language other than the English language" such that the party or witness is inhibited in its understanding of the proceedings or in its communication with the court. The statute places the decision to appoint an interpreter within the sound discretion of the trial court. See 28 U.S.C. § 1827(d) (1) ("if the presiding judicial officer determines"); United States v. Bigman, 906 F.2d 392, 394 n. 1 (9th Cir. 1990); United States v. Lim, 794 F.2d 469, 471 (9th Cir.), cert. denied, 479 U.S. 937 (1986).

In this case, the district court questioned Sierra concerning his understanding of English. The record establishes that Sierra had lived in Alaska for fourteen years, that he spoke English frequently in his daily life, and that he used both English and Spanish at work. The court's questioning revealed that Sierra may have had some difficulty in understanding legal terms, but there is nothing in the record to suggest that he had any problems in communicating with his counsel or with the court during the course of the trial. Given these facts, it was not an abuse of discretion for the trial court to refuse to appoint an interpreter.

Nor is there any merit to Sierra's contention that certain tape recordings of conversations conducted in Spanish, made by undercover agent Edward Torres, should have been translated. The government did not introduce the tape recordings into evidence at trial. The only evidence pertaining to these conversations was Torres' testimony as to what was said. We have held that where an incriminating conversation is taped and the recordings themselves are not admitted into evidence, the testimony of a participant in the conversation is sufficient to establish what was said. United States v. Gonzales-Benitez, 537 F.2d 1051, 1053-54 (9th Cir.), cert. denied, 429 U.S. 923 (1976). Moreover, the government made the tapes available to the defense and the defense had the opportunity to copy the tapes and make translations of them.

Sierra next contends that the district court erred in admitting evidence of Sierra's participation in other drug trafficking offenses. We have consistently held that the prosecution may introduce evidence of prior conduct to show a defendant's criminal propensity and predisposition when the defendant uses an entrapment defense. See Fed.R.Evid. 405(b); United States v. Simtob, 901 F.2d 799, 807-08 (9th Cir. 1990); United States v. Tom, 640 F.2d 1037, 1039 (9th Cir. 1981). Defense counsel gave notice that an entrapment defense would be used in this case, the court gave an entrapment instruction and Sierra argued entrapment to the jury. There was no error.

Sierra attacks his conviction for possession of an unregistered shotgun with a shortened barrel in violation of 26 U.S.C. §§ 5861(d) & 5845(a) (2). At trial, the government's expert testified that the weapon was "a firearm made from a shotgun, known as a sawed off shotgun." The agent further opined that the gun was probably manufactured before 1968 and was not in its original manufactured state. There was no insufficiency or inconsistency in the government's evidence.

Sierra's challenges to his sentence and fine are also without merit. Sierra was sentenced to a term which was in the middle of the applicable guidelines range. On appeal, he claims that the trial court erred by failing to give him a two-point adjustment for acceptance of responsibility and by failing to sentence him to the lowest term in the applicable range based on his lack of prior criminal history, employment opportunities, involvement in business and community affairs, and child support obligations.

To receive a downward adjustment for acceptance of responsibility, the defendant must show contrition for the criminal act. United States v. Smith, 905 F.2d 1296, 1302 (9th Cir. 1990). Whether or not a defendant has accepted responsibility for his crime is a factual determination subject to the clearly erroneous standard of review. United States v. Gonzalez, 897 F.2d 1018, 1019 (9th Cir. 1990). Given Sierra's maintenance of an entrapment defense at trial and his equivocal remarks at sentencing, it was not clear error for the district court to find that he had not accepted responsibility as contemplated by the Guidelines. United States v. Corley, 909 F.2d 359, 362 (9th Cir. 1990). This is particularly so where Sierra failed even to raise the issue before the trial court.

We are without jurisdiction to consider Sierra's claim that he was entitled to be sentenced to the lowest term in the applicable sentencing range. Appellate review of a sentence that is within the correctly applied guideline range and was not imposed in violation of law is not expressly authorized by 18 U.S.C. § 3742(a). United States v. Pelayo-Bautista, 907 F.2d 99, 101 (9th Cir. 1990). We thus have no jurisdiction to review the district court's decision to sentence Sierra at the middle of the Guidelines range rather than at the bottom. United States v. Reed, 914 F.2d 1288, 1290 (9th Cir. 1990).

Finally, the district court gave appropriate consideration to Sierra's financial situation in assessing the fine. See U.S. Sentencing Guidelines Sec. 5E1.2(d). There was no error.

AFFIRMED.