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Tsen v. State (2/8/2008) ap-2147

Tsen v. State (2/8/2008) ap-2147

                             NOTICE
     The  text  of this opinion can be corrected before  the
     opinion  is published in the Pacific Reporter.  Readers
     are  encouraged to bring typographical or other  formal
     errors  to  the attention of the Clerk of the Appellate
     Courts:

             303 K Street, Anchorage, Alaska  99501
                      Fax:  (907) 264-0878
       E-mail:  corrections@appellate.courts.state.ak.us

         IN THE COURT OF APPEALS OF THE STATE OF ALASKA

               
VUI GUI TSEN, )
) Court of Appeals Nos. A-9619 & 9639
Appellant, ) Trial Court No. 3AN-05-1687 Cr
)
v. )
) O P I N I O N
STATE OF ALASKA, )
)
Appellee. ) No. 2147 February 8, 2008
)
          Appeal  from the Superior Court,  Third  Judi
          cial  District, Anchorage, Philip R. Volland,
          Judge.

          Appearances:   Dan  Lowery, Assistant  Public
          Defender,   and   Quinlan   Steiner,   Public
          Defender,   Anchorage,  for  the   Appellant.
          Diane   L.   Wendlandt,  Assistant   Attorney
          General,  Office of Special Prosecutions  and
          Appeals,  Anchorage, and  Talis  J.  Colberg,
          Attorney General, Juneau, for the Appellee.

          Before:   Coats, Chief Judge, and  Mannheimer
          and Stewart, Judges.

          MANNHEIMER, Judge.

          This  case  presents  two questions.   First,  we  must
determine whether the trial judge abused his discretion  when  he
denied the defendants request for an interpreter to assist him in
understanding  the  testimony  and  proceedings  at  his   trial.
Second, the State asks us to declare that the defendants sentence
is too lenient.
          As  we  explain more fully in this opinion, we conclude
that  the trial judge could properly deny the defendants  request
for  an  interpreter because the defendant failed to allege   and
still  fails  to  allege   that his understanding  of  the  trial
proceedings  was  deficient  in  a  way  that  led  to  specific,
identifiable prejudice to the conduct of the defense.
          With  regard  to the defendants sentence,  we  can  not
determine  whether the sentence is too lenient.   The  sentencing
judge misunderstood the United States Supreme Courts decision  in
Blakely  v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d
403 (2004), and thus failed to make findings on certain contested
facts   facts which, if resolved in the States favor, might  have
shown that the sentence was overly lenient.

     The  question of whether the defendant was entitled  to
     an interpreter
     
               Vui  Gui Tsen ran an escort service / massage
     parlor  in  the Spenard area of Anchorage.   After  the
     police  arrested  two  of Tsens  female  employees  for
     prostitution, one of the women agreed to aid the police
     by  arranging to purchase cocaine from Tsen.  Tsen sold
     cocaine to the woman, and he was then arrested.
               Following his arrest, Tsen waived his Miranda
     rights  and spoke to the police about his offense.   He
     told the officers that he was not aware that his female
     employees  were  engaging  in  prostitution,   but   he
     conceded that he normally purchased about 3.5 grams  of
     cocaine  per week (depending on how many women  he  had
     working),  and  that  he  sold  this  cocaine  to   his
     employees  and  their customers so  that  drug  dealers
     would not come around and disturb the neighbors.
          Based   on  these  events  (including   Tsens
statements), Tsen was charged with two counts of third-
degree   controlled  substance  misconduct   (sale   of
cocaine, and possession of cocaine for sale),  as  well
as one count of third-degree promoting prostitution.1
          A pre-trial conference in Tsens case was held
in  front of Superior Court Judge Philip R. Volland  on
Wednesday,  November  16,  2005.   At  this   pre-trial
conference,  Tsens attorney, Assistant Public  Defender
John  A.  Bernitz,  notified Judge  Volland  that  Tsen
wished  to  have  a Vietnamese interpreter  during  the
trial.2  Bernitz explained:
     
          Defense Attorney:  Mr. Tsen, although he
     speaks  English,  he is a native  Vietnamese,
     and  he  wants  a Vietnamese interpreter  for
     trial  because  ...  the language  gets  more
     complicated  and quicker at  trial.   ...   I
     havent  checked into the [availability  of  a
     Vietnamese]  interpreter,  but  typically,  I
     think, I can get an interpreter here for next
     week.   So  wed  ask  that  trial  not  start
     tomorrow,  but  start  on  Monday[,  November
     21st].
     
          Judge Volland replied that he could
start  the  case the following day (that  is,
Thursday,  November 17th).  However,  because
of  a  scheduling conflict, if the  case  was
delayed until Monday, he would have to assign
it to a different judge  Superior Court Judge
Larry D. Card, who had already announced  his
impending retirement.  Bernitz stated that he
did not want Tsens case handled by Judge Card
because,   in   the  event  that   Tsen   was
convicted, there was a good possibility  that
the  sentencing would have to be assigned  to
yet  another  judge (because of  Judge  Cards
retirement).  So, rather than have Tsens case
assigned to Judge Card, Bernitz opted to have
the  case start the next day (November  17th)
in front of Judge Volland.
          The   following  day,  the  parties
appeared  in  court before Judge  Volland  to
begin  the trial.  Just before jury selection
began, Bernitz again brought up the issue  of
an interpreter:

     Defense  Attorney:  Judge, I think  were
ready  to  go.  [T]he only issue that  I  can
think   of   [is]   the   problem   [of]   an
interpreter.  ...  I dont know if I  ...  can
say  anything,  if  Im  restricted  by  [the]
attorney-client privilege.  I guess I can say
that  Mr.  Tsen is a native of  Vietnam,  and
actually I dont know what else I can say.   I
mean,  I have ... information about how  well
he speaks English.  I know that hes asked for
an  interpreter, and I expected  to  have  an
interpreter available for ... next  week.   I
also know we dont have one now.

     The  Court:   I guess my sense  [of  the
matter]  is  to let that [decision]  be  your
call,  Mr.  Bernitz.  ...   [J]ury  selection
obviously  ... affects Mr. Tsens due  process
rights.    [And]  once  we  get   into   [the
presentation  of] evidence, his confrontation
rights are affected [too].  ...
     .  .  .

     Defense  Attorney:   I  think  Mr.  Tsen
understands  the words that are  being  said,
but  I think theres a nervousness about,  you
know,  how important this case is,  and  that
[we  are]  in the courtroom, and  its  pretty
formal.   And  so  hes  nervous  about  [not]
understanding the whole concepts about  whats
going on.

          Bernitz  then  informed  the  court
that  a friend of Tsens, a Mr. Kalei, was  in
the  courtroom  and  was  willing  to  assist
during juror voir dire.  Bernitz did not know
if  Kalei  could speak Vietnamese, but  Kalei
was  a  trusted  friend  of  Tsens,  and   he
apparently   had  helped  to  explain   legal
concepts to Tsen in the past.  Bernitz  asked
Judge  Volland  to  allow  Kalei  to  sit  at
counsel   table   and  participate   in   the
decisions  about  which jurors  to  pre-empt.
Judge Volland granted this request, and Kalei
sat at the table with Bernitz and Tsen during
that particular day of jury selection.
          On  the next day of jury selection,
Bernitz  informed Judge Volland that  he  had
not  been able to secure the services  of  an
interpreter, but he was working hard  to  get
one.   At  the same time, Bernitz warned  the
court  that if they used an interpreter,  the
testimony would go half as fast as without an
interpreter.
          After hearing the defense attorneys
warning,  Judge Volland asked the  prosecutor
for  an  estimate of how long the case  would
take.   The prosecutor answered that, without
an   interpreter,  Tsens  case   would   take
approximately   one  week  (including   final
arguments).
          Upon  hearing this estimate,  Judge
Volland   explained  that  the   extra   time
required for complete interpretation of Tsens
trial would cause a scheduling conflict  with
other pending trials:

     The  Court:   In  a perfect  world,  [we
would]  select  [the jury] today,  have  them
come  back on Monday, ... and then swear them
in  and  go ahead.  [But] I need to  ...  get
this case to the jury on Thursday in order to
start  Mr. Bernitzs [next case, the] homicide
case [starting] the following Monday.  And  I
am  concerned about how long [Mr. Tsens case]
might   take   if  we  have  an   interpreter
interpreting the direct and cross-examination
of every witness.  ...  My experience is that
[interpretation   of  this  sort]   literally
doubles  the  time  it  takes  for  [witness]
examination.

A  few moments later, Judge Volland announced
that  he  would  make  no decision  regarding
Tsens  request  for  an interpreter  at  that
time.   Rather, he would play it by ear,  and
see where we are [at the end of the day].
          Jury selection continued without an
interpreter  for Tsen, but also  without  any
further request for one.  Four days later, on
November   25th,  during  a  break   in   the
proceedings,  the prosecutor brought  up  the
issue  of an interpreter.  In response, Judge
Volland expressed his belief that Bernitz, by
letting the proceedings go forward without an
interpreter, had implicitly acknowledged that
Tsen  had a sufficient command of the English
language  and  a sufficient understanding  of
the  proceedings to satisfy any  due  process
concerns:

     Prosecutor:  Regarding the issue  of  an
interpreter:  Mr. Bernitz has indicated  that
hes  still  looking for an interpreter.   ...
And I just want to make sure [that] theres  a
clear  record that Mr. Bernitz has  made  the
determination   that  Mr.  Tsen   understands
English  [well] enough to proceed and  assist
him  in this case.  ...  [W]e keep going back
and  forth on whether were going to  have  an
interpreter ... , and I dont want to have  to
re-do [this] trial or [answer] an ineffective
assistance  claim  [regarding]  whether  [Mr.
Tsen] can understand the proceedings or not.

     The  Court:   Maybe Im  wrong,  [but]  I
understood  [Mr.  Bernitzs]  request  for  an
interpreter  [to  be based]  merely  [on  the
desire]  to provide additional assistance  to
his  client.  Not [on the assertion] that Mr.
Tsen  didnt understand English or the  nature
of  the proceedings  because weve been  going
through  jury selection without one.   And  I
assumed  that  you made that  judgement,  Mr.
Bernitz.

In  reply,  Bernitz stated  that  his  client
still wished to have an interpreter  but,  at
the same time, Bernitz conceded that he could
not assert that an interpreter was needed  as
a constitutional matter:

     Defense  Attorney:  Judge, I  know  that
Mr. Tsen would like a Vietnamese interpreter.
...   But I will do whatever the Court  tells
me  to do.  I just want to make sure that the
Court is telling me to do it.

     The  Court:   Well, Im not  barring  the
presence of an interpreter here, Mr. Bernitz.
...   But  I  did not take your  request  [as
meaning] that you were insisting on the  need
for  an interpreter so that your clients  due
process  rights were protected.   [If  I  had
believed]  otherwise, we  wouldnt  have  even
proceeded with jury selection.

     Defense  Attorney:  Judge, ...  I  think
that  Mr. Tsen wants an interpreter.   And  I
dont know how to proceed.  I mean, ... I cant
say  what the Court just said [i.e., that  an
interpreter would be needed to protect  Tsens
due  process rights].  [But] I think Mr. Tsen
thinks that his constitutional or due process
rights would be violated if he doesnt get  an
interpreter.

          Upon  hearing the defense attorneys
response,   Judge  Volland   addressed   Tsen
personally:

     The Court:  Mr. Tsen, have you been able
to understand me today?

     The   Defendant:   Sir,  I   can   speak
English.   I  listen   but  the  meaning,  it
really  hard for me to understand the meaning
a  lot.   For some time is I understand  what
the slang meaning, but some its just not like
this.  Because I worry about that sometime it
I  pick  up   I  cannot pick up  something  I
should have tell to my lawyer, but I dont.  I
let  it go opportunities; I worry about that,
thats all.

     The  Court:   Have  you  been  able   to
understand  what we were doing in  court  the
last few days?

     The Defendant:  I come back home, I have
asking  my friends and some is I dont  really
understand  the meaning, but  and  the  first
day, I dont really know about that much,  but
I learned from the first day, second day, and
then I just  it was just the same thing,  and
listen and always not discrimination.  I say,
oh,  thats not good, this one no good,  so  I
just ...

     The  Court:   Are you able to understand
Mr. Bernitz when he talks with you?

     The  Defendant:   More than  somebody  I
didnt  communicate with.  Mostly I understand
the  person, I communicate for a few  day  or
week,  then  I  pick  up.   The  same  as  if
somebody  who  I just talk to I  dont  really
understand very much.  Its like somebody tell
joke  to me, I dont really laughing and  they
thought I meaning, but I come back, Im  going
to ask my friend and I laugh myself.

     The  Court:  I find with respect to  Mr.
Tsens  command  of the English language  that
and the preceding colloquy should reflect  it
that  Mr.  Tsen  clearly has command  of  the
English language, hes clearly understood what
the Court was asking of him, clearly able  to
express  himself  and his limitations.   What
Mr.  Tsen  described is what many individuals
experience for whom English is the[ir] second
language  and that is [a] lack of command  of
some  of the nuances of the language.  I find
that,  so  far,  Mr. Tsen has understood  his
attorney.   He has understood our proceedings
in   court.    Although  ...  an  interpreter
[could] certainly provide assistance  to  Mr.
Tsen,   an  interpreters  presence   is   not
required  in trial to assure that  Mr.  Tsens
due process rights are protected.

          Just  after  Judge  Volland  issued
this  ruling, Bernitz asked the judge  if  he
would  permit Tsen to use a telephone service
interpreter  throughout the  trial  (because,
apparently, no interpreters were available in
Anchorage  to personally attend  the  trial).
Judge  Volland asked Bernitz why an  all-day,
over-the-phone interpreter was necessary,  in
light  of  his  ruling.   Bernitz  responded,
I  dont know if I have [a response] to  that.
I [just] think its what Mr. Tsen wants.
          After Bernitz conceded that he  had
nothing  to  add on the question  of  whether
Tsen  needed  an interpreter (as  opposed  to
wanted  one), Judge Volland again ruled  that
word-for-word  interpretation  of  the  trial
testimony was not required:  I find that that
level of interpretation is not required,  ...
based  on  my findings [regarding] Mr.  Tsens
ability  to  understand the English  language
and communicate [in English].
          The question of an interpreter came
up  once  more,  later  in  the  proceedings.
During  the course of the trial, Tsen changed
his  mind  several  times  about  whether  he
wanted  to  testify.   Initially,  Tsen  told
Judge Volland that he and Bernitz had decided
that  it  would  be better  for  him  not  to
testify,  given  his  poor  English   skills.
However, Judge Volland later declared that if
Tsen  wished to testify, he would allow  Tsen
to   employ  the  services  of  a  telephonic
interpreter if that would make him feel  more
comfortable about testifying.
          Despite this offer, Tsen chose  not
to  testify; instead, the defense rested  its
case  a few minutes after Judge Volland  made
his   ruling.   However,  on  the   following
Monday,  Bernitz sought permission to re-open
the  defense  case to allow Tsen to  testify.
Judge  Volland  granted  this  request,   and
Bernitz arranged for a telephonic interpreter
but then a jury problem required a recess  of
the  trial for a few days.  By the  time  the
trial  resumed,  Tsen had again  changed  his
mind; that is, he had decided not to testify.
          The  jury  convicted  Tsen  of  all
three  counts.  At the sentencing hearing  on
February   14,   2006,  Tsen   delivered   an
allocution  in which he expressed frustration
at  not having had an interpreter during  the
trial.   Tsen declared that the  lack  of  an
interpreter   made  it  hard   for   him   to
understand what was going on, and  thus  hard
for him to defend himself.
          Now,  on  appeal, Tsen argues  that
Judge  Volland  violated  his  right  to  due
process  of  law  when the judge  refused  to
order  word-for-word  interpretation  of  the
jury voir dire and the trial testimony.

(a)   Why  we  conclude that this  issue  was  not
preserved in the trial court, and why it therefore
comes to us as a claim of plain error

     As described in the preceding section of this
opinion,  Judge  Volland  repeatedly  asked  Tsens
attorney,  Mr. Bernitz, if he believed  that  Tsen
needed an interpreter to adequately understand the
proceedings and assist in his defense.  Each time,
Bernitz  declined or refused to assert  that  this
was the case.
     We  note  that  when Bernitz first  discussed
this  issue with Judge Volland, Bernitz  told  the
judge  that  he  had information  about  how  well
[Tsen]  speaks English, but that he could not  say
much   more  on  this  issue  because  of  [Tsens]
attorney-client privilege.
     During  the  next discussion  of  this  issue
(after  jury  selection had been going  on  for  a
time),  Judge  Volland told Bernitz  that  he  had
understood Bernitzs request for an interpreter [to
be  based]  merely  [on  the  desire]  to  provide
additional  assistance to his client, and  not  on
the  assertion  that  Mr.  Tsen  didnt  understand
English  or the nature of the proceedings.   Judge
Volland  added that he had not understood  Bernitz
[to  be]  insisting on the need for an interpreter
so that [Tsens] due process rights were protected.
          In  response, Bernitz told Judge Volland that
he  [could] not say what the Court just said  i.e.,  he
could  not assert that Tsen had so little comprehension
of  English  that continuation of the trial without  an
interpreter   would  violate  due  process.    Instead,
Bernitz  told  Judge Volland, I think [that]  Mr.  Tsen
thinks  that  his constitutional or due process  rights
would  be  violated  if he doesnt get  an  interpreter.
(Emphasis added)
          In  other  words, when Bernitz  responded  to
Judge Vollands statements and questions concerning  the
legal basis for his request for an interpreter, Bernitz
consistently failed to assert  even when prompted  that
there was any due process problem.
          But now, on appeal, Tsen argues that the lack
of  an  interpreter undermined his right to due process
of  law.  Accordingly, this issue was not preserved for
appeal,  and  Tsen must show plain error if  he  is  to
prevail.

  (b)   A  brief  overview of the  law  relating  to  a
  criminal  defendants right to the  assistance  of  an
  interpreter

          The  United States Supreme Court has not  yet
explicitly decided whether criminal defendants who lack
the  ability, or who have limited ability, to speak and
understand  the  English language have  a  due  process
right  to  the  assistance of an interpreter  at  their
trial.   The Courts only pronouncement on this  subject
is  found in Perovich v. United States, 205 U.S. 86, 27
S.Ct.  456,  51  L.Ed.  722  (1907),  where  the  Court
declared  that  the question of whether an  interpreter
should  be  appointed  to aid a criminal  defendant  in
giving  testimony is a matter largely  resting  in  the
discretion of the trial court.  Id., 205 U.S. at 91, 27
S.Ct. at 458.
          But  in 1970, in Negron v. New York, 434 F.2d
386  (2nd  Cir. 1970), a federal court of appeals  held
that  a defendant who neither spoke nor understood  any
English  was denied due process of law when  the  trial
court   failed  to  provide  an  interpreter  for   the
defendant  during the portions of his trial  that  were
conducted  in  English.   Id.  at  387-88.   The  court
explained  that, without an interpreter, the  defendant
could  neither confer with his attorney nor  understand
the   testimony  of  English-speaking  witnesses   thus
undermining  the  defendants right of confrontation  by
impeding the defendants ability to aid his attorney  in
formulating cross-examination.
          Since 1970, several other federal panels have
recognized  a  defendants constitutional right  to  the
assistance of an interpreter in a criminal trial.3
          In  1978, the United States Congress  enacted
the  federal  Court Interpreters Act, 28 U.S.C.   1827.
As  just  explained,  the extent  of  a  potential  due
process  right to English language translation was  not
well-defined in 1978.  And according to the legislative
history of the Court Interpreters Act, Congress did not
intend the Act to create new constitutional rights  for
defendants    or    expand   existing    constitutional
safeguards.   United States v. Joshi,  896  F.2d  1303,
1309  (11th Cir. 1990), citing House of Representatives
Report No. 1687 (95th Congress, 2nd session, 1978), pp.
2-4.   Rather,  the  Act  was  intended  to  head   off
potential  constitutional problems  by  establishing  a
standard  procedure  for  trial  judges  to  use   when
evaluating  the  need  for  an  interpreter,  and  then
appointing  a qualified interpreter if one  is  needed.
Id.
          Under  subsection (d)(1) of the Act, a  trial
judges  duty  to  investigate  the  appointment  of  an
interpreter arises when the judge is placed  on  notice
that  the  defendant speaks only[,] or  primarily[,]  a
language  other  than ... English, so that  it  appears
that  the  defendants  lack of skill  in  English  will
inhibit   [the   defendants]   comprehension   of   the
proceedings  or [inhibit the defendants]  communication
with counsel or the presiding judicial officer, or[, if
the  defendant takes the stand, inhibit the defendants]
comprehension    of   questions   and    [ability    to
meaningfully] present[ their] testimony.
          Federal courts have interpreted this  Act  to
give   trial  judges  broad  discretion  when  deciding
whether  a  defendants English language skills  are  so
lacking as to require word-for-word translation of  the
trial  testimony.  See, for instance, United States  v.
Sándoval, 347 F.3d 627, 632 (7th Cir. 2002), where  the
appeals court explained, The district court is afforded
wide  discretion [on this issue] because it is  in  the
best  position  to  evaluate  the  need  for  and   the
performance of interpreters.  See also United States v.
Sánchez,   928  F.2d  1450,  1455  (6th   Cir.   1991);
Valladares v. United States, 871 F.2d 1564, 1566  (11th
Cir. 1989).
          The trial judge is given broad discretion  as
a  matter of necessity.  The decision whether to  order
full  non-English interpretation of the trial testimony
involves  a  balancing of the defendants right  to  due
process  against the publics interest in the economical
administration  of criminal justice.4  As  the  defense
attorney  in the present case forthrightly  told  Judge
Volland,  and as Judge Volland confirmed from  his  own
experience,  word-for-word interpretation  of  a  trial
generally means that the trial will last twice as long.
          Moreover,  and perhaps more importantly,  the
          decision whether to order word-for-word interpretation
of  the  trial  testimony necessarily  hinges  on  many
variables.   Chief among these variables  are  (1)  the
extent  to  which  the defendant can comprehend  spoken
English  (i.e., understand the English speech of  other
people),  (2)  the  extent to which the  defendant  can
express  himself  or herself in English,  and  (3)  the
degree  to  which  the  trial  testimony  will  present
complex or subtle issues of fact that will require  the
defendants input (i.e., the defendants participation in
formulating the defense case and in devising the cross-
examination  of adverse witnesses).  See United  States
v. Febus, 218 F.3d 784, 791-92 (7th Cir. 2000).
          We  have  focused on federal  case  law  here
because  the  Alaska  law  on  this  subject  is  still
undefined.   There  are no published  Alaska  appellate
decisions  in  this area.  It is true  that  the  third
paragraph of the Commentary to Alaska Evidence Rule 604
states  that  the  [a]ppointment of an interpreter  for
[an]  indigent  defendant is probably  constitutionally
required  if  the  defendants  understanding   of   the
proceedings against him depends upon it.  However,  the
Commentary  cites no legal authority  to  support  this
statement.  We note, moreover, that the Alaska  Supreme
Court   has   [neither]  adopted  [n]or  approved   the
Commentary   to  our  Rules  of  Evidence.    See   the
Introduction to the Commentary to the Alaska  Rules  of
Evidence.   In  other  words, the commentaries  to  the
various evidence rules represent only the views of  the
Evidence  Rules  main  drafter,  Professor  Stephen  A.
Saltzburg,  and  not  necessarily  the  views  or   the
intentions of our supreme court.
          Nevertheless,  for purposes of deciding  this
appeal,  we will assume (without deciding) that  Alaska
law  mirrors  federal law on the issue  of  a  criminal
defendants right to the assistance of an interpreter.
          As explained above, when a defendant requests
an interpreter, the trial judge must make an assessment
of  the  defendants need for an interpreter, given  the
level   of  the  defendants  English  skills  and   the
particular  facts and demands of the case.   Seemingly,
everyone (judges, lawyers, and lay persons alike) would
agree  that  an interpreter is needed when a  defendant
has  no understanding of English whatsoever.  But  that
leaves   a   great   middle  ground:   defendants   who
concededly have some ability to understand and to speak
English,  but  not the level of language skill  that  a
native  speaker  of English would possess.   For  these
situations,  there  is scant case  law  describing  the
details of the analysis or the precise standards that a
trial  judge is to employ in making the decision.   The
judge   is  expected  to  base  the  decision  on   the
defendants   ability   to   understand   English,   the
defendants ability to speak English, the nature of  the
issues  to be litigated, and the anticipated complexity
or subtlety of the trial testimony.  Weighing all these
factors,   the  judge  must  then  decide  whether   an
interpreter  is  necessary  if  the  defendant  is   to
participate  effectively in his or her defense.5   Yet,
as at least one commentator has noted, trial judges are
often   untrained  or  ill-equipped  to  make  language
proficiency assessments.6
          It  is likewise unclear what level of English
proficiency  is necessary to preserve a defendants  due
process  rights.   Appellate courts  have  consistently
found  that  a  defendants  due  process  rights   were
violated when the defendant lacked any ability to speak
or   understand   English  and  yet   was   denied   an
interpreter.7   But  as the First Circuit  observed  in
United  States v. Carrión, 488 F.2d 12,  14  (1st  Cir.
1973),  [t]he  status of the right [to an  interpreter]
becomes less certain [in cases] where ... the defendant
has  some  ability  to understand and communicate,  but
clearly has difficulty.
          In  Carrión, the First Circuit concluded that
most  cases raising the issue of a defendants purported
need  for  an interpreter would have to be resolved  by
deferring to the trial judges evaluation of this issue.
The  First  Circuit noted the reasons  for  giving  the
trial  judge wide discretion on this issue (reasons  we
have  already explained), and the court suggested that,
generally  speaking,  [i]t would  be  a  fruitless  and
frustrating  exercise  for  [an]  appellate  court  [to
second-guess  the trial judge by] infer[ring]  language
difficulty  from  every faltering, repetitious  bit  of
testimony in the record.  Id. at 15.
          Moreover,  the appointment of an  interpreter
does  not  guarantee that the issue of  the  defendants
lack of English proficiency will be laid to rest.  Many
of  the appellate decisions involving the federal Court
Interpreters  Act  deal  with  allegations   that   the
interpreter appointed to assist the defendant  did  not
have  sufficient  bilingual  competency,  or  that  the
interpreter was not sufficiently disinterested  in  the
outcome.8
          Because this issue comes to us in Tsens  case
as  a  claim  of plain error, we need not  resolve  all
these  facets of the problem.  The question confronting
us   is  whether  Judge  Volland  plainly  abused   his
discretion  when  he  declined to  order  word-for-word
interpretation of the testimony at Tsens trial.  As  we
explain in the next section of this opinion, the record
does not show a plain abuse of discretion.

  (c)   Why  we conclude that, under the facts of  this
  case,  Tsen  has  failed to show that  Judge  Volland
  committed plain error when he declined to order word-
  for-word  interpretation of the  testimony  at  Tsens
  trial

          In   the  previous  section,  we  listed  the
primary  factors  that  a trial judge  must  presumably
evaluate  when  deciding whether to order word-for-word
interpretation  of the trial proceedings  to  assist  a
defendant  who  has some ability to understand  and  to
speak English, but not the level of language skill that
a  native  speaker  of  English would  possess.   These
factors are:  (1) the extent to which the defendant can
comprehend spoken English (i.e., understand the English
speech  of  other people), (2) the extent to which  the
defendant  can express himself or herself  in  English,
and  (3)  the degree to which the trial testimony  will
present  complex  or subtle issues of  fact  that  will
require  the  defendants input  (i.e.,  the  defendants
participation in formulating the defense  case  and  in
devising  the cross-examination of adverse  witnesses).
The  judge  should weigh these factors and then  decide
whether  an interpreter is necessary in order  for  the
defendant  to  participate effectively in  his  or  her
defense.
          Tsen  argues  that no reasonable judge  could
have reached the decision that Judge Volland did  i.e.,
the  decision  that  an interpreter was  not  required.
Tsens  position is arguably supported by the  responses
that  Tsen  gave  when  Judge  Volland  questioned  him
personally  about his English language  abilities.   We
quoted that exchange earlier in our opinion, but  Tsens
responses should be quoted again at this point:
     
          The Court:  Mr. Tsen, have you been able
     to understand me today?
     
          The   Defendant:   Sir,  I   can   speak
     English.   I  listen   but  the  meaning,  it
     really  hard for me to understand the meaning
     a  lot.   For some time is I understand  what
     the slang meaning, but some its just not like
     this.  Because I worry about that sometime it
     I  pick  up   I  cannot pick up  something  I
     should have tell to my lawyer, but I dont.  I
     let  it go opportunities; I worry about that,
     thats all.
     
          The  Court:   Have  you  been  able   to
     understand  what we were doing in  court  the
     last few days?
     
     The Defendant:  I come back home, I have
asking  my friends and some is I dont  really
understand  the meaning, but  and  the  first
day, I dont really know about that much,  but
I learned from the first day, second day, and
then I just  it was just the same thing,  and
listen and always not discrimination.  I say,
oh,  thats not good, this one no good,  so  I
just ...

     The  Court:   Are you able to understand
Mr. Bernitz when he talks with you?

     The  Defendant:   More than  somebody  I
didnt  communicate with.  Mostly I understand
the  person, I communicate for a few  day  or
week,  then  I  pick  up.   The  same  as  if
somebody  who  I just talk to I  dont  really
understand very much.  Its like somebody tell
joke  to me, I dont really laughing and  they
thought I meaning, but I come back, Im  going
to ask my friend and I laugh myself.

          It  is  obvious from  this  excerpt
that  Tsen had difficulty expressing  himself
in  grammatical English  or, as Judge Volland
phrased it, Tsen had difficulty with some  of
the   nuances  of  the  [English]   language.
Nevertheless,  Judge Volland  concluded  that
Tsen   had  a  good  understanding   of   the
questions  the  judge was asking  him   i.e.,
that  Tsen had a good understanding of  other
peoples  spoken English.  Accordingly,  Judge
Volland decided that it was not necessary  to
order  word-for-word  interpretation  of  the
entire  trial  although (later in the  trial)
he did offer to make an interpreter available
to assist Tsen if Tsen decided to testify.
          As  Tsen  points out in his  brief,
criminal defendants spend most of their trial
listening  to  what other people  are  saying
the  witnesses, the lawyers, and  the  judge.
And   if   a   defendant  is  to  participate
meaningfully   in  their   defense,   it   is
important  for  them  to understand  what  is
being said.
          One  can easily imagine that, given
Tsens  limited command of English,  he  might
not  have  correctly or completely understood
everything  that was said in  the  courtroom.
But  the  same  sort of problem could  easily
exist  for defendants whose native tongue  is
English.
          Some  witnesses have  accents  that
are  difficult to understand for someone  who
is  not used to their regional pronunciation.
Some  witnesses employ slang or  professional
jargon that is not familiar to others outside
that  social  or professional group.   Within
this  category,  some of the chief  offenders
are  lawyers and judges  who often  speak  in
legal  shorthand that can be incomprehensible
to a lay person.
          (For  example, judges  and  lawyers
speak  of continuing a trial or hearing  when
they  actually mean stopping it and  delaying
it  until  a later time; similarly, they  say
discovery    when    they    actually    mean
disclosure.)
          In  other words, it is likely  that
many   defendants   even  those  whose  first
language  is English  do not have  a  perfect
understanding of everything that is  said  in
their  criminal trial.  One can hope  that  a
defendant  will be assertive enough  to  seek
clarification of important matters,  or  that
their  lawyer will be attentive  and  helpful
enough  to  offer  the needed  clarification.
But  there  is  no guarantee.   Thus,  it  is
reasonable  to assume that, among defendants,
there  will  be  a range in  their  level  of
comprehension  varying degrees to which  they
can  understand the witnesses  testimony  and
other  aspects  of the proceedings.   Indeed,
this is inescapable.
          The  question,  therefore,  is  not
whether    the   defendant   can   understand
everything perfectly, but rather whether  the
defendants  level  of  comprehension  is   so
deficient  as to make the trial fundamentally
unfair.
          Judge  Volland concluded that Tsens
difficulties  with the English  language  did
not  rise  to  this level.   And  the  judges
position on this matter is supported by  what
Tsens  attorney  said  and  declined  to  say
during the various discussions of this issue.
          Obviously, Tsens attorney had first-
hand   knowledge  concerning  Tsens   English
language  proficiency.  The defense  attorney
confirmed  this  when he told  Judge  Volland
that  he  [had]  information about  how  well
[Tsen]  speaks English.  And, based  on  that
first-hand  knowledge, the  defense  attorney
told Judge Volland that he [thought] Mr. Tsen
understands the words that are being said.
          Later,     when    Judge    Volland
specifically   asked  the  defense   attorney
whether he believed that Tsens right  to  due
process  would be defeated if no  interpreter
was provided; the defense attorney responded,
I  think  that Mr. Tsen wants an interpreter.
[But]  I  cant say what the Court just  said.
That  is,  the  defense  attorney  could  not
assert  that  an interpreter  was  needed  to
protect Tsens due process rights.
          We   have  examined  the  testimony
presented  at Tsens trial, and (as  might  be
expected)  the witnesses accounts  of  events
and  conversations are full of  details  that
Tsen  conceivably might not  have  completely
grasped.  But it would be mere speculation to
assume    that    Tsen   had   insurmountable
difficulty   understanding  these  witnesses.
The  record contains no indication that  Tsen
failed to comprehend any of this testimony.
          Moreover, we note that the  primary
defense strategy in this case did not require
Tsen  or  his  attorney to actively  deny  or
rebut most of the testimony presented by  the
States witnesses.
          As  described toward the  beginning
of this opinion, Tsen ran an escort service /
massage parlor.  The police arrested  two  of
Tsens female employees for prostitution,  and
one of the women   Tammy Hogan  agreed to aid
the  police by arranging to purchase  cocaine
from Tsen.
          After  Hogan  telephoned  Tsen   to
arrange the sale, one of the police officers,
Officer Leonard Torres, posing as a customer,
accompanied  Hogan to the trailer  that  Tsen
used  as  his office.  When they got  to  the
trailer,  Torres handed Hogan $50.00  in  buy
money   i.e., pre-marked currency that  Hogan
was to use when purchasing the cocaine.
          Torres  testified  that  Mr.   Tsen
opened  the  door, greeted us, [and]  let  us
come  into ... the trailer.  ...  I was going
to  light  a cigarette, [but Mr. Tsen]  didnt
want me to light it there, [so] he told me to
stand in this [other] little room, ... that I
could  smoke  in  that  room.   While  Torres
waited,  Ms. Hogan and Mr. Tsen continued  on
into  the  back  bedroom ... .   [Ms.  Hogan]
entered  [the bedroom], the door was  closed,
and  then, within seconds, she came back out,
walked to the room [where I was waiting], and
placed  in  my  hand  two  pieces  of   crack
cocaine.
          Torres  conceded that  he  did  not
personally  observe  what  occurred  in   the
bedroom  while  Tsen  and  Hogan  were  there
together  behind  the  closed  door.   Torres
could see Hogan as she walked with Tsen  down
the  hall to that room, and he could see  her
when she came out of the room and walked back
down  the  hall toward where he was  waiting.
The  only time he could not see her was  when
she was in the room with Tsen  and she was in
that   room  for  only  approximately  thirty
seconds.
          After Tsen was arrested, the police
found the pre-marked buy money in his wallet.
And,  as we described earlier, Tsen consented
to be interviewed by the police.  During this
post-arrest interview, Tsen admitted that  he
routinely  purchased  cocaine  to   make   it
available  to his female employees and  their
customers, so that drug dealers would not  be
hanging around the neighborhood.
          The  only  major problem  that  the
State  faced in presenting its case  was  the
absence  of  its main witness,  Tammy  Hogan.
Hogan   the only potential government witness
who had first-hand knowledge of what occurred
when she accompanied Tsen into the room   did
not  testify at Tsens trial.  Indeed, despite
the  best  efforts  of the Anchorage  police,
Hogan was nowhere to be found.
          Tsens attorney built his defense on
Hogans  absence.   Rather than  controverting
any  of  the  police testimony,  the  defense
attorney  pointed out that only  Hogan  could
say for sure what happened during the crucial
thirty seconds inside the back bedroom.   And
the defense attorney suggested that Hogan had
falsely    implicated   Tsen    in    cocaine
trafficking   set  [him] up   so  that  Hogan
would  not have to pay the price for her  own
crimes.
          The   defense   attorney   elicited
evidence  that  Hogan was on  probation  from
several     previous     convictions      for
prostitution,  as  well  as  convictions  for
shoplifting and trespass.  He suggested that,
when    Hogan   was   again   arrested    for
prostitution   that  night,   she   faced   a
significant amount of jail time and therefore
would  try  to obtain mitigated treatment  in
her  prostitution case by appearing  to  help
the police.
          Hogans   friend  and   co-employee,
Cynthia  Stockman, testified for the defense.
Stockman  declared that Hogan was already  in
possession of crack cocaine before the police
arrived that night.  Stockman stated that she
personally knew that Hogan had purchased some
crack  cocaine the day before, and  then  had
purchased  more  cocaine on the  day  of  her
arrest.
          Stockman further declared that,  to
her  knowledge, Hogan never purchased cocaine
at  Tsens trailer.  On cross-examination, the
prosecuting attorney confronted Stockman with
Tsens   post-arrest  statement  (i.e.,  Tsens
admission  that he made a practice of  having
cocaine  available  for sale  to  his  female
employees  and  their  customers).   Stockman
responded, I never saw that happen,  [and  I]
dont know anything about that.
          In  his  summation at the close  of
the  trial, Tsens attorney suggested  to  the
jurors that most of the police testimony  was
irrelevant   that the crucial  facts  of  the
case  (the events that occurred in  the  back
room) had not been observed by the police and
were not covered by their testimony:

     Defense  Attorney:  You dont  know  what
happened in that [back] room in [the] trailer
because  you  werent there, and  because  the
State  hasnt  presented any witnesses  as  to
what happened in that room.  Because the door
was  closed, and because theres  no  wire  on
anyone  in  that room.  ...  And  [the  State
has]  to  prove  to you beyond  a  reasonable
doubt  ... that Mr. Tsen exchanged money  for
cocaine with Hogan in that room.
     .  .  .

     [Hogan] is desperately addicted to crack
[cocaine], ... and [then] shes busted ... for
prostitution  ... , [and] shes  terrified  of
... going to jail.  We know [that] shes going
to  jail  for a long time, because shes  been
charged so many times before.
     .  .  .

     Shes desperate enough to set up Mr. Tsen
in order to avoid going to jail.

          In   other   words,   the   defense
attorney  adopted a litigation strategy  that
did  not  require him to completely discredit
the narrative of events offered by Torres and
his fellow officers.  For this reason, it was
not  crucial for Tsen to closely  follow  and
carefully  analyze  all the  details  of  the
officers  testimony, nor was it  crucial  for
Tsen  to  actively participate in formulating
the cross-examination of these officers.
          As  we  have explained, one of  the
primary  factors  that a trial  judge  should
weigh  when  deciding whether to  appoint  an
interpreter for a criminal defendant  is  the
degree  to  which  the trial  testimony  will
present complex or subtle issues of fact that
will require the defendants participation  in
formulating the defense case and in  devising
the  cross-examination of adverse  witnesses.
Tsens  case  was litigated in a  manner  that
minimized this concern.
          Even now, on appeal, Tsen does  not
point  to  any  particular  portion  of   the
testimony  that  he failed to understand,  or
any specific way in which his lack of English
proficiency  actually  prejudiced  him.   His
argument  in this appeal is based  solely  on
general  assertions that his English language
skills    were   not   good.     Given    the
circumstances here, this type of  generalized
assertion  is  not  sufficient  to  obtain  a
reversal of the jurys verdict.
          As  we  acknowledged earlier, Tsens
colloquy   with   Judge   Volland   certainly
suggests  that he would have had a  difficult
time   testifying  without  the  aid  of   an
interpreter.  But that problem did not  arise
because,  even  after Judge  Volland  offered
Tsen  an  interpreter for this purpose,  Tsen
chose not to testify.
          Based  on  the  record  before  us,
Judge  Volland  did  not  plainly  abuse  his
discretion  when  he  concluded  that   Tsens
limitations as an English speaker were not so
severe    as    to    require   word-for-word
interpretation of the trial proceedings.   We
therefore  uphold Judge Vollands decision  in
this matter.

The question of whether Tsens sentence is too lenient

     Tsen was convicted of third-degree controlled
substance misconduct based on his sale of  cocaine
and  possession of cocaine for sale.  Third-degree
controlled  substance  misconduct  is  a  class  B
felony.9   In  State  v.  Eskridge,  53  P.3d  619
(Alaska  App. 2002), this Court set out sentencing
guidelines for class B felony controlled substance
offenses.  Under the Eskridge guidelines, a  first
felony  offender who has engaged in  the  on-going
commercial  sale of smaller quantities of  cocaine
should   normally   receive   up   to   2    years
imprisonment.  Id. at 621.
          At   Tsens  sentencing  hearing,  the   State
asserted that Tsen was a first felony offender who  had
engaged   in  on-going  commercial  sales  of   smaller
quantities  of  cocaine.  The  State  relied  on  Tsens
statement  to  the police following his  arrest   i.e.,
Tsens  admission  that he purchased  approximately  3.5
grams  of  cocaine  per week, so  that  he  would  have
cocaine  available to sell to his female employees  and
their  clients.  Based on this evidence, and  based  on
the  Eskridge  guidelines, the State argued  that  Tsen
should receive a sentence of 2 years imprisonment  with
1 year suspended for his drug offenses.
          But  Judge  Volland declared that the  United
          States Supreme Courts decision in Blakely  v.
Washington,  542 U.S. 296, 124 S.Ct. 2531, 159  L.Ed.2d
403  (2004), prohibited him from basing his  sentencing
decision on any factual assertions that lay outside the
jurys verdict:
     
          The  Court:  I cant [find] that he  sold
     that amount [of cocaine] every week.  I mean,
     the  jury  didnt  hear that evidence.   [And]
     thats not what they convicted him of.  He was
     convicted    of    basically    a    [single]
     transaction.  I mean, there was  no  evidence
     presented  [of other sales,] other  than  how
     one might interpret his admission ... .
     
               A  little  later in the  sentencing
     hearing,  Judge  Volland explained  that  his
     refusal to find that Tsen had engaged in  on-
     going  commercial sales of cocaine was  based
     on  his interpretation of the Sixth Amendment
     right to jury trial as expounded in Blakely:
     
          The   Court:    [A]lthough   the   State
     presented circumstantial evidence that  might
     suggest  Mr.  Tsen  was  involved  in   other
     cocaine   sales,  I  interpret  the   Blakely
     decision  to  restrict my  findings  for  the
     purposes of sentenc[ing] to those facts which
     were  determined by the jury.  [And the jurys
     verdict    establishes   only]    a    single
     transaction  involving  a  modest  amount  of
     cocaine.
     
     For  this reason, Judge Volland rejected  the
     States  argument that Tsens conduct qualified
     for  a sentence of up to 2 years imprisonment
     under the Eskridge guidelines.
          After  assessing Tsens conduct  and
background   under   the  Chaney   sentencing
criteria,10 Judge Volland concluded that Tsen
should  receive  a  suspended  imposition  of
sentence,  conditioned  on  Tsens  successful
completion  of 4 years probation, plus  Tsens
serving  8 days in jail (the amount  of  time
that Tsen had already spent in jail before he
was released on bail).
          On  appeal,  the State argues  that
this  sentence is manifestly too lenient  for
two  class  B felonies.  The States  argument
would  have considerable merit if  the  facts
were  as the State alleges:  that is, if Tsen
had  indeed  engaged  in on-going  commercial
sales  of  small quantities of cocaine.   But
the    States   factual   assertions   remain
unresolved   because Judge Volland  concluded
          that, under Blakely, he had no authority to
resolve them.
          The real problem here is that Judge
Volland   believed   that  his   fact-finding
authority  was constrained by Blakely.   This
belief was mistaken.
          Blakely holds that a defendant  has
a  right to demand a jury trial on any  issue
of  fact, other than a prior conviction, that
(if resolved in favor of the government) will
subject  the defendant to a higher  potential
maximum    sentence.    But   under    Alaska
sentencing law at the time of Tsens  offenses
(that  is,  in February 2005), Judge  Volland
had  the  authority to sentence Tsen  to  any
term  of imprisonment up to 4 years to  serve
based  on  the  jurys verdict alone,  without
making  any  additional findings  of  fact.11
And  the  State  was not seeking  a  sentence
higher than that 4-year ceiling.  Rather, the
State  was  seeking  a sentence  considerably
below  that  ceiling:  2  years  imprisonment
with 1 year suspended.
          We have expressly held that Blakely
does  not  regulate or restrict a  sentencing
judges traditional consideration of the  many
factors that potentially affect the selection
of  a  case-appropriate sentence  within  the
applicable  statutory bounds.   Cleveland  v.
State,  143 P.3d 977, 986 (Alaska App. 2006).
See  also Vandergriff v. State, 125 P.3d 360,
369   (Alaska  App.  2005)  (Mannheimer,  J.,
concurring):     [U]nder    a    system    of
indeterminate sentencing  i.e., a  sentencing
scheme  in which the judge has the discretion
to  impose any term of imprisonment within  a
specified  range of sentences   a  sentencing
judge  does  not violate the Sixth  Amendment
when  the judge engages in fact-finding  when
choosing  a  sentence  within  the  specified
range.
           Moreover, we have also  held  that
the  Blakely  right to jury  trial  does  not
apply to the findings of fact that trigger or
define   the  various  sentencing   benchmark
ranges  or  guidelines established by  Alaska
appellate  decisions.  See Carlson v.  State,
128 P.3d 197, 211 (Alaska App. 2006) (holding
that  a defendant being sentenced for second-
degree murder has no Blakely right to a  jury
trial   on   the  question  of  whether   the
defendants   sentence   should   exceed   the
benchmark  range of 20 to 30 years  to  serve
that  was  established in Page v. State,  657
P.2d    850,   855   (Alaska   App.   1983));
Vandergriff,  125 P.3d at 363  (holding  that
when  a defendant is being sentenced for  two
or  more offenses, Blakely does not apply  to
the sentencing judges decision under the Neal-
Mutschler   rule   that  is,  the  sentencing
judges decision as to whether, because of the
need  to  protect the public, the  defendants
composite term of imprisonment should  exceed
the  maximum  term  for the  defendants  most
serious offense).
          For   these  reasons,  the  Blakely
right  to  jury trial did not  apply  to  the
States efforts to prove that Tsen had engaged
in   on-going  commercial  sales   of   small
quantities of cocaine.  Judge Volland  should
have  allowed  the  State  to  litigate  this
assertion  and, if the judge found  that  the
assertion  was proved, the judge should  have
sentenced  Tsen  according to the  guidelines
set forth in Eskridge.
          To  this  extent, we find error  in
Judge Vollands sentencing decision.

Conclusion

     The  judgement  of  the  superior  court   is
AFFIRMED.   However, we agree with the State  that
the sentencing proceedings were flawed because the
superior court adopted an erroneous interpretation
of Blakely.

_______________________________
1 AS 11.71.030(a)(1) and AS 11.66.130(a)(1), respectively.

2  In  this opinion, we use the term interpreter to  mean  a
person who translates spoken (or signed) communications from
one  language  to  another.   This  conforms  to  the  usage
recommended  in  William  E. Hewitt,  Court  Interpretation:
Model  Guides  for Policy and Practice in the  State  Courts
(National Center for State Courts, 1995), p. 31.

3  See United States v. Mayans, 17 F.3d 1174, 1179-1181 (9th
Cir.  1994); United States v. Yee Soon Shin, 953  F.2d  559,
561  (9th  Cir.  1992); United States v. Sánchez,  928  F.2d
1450,  1456  (6th Cir. 1991); United States v. Bennett,  848
F.2d   1134,  1141  (11th  Cir.  1988);  United  States   v.
Cirrincione,  780  F.2d  620, 634 (7th  Cir.  1985);  United
States v. Carrión, 488 F.2d 12, 14-15 (1st Cir. 1973).

4  United  States v. Martínez, 616 F.2d 185, 188  (5th  Cir.
1980).

5  See Nur v. State, 869 N.E.2d 472, 478-79 (Ind. App. 2007)
(explaining the standard that trial judges should apply when
deciding  whether a particular criminal defendant is  to  be
considered  non-English speaking for purposes of  appointing
an interpreter).

6 Virginia E. Hench, What Kind of Hearing?  Some Thoughts on
Due Process for the Non-English-Speaking Criminal Defendant,
24  T.  Marshall  Law  Rev.  251, 272  (1999)  (The  current
standard  asks judges who are not linguistically trained  to
evaluate  a  defendants  ability to communicate  without  an
interpreter,   and  [thus]  allows  for  an   unconscionable
inequality in the safeguarding of basic trial rights.).

7  See, e.g., United States v. Si, 333 F.3d 1041, 1042  (9th
Cir.  2003);  State v. Kounelis, 609 A.2d 1310,  1313  (N.J.
App.  1992); In re Application of Murga, 631 P.2d  735,  736
(Okla. 1981).

8 See, e.g., United States v. Benítez-Arzate, 203 Fed. Appx.
427, 428 (4th Cir. 2006); United States v. García-Pérez, 190
Fed.  Appx.  461,  472  (6th Cir. 2006);  United  States  v.
Gonzáles, 179 Fed. Appx. 362, 364-65 (6th Cir. 2006); United
States  v.  Bailón-Santana, 429 F.3d 1258, 1260  -1261  (9th
Cir. 2005); United States v. Quiroz, 137 Fed. Appx. 667, 672
(5th  Cir. 2005); United States v. Aispuro-Guadiana, 97 Fed.
Appx. 76, 76-77 (8th Cir. 2004);
United States v. Bell, 367 F.3d 452, 464 (5th Cir. 2004); United
States v. Sándoval, 347 F.3d 627, 632 (7th Cir. 2003).

9AS 11.71.030(c).

10  That is, the sentencing goals first announced in State v.
Chaney,  477  P.2d 441, 443-44 (Alaska 1970),  and  now
codified in AS 12.55.005.

11  See former AS 12.55.125(k)(2) (pre-March 2005 version),
which  declared  that,  in the absence  of  aggravating
factors,  a  first  felony  offender  could  receive  a
sentence   of  unsuspended  imprisonment  up   to   the
presumptive  term provided for second felony  offenders
convicted   of   the  same  offense;  and   former   AS
12.55.125(d)(1) (pre-March 2005 version), which  set  a
presumptive  term  of 4 years imprisonment  for  second
felony offenders convicted of a class B felony.

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