                                                                            FILED
                           NOT FOR PUBLICATION
                                                                            SEP 15 2017
                    UNITED STATES COURT OF APPEALS                       MOLLY C. DWYER, CLERK
                                                                          U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No. 16-10367

              Plaintiff - Appellee,              D.C. No. 2:15-cr-00382-DLR-1

 v.
                                                 MEMORANDUM*
EDWIN VIDAL TORRES,

              Defendant - Appellant.


                    Appeal from the United States District Court
                             for the District of Arizona
                    Douglas L. Rayes, District Judge, Presiding

                          Submitted September 13, 2017**
                             San Francisco, California

Before: WALLACE and WATFORD, Circuit Judges, and SANDS,*** Senior
District Judge.




      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
      ***
            The Honorable W. Louis Sands, Senior United States District Judge
for the Middle District of Georgia, sitting by designation.
                                                                            Page 2 of 4
      1. Edwin Torres appeals from the judgment entered by the district court

pursuant to his guilty plea to one count of assault resulting in serious bodily injury

in violation of 18 U.S.C. § 113(a)(6). Torres asserts that his guilty plea was

involuntary. “Although we review de novo whether a defendant entered a plea

knowingly and voluntarily, we apply only plain error review when a defendant

appeals based on an unobjected-to Rule 11 procedural violation.” United States v.

Carter, 795 F.3d 947, 950 (9th Cir. 2015) (internal citations omitted).

      Torres’s guilty plea was constitutionally valid because it was knowing and

voluntary. “A plea is voluntary if it ‘represents a voluntary and intelligent choice

among the alternative courses of action open to the defendant.’” United States v.

Kaczynski, 239 F.3d 1108, 1114 (9th Cir. 2001) (quoting North Carolina v. Alford,

400 U.S. 25, 31 (1970)). Torres’s claim that he suffered from untreated depression

when he pleaded guilty does not render his plea involuntary. “[D]epression alone

is very unlikely to render a plea involuntary,” particularly when the defendant was

“lucid[]” and appeared to understand the plea proceedings. Tanner v. McDaniel,

493 F.3d 1135, 1146 (9th Cir. 2007).

      Here, Torres was lucid and actively participated in his plea hearing. In

response to questions about his mental health, Torres stated that he felt “solid” and

“okay.” Throughout the plea colloquy, he was responsive to the court’s questions.
                                                                           Page 3 of 4
He confirmed that he understood the terms of the plea offer he rejected, the

elements of the charged offense, and the consequences of pleading guilty.

Moreover, Torres’s own counsel informed the court that he believed Torres was

competent to plead guilty. Based on this record, we conclude that Torres’s plea

was voluntary.

      2. To the extent Torres argues that the magistrate judge failed to inquire

about his mental state in violation of Federal Rule of Criminal Procedure 11(b), his

argument fails. Because Torres did not object to any procedural violation, this

court reviews for plain error. See Carter, 795 F.3d at 950. If a defendant’s

statements during a plea colloquy raise questions about his mental state, the court

accepting the plea has a duty to inquire further. See id. at 955. Here, the court’s

inquiry was sufficient. After Torres advised the court of his depression, the court

asked Torres about his treatment history, whether he was continuing to experience

mental health problems, and how he felt at the plea hearing. Only after the court

received assurances from Torres and Torres’s counsel did it proceed with the plea

colloquy. After observing Torres for the rest of the plea hearing, the court

concluded that Torres seemed “absolutely 100 percent clear-headed,” and was

competent to plead guilty. The court fully satisfied the demands of Rule 11(b).

      Torres’s motion to strike (Docket Entry 27) is DENIED.
            Page 4 of 4
AFFIRMED.
