                                                                             FILED
                            NOT FOR PUBLICATION                               APR 23 2013

                                                                         MOLLY C. DWYER, CLERK
                     UNITED STATES COURT OF APPEALS                        U .S. C O U R T OF APPE ALS




                             FOR THE NINTH CIRCUIT



UNITED STATES OF AMERICA,                         No. 11-50259

               Plaintiff - Appellee,              D.C. No. 3:10-cr-05124-BEN

  v.
                                                  MEMORANDUM *
JOSE LUIS CASTILLO,

               Defendant - Appellant.



                    Appeal from the United States District Court
                       for the Southern District of California
                     Roger T. Benitez, District Judge, Presiding

                             Submitted April 16, 2013 **

Before:        CANBY, IKUTA, and WATFORD, Circuit Judges.

       Jose Luis Castillo appeals from the district court’s judgment and challenges

his guilty-plea conviction for transportation of illegal aliens and aiding and

abetting, in violation of 8 U.S.C. § 1324(a)(1)(A)(ii), (v)(II). We have jurisdiction

under 28 U.S.C. § 1291, and we affirm.

          *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
          **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
      Castillo contends that his plea was not entered knowingly, intelligently, and

voluntarily in light of his inaudible responses at the change of plea hearing and his

impaired mental state. Contrary to the government’s argument, the appeal waiver

in Castillo’s plea agreement does not bar our consideration of his claim. See

United States v. Portillo-Cano, 192 F.3d 1246, 1250 (9th Cir. 1999) (reaching

defendant’s claim that the plea was involuntary, despite appeal waiver, because

“waivers of appeal must stand or fall with the agreement of which they are a part”)

(internal quotations omitted). Nevertheless, Castillo’s claim fails.

      We review the voluntariness of a plea de novo. See United States v.

Forrester, 616 F.3d 929, 934 (9th Cir. 2010). Notwithstanding the portions of the

transcript of the change of plea hearing that are marked “inaudible,” the record

reflects that Castillo’s plea was knowing, voluntary, and intelligent. Moreover, the

record reflects that any mental health issues that Castillo may suffer did not impair

his ability to enter a knowing plea.

      AFFIRMED.




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