United States of America v. Tyra Danyal Castillo

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
TYRA DANYAL CASTILLO,
Defendant-Appellant.
No. 20-30191
D.C. No.
4:18-cr-00068-DCN-1
MEMORANDUM*
Appeal from the United States District Court
for the District of Idaho
David C. Nye, Chief District Judge, Presiding
Submitted October 5, 2021**
Portland, Oregon
Before: W. FLETCHER, IKUTA, and BRESS, Circuit Judges.
Tyra Castillo appeals her sentence for possession with intent to distribute
methamphetamine, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(C). We dismiss
the appeal because Castillo knowingly and voluntarily waived her right to appeal as
part of her plea agreement.
* 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).
FILED
OCT 7 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

-- 1 of 4 --

2
“As a general rule, ‘[a] waiver of appellate rights is enforceable if (1) the
language of the waiver encompasses [the defendant’s] right to appeal on the grounds
raised, and (2) the waiver is knowingly and voluntarily made.’” United States v. Lo,
839 F.3d 777, 783 (9th Cir. 2016) (quoting United States v. Medina-Carrasco, 815
F.3d 457, 461 (9th Cir. 2016)). Castillo argues that a claimed defect in the Federal
Rule of Criminal Procedure 11 plea colloquy rendered her waiver of appellate rights
unknowing. Because she did not object to the Rule 11 colloquy in the district court,
we review for plain error. See United States v. Ferguson, 8 F.4th 1143, 1145–1146
(9th Cir. Aug. 17, 2021). To establish plain error, Castillo must show “(1) error, (2)
that is plain, (3) that affected substantial rights, and (4) that seriously affected the
fairness, integrity or public reputation of the judicial proceedings.” Id. (quoting
United States v. Borowy, 595 F.3d 1045, 1049 (9th Cir. 2010) (per curiam)).
Even though Rule 11(b)(1)(N) generally requires the district court “to inform
the defendant of, and determine that the defendant understands . . . the terms of any
plea-agreement provision waiving the right to appeal or to collaterally attack the
sentence,” we have explained that “[t]he failure of [the] court to do so . . . is not plain
error where evidence in the record shows that the defendant waived appellate rights
knowingly and voluntarily.” Lo, 839 F.3d at 784; see also Fed. R. Crim. P. 11(h)
(“A variance from the requirements of this rule is harmless error if it does not affect
substantial rights.”). “In making this determination, we look ‘to the circumstances

-- 2 of 4 --

3
surrounding the signing and entry of the plea agreement to determine whether the
defendant agreed to its terms knowingly and voluntarily.’” Lo, 839 F.3d at 784
(quoting United States v. Baramdyka, 95 F.3d 840, 843 (9th Cir. 1996)).
In this case, the record as a whole shows that Castillo’s waiver of appellate
rights was knowing and voluntary. The language in the plea waiver is clear and
covers the instant appeal. Castillo expressly “waive[d] any right to appeal or
collaterally attack the entry of plea, the conviction, the entry of judgment, and the
sentence . . . .” The plea agreement carved out three specific situations when the
waiver of the right to appeal did not apply, but those are not implicated here. The
waiver also states its consequences in plain terms: “The defendant acknowledges
that this waiver shall result in the dismissal of any direct appeal . . . .” In accepting
the plea agreement, Castillo and her counsel also both signed statements confirming
that they understood the rights Castillo was relinquishing when pleading guilty.
In addition, the district court at the plea colloquy confirmed that Castillo
“understood every provision of the plea agreement” before signing it and that
Castillo had reviewed “every provision in the plea agreement with [her] attorney.”
The district court also specifically asked: “Do you understand that [the] plea
agreement contains a provision whereby you are waiving or giving up some or all of
your right to appeal the conviction and/or the sentence, or to pursue habeas corpus
relief?” Castillo answered: “Yes, sir.” The district court also again reminded

-- 3 of 4 --

4
Castillo of her waiver of the right to appeal at sentencing.
Thus, “[t]he whole record,” United States v. Ma, 290 F.3d 1002, 1005 (9th
Cir. 2002), including the language of the plea agreement and the proceedings before
the district court, confirms that Castillo knowingly and voluntarily waived her right
to appeal her sentence.1
DISMISSED.
1 Castillo points to no appellate or Supreme Court case holding that an appeal waiver
could be invalid due to its breadth. To the contrary, we have held that “a defendant
can validly waive appeal rights without being informed of the severity of the
sentence that will be imposed.” Lo, 839 F.3d at 784. Accordingly, the breadth of
this appeal waiver is not plain error.

-- 4 of 4 --