United States v. Jeffrey Toohey ( 2013 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-4815
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
JEFFREY GLENN TOOHEY,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at New Bern. W. Earl Britt, Senior
District Judge. (4:12-cr-00046-BR-1)
Submitted: February 28, 2013 Decided: March 15, 2013
Before GREGORY, SHEDD, and KEENAN, Circuit Judges.
Dismissed by unpublished per curiam opinion.
Arza Feldman, Steven A. Feldman, FELDMAN AND FELDMAN, Union
Dale, New York, for Appellant. Jennifer P. May-Parker, Stephen
Aubrey West, Assistant United States Attorneys, Felice McConnell
Corpening, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North
Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Jeffrey Glenn Toohey pled guilty to aiding and
abetting identity theft, 18 U.S.C. §§ 1028(a)(7), (c)(3)(A), 2
(2006); aiding and abetting access device fraud, 18 U.S.C.
§§ 1029(a)(2), 2 (2006); two counts of aggravated identity
theft, 18 U.S.C. § 1028A (2006); bank fraud, 18 U.S.C.
§ 1344(1), (2) (2006); and conspiracy to present false claims,
18 U.S.C. § 287 (2006). He received an aggregate sentence,
within the advisory Guidelines range, of 125 months’
imprisonment.
On appeal, Toohey argues the sentencing court erred in
overruling his objection to a leadership enhancement and in
failing to address his argument for a military service departure
under U.S. Sentencing Guidelines Manual § 5H1.11 (2011). While
acknowledging the appellate waiver in his opening brief, Toohey
maintains that the waiver was not knowing, intelligent, or
voluntary. The Government moves to dismiss the appeal, asking
this court to enforce Toohey’s appellate waiver. Toohey opposes
the motion, reiterating his position that the waiver is
unenforceable. We grant the Government’s request and dismiss.
A defendant may waive the right to appeal if that
waiver is knowing and intelligent. United States v. Poindexter,
492 F.3d 263, 270 (4th Cir. 2007). Generally, if the district
court fully questions a defendant regarding the waiver of his
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right to appeal during the plea colloquy performed in accordance
with Fed. R. Crim. P. 11, the waiver is both valid and
enforceable. United States v. Johnson, 410 F.3d 137, 151 (4th
Cir. 2005). However, a district court’s failure to abide
strictly by the requirements of Rule 11 will not render an
appeal waiver unenforceable if the record indicates that the
defendant otherwise understood its significance. United States
v. General, 278 F.3d 389, 400–01 (4th Cir. 2002). The question
of whether a defendant validly waived his right to appeal is a
question of law that we review de novo. United States v. Blick,
408 F.3d 162, 168 (4th Cir. 2005).
After reviewing the record, Toohey’s brief, the
Government’s motion, and Toohey’s response, we conclude that
Toohey voluntarily, knowingly, and intelligently waived his
right to appeal his sentence and that the appeal waiver is
enforceable against him. Although Toohey challenges the
enforceability of the waiver, he does not dispute that the
claims he raises on appeal fall within the scope of the waiver.
Accordingly, because Toohey’s valid and enforceable appeal
waiver precludes this appeal, we dismiss it. We dispense with
oral argument because the facts and legal contentions are
adequately presented in the materials before this court and
argument would not aid the decisional process.
DISMISSED
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