United States v. Toliver ( 2022 )

Case: 21-30246 Document: 00516253271 Page: 1 Date Filed: 03/24/2022
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
March 24, 2022
No. 21-30246
Summary Calendar Lyle W. Cayce
Clerk
United States of America,
Plaintiff—Appellee,
versus
Edward Toliver,
Defendant—Appellant.
Appeal from the United States District Court
for the Eastern District of Louisiana
USDC No. 2:19-CR-150-1
Before Wiener, Dennis, and Haynes, Circuit Judges.
Per Curiam:*
Defendant-Appellant Edward Toliver appeals his sentences for
possession of 15 or more fraudulent access devices and aggravated identity theft.
He contends that the district court incorrectly calculated the loss amount,
resulting in an inappropriate guidelines range. The Government has moved to
dismiss Toliver’s appeal as barred by his appellate waiver. We review de novo
whether an appeal waiver bars an appeal. United States v. Keele, 755 F.3d 752,
754 (5th Cir. 2014).
* Pursuant to 5th Circuit Rule 47.5, the court has determined that this opinion
should not be published and is not precedent except under the limited circumstances set
forth in 5th Circuit Rule 47.5.4.
Case: 21-30246 Document: 00516253271 Page: 2 Date Filed: 03/24/2022
No. 21-30246
Toliver knowingly and voluntarily waived his appellate rights. See United
States v. Bond, 414 F.3d 542, 544 (5th Cir. 2005). In the plea agreement, Toliver
unambiguously agreed to waive his right to appeal or “collaterally attack” his
conviction and sentence. His colloquy with the district court at his sentencing
hearing confirms the knowing and voluntary nature of his plea. We have long
enforced presentencing appellate waivers when, as here, the defendant was aware
of the maximum term of imprisonment, knew that sentence selection was within
the purview of the district court, and understood that the district court had
discretion to depart from the guidelines recommendation. See United States v.
Melancon, 972 F.2d 566, 567-68 (5th Cir. 1992).
Affording the language of Toliver’s appeal waiver its plain meaning, it
undoubtedly “applies to the circumstances at issue” in this case. United States v.
Harrison, 777 F.3d 227, 233 (5th Cir. 2015). By its terms, the appellate waiver
bars appeals or collateral attacks on Toliver’s conviction or sentence for any
reason except ineffective assistance of counsel or a sentence that exceeded the
statutory maximum. His appeal is neither based on ineffective assistance of
counsel nor that his sentence exceeded the statutory maximum. Toliver’s
appellate waiver is valid and enforceable. See Bond, 414 F.3d at 544.
The Government’s motion to dismiss is GRANTED, and Toliver’s
appeal is DISMISSED.
2