United States v. David Foley , 599 F. App'x 658 ( 2015 )

FILED
NOT FOR PUBLICATION MAR 25 2015
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 14-10055
Plaintiff - Appellee, D.C. No. 5:09-cr-00670-EJD-1
v.
MEMORANDUM*
DAVID RUSSELL FOLEY,
Defendant - Appellant.
UNITED STATES OF AMERICA, No. 14-10056
Plaintiff - Appellee, D.C. No. 5:11-cr-00554-EJD-1
v.
DAVID RUSSELL FOLEY,
Defendant - Appellant.
Appeal from the United States District Court
for the Northern District of California
Edward J. Davila, District Judge, Presiding
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Submitted March 10, 2015**
San Francisco California
Before: McKEOWN, MURGUIA, and FRIEDLAND, Circuit Judges.
David Russell Foley appeals his sentence imposed after he pled guilty to
conspiracy to commit mail and wire fraud in violation of 18 U.S.C. §§ 1341, 1343,
and 1349. This Court has jurisdiction under 28 U.S.C. § 1291. See United States
v. Jacobo Castillo, 496 F.3d 947, 949–50 (9th Cir. 2007) (en banc). We dismiss
the appeal because Foley waived his right to appeal his sentence, and that waiver is
valid and enforceable.
Foley knowingly and voluntarily entered into the plea agreement and waived
his right to appeal his sentence. See United States v. Spear, 753 F.3d 964, 967 (9th
Cir. 2014) (citing United States v. Rahman, 642 F.3d 1257, 1259 (9th Cir. 2011)).
Foley argues that the waiver is invalid because (1) the sentence does not comport
with the terms of the plea agreement;1 and (2) the sentence is illegal. See United
States v. Tsosie, 639 F.3d 1213, 1217 (9th Cir. 2011). Both arguments fail.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
1
Foley contends that “GVR is not even mentioned” in the relevant portion
of the plea agreement. However, this argument flatly misconstrues the record; the
plea agreement expressly refers both to Ultracade and to Ultracade’s “successor-in-
interest,”—GVR. We caution Foley’s counsel against making such blatant
misrepresentations in the future. See Fed. R. App. P. 46(c).
2
First, the sentence Foley received was below the calculated sentencing
guidelines range as determined by the district court and squarely within the specific
sentencing terms of the plea agreement. See United States v. Bolinger, 940 F.2d
478, 480 (9th Cir. 1991). Second, the sentence was not illegal, because it was
below the statutory maximum of 20 years, did not violate the Constitution, and was
supported by the judgment of conviction. See United States v. Fowler, 794 F.2d
1446, 1449 (9th Cir. 1986).
Accordingly, Foley’s appeal is DISMISSED.
3