US v. Jeffrey Toohey, No. 12-4815 (4th Cir. 2013)

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 12-4815 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. JEFFREY GLENN TOOHEY, Defendant -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 Dismissed by unpublished per curiam opinion.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 Unpublished opinions are not binding precedent in this circuit.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 §§ 1029(a)(2), theft, 18 and 2 abetting (2006); U.S.C. § access two 1028A device counts fraud, 18 of bank (2006); aggravated fraud, U.S.C. identity 18 U.S.C. § 1344(1), (2) (2006); and conspiracy to present false claims, 18 U.S.C. within § 287 the (2006). advisory He received Guidelines an aggregate range, of sentence, 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 voluntary. the waiver was not knowing, or The Government moves to dismiss the appeal, asking this court to enforce Toohey s appellate waiver. the intelligent, motion, reiterating unenforceable. A his position that Toohey opposes the waiver is We grant the Government s request and dismiss. defendant may waive the waiver is knowing and intelligent. 492 F.3d 263, 270 (4th Cir. 2007). right to appeal if that United States v. Poindexter, Generally, if the district court fully questions a defendant regarding the waiver of his 2 right to appeal during the plea colloquy performed in accordance with Fed. R. enforceable. Cir. Crim. by 11, the waiver is both valid and United States v. Johnson, 410 F.3d 137, 151 (4th 2005). strictly P. However, the a district requirements of court s Rule 11 failure will not to abide 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 Government s Toohey right reviewing motion, voluntarily, to appeal enforceable and of record, Toohey s knowingly, his sentence against enforceability the him. the response, and and he we brief, the conclude that intelligently that Although waiver, Toohey s the appeal Toohey does not waived waiver challenges dispute that his is the the claims he raises on appeal fall within the scope of the waiver. Accordingly, because Toohey s valid and enforceable waiver precludes this appeal, we dismiss it. oral argument adequately because presented in the the facts and materials appeal We dispense with legal contentions are before this and court argument would not aid the decisional process. DISMISSED 3