USA V. DAVID FOLEY, No. 14-10055 (9th Cir. 2015)
Annotate this CaseThis opinion or order relates to an opinion or order originally issued on March 25, 2015.
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FILED NOT FOR PUBLICATION UNITED STATES COURT OF APPEALS APR 17 2015 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT UNITED STATES OF AMERICA, Plaintiff - Appellee, No. 14-10055 D.C. No. 5:09-cr-00670-EJD-1 v. MEMORANDUM* DAVID RUSSELL FOLEY, Defendant - Appellant. UNITED STATES OF AMERICA, Plaintiff - Appellee, No. 14-10056 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; and (2) the sentence is illegal. See United States v. Tsosie, 639 F.3d 1213, 1217 (9th Cir. 2011). Both arguments fail. 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 ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). 2 478, 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
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