                                                                           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                           NOT FOR PUBLICATION                             MAR 25 2015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
