                                   UNPUBLISHED

                      UNITED STATES COURT OF APPEALS
                          FOR THE FOURTH CIRCUIT


                                     No. 17-4568


UNITED STATES OF AMERICA,

                   Plaintiff - Appellee,

             v.

TOHEEB ODOFFIN,

                   Defendant - Appellant.



                                     No. 17-4581


UNITED STATES OF AMERICA,

                   Plaintiff - Appellee,

             v.

HAFEEZ ODOFFIN,

                   Defendant - Appellant.



Appeals from the United States District Court for the Eastern District of Virginia, at
Newport News. Raymond A. Jackson, District Judge. (4:16-cr-00049-RAJ-LRL-2; 4:16-
cr-00049-RAJ-LRL-4)


Submitted: March 30, 2018                                      Decided: April 6, 2018
Before MOTZ, KING, and DIAZ, Circuit Judges.


No. 17-4568, affirmed in part, dismissed in part; No. 17-4581, dismissed by unpublished
per curiam opinion.


Rebecca S. Colaw, REBECCA S. COLAW, PC, Suffolk, Virginia; Melissa J. Warner,
LAW OFFICE OF MELISSA J. WARNER, Glen Allen, Virginia, for Appellants. Brian
James Samuels, Assistant United States Attorney, OFFICE OF THE UNITED STATES
ATTORNEY, Newport News, Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.




                                            2
PER CURIAM:

       Toheeb Odoffin and Hafeez Odoffin seek to appeal the sentences imposed

following their guilty pleas to conspiracy to commit mail, bank, and wire fraud, in

violation of 18 U.S.C. § 1349 (2012), and aggravated identity theft, in violation of 18

U.S.C. § 1028A (2012). Both Appellants dispute the amount of loss attributed to them by

the district court. In addition, Toheeb Odoffin argues that his sentence is substantively

unreasonable because the district court, motivated by anti-immigrant bias, imposed an

excessive sentence that failed to account for lesser sentences received by other

perpetrators of fraud. Finally, Hafeez Odoffin contends that the court did not adequately

consider the 18 U.S.C. § 3553(a) (2012) sentencing factors. The Government has moved

to dismiss the appeals as barred by the appeal waivers included in Appellants’ plea

agreements. For the reasons that follow, we grant the Government’s motion to dismiss

Hafeez Odoffin’s appeal and grant the Government’s motion to dismiss Toheeb’s appeal

in part, deny the motion to dismiss as to his judicial bias claim, and affirm Toheeb’s

judgment as to that claim.

       We review de novo the validity of an appeal waiver. United States v. Thornsbury,

670 F.3d 532, 537 (4th Cir. 2012). An appeal waiver “preclude[s] a defendant from

appealing a specific issue if . . . the waiver is valid and . . . the issue being appealed is

within the scope of the waiver.” Id. (internal quotation marks omitted). A defendant

validly waives his appeal rights if he agreed to the waiver “knowingly and intelligently.”

United States v. Manigan, 592 F.3d 621, 627 (4th Cir. 2010). “To determine whether a

waiver is knowing and intelligent, we examine the totality of the circumstances, including

                                             3
the experience and conduct of the accused, as well as the accused’s educational

background and familiarity with the terms of the plea agreement.” Thornsbury, 670 F.3d

at 537 (internal quotation marks omitted).

       Upon review of the plea agreements and the Fed. R. Crim. P. 11 hearing

transcripts, we conclude that both Appellants knowingly and voluntarily waived the right

to appeal. We further find that the issues Hafeez Odoffin seeks to raise fall squarely

within his valid appeal waiver.

       As to Toheeb Odoffin, his appeal waiver too is valid and enforceable, and only

one claim is not foreclosed by his appellate waiver. Specifically, his claim that his

sentence was based on a constitutionally impermissible factor is not subject to waiver.

United States v. Marin, 961 F.2d 493, 496 (4th Cir. 1992); see United States v. Bakker,

925 F.2d 728, 740 (4th Cir. 1991) (listing national origin as constitutionally

impermissible sentencing factor). However, the record contains no evidence to support

his contention that the district court enhanced his sentence because of his national origin.

       Accordingly, we grant the Government’s motion to dismiss Hafeez Odoffin’s

appeal. We grant the Government’s motion to dismiss Toheeb Odoffin’s appeal in part,

but we deny the motion as to his judicial bias claim and affirm Toheeb Odoffin’s criminal

judgment as to that claim. We dispense with oral argument because the facts and legal

contentions are adequately presented in the materials before this Court and argument

would not aid the decisional process.

                                                       No. 17-4568, AFFIRMED IN PART,
                                                                   DISMISSED IN PART;
                                                                No. 17-4581, DISMISSED

                                             4
