United States v. Jermaine Stephens

Case: 16-20495 Document: 00514070847 Page: 1 Date Filed: 07/13/2017

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fif h Circuit
No. 16-20495 FILED
Summary Calendar July 13, 2017
Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,

Plaintiff-Appellee

v.

JERMAINE CLARK STEPHENS,

Defendant-Appellant

Appeals from the United States District Court
for the Southern District of Texas
USDC No. 4:14-CR-576-2

Before KING, DENNIS, and COSTA, Circuit Judges.
PER CURIAM: *
Jermaine Clark Stephens pleaded guilty to interference with commerce
by robbery and was sentenced to serve 168 months in prison and a three-year
term of supervised release. He argues that trial counsel rendered ineffective
assistance by not challenging the inclusion of certain convictions in his
criminal history score. Because he did not raise this issue in the district court,
the record is not sufficiently developed to permit a fair evaluation of the claim,

* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
 Case: 16-20495 Document: 00514070847 Page: 2 Date Filed: 07/13/2017

No. 16-20495

and we decline to consider it without prejudice to collateral review. See United
States v. Isgar, 739 F.3d 829, 841 (5th Cir. 2014).
Additionally, Stephens argues that the district court’s guidelines
calculations were plainly erroneous. The Government argues that
consideration of this claim is precluded by the appeal waiver in the plea
agreement. To determine whether an appeal of a sentence is barred by a
waiver provision in a plea agreement, we analyze whether the waiver was
knowing and voluntary and whether the waiver applies to the appeal, based
on the plain language of the agreement. United States v. Bond, 414 F.3d 542,
544 (5th Cir. 2005). The record shows that the waiver was knowing and
voluntary, and the waiver covers Stephens’s sentencing claim. Accordingly,
consideration of this claim is barred by the appeal waiver. See id.
AFFIRMED.

2