United States v. Dorian Stephens

NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________

No. 11-3078
_____________

UNITED STATES OF AMERICA

v.

DORIAN D. STEPHENS, a/k/a DEE,

Appellant

On Appeal from the United States District Court
for the Western District of Pennsylvania
(D. C. No. 3-10-cr-00001-001)
District Judge: Honorable Kim R. Gibson

Submitted under Third Circuit LAR 34.1(a)
on July 12, 2012

Before: FUENTES, HARDIMAN and ROTH, Circuit Judges

(Opinion filed: October 16, 2012)

OPINION

ROTH, Circuit Judge:

Dorian D. Stephens appeals the judgment of sentence related to his convictions for

distribution and possession of crack cocaine. Stephens entered a plea agreement in which

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he waived his right to appeal. We find that this waiver should be enforced here. We will

accordingly dismiss this appeal.

I. BACKGROUND

In transactions occurring in November 2008 and October 2009, Stephens sold a

combined total of seventeen grams of crack cocaine to confidential informants working

with federal law enforcement officers. In connection with these drug deals, he was

ultimately indicted on one count of distribution of five or more grams of crack cocaine

and a second count of possession with intent to distribute five or more grams of crack

cocaine. See 21 U.S.C. §§ 841(a)(1), 841(b)(1)(B)(iii). After his arrest, law enforcement

authorities obtained a warrant to search his home, and based on their discovery of two

handguns there, he was indicted on a third charge – unlawful possession of a firearm by a

felon. See 18 U.S.C. §§ 922(g)(1), 924(a)(2).

On January 31, 2011, Stephens entered a plea agreement pursuant to which he

would plead guilty to the two drug crimes and the government would drop the felon in

possession of a firearm charge. He also agreed to waive his right to appeal his sentence

subject to the following exceptions: (1) if the government appealed his sentence, (2) if

the sentence exceeded the applicable statutory limits, or (3) if his sentence unreasonably

exceeded the range determined to be applicable by the District Court under the United

States Sentencing Guidelines.

Stephens’ sentencing took place in July 2011. His Presentence Report calculated

the Guidelines range for his sentence as 188-235 months imprisonment. Stephens

discussed the Fair Sentencing Act of 2010 (FSA) in his Sentencing Memorandum

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 and asked that it be applied to him. He did not attempt, however, to make the

application, or not, of the FSA to his sentence a grounds for appeal. Stephens also

moved for a downward variance so that he would receive a sentence no greater

than 60 months. While the Court did not grant this request, it did find that a

departure from the Guidelines range to a reduced range of 60-120 months was

appropriate. It ultimately sentenced Stephens to 72 months imprisonment for each

of the drug crimes, to be served concurrently. Stephens appeals that sentence.

II. DISCUSSION

Stephens’ central argument on appeal is that the District Court erred in imposing

his sentence by failing to apply the FSA, which operated to reduce sentences for certain

crack cocaine-related offenses. See Fair Sentencing Act of 2010, Pub. L. No. 111-220,

124 Stat. 2372 (2010). He contends, on the basis of this Court’s opinion in United States

v. Dixon, 648 F.3d 195 (3d Cir. 2011), which was issued subsequent to his sentencing,

that the District Court was required to apply the FSA in determining his sentence. In

Dixon, we held that the more lenient penalties of the FSA applied retroactively to

defendants such as Stephens who were sentenced after that statute’s enactment,

regardless of when they committed their underlying offenses. 1 Stephens claims that, had

the FSA been applied in his case, as Dixon requires, his Guidelines range would have

been computed as only 151-188 months. Of course, the revised range of 60-120 months

that the Court employed in sentencing him was wholly below this range. Stephens

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This holding has been confirmed by the Supreme Court’s decision in Dorsey v. United
States, 567 U.S. ----, 132 S. Ct. 2321 (2012).
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argues, however, that the revised range on which the Court settled might have been even

lower had it been operating from the assumption of the lower initial Guidelines range.

We have jurisdiction to review Stephens’s sentence based on 28 U.S.C. § 1291

and 18 U.S.C. § 3742(a). However, we will not exercise this jurisdiction if we conclude

that Stephens knowingly and voluntarily waived his right to appeal his sentence and that

the enforcement of that waiver would not work a miscarriage of justice. United States v.

Gwinnet, 483 F.3d 200, 203 (3d Cir. 2007). As we noted earlier, Stephens waived his

right to appeal his sentence in his plea agreement, subject to three exceptions that are

inapplicable here. Also, he does not argue in his appellate briefs, and, indeed, concedes

in a letter to the Court dated June 28, 2012, written pursuant to Rule 28(j) of the Federal

Rules of Appellate Procedure, that this waiver was knowing and voluntary.

The only basis to consider Stephens’ appeal, then, would be if enforcing his

appellate waiver would work a miscarriage of justice. This would be the case if doing so

would “seriously affect[] the fairness, integrity, or public reputation of judicial

proceedings.” United States v. Corso, 549 F.3d 921, 929 (3d Cir. 2008) (citation and

internal quotation marks omitted). “This exception will be applied sparingly and without

undue generosity.” United States v. Stabile, 633 F.3d 219, 247 (3d Cir. 2011) (citation

and internal quotation marks omitted). Its application is not warranted here.

Stephens largely argues that his appeal should be heard because sentencing him

without reference to the FSA constituted legal error. A waiver of appellate rights,

however, necessarily includes the forbearance of appealing even blatant errors. See

United States v. Khattak, 273 F.3d 557, 562 (3d Cir. 2001). Stephens nevertheless insists

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that it would be unjust for the Court not to exercise jurisdiction over his appeal because

the government has chosen not to enforce appellate waivers agreed to by certain other

criminal defendants who were sentenced after the FSA’s passage but not afforded the

benefits of that statute’s penalty reductions. As we have previously observed, however,

the government “may always choose not to invoke an appellate waiver” as a matter of

discretion. United States v. Goodson, 544 F.3d 529, 535 (3d Cir. 2008). In relation to a

defendant who files an appeal in order to obtain the benefit of the application of the FSA,

it is possible that the government would decide whether or not to enforce a waiver based

on the facts of the underlying crime, the sentence already imposed, the potential impact

of resentencing, and other mitigating and exacerbating factors. The fact that the

government has exercised its discretion in favor of certain defendants does not compel it

to do so for all and does not render its decision to enforce Stephens’ waiver a miscarriage

of justice.

Finally, Stephens argues that enforcement of his appellate waiver would work a

miscarriage of justice because the waiver was the result of ineffective assistance of

counsel. We generally defer resolution of stand-alone claims of ineffective assistance of

counsel to collateral proceedings rather than address them on direct appeal. See, e.g.,

United States v. Sandini, 888 F.2d 300, 312 (3d Cir. 1989). We will so defer here.

III. CONCLUSION

For the reasons explained above, we will dismiss this appeal for lack of

jurisdiction.

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