1 NOT PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

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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 )

O P I N I O N

ROTH, Circuit Judge Dorian D. Stephens appeals the jud gment of sentence related to his convictions for distribution and possession of crack cocaine. Stephens entered a plea agreement in which :2 he waived his right to appeal. W e find that this waiver should be enforced here . We will accordingly dismiss this ap peal

. I.
In transactions occurring in November 2008 and October 2009, Stephens sol d a
combined total of seventeen grams of crack cocaine to co nfidential informants working with federal law enforcement officers. In connection with these drug d eals, 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). BACKGROUND

On Janu ary 31, 2011, Stephens entered a plea agreement pursuant to which he would plead guilty to the two drug crimes and the g overnment would drop the felon in possession of a firearm charge . He also agreed to waive his right to appeal his sentence subject to t he following exceptions: (1) if the g overnment 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
S tates 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 Sentencin g Memorandum3 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 s o that he would receive a sentence no greater th an 60 months. While the Court did not gra nt 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. Stephens ’ central argument on appeal is that the District Court erred in imposing his sentence by failing to apply the F S A , which operated to reduce sentences for certain crack co caine

- 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,

t hat the District Court was required to apply the FSA in determining his sentence . In
Dixon , we held that the more l enient penalties of the FSA applied retroactively to defendants such as Step hens who we re sentenced after that statute’s enactment, regardle ss of when they committed the ir unde rlying offenses. DISCUSSION

1

1 This hol ding has been confirmed by the Supreme Court’s decision in Dorsey v. United States , 567 U.S.

---- , 132 S. Ct. 2321 (2012). 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. Stephens4 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 h ave 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 jur isdiction if we conclude that Stephens knowingly and voluntarily waived his right to appeal his sentence and that the e nforcement 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 waive d his right to appeal his sentence in his plea agreement, subject to three exceptions that a re inapplicable here. Also, he does not argue in his appellate brief s , 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 volunta ry. The only basis to consider Stephens’ ap peal, 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, int egrity, or public reputation of judicial proceedings .” United States v. Corso , 549 F

. 3d 921, 929 ( 3 d 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). It s application is not warranted here. Stephens largely argues that his appeal should be heard because sentencing him without reference to the FSA constitu ted legal error. A waiver of appellate rights, how ever, necessarily includes the forbearance of appealing even blatant errors. See United States v. Khattak , 273 F.3d 557, 562 (3d C ir. 2001). Stephens nevertheless insists5 that it w ould be unjust for the Court not to exercise jurisdiction over his appeal because the g overnment 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 g overnment “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)

. I n relation to a defendant who file s an appeal in order to obtain the benefit of the ap plicatio n of the FSA , it is possible that the g ov ernment would deci de 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 exacer bating f actors. The fact that t he government has exercised its discretion in favor of certain defendants does not compel it
to do so for all and does not render it s decision to enforce Stephens’ waiver a miscarriage of justice. Finally, Stephens argues that enfor cement of his appellate waiver would work a miscarriage of justice because the waiver was the result of ineffective assistance of counsel. W e generally defer resolution of stand

- alone claims of ineffective assistance of counsel to collateral proceedings r ather than address them on direct appeal. See, e.g., United States v. Sandini , 888 F.2d 300, 312 (3d Cir. 1989). W e will so defer here.
III. For the reasons explained above, we will dismiss this appeal for lack of jurisdiction. CONCLUSION