1

NOT PRECEDENTIAL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)

 

O P I N I O N

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 

:
2

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

accordingly dismiss this appeal.

I. 

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).

BACKGROUND

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 
3

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. 

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.

DISCUSSION

1

 1 This holding 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. Stephens 
4

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
5

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.

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

jurisdiction. 

CONCLUSION