                                                                                                                           Opinions of the United
2008 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


6-3-2008

USA v. Stevenson
Precedential or Non-Precedential: Non-Precedential

Docket No. 07-1332




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"USA v. Stevenson" (2008). 2008 Decisions. Paper 1071.
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                                                           NOT PRECEDENTIAL

                   UNITED STATES COURT OF APPEALS
                        FOR THE THIRD CIRCUIT
                             ____________

                                 No. 07-1332
                                ____________


                      UNITED STATES OF AMERICA


                                       v.

                           WILLIAM D. STEVENSON,

                                            Appellant


                                ____________

                  On Appeal from United States District Court
                    for the Western District of Pennsylvania
                              D.C. No. 05-cv-00327
                 District Judge: Honorable Terrence F. McVerry
                                  ____________

                  Submitted Under Third Circuit LAR 34.1(a)
                               May 23, 2008

          Before: SMITH, HARDIMAN and NYGAARD, Circuit Judges.

                             (Filed: June 3, 2008)
                                ____________

                           OPINION OF THE COURT
                                ____________




HARDIMAN, Circuit Judge.
       William Stevenson appeals his sentence despite having waived his right to appeal.

We will affirm.

                                             I.

       Because we write for the parties, we recount only those facts essential to our

decision.

       Stevenson pleaded guilty to distribution of material depicting the sexual

exploitation of a minor in violation of 18 U.S.C. § 2252(a)(1) and accepted responsibility

for possession of child pornography under 18 U.S.C. § 2252(a)(4)(B). In a written plea

agreement, Stevenson waived his right to appeal unless: (1) the government filed an

appeal; (2) the sentence exceeded the statutory maximum; or (3) the court unreasonably

departed upward from the United States Sentencing Guidelines (Guidelines) range. In

this appeal, Stevenson claims that the District Court exceeded the statutory maximum

when it imposed the following conditions of supervised release:

       Defendant shall submit your person, residence, place of business, computer,
       and/or vehicle to a warrantless search conducted and controlled by the
       probation office at a reasonable time and in a reasonable manner, based
       upon reasonable suspicion of contraband or evidence of a violation of a
       condition of release. The failure to submit to a search may be grounds for
       revocation. Defendant shall inform any other residents that the premises
       and computer(s) may be subject to a search pursuant to this condition.

(emphasis added).

       Because Stevenson does not challenge the voluntariness of his appellate waiver,

we will enforce it unless it “work[s] a miscarriage of justice.” See United States v.



                                             2
Khattak, 273 F.3d 557, 558 (3d Cir. 2001). The gravamen of Stevenson’s appeal is that

the District Court exceeded the statutory maximum because the United States Code does

not specifically authorize the search of a supervised releasee’s place of business. See 18

U.S.C. § 3563(b)(23). This argument is based on the fallacy that the conditions

enumerated in § 3563(b)(23) are exhaustive. As 18 U.S.C. § 3583(d) makes clear, the

court may impose “any other condition it considers to be appropriate.” Likewise, 18

U.S.C. § 3563(b)(22) notes that the sentencing court may require the defendant to “satisfy

such other conditions as [it] may impose,” provided that those other conditions are

reasonably related to the § 3553(a) factors.

       Because we find that 18 U.S.C. §§ 3563(b)(22) and 3583(d) gave the District

Court discretion to impose on Stevenson conditions of supervised release beyond those

catalogued in § 3563(b)(23), we hold that the condition Stevenson challenges did not

exceed the statutory maximum authorized by the United States Code. Therefore, this

appeal does not elude Stevenson’s appellate waiver.

       We now consider whether enforcement of the appellate waiver would work a

manifest injustice. See United States v. Gwinnett, 483 F.3d 200, 205-06 (3d Cir. 2007).

We can find manifest injustice only in “unusual circumstance[s] where an error

amounting to a miscarriage of justice may invalidate the waiver.” Khattak, 273 F.3d at

562. In reviewing a sentencing error for a manifest injustice, we may consider “the

clarity of the error, its gravity, its character (e.g., whether it concerns a fact issue, a



                                                3
sentencing guideline, or a statutory maximum), the impact of the error on the defendant,

the impact of correcting the error on the government, and the extent to which the

defendant acquiesced in the result.” Id. at 563 (citation omitted).

       Our review of the record finds no manifest injustice here. Stevenson claims that

the District Court abused its discretion in imposing this condition because a prospective

employer is so unlikely to hire him that it amounts to “a greater deprivation of liberty than

is reasonably necessary under 18 U.S.C. § 3583(d)(2).” (internal quotation marks

omitted). In light of the catch-all provisions of 18 U.S.C. §§ 3563(b)(22) and 3583(d)

and Stevenson’s history of accessing images involving child pornography at his

workplace, we cannot conclude that this sentencing condition was an abuse of discretion,

let alone a “blatant error.” See Khattak, 273 F.3d at 562.

       Accordingly, we will affirm the judgment of the District Court.




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