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


12-17-2008

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Precedential or Non-Precedential: Non-Precedential

Docket No. 06-4145




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Recommended Citation
"USA v. Stephens" (2008). 2008 Decisions. Paper 99.
http://digitalcommons.law.villanova.edu/thirdcircuit_2008/99


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                                                                NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                               _________________

                                     No. 06-4145
                                  _________________

                           UNITED STATES OF AMERICA

                                           v.

                                  KEITH STEPHENS,
                                             Appellant
                                  ________________

                                     Appeal from the
                           United States District Court for the
                                  District of New Jersey
                            (D.C. Criminal No. 06-cr-00249)
                        District Judge: Honorable Jose L. Linares
                                    ______________

                       Submitted Under Third Circuit LAR 34.1(a)
                                  November 21, 2008
                                  ________________

          Before: BARRY and CHAGARES, Circuit Judges, and RESTANI * , Judge

                          (Opinion Filed: December 17, 2008 )
                                  _______________

                                      OPINION
                                   _______________

RESTANI, Judge.



      *
         Honorable Jane A. Restani, Chief Judge of the United States Court of
International Trade, sitting by designation.
       We write for the parties only.

       Appellant Keith Stephens pled guilty to a one-count information charging

conspiracy to defraud with access devices under 18 U.S.C. § 1029(b)(2). Stephens was

sentenced to a term of imprisonment of 43 months, which is within the Guidelines range

for an offense level of 21. In his plea agreement, Stephens agreed to waive his right to

appeal such a sentence.

       Stephens argues that the waiver of the right to appeal should be invalidated, as

failure to grant him a downward departure results in a miscarriage of justice due to his

exceptional circumstances. The miscarriage of justice exception is to be applied sparingly

after consideration of the clarity, gravity, and character of the error, the error’s impact on

the parties, and the extent of the defendant’s acquiescence. United States v. Wilson, 429

F.3d 455, 458 (3d Cir. 2005) (citation omitted). There is nothing extraordinary or

exceptional about Stephens’s claims of extenuating circumstances as to his youth, first

felony offense, cooperation, lack of education, mental and physical state, community ties,

and family responsibilities. In any case, the sentencing court heard and considered all

such claims, and it is unlikely any error was committed. Thus, this is not an appropriate

case for invalidating a waiver of appeal.

       Accordingly, appellant’s appeal will be dismissed.1

       1
         This matter did not proceed on the basis of the government’s Motion for
Summary Action, as such motion was filed some months after the government first
entered a notice of appearance. By that time, various activities in the case had taken
                                                                                (continued...)

                                               2
       1
        (...continued)
place, including the filing of appellant’s brief. This case is not a model for efficiently
obtaining a dismissal of appeal based on a waiver. Accordingly, we reject the
government’s request for a precedential opinion setting forth what that model should be.
