                                                                                                                           Opinions of the United
2005 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


6-8-2005

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Precedential or Non-Precedential: Non-Precedential

Docket No. 04-2513




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Recommended Citation
"USA v. Stanton" (2005). 2005 Decisions. Paper 1049.
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                                                                  NOT PRECEDENTIAL


                          IN THE UNITED STATES COURT
                                   OF APPEALS
                              FOR THE THIRD CIRCUIT


                                      NO. 04-2513


                            UNITED STATES OF AMERICA

                                            v.

                             KEVIN JEFFREY STANTON,
                                              Appellant




                           On Appeal From the United States
                                      District Court
                        For the Middle District of Pennsylvania
                         (D.C. Crim. Action No. 03-cr-00209)
                       District Judge: Hon. James F. McClure, Jr.


                    Submitted Pursuant to Third Circuit LAR 34.1(a)
                                     June 7, 2005

                 BEFORE: AMBRO, STAPLETON and ALARCON,*
                              Circuit Judges

                                  (Filed: June 8, 2005 )




*Hon. Arthur L. Alarcon, Senior United States Circuit Judge for the Ninth Circuit, sitting
by designation.
                               OPINION OF THE COURT




STAPLETON, Circuit Judge:


       Pursuant to a plea agreement, appellant Kevin Stanton pled guilty to escape from

federal custody in violation of 18 U.S.C. § 751. He challenges his sentence based on

United States v. Booker, 125 S. Ct. 738 (2005). In accordance with circuit precedent, we

will affirm his conviction, vacate his sentence, and remand for resentencing in accordance

with Booker. See United States v. Davis, 2005 WL 976941 (3d Cir. Apr. 28, 2005).

       We will not, however, direct that Stanton be resentenced by a different United

States District Court judge as he requests. His request is premised on his contention that

the government breached the plea agreement at his sentencing. We find no breach.

       The plea agreement provided:

              The United States Attorney’s Office for the Middle District of
       Pennsylvania recognizes that the facts relating to defendant’s unlawful
       departure from custody are unusual and may fall “outside the heartland of
       cases” relating to unlawful departure from custody. These facts may justify
       a downward departure from the otherwise applicable Sentencing
       Guidelines. The failure of the Court to find that the defendant is entitled to
       a downward departure shall not be a basis to void this plea agreement.

App. at 36. Like the District Court, we find that nothing occurring at Stanton’s

arraignment amended this provision. See App. at 54. Accordingly, there was no promise

                                             2
by the government not to oppose Stanton’s motion for a downward departure.

      The judgment of the District Court will be vacated, and this matter will be

remanded for resentencing under United States v. Booker.




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