United States of America v. Keith Stephens

Honorable Jane A. Restani, Chief Judge of the United States Court of*
International Trade, sitting by designation.
NOT PRECEDENTIAL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.

-- 1 of 3 --

This matter did not proceed on the basis of the government’s Motion for1
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
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

-- 2 of 3 --

(...continued)1
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.

-- 3 of 3 --