UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 05-4735
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
CASUAL BIANCA LYONS,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. Terrence W. Boyle,
District Judge. (CR-03-312)
Argued: September 21, 2006 Decided: November 8, 2006
Before NIEMEYER, TRAXLER, and SHEDD, Circuit Judges.
Affirmed in part and dismissed in part by unpublished per curiam
opinion.
ARGUED: Paul K. Sun, Jr., ELLIS & WINTERS, L.L.P., Raleigh, North
Carolina, for Appellant. Christine Witcover Dean, Assistant United
States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh,
North Carolina, for Appellee. ON BRIEF: Frank D. Whitney, United
States Attorney, Anne M. Hayes, Assistant United States Attorney,
OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North Carolina, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
After entering into a plea agreement with the Government,
Casual Bianca Lyons pled guilty to conspiring to possess with
intent to distribute, and to distribute, 50 grams or more of
cocaine base. The district court thereafter sentenced Lyons to a
240-month term of imprisonment. On appeal, Lyons seeks
resentencing based on her contention that (1) the Government
breached her plea agreement, (2) her sentencing counsel provided
ineffective assistance, and (3) her sentence is unreasonable. For
the following reasons, we affirm in part and dismiss in part.1
I
Pertinent to this appeal, Lyons agreed in the plea agreement
to waive “all rights, conferred by 18 U.S.C. § 3742, to appeal
whatever sentence is imposed, including any issues that relate to
the establishment of the Guideline range, reserving only the right
to appeal from an upward departure from the Guideline range that is
established at sentencing. . . .” J.A. 13. Lyons also agreed “to
disclose fully and truthfully in interviews with Government agents,
1
As we discuss below, the Government argues that the appeal
waiver in Lyons’ plea agreement bars her claim on appeal that her
sentence is unreasonable. However, the Government does not argue
that the appeal waiver bars Lyons’ other claims. See generally
United States v. Blick, 408 F.3d 162, 168 (4th Cir. 2005) (holding
that we will enforce an otherwise valid appeal waiver when the
Government seeks to enforce it and when there is no claim that the
Government breached its obligations under the plea agreement).
2
concerning all conduct related to the Information and any other
crimes of which [she] has knowledge.” J.A. 15. For its part, the
Government agreed to “make known to the Court at sentencing the
full extent of [Lyons’] cooperation,” but it was “not promising to
move for departure pursuant to U.S.S.G. § 5K1.1.” J.A. 18.2 The
Government also reserved the right to make a sentence
recommendation.
The presentence report (“PSR”) calculated Lyons’ total
guideline offense level at 41. Because Lyons had a criminal
history category of VI, her advisory guideline range was 360 months
to life imprisonment. Lyons initially objected to the PSR on
several grounds, but upon the Government’s filing of a § 5K1.1
motion, she withdrew her objections. Accordingly, without
objection, the district court accepted the PSR calculations.
During the sentencing hearing, the Government presented its §
5K1.1 motion. The Government informed the district court that
Lyons’ trial testimony in a federal case in Florida helped convict
Andre Dougan, who was a large-scale drug dealer. The Government
also noted that Lyons had been sent to Florida to testify against
another drug defendant (Carey Williams), but because the
prosecuting attorney did not find her credible, the Government did
2
Section 5K1.1 permits the district court, on motion of the
Government, to depart downward from the sentencing guideline range
when the defendant has provided substantial assistance in the
investigation or prosecution of another person who has committed a
criminal offense.
3
not use her at that trial. The Government then stated that
although its normal policy was to recommend a 50% sentencing
reduction, it was only requesting a 25% reduction, or a sentence of
270 months, for Lyons. Explaining this recommendation, the
Government pointed out that despite Lyons’ extensive criminal
activity and local criminal connections, she did not provide
assistance in North Carolina. According to the Government, Lyons
“picked and chose” where and when she would provide information,
and she was not truthful and forthcoming about certain people (“the
local drug dealers”) who later implicated her as their drug
supplier. J.A. 79. Moreover, even when confronted with
information that the local drug dealers had implicated her, Lyons
“minimized” her involvement with them. J.A. 80.
In response to the Government’s discussion of her assistance,
Lyons’ attorney (Deborah L. Newton) pointed to Lyons’ testimony
against Dougan and her willingness to testify against Williams.
Referring to the local drug dealers, Newton also stated that she
had “three pages worth of . . . other people that [Lyons] has
provided information for prosecution against,” J.A. 90, and she
named several of them. Newton explained Lyons’ asserted lack of
cooperation regarding the local drug dealers by noting that
although it was “hard” for Lyons to talk about them in her initial
debriefings, she later was “very forthcoming.” J.A. 91.
4
In an apparent attempt to rebut Newton’s statement regarding
Lyons’ cooperation, the Government offered to call as a witness one
of the law enforcement officers who had interviewed Lyons. The
district court dissuaded the Government from calling this witness,
and it then granted the Government’s § 5K1.1 motion and sentenced
Lyons to a 240-month term of imprisonment.
II
Lyons first argues that the Government breached the plea
agreement by failing to “make known to the Court at sentencing the
full extent of [her] cooperation. . . .” J.A. 18. According to
Lyons, the Government informed the district court about some, but
not all, of her cooperation. Although Lyons presented additional
information about her purported cooperation during the sentencing
hearing, she did not argue in the district court that the
Government breached the plea agreement.
Because of Lyons’ failure to object to the Government’s
alleged breach of the plea agreement during sentencing, we review
for plain error. United States v. McQueen, 108 F.3d 64, 65-66 (4th
Cir. 1997). Generally, under plain error review, we may notice an
error that was not preserved by timely objection only if the
defendant can demonstrate that: (1) an error occurred, (2) the
error was plain, and (3) the error was material or affected the
defendant’s substantial rights. United States v. Olano, 507 U.S.
5
725, 732 (1993). Even when these three conditions are met, we
will correct the error only if it seriously affects the fairness,
integrity, or public reputation of judicial proceedings. Id. at
732. In the specific context of plain error review of an alleged
plea agreement breach, we have explained that the ultimate question
is whether the alleged breach is “so obvious and substantial that
failure to notice and correct it” affects the fairness, integrity
or public reputation of the judicial proceedings. McQueen, 108
F.3d at 66 (citation and internal punctuation omitted).
Having carefully reviewed the transcript of the sentencing
hearing, we find that Lyons has failed to establish any error, much
less one that is plain. As noted, although not obligated to do so,
the Government moved for a downward departure under § 5K1.1 for
Lyons’ substantial assistance, and in support of the motion it
informed the district court of Lyons’ testimony against Dougan.
Based on the Government’s motion and presentation, the district
court departed from the guideline range of 360 months to life and
sentenced Lyons to a 240-month term of imprisonment. Thus, Lyons
obtained a significant benefit by virtue of the Government’s
representation to the district court that she provided substantial
assistance.
Notwithstanding this fact, Lyons argues that the plea
agreement required more from the Government. Specifically,
pointing to the local drug dealers, Lyons contends that the
6
Government was obligated both to inform the district court about
them and to explain her cooperation with respect to them. We
believe that Lyons overstates the Government’s obligation under the
circumstances of this case.
To be sure, the Government agreed to inform the district court
about the “full extent” of Lyons’ “cooperation,” and “cooperation”
under the terms of this plea agreement arguably may be something
different (albeit lesser) than “substantial assistance.”3 However,
what Lyons fails to grasp in any event is that the Government did
not find her to be cooperative as to the local drug dealers.4
Rather, as the Government explained to the district court at
sentencing, Lyons was not initially truthful and forthcoming about
the local drug dealers; she “picked and chose where and when she
3
Although the plea agreement uses the term “cooperation,” it
does not mention “substantial assistance” specifically. Instead,
the plea agreement simply refers to the Government’s reservation of
its right to file a § 5K1.1 motion. Because the Government’s
obligation to inform the district court about Lyons’ “cooperation”
appears in the same provision as the Government’s reservation of
its right to file a § 5K1.1 motion, it is arguable that
“cooperation” is in fact synonymous with “substantial assistance.”
See United States v. Atwood, 963 F.2d 476, 479 (1st Cir. 1992)
(finding the terms “substantial assistance” and “cooperation” to be
synonymous).
4
A defendant alleging that the Government breached a plea
agreement bears the burden of establishing by a preponderance of
the evidence both the breach and his fulfillment of his own
obligations under the agreement. United States v. Snow, 234 F.3d
187, 189 & n.2 (4th Cir. 2000). Thus, in the context of this case,
Lyons must show that she provided the degree of cooperation
contemplated by the plea agreement. United States v. Connor, 930
F.2d 1073, 1076 (4th Cir. 1991).
7
would provide information,” J.A. 79, and she minimized her
involvement with them even after being told that they had
implicated her. Although Newton asserted that Lyons ultimately was
forthcoming, she nonetheless implicitly acknowledged much of the
Government’s version of events.
In Snow, we considered a claim that the Government breached a
plea agreement by failing to file a § 5K1.1 departure motion where
the agreement provided that the Government would make such a motion
in exchange for the defendant’s “truthful and thorough cooperation”
with law enforcement. 234 F.3d at 189. At the defendant’s
sentencing, the Government declined to file the motion based on its
determination that the defendant did not truthfully and thoroughly
cooperate, and the district court upheld the Government’s decision.
In affirming the sentence, we held that where “a plea agreement
contemplates that the Government will make a § 5K1.1 motion if the
defendant provides truthful cooperation, the Government remains the
appropriate party to assess whether the defendant has performed
that condition adequately.” 234 F.3d at 190. We further held that
“the Government is entitled to have that evaluation reviewed only
for bad faith or unconstitutional motive.” Id.
Although we decided Snow in the slightly different context of
the Government’s refusal to file a § 5K1.1 motion, we find its
reasoning to be applicable here. Because Lyons has not shown any
basis to suggest that the Government acted in bad faith or with an
8
unconstitutional motive, we have no occasion to disregard the
Government’s determination that she did not cooperate regarding the
local drug dealers. Accordingly, we find that the Government did
not breach the plea agreement.5
III
Lyons next argues that Newton provided ineffective assistance
because she (1) failed to object to the Government’s alleged breach
of the plea agreement and (2) procured Lyons’ agreement to withdraw
her objections to the PSR without obtaining any benefit from the
Government in return. “We may consider an ineffective assistance
claim in the first instance on direct appeal only if it
conclusively appears from the record that counsel was
constitutionally ineffective.” United States v. Alerre, 430 F.3d
5
In any event, even if the Government breached the plea
agreement by not providing more detail about Lyons’ “cooperation”
as to the local drug dealers, we find that the purported breach
would not warrant our correction of the error. As noted, during
the sentencing hearing Newton informed the district court about
Lyons’ alleged cooperation; thus, the district court was aware that
Lyons had done something more than simply testify against Dougan.
In light of the significant downward departure Lyons received, we
do not believe that the Government’s alleged breach was “so obvious
and substantial” that failure to notice and correct it affects the
fairness, integrity, or public reputation of the judicial
proceedings. McQueen, 108 F.3d at 66; see also United States v.
Salazar, 453 F.3d 911, 915 (7th Cir. 2006) (“Reversal on the basis
of plain-error review is justifiable only when the reviewing court
is convinced that it is necessary in order to avert an actual
miscarriage of justice. A defendant wishing to establish plain
error must show that but for the breach of the plea agreement his
sentence would have been different.”) (citation and internal
punctuation omitted).
9
681, 688 (4th Cir. 2005), cert. denied, 126 S. Ct. 1925 (2006).
Because our review of the record reveals that Lyons has failed to
meet the high burden necessary to raise this claim on direct
appeal, we decline to consider it.
IV
Finally, Lyons argues that her sentence is unreasonable. The
Government argues that Lyons has waived this issue by virtue of the
appeal waiver in the plea agreement. We agree. As we have noted,
Lyons agreed to waive (with one inapplicable exception) “all
rights” under 18 U.S.C. § 3742 “to appeal whatever sentence is
imposed.” J.A. 13. This waiver, which we find to be valid and
enforceable, bars Lyons’ challenge to the reasonableness of her
sentence. See Blick, 408 F.3d at 167-69 (discussing enforceability
of appeal waivers). Therefore, we dismiss this claim.
V
Based on the foregoing, we affirm in part and dismiss in part.
AFFIRMED IN PART AND DISMISSED IN PART
10