                               UNPUBLISHED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Affirmed in part and dismissed in part by unpublished per curiam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Unpublished opinions are not binding precedent in this circuit.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
