                  NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                             File Name: 05a0238n.06
                              Filed: March 30, 2005

                                              No. 04-5444

                             UNITED STATES COURT OF APPEALS
                                  FOR THE SIXTH CIRCUIT

UNITED STATES OF AMERICA,                           )
                                                    )
          Plaintiff-Appellee,                       )
                                                    )
v.                                                  )   ON APPEAL FROM THE UNITED
                                                    )   STATES DISTRICT COURT FOR THE
MICHAEL E. LAYMANCE,                                )   EASTERN DISTRICT OF KENTUCKY
                                                    )
          Defendant-Appellant.                      )


          Before: SUHRHEINRICH, ROGERS, and COOK, Circuit Judges.


          COOK, Circuit Judge. Michael Laymance appeals the sentence imposed after he pleaded

guilty to conspiracy to possess and distribute marijuana. The Government seeks dismissal premised

on Laymance’s knowing and voluntary waiver of his appeal rights as a part of his guilty plea—or

in the alternative, affirmance. Laymance resists dismissal by saying the Government’s plea-

agreement breach invalidates the appeal waiver. Finding no Government breach, we dismiss the

appeal.


                                                    I


          As part of his plea agreement, Laymance “waive[d] the right to appeal and the right to attack

collaterally the guilty plea, conviction, and sentence.” In exchange, the Government agreed to

dismiss two counts of the indictment and agreed to a recommended base offense level with a

corollary acceptance-of-responsibility adjustment.
No. 04-5444
U.S. v. Laymance

       Although Laymance acknowledges the knowing and voluntary nature of his waiver in his

appeal briefing, he nonetheless urges annulment of the plea-waiver provision saying the Government

reneged on its deal with him. We agree with Laymance that the Government did advocate a

sentence in excess of that contemplated by the amended plea agreement.1 But given the peculiar

circumstances that unfolded at the sentencing hearing that prompted the Government’s move, we

cannot characterize it as a breach.


       The prompting circumstances concern the consequential issue of the conspiracy’s inception

date. The pre-sentence report pinned the inception date within two years of Laymance’s release

from prison, while he was on supervised release. That fact merited adding three Guideline criminal

history points to the calculation. Laymance, in an effort to avoid the extra points, voluntarily

testified under oath about various drug transactions to try to convince the court that the conspiracy

began about one year later than the pre-sentence report reflected—making him ineligible for the

points. The shortcoming of this strategy was that Laymance revealed amounts of marijuana not

mentioned in the amended plea agreement or the pre-sentence report.


       When the Government heard this unsolicited, unexpected testimony, it advised the court,

“Laymance basically confessed to the [c]ourt the relevant conduct is eighty-nine pounds over and

above what was confessed to in the plea agreement.” The court would be “well within its province

to include that in the relevant conduct,” said the Government. Acting on the suggestion, the court



       1
       Amended (with Laymance’s endorsement) to include an additional ten kilograms seized
from Laymance’s property in Tennessee in exchange for immunity from prosecution in that district.
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No. 04-5444
U.S. v. Laymance

sentenced in a range that incorporated the relevant conduct Laymance testified to on direct

examination. Laymance contends this exchange with the court constituted a breach by the

Government that invalidates his appeal waiver.


                                                 II


       We consistently enforce appeal waivers such as the one contained in Laymance’s guilty plea.

See, e.g., United States v. Ross, 245 F.3d 577, 583 (6th Cir., 2001); United States v. Fleming, 239

F.3d 761, 765-66 (6th Cir. 2001). The government’s breach of a plea agreement can, however,

invalidate an otherwise valid appeal waiver. United States v. Swanberg, 370 F.3d 622, 627–29 (6th

Cir. 2004). In Swanberg the government promised not to use information the defendant provided

in his plea proffer against him for sentencing purposes. Id. at 628. At sentencing, though, the

district court “unwittingly relied on information from [the defendant’s] guilty-plea proffer in

imposing the sentencing enhancement, and the prosecutor said nothing to correct this error.” Id. at

628–29. We concluded that the prosecutor’s conduct constituted a breach of the plea agreement that

invalidated the waiver. Id. at 629.


       But Swanberg cannot affect the outcome of this case. As we see it, nothing in this plea

agreement restrained the Government from recommending an enhancement based on Laymance’s

confession to criminal conduct outside the ambit of his plea agreement. We find Laymance’s

arguments to the contrary unconvincing. He contends that both the Government’s obligation to

refrain from using information “provided by [Laymance] during his cooperation” and its agreement

to a recommended base offense level prohibited the Government from speaking up as it did. In
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No. 04-5444
U.S. v. Laymance

assessing each basis, we conclude that neither required the Government to abstain from reacting to

Laymance’s confession to new criminal conduct.


        As regards the cooperation argument, we find Laymance’s testimony cannot reasonably be

construed as cooperation. Laymance, motivated by the self-serving desire to avoid a sentencing

enhancement, voluntarily disclosed information in response to questions from his own attorney. We

agree with the district court’s view that “[Laymance] can’t cooperate against himself” and that the

term “cooperation,” as used in the plea agreement, means information provided to assist the

Government in its investigation and prosecution of others. See also United States v. Jarman, 144

F.3d 912, 914–15 (6th Cir. 1998) (concluding that the defendant’s disclosure of information

“completely extraneous to . . . the unlawful activities of other persons did not constitute cooperation”

(citation and internal quotation marks omitted)); United States Sentencing Guidelines, § 1B1.8 cmt.

n. 6 (clarifying that “an agreement by the defendant simply to detail the extent of his own unlawful

activities, not involving the agreement to provide information concerning the unlawful activity of

another person” receives no protection from use under §1B1.8); United States Sentencing

Guidelines, § 5K1.1 (permitting downward departures where a defendant provides “substantial

assistance in the investigation or prosecution of another person” (emphasis added)). Because

Laymance’s testimony did not constitute cooperation, the Government had no duty to refrain from

using it for sentencing purposes.


       As for the argument Laymance premises on the agreement to recommend a certain base

offense level, the recommended-base-offense-level provision reflects only the parties’ accord

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U.S. v. Laymance

regarding the application of the Sentencing Guidelines to the offense[s] to which a defendant agrees

to plead guilty. The Government remained unconstrained by the plea agreement from alerting the

court to the sentencing import of Laymance’s testimony.


.                                               III


       Without establishing a breach by the Government of the plea agreement, Laymance identifies

no basis for questioning the validity of his waiver. Accordingly, we dismiss the appeal.2




       2
         We note that by executing a valid appeal waiver, Laymance also waived his right to appeal
his sentence on Booker grounds. United States v. Bradley,---F.3d ---, 2005 WL 549176 (6th Cir.
2005).
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