UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 07-4388
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
MONROE HERRING, a/k/a Money,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Statesville. Richard L.
Voorhees, District Judge. (5:05-cr-00202)
Submitted: April 30, 2009 Decided: May 18, 2009
Before MICHAEL, MOTZ, and SHEDD, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Claire J. Rauscher, Executive Director, Matthew R. Segal,
FEDERAL DEFENDERS OF WESTERN NORTH CAROLINA, INC., Asheville,
North Carolina, for Appellant. Gretchen C. F. Shappert, United
States Attorney, Adam Morris, Assistant United States Attorney,
Charlotte, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Monroe Herring pled guilty, without a plea agreement,
to one count of conspiracy to possess with intent to distribute
cocaine and cocaine base, in violation of 21 U.S.C. §§ 846, 851
(2000). The district court sentenced Herring to 240 months’
imprisonment. On appeal, Herring contends that the district
court’s imposition of the statutory mandatory minimum sentence
was improper because the court erroneously denied a sentencing
reduction under the “safety valve” provision of the Sentencing
Guidelines. See 18 U.S.C.A. § 3553(f) (West 2000 & Supp. 2007);
U.S. Sentencing Guidelines Manual (“USSG”) § 5C1.2 (2005).
Herring also asserts that he received ineffective assistance of
counsel.
We reject Herring’s assertion that the district court
erred in failing to apply the safety valve provision. The
safety valve requires a district court to impose a sentence
within the applicable guideline range without regard to any
statutory minimum sentence if a defendant meets five
requirements. 18 U.S.C. § 3553(f). The requirements are:
(1) the defendant has no more than one criminal history point,
(2) the defendant did not use violence or credible threats of
violence or possess a firearm in connection with the offense,
(3) the offense did not result in death or serious bodily
injury, (4) the defendant was not an organizer or leader of
2
others in the offense, and (5) the defendant provided truthful
information to the government concerning the crime. Id. To
satisfy the fifth requirement, the defendant must “truthfully
provide[] to the Government all information and evidence the
defendant has concerning the offense or offenses that were part
of the same course of conduct or of a common scheme or plan.”
Id. § 3553(f)(5). This provision requires more than accepting
responsibility for one’s own acts; it requires a defendant to
disclose all he knows concerning both his involvement and that
of any co-conspirators. United States v. Ivester, 75 F.3d 182,
184 (4th Cir. 1996). The burden is on the defendant to prove
that all five safety valve requirements have been met. United
States v. Beltran-Ortiz, 91 F.3d 665, 669 (4th Cir. 1996). The
district court’s determination of whether a defendant satisfied
the safety valve requirements is a question of fact reviewed for
clear error. United States v. Wilson, 114 F.3d 429, 432 (4th
Cir. 1997).
After considering Herring’s written disclosures and
evidence offered at the sentencing hearing, the district court
concluded that Herring’s statements were incomplete and
untruthful. We conclude this finding was not clearly erroneous.
Moreover, contrary to Herring’s argument, the Government was not
required to debrief him. Beltran-Ortiz, 91 F.3d at 669 n.4;
Ivester, 75 F.3d at 185-86. Thus, the denial of a safety valve
3
reduction below the statutory minimum based on Herring’s failure
to provide full, truthful information was not erroneous.
Next, Herring argues that his original attorney
provided ineffective assistance by moving to withdraw Herring’s
guilty plea based on her misapprehension of the evidence against
him. Claims of ineffective assistance of counsel are generally
not cognizable on direct appeal. See United States v. King, 119
F.3d 290, 295 (4th Cir. 1997). Rather, to allow for adequate
development of the record, a defendant must bring his claim in a
28 U.S.C. § 2255 (2000) motion. See id.; United States v.
Hoyle, 33 F.3d 415, 418 (4th Cir. 1994). An exception exists
when the record conclusively establishes ineffective assistance.
United States v. Richardson, 195 F.3d 192, 198 (4th Cir. 1999);
King, 119 F.3d at 295. Although former counsel’s admissions are
troubling, * our review of the present record does not
conclusively establish that counsel was ineffective. We
therefore decline to consider Herring’s allegation of
ineffective assistance of counsel at this juncture; the claim
may be raised, however, in a § 2255 motion.
*
Herring is represented by new counsel on appeal. The
attorney who represented him in the district court has informed
the court that she believes she provided ineffective assistance
to Herring.
4
Accordingly, we affirm Herring’s conviction and
sentence. We dispense with oral argument because the facts and
legal contentions are adequately presented in the materials
before the court and argument would not aid the decisional
process.
AFFIRMED
5