US v. Monroe Herring

Filing 920090518

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 07-4388 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. MONROE HERRING, a/k/a Money, Defendant -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 Affirmed by unpublished per curiam opinion.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 Unpublished opinions are not binding precedent in this circuit.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' On appeal, Herring contends that the district imprisonment. 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. U.S. See 18 U.S.C.A. 3553(f) (West 2000 & Supp. 2007); Guidelines Manual ("USSG") 5C1.2 (2005). Sentencing Herring also asserts that he received ineffective assistance of counsel. We reject Herring's assertion that the district court erred safety within in failing to apply a the safety court range a valve to provision. a The valve the requires district impose sentence to any five are: applicable minimum 18 guideline if without defendant The regard meets statutory sentence U.S.C. requirements. 3553(f). requirements (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. 184 (4th Cir. 1996). United States v. Ivester, 75 F.3d 182, The burden is on the defendant to prove United The that all five safety valve requirements have been met. States v. Beltran-Ortiz, 91 F.3d 665, 669 (4th Cir. 1996). district court's determination of whether a defendant satisfied the safety valve requirements is a question of fact reviewed for clear error. Cir. 1997). After considering Herring's written disclosures and United States v. Wilson, 114 F.3d 429, 432 (4th evidence offered at the sentencing hearing, the district court concluded untruthful. that Herring's statements were incomplete and We conclude this finding was not clearly erroneous. Moreover, contrary to Herring's argument, the Government was not required to debrief him. Ivester, 75 F.3d at 185-86. Beltran-Ortiz, 91 F.3d at 669 n.4; 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 See United States v. King, 119 Rather, to allow for adequate not cognizable on direct appeal. F.3d 290, 295 (4th Cir. 1997). 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. troubling, * conclusively therefore our Although former counsel's admissions are of that the present was record does not We of review establish to counsel ineffective. allegation decline consider Herring's 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 before contentions the court are and adequately argument presented not in aid the the materials decisional would process. AFFIRMED 5

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