UNPUBLISHED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Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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 
5 

 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