                                                   NOT PRECEDENTIAL

                    UNITED STATES COURT OF APPEALS
                         FOR THE THIRD CIRCUIT
                              _____________

                                  No. 10-3584
                                 _____________

                        UNITED STATES OF AMERICA

                                         v.

                                KINGSLEY IBEH,
                                    Appellant
                               _________________

                 On Appeal from the United States District Court
                     for the Eastern District of Pennsylvania
                      District Court No. 2-09- cr-00423-002
                 District Judge: The Honorable Berle M. Schiller

                Submitted Pursuant to Third Circuit L.A.R. 34.1(a)
                                 May 15, 2012

             Before: SMITH, FISHER, and GARTH, Circuit Judges

                              (Filed: May 16, 2012)
                            _____________________

                                  OPINION
                            _____________________

SMITH, Circuit Judge.

      On the morning of his scheduled jury trial, Kingsley Ibeh entered a guilty

plea in the United States District Court for the Eastern District of Pennsylvania to

one count of conspiring to distribute 100 grams or more of heroin in violation of 21
U.S.C. § 846, and one count of possessing with the intent to distribute 100 grams

or more of heroin in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(B). 1 In

accordance with Federal Rule of Criminal Procedure 11(b), the District Court

addressed Ibeh personally and engaged in a thorough colloquy to determine that he

understood the consequences of his guilty plea.       At the conclusion of the

proceeding, the District Court accepted Ibeh’s guilty plea and found that it was

knowing and voluntary.

      Thereafter, the probation office prepared a presentence investigation report

(PSR). The PSR computed an offense level of 26 and a criminal history category

of I, yielding a sentencing guidelines range of 63 to 78 months.         Prior to

sentencing, Ibeh asserted that he was entitled to relief from the mandatory

minimum of 60 months pursuant to the safety valve provision in 18 U.S.C.

§ 3553(f). The safety valve allows the court to impose a sentence “without regard

to any statutory minimum sentence” if it “finds at sentencing” that the defendant

satisfies five criteria, the last of which is that he “truthfully provided to the

Government all information and evidence the defendant has concerning the




1
   The District Court exercised jurisdiction under 18 U.S.C. § 3231. We exercise
jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a).
                                        2
offense[.]” 18 U.S.C. § 3553(f)(5).2 The government submitted a sentencing

memorandum disputing Ibeh’s eligibility, arguing that he had failed to “truthfully

provide[]” all information to the government. At sentencing and after hearing

argument from the parties as to whether Ibeh had truthfully provided all

information to the government, the Court denied Ibeh’s request for relief under

§ 3553(f).

      The parties proceeded to present arguments regarding other sentencing

factors. At the conclusion of these arguments, the Court stated its intent to impose

a sentence of 54 months and inquired whether there was any reason he should not

impose that sentence. The government reminded the Court of the mandatory

minimum of 60 months. The Court advised that the sentence would be 60 months.

Defense counsel suggested that a sentence of 54 months was an option under the

safety valve provision, but the Court responded that Ibeh was not eligible. This

appeal followed.

      Ibeh contends that the District Court erred by denying him relief under the

safety valve provision in § 3553(f). Whether an individual qualifies for relief



2
  The other four criteria are that: (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 or other dangerous weapon”; (3) the “offense did not result in
death or serious bodily injury”; and (4) the defendant was not an organizer, leader,
manager or supervisor in the offense or did not engage in a continuing criminal
                                          3
under § 3553(f) is a legal question subject to plenary review. United States v.

Wilson, 106 F.3d 1140, 1143-44 (3d Cir. 1997). We review for clear error the

factual findings underlying the District Court’s determination of eligibility for

relief under the safety valve. United States v. Sabir, 117 F.3d 750, 754 (3d Cir.

1997). Here, the determination that Ibeh is ineligible rests on the District Court’s

factual finding that Ibeh failed to show that he had “truthfully provided . . . all

information and evidence” to the Government. In light of the record before us, we

conclude that this finding was not clearly erroneous. The inconsistencies in Ibeh’s

statements to the government are patent and the information is less than complete.

As a result, the evidence supports an inference that he was less than forthright in

his conversations with the government, and thereby did not truthfully provide all

the information about his offenses.

         Ibeh seeks to file a pro se addendum to counsel’s opening brief. That

motion is denied. United States v. Turner, __ F.3d __, 2012 WL 1353697, *8 (3d

Cir. 2012) (“hold[ing] that, except in cases governed by Anders, parties

represented by counsel may not file pro se briefs”); 3d Cir. L.A. R. 31.3.

         For the reasons stated above, we will affirm the judgment of the District

Court.


enterprise. 18 U.S.C. §§ 3553(f)(1) – (4). The government did not contend that
Ibeh failed to satisfy any of these factors.
                                          4
