[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
NOV 8, 2006
No. 05-14379 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 04-00011-CR-HLM-4
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JESUS ESPINOZA-GUERRERO,
El Pollo,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
_________________________
(November 8, 2006)
Before MARCUS, WILSON and PRYOR, Circuit Judges.
PER CURIAM:
Jesus Espinoza-Guerrero appeals his convictions and 52-month sentence for
conspiracy to defraud the United States by distributing counterfeit immigration
documents, in violation of 18 U.S.C. § 371; production of identification documents
without lawful authority, in violation of 18 U.S.C. § 1028(a)(1), (2), (6);
production of five or more identification documents of the U.S. without lawful
authority, in violation of 18 U.S.C. § 1028(a)(1)-(3), (6); possession with intent to
distribute methamphetamine, in violation of 21 U.S.C.§ 841(a)(1), (b)(1)(D); and
possession with intent to distribute methamphetamine, in violation of 21 U.S.C.§
841(a)(1), (b)(1)(B)(viii), (b)(1)(D). On appeal, Espinoza-Guerrero argues that he
was denied his Sixth Amendment right to counsel because the court failed to
timely appoint new counsel following the jury’s guilty verdict and failed to inform
him of his responsibility to raise any claim of ineffective assistance of counsel
within the seven-day period set forth in Rule 33 of the Federal Rules of Criminal
Procedure. We affirm.
As Espinoza-Guerrero recognizes, because he raises his claims for the first
time on appeal, we review them for only plain error. See United States v.
Rodriguez, 398 F.3d 1291, 1298 (11th Cir.), cert. denied, 125 S.Ct. 2935 (2005).
“An appellate court may not correct an error the defendant failed to raise in the
district court unless there is: (1) error, (2) that is plain, and (3) that affects
substantial rights.” Rodriguez, 398 F.3d at 1298 (quotations and internal marks
omitted). “If all three conditions are met, an appellate court may then exercise its
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discretion to notice a forfeited error, but only if (4) the error seriously affects the
fairness, integrity, or public reputation of judicial proceedings.” Id.
“Under 18 U.S.C. § 3006A, an indigent defendant is entitled to have
counseled representation when, inter alia, the Sixth Amendment requires or when
the defendant ‘faces loss of liberty in a case, and Federal law requires the
appointment of counsel.’” United States v. Berger, 375 F.3d 1223, 1226 (11th Cir.
2004) (citing18 U.S.C. § 3006A(a)(1)(H)-(I)). “A post-conviction, pre-appeal
Rule 33 motion is considered part of a defendant’s direct appeal, and the Sixth
Amendment right to counsel attaches.” Berger, 375 F.3d at 1226.
Rule 33 requires that “[a]ny motion for a new trial grounded on any reason
other than newly discovered evidence must be filed within 7 days after the verdict
or finding of guilty.” Fed. R. Crim. P. 33(b)(2); see also United States v. Campa,
459 F.3d 1121, 1154 (11th Cir. 2006). The Supreme Court has held that,
generally, ineffective-assistance claims are best raised in a 28 U.S.C. § 2255
motion. Massaro v. United States, 538 U.S. 500, 504-08 (2003). The Court
reasoned that the evidence introduced at trial primarily pertains to guilt or
innocence, and, therefore, the record on direct appeal will not disclose many of the
facts necessary to make a determination regarding the effectiveness of counsel. Id.
at 505.
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Here, the district court did not plainly err by failing to inform Espinoza-
Guerrero of his rights under Rule 33 and not sua sponte appointing him new
counsel within the seven-day time period set forth in Rule 33 so that he could
attack his trial counsel in a Rule 33 motion, or even in direct appeal. When the
district court was informed of Espinoza-Guerrero’s dissatisfaction with his trial
counsel, which was after the seven-day period had already expired, the district
court immediately appointed a new attorney for purposes of pursuing Espinoza-
Guerrero’s direct-appeal rights. We also observe that Espinoza-Guerrero still is
able to file ineffective-assistance-of-trial counsel claims by way of §2255 motion,
which, in any event, is the preferred method for raising such claims. Accordingly,
for the reasons stated above, we affirm Espinoza-Guerrero’s convictions and 52-
month sentence.
AFFIRMED.
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