[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 18-14581

Non-Argument Calendar

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D.C. Docket No. 3:16-cr-00348-WKW-WC-13

UNITED STATES OF AMERICA, 

 Plaintiff - Appellee,

 versus

JESSIE ACOSTA, 

 Defendant - Appellant.

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Appeal from the United States District Court

for the Middle District of Alabama

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(November 18, 2019)

Before JORDAN, ROSENBAUM, and NEWSOM, Circuit Judges.

PER CURIAM:

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Jessie Acosta appeals his conviction after pleading guilty to conspiracy to 

distribute and possess with intent to distribute methamphetamine and cocaine, in 

violation of 21 U.S.C. §§ 841(a)(1), 846. For the first time on appeal, Acosta argues 

that his decision to plead guilty was tainted by his counsel’s ineffective assistance 

and that, as a result, his conviction and sentence should be reserved. However, the 

record is not sufficiently developed in this direct appeal to resolve this ineffectiveassistance claim, so we affirm Acosta’s conviction and sentence.

I.

A federal grand jury returned a two-count superseding indictment charging 

Acosta and fourteen others with conspiring to distribute and possess with intent to 

distribute methamphetamine and cocaine, in violation of 21 U.S.C. §§ 841(a)(1) and 

846, and Acosta and two others with conspiring to launder money, in violation of 18 

U.S.C. § 1956(a)(1)(B), (h). After his arrest, Acosta was released on bond.

In April 2018, Acosta, represented by appointed counsel, pled guilty to the 

drug-conspiracy count under a written plea agreement with the government. In 

exchange for Acosta’s guilty plea, the government agreed to recommend a guideline 

reduction for acceptance of responsibility, to not bring additional charges arising out 

of the criminal activity, to dismiss the money-laundering count after sentencing, and 

to recommend a sentence at the bottom of the guideline range. The parties also 

agreed that Acosta was accountable for 18.18 kilograms of cocaine, 84.9 kilograms 

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of methamphetamine, and 41.13 kilograms of marijuana, which resulted in a base 

offense level of 38 under the sentencing guidelines. 

After Acosta pled guilty, a magistrate judge conducted a bond hearing under

seal. During the hearing, the magistrate judge chastised Acosta’s counsel for his 

conduct in relation to ensuring that Acosta complied with his bond conditions. 

Before sentencing, the probation office prepared Acosta’s presentence 

investigation report (“PSR”). The PSR recommended a base offense level of 38, 

U.S.S.C. § 2D1.1, a four-level increase for Acosta’s role as an organizer or leader in 

the criminal activity, id. § 3B1.1(a), and a three-level reduction for acceptance of 

responsibility, id. § 3E1.1, for a total offense level of 39. Along with a criminal 

history category of II, this established a recommended guideline imprisonment range 

of 292 to 365 months. Acosta’s counsel filed objections to the PSR challenging the 

organizer or leader enhancement, arguing that Acosta was not a leader in the drug 

organization and did not exercise any decision-making authority. 

In mid-July 2018, the district court issued orders continuing the sentencing 

hearing and, on its own motion and without explanation, discharging Acosta’s 

counsel. The court directed the Federal Defender’s Office to secure new counsel.

Represented by new counsel, Acosta went forward with sentencing in October 

2018. The district court overruled Acosta’s objection to the four-level leadership 

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enhancement and then sentenced him to 150 months of imprisonment. Acosta now 

appeals. 

On appeal, Acosta raises the sole issue of whether his appointed counsel, prior 

to being discharged by the district court, rendered ineffective assistance in 

connection with Acosta’s decision to plead guilty. 

II.

Ordinarily, we review an ineffective-assistance-of-counsel claim de novo as a 

mixed question of law and fact. United States v. Bender, 290 F.3d 1279, 1284 (11th 

Cir. 2002). But we generally do not consider ineffective-assistance claims on direct 

appeal. Id. In most direct appeals, the record will be “incomplete or inadequate” 

for litigating a claim of ineffective assistance. Massaro v. United States, 538 U.S. 

500, 504–05 (2003). For that reason, ineffective-assistance claims are better handled 

in the context of a collateral attack on the conviction under 28 U.S.C. § 2255, where 

the district court can develop the facts necessary to evaluate the claim. United States 

v. Merrill, 513 F.3d 1293, 1308 (11th Cir. 2008). Yet there will be “rare” cases 

where the record is developed enough to consider such a claim on direct appeal. Id. 

Acosta maintains that this is “the rare case where the ineffective assistance of 

counsel is clearly evident from the record on direct appeal.” He points out that 

counsel was discharged by the district court on its own motion and argues that the 

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transcripts of the bond and sentencing hearings demonstrate that counsel did not 

provide competent representation. 

To establish ineffective assistance of counsel, a defendant must show both 

that (1) his counsel’s performance was deficient and (2) the deficient performance 

prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 687 (1984). Where 

the defendant challenges a guilty plea based on ineffective assistance, “the defendant 

must show that there is a reasonable probability that, but for counsel’s errors, he 

would not have pleaded guilty and would have insisted on going to trial.” Hill v. 

Lockhart, 472 U.S. 52, 59 (1985).

Here, we conclude that the record below is not sufficiently developed to 

evaluate Acosta’s claim of ineffective assistance at this time. To be sure, the record 

indicates that counsel was discharged by the district court due to concerns about his 

representation of Acosta, specifically with regard to Acosta’s bond conditions. But 

the record contains little to no information about the factual background concerning 

Acosta’s decision to plead guilty. Specifically, we lack any information about the 

conversations Acosta had with counsel during the plea negotiation process, or about 

counsel’s communication with prosecutors regarding the plea agreement. Without 

additional factual development, we cannot tell whether Acosta was prejudiced by 

counsel’s ineffectiveness, if any, during the plea-bargaining process. 

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As a result, we think that Acosta’s claim of ineffective assistance, like most 

claims of ineffective assistance, is better handled in the context of a § 2255 

proceeding. See Massaro, 538 U.S. at 504 (“[I]n most cases a motion brought under 

§ 2255 is preferable to direct appeal for deciding claims of ineffective assistance.”). 

We therefore affirm Acosta’s conviction and sentence without prejudice to Acosta 

raising this claim in a collateral attack on his conviction under § 2255. 

AFFIRMED.

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