FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

NOV 8, 2006

THOMAS K. KAHN

CLERK

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 05-14379

Non-Argument Calendar

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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
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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
3

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 EspinozaGuerrero 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 EspinozaGuerrero’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.