                                                                   [DO NOT PUBLISH]

                  IN THE UNITED STATES COURT OF APPEALS

                            FOR THE ELEVENTH CIRCUIT                          FILED
                                                                     U.S. COURT OF APPEALS
                                                                       ELEVENTH CIRCUIT
                                                                           JUNE 11 2007
                                                                        THOMAS K. KAHN
                                        No. 06-13118
                                                                             CLERK


                           D. C. Docket No. 04-00344 CR-3-1

UNITED STATES OF AMERICA,

                                                           Plaintiff-Appellee,

                                            versus

JERRY FIGARO,
FRITZ JEAN BAPTISTE,
ASTREL CATY,

                                                           Defendants-Appellants.



                     Appeals from the United States District Court
                         for the Northern District of Georgia


                                       (June 11, 2007)

Before DUBINA and BLACK, Circuit Judges, and RESTANI,* Judge.

PER CURIAM:
_____________________
*Honorable Jane A. Restani, Chief Judge, United States Court of International Trade, sitting by
designation.
      A superseding indictment charged appellants, Astrel Caty (“Caty”), Jerry

Figaro (“Figaro”), and Fritz Jean Baptiste (“Baptiste”), along with other co-

defendants, with (1) conspiracy to traffic in stolen motor vehicles with altered

vehicle identification numbers (“VIN”), in violation of 18 U.S.C. § 371; (2)

trafficking 29 particular motor vehicles or motor vehicle parts with knowledge that

the VINs had been altered, in violation of 18 U.S.C. §§ 2321 and 2; and (3)

altering or removing the VINs on 29 particular motor vehicles, in violation of 18

U.S.C. §§ 511(a)(1) and 2. The government agreed to directed verdicts on certain

counts for all three defendants. The jury found the defendants guilty on the

remaining counts of the superseding indictment. Each of the defendants was

sentenced to serve time in the federal penitentiary. All three defendants are

currently incarcerated.

      As stated in the defendants’ briefs, the following issues are presented for

appellate review:

      A. Figaro

      (1) Whether the district court improperly denied Figaro’s motion for

severance, thereby rendering his trial fundamentally unfair.

      (2) Whether the district court abused its discretion and committed reversible

error when it failed to give Figaro’s theory of defense jury instruction.

                                          2
      B. Caty

      (1) Whether the district court erred in denying Caty’s motion for new trial

based on the government’s conduct in charging Caty with 60 counts in the

indictment when it only offered proof on fourteen counts.

      (2) Whether the district court erred in not excluding allegedly prejudicial

hearsay testimony by Figaro against Caty.

      (3) Whether trial counsel’s alleged ineffective assistance of counsel

necessitates a new trial.

      C. Baptiste

      (1) Whether the district court erred in denying Baptiste’s motion to

suppress.

      (2) Whether the district court erred when it assessed Baptiste a three-level

enhancement for a leadership role in the offenses.

      “A district court’s findings of fact in resolving a motion to suppress are

reviewed for clear error; the court’s application of the law to those facts is

reviewed de novo.” United States v. Gordon, 231 F.3d 750, 753-54 (11th Cir.

2000).

      Where a defendant fails to preserve an issue in the district court, we review

for plain error only. United States v. Martinez, 407 F.3d 1170, 1173 (11th Cir.

                                           3
2005). To satisfy the plain error standard, this court must find that (1) there was

error; (2) the error was plain or obvious; (3) the error “affected substantial rights;”

and (4) the error seriously affected the fairness, integrity or public reputation of

judicial proceedings. United States v. Olano, 507 U.S. 725, 730-36, 113 S. Ct.

1770, 1776-79 (1993).

       We review the district court’s decision to deny a motion to sever for abuse

of discretion. United States v. Knowles, 66 F.3d 1146, 1158 (11th Cir. 1995).

       We review the district court’s refusal to give a particular jury instruction for

abuse of discretion. United States v. Yeager, 331 F.3d 1216, 1222 (11th Cir.

2003).

       This court reviews the district court’s determination of role in the offense

for clear error. See United States v. Gordon, 231 F.3d at 754 (citing United States

v. De Varon, 175 F.3d 930, 937 & n.3 (11th Cir. 1999) (en banc)).

       After reviewing the record, reading the parties’ briefs, and having the

benefit of oral argument, we reject all of the arguments presented by the

defendants in this appeal. Accordingly, we affirm the defendants’ convictions and

Baptiste’s sentence.1


       1
        As one of his issues, Caty argues that he is entitled to a new trial because his trial counsel
rendered ineffective assistance. Because ineffective assistance of counsel claims are best presented
in a 28 U.S.C. § 2255 motion rather than on direct appeal, we decline to consider the claim. See

                                                  4
       AFFIRMED.




Massaro v. United States, 538 U.S. 500, 504-05, 123 S. Ct. 1690, 1694 (2003); United States v.
Bender, 290 F.3d 1279, 1284 (11th Cir. 2002).


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