                 FOR PUBLICATION
 UNITED STATES COURT OF APPEALS
      FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,                 No. 10-50284
                Plaintiff-Appellee,           D.C. No.
               v.                         2:07-cr-00113-
ROBERT MCGOWAN,                               ODW-1
             Defendant-Appellant.
                                            OPINION

       Appeal from the United States District Court
          for the Central District of California
        Otis D. Wright, District Judge, Presiding
        Manuel L. Real, District Judge, Presiding

                  Argued and Submitted
          January 10, 2012—Pasadena, California

                  Filed January 26, 2012

Before: Alex Kozinski, Chief Judge, Stephen Reinhardt and
           William A. Fletcher, Circuit Judges.

                Opinion by Judge Reinhardt




                            941
944               UNITED STATES v. MCGOWAN




                         COUNSEL

Andre Birotte Jr., U.S. Attorney, Los Angeles, California;
Robert E. Dugdale, Assistant U.S. Attorney, Los Angeles,
California; Lawrence S. Middleton, Assistant U.S. Attorney,
Los Angeles, California; Elana Shavit Artson, Assistant U.S.
Attorney, Los Angeles, California, for the plaintiff-appellee.

Dennis P. Riordan, San Francisco, California; Donald M.
Horgan, San Francisco, California, for the defendant-
appellant.


                          OPINION

REINHARDT, Circuit Judge:

   Robert McGowan (“McGowan”), a former state prison
guard, appeals his conviction and sentence stemming from his
assault on two inmates. His case has been before us once
before: we previously reversed the district court’s grant of a
judgment of acquittal following the jury’s guilty verdict.
McGowan now contends that the district court erred in failing
to conditionally rule that he was entitled to a new trial if the
                  UNITED STATES v. MCGOWAN                   945
judgment of acquittal were to be reversed, and that he was
deprived of the effective assistance of counsel when his trial
counsel failed to make a new trial motion. We hold that a dis-
trict court is not required to make, indeed has no authority to
make, any ruling as to the grant of a new trial unless the
defendant makes a motion requesting such a ruling. We also
dismiss McGowan’s ineffective assistance claim without prej-
udice to its being raised in a proceeding under 28 U.S.C.
§ 2255. McGowan further contends that he was deprived of
due process when the district judge relied on a prison inmate’s
unreliable allegations at sentencing. Because the allegations in
question were insufficiently reliable to serve as a basis for the
51-month sentence imposed, we vacate McGowan’s sentence
and remand for re-sentencing. That proceeding, as well as any
collateral proceedings, shall be held before a new district
judge.

                               I.

   McGowan was indicted on two counts of violating 18
U.S.C. § 242 by depriving inmates of their constitutional right
to be free of cruel and unusual punishment. He was also
charged with conspiring to obstruct justice for his participa-
tion in a scheme to impede the grand jury investigation of the
assaults in which he was involved. After a jury found him
guilty on all counts, he moved for a judgment of acquittal pur-
suant to Federal Rule of Criminal Procedure 29(c). He did
not, however, move for a new trial pursuant to Federal Rule
of Criminal Procedure 33. The district judge granted McGo-
wan’s motion for acquittal, but did not indicate how he would
have ruled on a motion for a new trial had one been made.

   The government appealed the district court’s grant of a
judgment of acquittal on the § 242 counts. We reversed, hold-
ing that the evidence was sufficient to allow a jury to con-
clude that McGowan had “used force against two inmates for
the sole purpose of causing them harm,” and remanded for
assignment to another district judge. United States v. McGo-
946                  UNITED STATES v. MCGOWAN
wan, 338 Fed. Appx. 662 (9th Cir. 2009). Following the
remand, McGowan filed a motion for a new trial, which the
new district judge denied as untimely.

   Upon the reinstatement of McGowan’s conviction, the pro-
bation office submitted a report that calculated McGowan’s
Sentencing Guidelines range as 41 to 51 months of incarcera-
tion. It later submitted a letter recommending that McGowan
nevertheless be sentenced to a term of probation and home
detention. The government objected to the probation office’s
recommendation, disputing, among other things, the charac-
terization of McGowan as a “productive and law abiding
member of his community.” The government emphasized that
McGowan had been accused of using methamphetamine and
smuggling drugs to inmates in prison, allegations that it
argued were “sufficiently credible that he should not receive
a below guidelines sentence based on previous good con-
duct.” These allegations were based entirely on the claims of
Ricky Seevers (“Seevers”), an inmate who served time at the
Chino state prison at which McGowan worked.

   At the sentencing hearing, the new district judge calculated
the Guidelines range to be 51 to 63 months.1 After hearing
arguments from both parties, he announced that he was
imposing a sentence of 51 months. In the course of explaining
how he had arrived at this decision, he recounted Seevers’
allegations regarding McGowan’s drug activities, concluding
that this “information was given under circumstances which
gives the Court confidence of its reliability.” McGowan now
appeals.

                                   II.

   [1] McGowan contends that the first district judge failed to
  1
    In contrast to the probation office, the district judge determined that
McGowan had committed perjury at trial and that a two-level obstruction
of justice enhancement should be applied.
                  UNITED STATES v. MCGOWAN                   947
comply with the dictates of Federal Rule of Criminal Proce-
dure 29(d) by granting his motion for a judgment of acquittal
without making a conditional determination as to whether he
would also grant him a new trial under Rule 33 should the
judgment of acquittal be reversed (as it ultimately was). Rule
29(d) provides:

    If the court enters a judgment of acquittal after a
    guilty verdict, the court must also conditionally
    determine whether any motion for a new trial should
    be granted if the judgment of acquittal is later
    vacated or reversed.

Fed. R. Crim. P. 29(d)(1). Because this claim was not raised
before the district court, we review for plain error. See United
States v. Treadwell, 593 F.3d 990, 996 (9th Cir. 2010).

   [2] In referring to “any motion for a new trial,” Rule 29(d)
refers only to pending new trial motions made by the defen-
dant. McGowan’s interpretation of Rule 29(d) — that a condi-
tional new trial ruling must be made whenever the district
court grants a motion for acquittal, regardless of whether a
motion for a new trial has been made — is contrary to prior
interpretations of the Rule as well as to the construction of the
Advisory Committee on the Federal Rules. That the motion
must be pending and actual, and not hypothetical or potential,
follows from the strict time limits that Rule 33 places on the
filing of motions for a new trial: all such motions not based
on newly discovered evidence must be made within 14 days
following the jury’s verdict. Fed. R. Crim. P. 33(b)(2). That
the motion must be made by the defendant, and not by the
court, follows from the principle that the defendant is entitled
to pursue his defense in the manner of his choosing. There
may well be reasons for a defendant to move for acquittal but
not for a new trial. In Theus v. United States, for example,
defense counsel moved for acquittal but not for a new trial
because a grant of a new trial would have exposed his client
to a harsher sentence. 611 F.3d 441, 447 (8th Cir. 2010).
948                  UNITED STATES v. MCGOWAN
Requiring that a district court always make a conditional rul-
ing would deprive the defendant of the opportunity to make
a decision as to whether he wanted to make such a motion. As
the First Circuit observed in reaching the same conclusion
that we do here, the choice to move for a new trial “is the
defendant’s — and the defendant’s alone.” United States v.
Moran, 393 F.3d 1, 9 (1st Cir. 2004).

   We confronted a similar circumstance in United States v.
Navarro Viayra, 365 F.3d 790 (9th Cir. 2004). In that case,
the defense had, after the jury returned a guilty verdict, moved
for a judgment of acquittal but not for a new trial. Id. at 791.
The district court first denied the motion for acquittal, then
converted it into a motion for a new trial, which it granted. Id.
We reversed, holding:

      Rule 29 prohibits sua sponte conversion of a motion
      to acquit into a motion for a new trial. Rule 33 pre-
      cludes a district court from granting a new trial on its
      own motion. Taken together, the rules permit a judge
      to order a new trial only in response to a defendant’s
      motion.

Id. at 795.

   McGowan contends that his case is distinguishable because
in Navarro Viayra the district court had denied the motion for
acquittal and therefore failed to trigger the requirements of
Rule 29(d). The same factors that supported our conclusion in
Navarro Viayra, however, support the application of that rule
here.2 As we emphasized in Navarro Viayra, the Advisory
Committee Notes to Rule 29 explain that the rule was
  2
    Indeed, the First Circuit relied on our decision in Navarro Viayra in
holding that a district judge did not err when, having granted a motion for
acquittal (that was later reversed), he did not make a conditional ruling as
to a new trial when the defendant had not moved for one. See Moran, 393
F.3d at 9.
                   UNITED STATES v. MCGOWAN                    949
changed to eliminate language referring to the power of the
court to order a new trial because “[m]otions for new trial are
adequately covered in Rule 33,” and “the original wording is
subject to the interpretation that a motion for judgment of
acquittal gives the court power to order a new trial even
though the defendant does not wish a new trial and has not
asked for one.” Fed. R. Crim. P. 29, Advisory Committee
Notes, 1966 Amendments. Likewise, the Committee Notes to
Rule 33 state that the rule’s language was intended to “make
it clear that a judge has no power to order a new trial on his
own motion, that he can act only in response to a motion
timely made by a defendant. Problems of double jeopardy
arise when the court acts on its own motion.” Fed. R. Crim.
P. 33, Advisory Committee Notes, 1966 Amendments. The
rule underlying this commentary is clear: the district court
may not sua sponte grant a new trial. See Navarro Viayra, 365
F.3d at 795.

  [3] We hold that a judge granting a motion for acquittal
may conditionally rule on a motion for a new trial only if the
defendant has made such a motion. The district judge thus did
not err in failing to conditionally grant McGowan a new trial,
as McGowan did not make a motion requesting one.

                              III.

   McGowan claims, next, that his trial counsel rendered con-
stitutionally ineffective assistance in failing to file a new trial
motion. As a “general rule,” we “do not review challenges to
the effectiveness of defense counsel on direct appeal.” United
States v. Moreland, 622 F.3d 1147, 1157 (9th Cir. 2010)
(quoting United States v. Jeronimo, 398 F.3d 1149, 1155 (9th
Cir. 2005)). “Challenge by way of a habeas proceeding is
preferable because it permits the defendant to develop a
record as to what counsel did, why it was done, and what, if
any, prejudice resulted.” United States v. Laughlin, 933 F.2d
786, 788-89 (9th Cir. 1991) (quoting United States v. Pope,
841 F.2d 954, 958 (9th Cir. 1988)). There are, however, two
950               UNITED STATES v. MCGOWAN
“extraordinary exceptions to this general rule”: “(1) where the
record on appeal is sufficiently developed to permit determi-
nation of the issue, or (2) where the legal representation is so
inadequate that it obviously denies a defendant his Sixth
Amendment right to counsel.” Jeronimo, 398 F.3d at 1156
(citing United States v. Daychild, 357 F.3d 1082, 1095 (9th
Cir. 2004)).

   Neither exception applies in this case. It is not clear from
the record currently before us that McGowan’s counsel’s per-
formance was deficient. “A court considering a claim of inef-
fective assistance must apply a ‘strong presumption’ that
counsel’s representation was within the ‘wide range’ of rea-
sonable professional assistance.” Harrington v. Richter, 131
S.Ct. 770, 787 (2011) (quoting Strickland v. Washington, 466
U.S. 668, 688 (1984)). There may well be legitimate justifica-
tions for an attorney not to file a motion for a new trial in a
particular case. As the First Circuit explained in dismissing a
similar ineffective assistance claim because it was raised on
direct appeal, “tactical and strategic reasons why a party
might seek a judgment of acquittal but not a new trial”
include “a fear that the prosecution will learn from its mis-
takes and put in a more persuasive case the second time
around, a fear that the decision-maker will take a request for
acquittal less seriously if a possible compromise — such as a
new trial — is on the table, or a fear that a shift in judges will
lead to a stiffer sentence.” Moran, 393 F.3d at 10; see also
Theus, 611 F.3d at 447 (rejecting a § 2255 petitioner’s inef-
fective assistance of counsel claim where his attorney had
moved for a judgment of acquittal but had not moved for a
new trial because a new trial would have allowed the govern-
ment to “seek a superceding indictment” charging the defen-
dant with a crime that would “yield a much higher sentence”).
These considerations could motivate an attorney not to seek
a new trial even after the trial judge had already granted a
judgment of acquittal. A rational defense attorney might not
want to provide any basis for the district judge to adopt a
compromise or reconsider his judgment, or to expose his cli-
                  UNITED STATES v. MCGOWAN                    951
ent to the possibility of sentencing before a different district
judge should the judgment of acquittal be reversed.

   [4] It is equally possible, of course, that counsel failed to
make a new trial motion because he was unaware of or mis-
read the applicable Federal Rules, or was otherwise deficient
in the performance of his duties. See, e.g., United States v.
Hilliard, 392 F.3d 981, 986 (8th Cir. 2004) (concluding that
a § 2255 petitioner had been deprived of effective assistance
when his trial counsel failed to file a motion for new trial,
even after being directed to do so by the district court,
because he misapprehended the filing deadline). McGowan’s
counsel has not yet had an opportunity to explain his actions.
See Moreland, 622 F.3d at 1157 (holding that the record was
insufficiently developed to entertain an ineffective assistance
claim in part because “defense counsel ha[d] not had an
opportunity to explain his actions”) (citing Laughlin, 933 F.2d
at 789). We therefore cannot “tell from [the] record whether
the [failure] to seek a new trial . . . was a calculated stratagem
or a mere oversight.” Moran, 393 F.3d at 10-11. Accordingly,
we dismiss McGowan’s ineffective assistance of counsel
claim without prejudice to renewing it in a § 2255 proceeding
before the district judge to whom this case will be assigned
following remand.

                               IV.

   [5] McGowan contends, finally, that he was deprived of
due process when the district court took into account Seevers’
unreliable allegations when imposing a 51-month sentence
upon him. To establish that his right to due process was vio-
lated, McGowan must show that the allegations were “(1)
false or unreliable, and (2) demonstrably made the basis for
the sentence.” United States v. Vanderwerfhorst, 576 F.3d
929, 935-36 (9th Cir. 2009) (quoting United States v. Ibarra,
737 F.2d 825, 827 (9th Cir. 1984)).
952                  UNITED STATES v. MCGOWAN
1.       ”False or unreliable”

   “Challenged information is deemed false or unreliable if it
lacks ‘some minimal indicium of reliability beyond mere alle-
gation.’ ” Id. at 936 (quoting Ibarra, 737 F.2d at 827). Here,
the district judge abused his discretion in finding that Seevers’
claims were reliable.

   Seevers did not testify at McGowan’s trial or sentencing
hearing. Instead, the government submitted two documents
which contained his allegations of McGowan’s drug activity.
The first was a transcript of an FBI interview. In that inter-
view, Seevers told FBI agents that, while on parole in 1999
or 2000, he had, in the course of assisting a friend, happened
upon McGowan’s house. According to Seevers’ story, McGo-
wan recognized him from his time in Chino, and invited him
into his home to snort methamphetamine, an invitation
Seevers accepted. Seevers claimed that later, on two separate
occasions, he gave McGowan speed, some of which he was
to deliver to inmates in prison. Finally, Seevers contended
that, after he was arrested and returned to prison, McGowan
came to his cell and gave him a quarter gram of speed. To
confirm his story, Seevers accurately described to the agents
the location of McGowan’s house.3

   The second document was a transcript of Seevers’ testi-
mony in the trial of Shayne Ziska, a Chino prison guard who
was charged with misconduct involving smuggling drugs into
the prison. Seevers, a prosecution witness, was asked on
cross-examination whether he had also reported that McGo-
wan engaged in similar misdeeds. Seevers confirmed that he
had, saying, “I’d give him drugs, and he would take them
back in the prison.”
     3
   McGowan claimed that the reason Seevers knew the location of his
house was that, when McGowan purchased it, he found Seevers and sev-
eral companions squatting there. He contended that he called the police to
aid in evicting the squatters.
                  UNITED STATES v. MCGOWAN                   953
   There is no further evidence in the record or inference that
might be drawn in support of Seevers’ extremely serious
charges, and no explanation as to why McGowan would have
engaged in such felonious conduct with Seevers. Most impor-
tant, the sentencing judge had no opportunity to observe
Seevers in order to evaluate his credibility, and no one repre-
senting McGowan’s interests ever had an opportunity to
cross-examine Seevers in order to test the veracity of his
accusations.

   [6] We considered a similar challenge to the reliability of
evidence at sentencing in United States v. Hanna, 49 F.3d 572
(9th Cir. 1995). We agree with McGowan that Hanna com-
pels us to conclude that Seevers’ allegations were insuffi-
ciently reliable to be considered at sentencing. First, Seevers’
allegations, like those of Hanna’s accuser, were not subjected
to many of the procedural mechanisms traditionally used to
test witness testimony. The fact that Seevers testified fleet-
ingly in court, under oath, in another proceeding — presum-
ably the primary basis for the district judge’s determination
that his statements were reliable — does not in and of itself
justify a finding of reliability. The allegations in Hanna were
likewise made under oath, but we nevertheless found them
unworthy of credence. See id. at 577. In Hanna, moreover, the
district judge witnessed the accuser’s testimony, and had the
opportunity to evaluate his demeanor and credibility. Id. Here,
the district judge had before him only the bare record of an
already-completed trial, in which Seevers’ mention of McGo-
wan played an extremely minor part. Furthermore, the defen-
dant in Hanna had an opportunity, albeit limited, to cross-
examine his accuser and probe the veracity of his statements.
Id. McGowan was afforded no such opportunity: in fact,
Seevers’ statements were made in a trial at which no party
had any incentive to question his claims regarding McGowan.

  Second, there is little reason, other than the fact that he was
under oath, to believe Seevers’ claims. He had “everything to
gain and nothing to lose by implicating” McGowan. Id. at
954               UNITED STATES v. MCGOWAN
578. As a jailhouse informant, he presumably provided infor-
mation to the FBI in the hope of being granted some sort of
leniency, and could be expected to confirm the truth of this
information when he testified at trial. Cf. Gonzalez v. Wong,
No. 08-99025, 2011 WL 6061514, at *33-*37 (9th Cir. Dec.
7, 2011) (W. Fletcher, J., concurring) (recounting a 1989-90
Los Angeles County Grand Jury investigation that revealed
the disturbing ease and frequency with which jailhouse infor-
mants provided false testimony). Seevers’ claims regarding
McGowan were, moreover, completely uncorroborated: that
he knew the location of McGowan’s home says nothing about
whether his assertions that McGowan smoked methamphet-
amine with him and smuggled drugs into prison were true,
especially given the conflicting explanations of how Seevers
learned of the address.

   [7] In sum, Seevers’ allegations were made under oath but
absent any other procedural mechanism that would ensure that
a witness with the incentive to lie was telling the truth. They
were “not only inconsistent with [McGowan’s] denials, but
were unsupported by . . . any other evidence.” Hanna, 49 F.3d
at 578. They therefore lacked the requisite “minimal indicium
of reliability” to serve as a basis for McGowan’s sentence.

2.    “Demonstrably made the basis for the sentence”

   [8] In determining whether a defendant has shown that
unreliable information was “demonstrably made the basis for
[his] sentence,” we “read the record and decide whether reli-
ance on [the] information . . . probably did occur.” United
States v. Corral, 172 F.3d 714, 716 (9th Cir. 1998). Seevers’
allegations were plainly a factor in the district court’s sentenc-
ing decision. At the outset of the hearing, the district judge
said, “As the defendant has properly and correctly gleaned,
the Court was concerned about the transcript that the govern-
ment provided in the matter of the United States v. Shane
Ziska.” He further stated, after describing the nature of the
assaults for which McGowan was convicted, that the
                     UNITED STATES v. MCGOWAN                           955
“[b]igger problem is the problem raised by Mr. Seevers. That
is unforgivable.” Most important, in the course of explaining
why he had chosen to impose the sentence he did, the district
judge explicitly found that Seevers’ claims were reliable.
Under Federal Rule of Criminal Procedure 32, a sentencing
court “must — for any . . . controverted matter — rule on the
dispute or determine that a ruling is unnecessary either
because the matter will not affect sentencing, or because the
court will not consider the matter in sentencing.” Fed. R.
Crim. P. 32(i)(3)(B); see also United States v. Carter, 219
F.3d 863, 867 (9th Cir. 2000) (If a sentencing court “chooses
not to rely upon a disputed factual statement . . . it must
clearly state that the disputed fact was not taken into
account.”). The district judge neither stated that a ruling was
unnecessary nor that the disputed fact was not taken into
account. That he instead complied with his obligation under
Rule 32 by making a ruling that Seevers’ claims were reliable
leaves little room to doubt that Seevers’ unsupported claims
affected the sentence imposed.4

3.   Reassignment

   McGowan requests that we remand to a different judge for
re-sentencing. The sentencing judge’s statements at the bail
hearing strongly suggest that he would reimpose a 51-month
sentence were this case remanded to him. Because he would
likely have “substantial difficulty in putting out of his . . .
   4
     The government asserts that the sentencing judge’s later statements at
a hearing for bail pending appeal demonstrate that Seevers’ allegations
had no such effect. At the hearing, the judge said that “[i]t would have
been the same sentence” without the Seevers allegations, and that
“Seevers doesn’t enter into it.” These comments are, however, difficult to
reconcile with his earlier statements at the sentencing hearing and the
requirements of Rule 32. In addition, the district judge stated at the bail
hearing that Seevers’ allegations were a factor in his decision to reject the
probation office’s recommendation that McGowan receive a sentence of
probation. That alone is sufficient for the allegations to have been made
the basis for the sentence imposed.
956                  UNITED STATES v. MCGOWAN
mind previously-expressed views,” because his inability to do
so could undermine the appearance of justice in these pro-
ceedings, and because re-sentencing before a different judge
would involve minimal duplication of effort, reassignment to
a new judge is appropriate. United States v. Arnett, 628 F.2d
1162, 1165 (9th Cir. 1979).

                                    V.

   [9] We hold that the district court did not err in failing to
make a conditional new trial ruling at the time it granted
McGowan’s motion for acquittal. We also hold that we can-
not, on this appeal, determine whether McGowan’s counsel
was constitutionally deficient in failing to request such a rul-
ing. Accordingly, we affirm McGowan’s conviction, but with-
out prejudice to his filing a claim for ineffective assistance of
counsel in a § 2255 proceeding. We also conclude that McGo-
wan’s right to due process was violated when the district court
relied on unreliable, unsubstantiated allegations in imposing
his sentence. We therefore vacate McGowan’s sentence and
remand for further proceedings before a district judge who
has not previously presided over this case.5

 AFFIRMED             in    part,    VACATED            in    part    and
REMANDED.




  5
    Upon remand, in addition to filing a § 2255 petition regarding ineffec-
tive assistance of counsel before the new judge to be assigned, McGowan
may make whatever further filing he deems appropriate, including a
motion for bail. We deny his pending oral bail motion without prejudice.
