                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                November 1, 2004

                                                         Charles R. Fulbruge III
                                                                 Clerk
                           No. 03-51021
                         Summary Calendar



UNITED STATES OF AMERICA,

                                     Plaintiff-Appellee,

versus

ANGEL OMAR GARCIA-TEJEDA,

                                     Defendant-Appellant.

                       --------------------
          Appeal from the United States District Court
                for the Western District of Texas
                   USDC No. EP-02-CR-2052-1-DB
                       --------------------

Before DAVIS, SMITH and DENNIS, Circuit Judges.

PER CURIAM:*

     Angel Omar Garcia-Tejeda appeals his convictions for

conspiracy to commit robbery and interference with commerce by

robbery and aiding and abetting.    Garcia-Tejeda was sentenced to

terms of imprisonment of 60 months and 135 months, the terms to

run concurrently.

     Garcia-Tejeda argues that the district court abused its

discretion in dismissing a juror and replacing him with an

alternate juror during the trial.   The district court dismissed


     *
       Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
                           No. 03-51021
                                -2-

the tardy juror so that the trial could proceed as scheduled.

Avoiding further delays inconveniencing the court and the

numerous individuals involved in the case was a sound reason for

dismissing the juror.   The district court did not abuse its

discretion in dismissing the juror.   United States v. Rodriguez,

573 F.2d 330, 332 (5th Cir. 1978).

     Garcia also argues that the district court erred in failing

to conduct a hearing on his post-trial request that new counsel

be appointed to represent him at sentencing.    He argues that he

was denied the effective assistance of counsel during the

proceedings.

     Review of whether the district court erred in summarily

denying Garcia-Tejeda’s motion for new counsel would in effect

result in this court determining counsel’s effectiveness during

the trial without the development of the record.   The court has

determined that such review is improper.   See United States v.

Gordon, 346 F.3d 135, 136-37 (5th Cir. 2003).   If Garcia-Tejeda

wishes to challenge the effectiveness of his trial counsel, he

should present his claims in a 28 U.S.C. § 2255 motion.     Massaro

v. United States, 538 U.S. 500, 504 (2003).

     It was not necessary for the district court to conduct a

hearing on the motion because it had observed counsel during the

trial and, thus, in denying the motion, it implicitly found that

counsel’s representation was effective and that there was no

basis for appointing new counsel for sentencing.   Further, if
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                               -3-

there was any error in addressing the motion, it was harmless

because Garcia-Tejeda has not shown that counsel committed any

errors that prejudiced him at sentencing.   The district court’s

denial of the motion for appointment of new counsel was not an

abuse of discretion.

     Garcia-Tejeda’s conviction is AFFIRMED.
