                            UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                            No. 04-6126



UNITED STATES OF AMERICA,

                                               Plaintiff - Appellee,

          versus


JAMES GORMLEY,

                                              Defendant - Appellant.



                            No. 04-6127



UNITED STATES OF AMERICA,

                                               Plaintiff - Appellee,

          versus


JAMES GORMLEY,

                                              Defendant - Appellant.



Appeals from the United States District Court for the Southern
District of West Virginia, at Huntington.  Robert C. Chambers,
District Judge. (CR-98-152)


Submitted:   October 22, 2004             Decided:   November 9, 2004


Before NIEMEYER, MOTZ, and SHEDD, Circuit Judges.
Affirmed by unpublished per curiam opinion.


James Gormley, Appellant Pro Se. Michael Lee Keller, OFFICE OF THE
UNITED STATES ATTORNEY, Charleston, West Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).




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PER CURIAM:

            In these consolidated cases, James Gormley appeals the

district    court’s   order   denying   a    motion   for   new   trial   filed

pursuant to Fed. R. Crim. P. 33, and the court’s denial of

Gormley’s    subsequent   motion   to   reconsider     that   order.       “The

decision to grant or deny a motion for new trial is within the

broad discretion of the district court.”          United States v. Tucker,

376 F.3d 236, 238 (4th Cir. 2004).             The district court should

exercise that discretion to grant a new trial sparingly, and only

when the weight of evidence is heavily against the verdict. United

States v. Perry, 335 F.3d 316, 320 (4th Cir. 2003), cert. denied,

124 S. Ct. 1408 (2004).        Gormley’s motion was timely only as a

motion for new trial based on newly discovered evidence.               Fed. R.

Crim. P. 33(b).       The district court properly considered this

Circuit’s five-part test for assessment of such a motion, see

United States v. Lofton, 233 F.3d 313, 318 (4th Cir. 2000), to find

that Gormley’s allegations do not warrant a new trial.             Therefore,

we conclude that the district court did not abuse its discretion in

denying Gormley’s motion for new trial and his motion to reconsider

that denial.

     In his motion to reconsider, Gormley also requested a writ of

mandamus against the Bureau of Prisons. We review a denial of

mandamus for abuse of discretion.           Marquez-Ramos v. Reno, 69 F.3d

477, 479 (10th Cir. 1995).     A plaintiff may be entitled to mandamus


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relief “only if the defendant owes him a clear nondiscretionary

duty.”      Heckler v. Ringer, 466 U.S. 602, 616 (1984).         As Gormley

has   not    shown   his   clear   entitlement   to   the   specific   relief

requested, we hold that the district court did not abuse its

discretion in denying the mandamus petition.

      Thus, we affirm the decisions of the district court.                 We

dispense with oral argument because the facts and legal contentions

are adequately presented in the materials before the court and

argument would not aid the decisional process.

                                                                  AFFIRMED




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