                            NOT FOR PUBLICATION                              FILED
                                                                             OCT 11 2017
                     UNITED STATES COURT OF APPEALS
                                                                          MOLLY C. DWYER, CLERK
                                                                           U.S. COURT OF APPEALS
                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                         No. 15-50133

              Plaintiff-Appellee,                 D.C. No. 2:04-cr-1594-SVW

   v.
                                                  MEMORANDUM *
ALBERT T. ROBLES,

              Defendant-Appellant.


                    Appeal from the United States District Court
                        for the Central District of California
                    Stephen V. Wilson, District Judge, Presiding

                       Argued and Submitted October 2, 2017
                               Pasadena, California

Before: M. SMITH and NGUYEN, Circuit Judges, and SETTLE, District Judge.**

        Defendant-Appellant Albert Robles (“Robles”) appeals the district court’s

denial of his motion for a new trial or, in the alternative, motion for


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
        **
            The Honorable Benjamin H. Settle, United States District Judge for
the Western District of Washington, sitting by designation.
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reconsideration. We review both denials for an abuse of discretion. United

States v. Hinkson, 585 F.3d 1247, 1259 (9th Cir. 2009) (en banc) (motion for a new

trial based on newly discovered evidence); United States v. Lopez-Cruz, 730 F.3d

803, 811 (9th Cir. 2013) (motion for reconsideration). We have jurisdiction

pursuant to 28 U.S.C. § 1291, and we affirm.

      1. “Any motion for a new trial grounded on newly discovered evidence

must be filed within 3 years after the verdict or finding of guilty.” Fed. R. Crim.

P. 33(b)(1). Although the time bar is not jurisdictional, the rule “assure[s] relief to

a party properly raising [it].” Eberhart v. United States, 546 U.S. 12, 19 (2005).

The Government properly raised the time bar and is entitled to such relief because

Robles filed his motion more than three years after the verdict. Therefore, the

district court properly denied Robles’s motion for a new trial based on newly

discovered evidence.

      2. The district court denied Robles’s motion for reconsideration after

finding that Robles was not diligent in presenting the evidence and that the

evidence was “newly available” instead of “newly discovered.” Robles fails to

show any error in either of these findings, much less an abuse of discretion.

Therefore, the district court properly denied Robles’s motion for reconsideration.




                                          2
      3. Even if we reached the merits of Robles’s motion, Robles fails to show

that he is entitled to relief. In United States v. Garrido, 713 F.3d 985 (9th Cir.

2013), this court established the law of the case by affirming Robles’s conviction

for bribery in violation of 18 U.S.C. § 666. A three-judge panel is bound by the

prior authority unless “the reasoning or theory of our prior circuit authority is

clearly irreconcilable with the reasoning or theory of intervening higher authority.”

Miller v. Gammie, 335 F.3d 889, 893 (9th Cir. 2003) (en banc). On the

interpretation of § 666, Garrido is not clearly irreconcilable with either

McCutcheon v. Fed. Election Comm’n, 134 S. Ct. 1434 (2014), or McDonnell v.

United States, 136 S. Ct. 2355 (2016), because these intervening higher authorities

addressed the interpretation of statutes other than § 666.

      AFFIRMED.




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