                                                        United States Court of Appeals
                                                                 Fifth Circuit
                                                              F I L E D
                IN THE UNITED STATES COURT OF APPEALS        February 17, 2004
                        FOR THE FIFTH CIRCUIT
                                                           Charles R. Fulbruge III
                                                                   Clerk

                             No. 03-50635
                         Conference Calendar


UNITED STATES OF AMERICA,

                                     Plaintiff-Appellee,

versus

LOUIS “BIG LOU” MORALES,

                                     Defendant-Appellant.

                        --------------------
           Appeal from the United States District Court
                 for the Western District of Texas
                      USDC No. SA-98-CR-265-9
                        --------------------

Before HIGGINBOTHAM and EMILIO M. GARZA, Circuit Judges.*

PER CURIAM:**

     Louis “Big Lou” Morales appeals the district court’s

dismissal of his motion for a new trial for lack of jurisdiction.

He argues that the district court erred in finding that his

motion was not timely filed and that the district court should

have considered it on the merits.




     *
        This matter is being decided by a quorum.   28 U.S.C.
§ 46(d).
     **
        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that this opinion should not be published and is not precedent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. 03-50635
                                -2-

     This court must examine the basis of its own jurisdiction

sua sponte if necessary.   United States v. Lister, 53 F.3d 66, 68

(5th Cir. 1995).   A timely notice of appeal is a mandatory

precondition to the exercise of appellate jurisdiction.      United

States v. West, 240 F.3d 456, 458 (5th Cir. 2001).     In a criminal

case, the defendant must file her notice of appeal within 10 days

after the entry of the judgment or order being appealed.      FED.

R. APP. P. 4(b)(1)(A).

     Morales filed his motion for new trial on September 28,

2001, which the district court denied on April 22, 2003.      Morales

did not file a notice of appeal within 10 days of the entry of

this order.   Therefore, we do not have jurisdiction to review the

denial of this motion.

     Morales filed another motion for a new trial on May 6, 2003,

which the district court denied on May 27, 2003.     Within ten days

of the entry of this order, Morales filed a notice of appeal on

June 2, 2003.   Therefore, we have appellate jurisdiction to

review the denial of Morales’s May 6, 2003, motion for a new

trial.

     Morales has not shown that the district court abused its

discretion in finding his May 6, 2003, motion for a new trial was

untimely and dismissing it for lack of jurisdiction.    The jury

reached a verdict on March 3, 1999.   Morales had three years

after the verdict to file a timely motion for a new trial based

on newly discovered evidence.   FED. R. CRIM. P. 33(b)(1).   He did
                            No. 03-50635
                                 -3-

not file the instant motion for a new trial until May 6, 2003,

over three years after the jury verdict.   Because Morales’s

motion was untimely, the dismissal of the motion for lack of

jurisdiction is AFFIRMED.   See United States v. Erwin, 277 F.3d

727, 731 (5th Cir. 2001); FED. R. CRIM. P. 45(b)(2) (district

court may not extend time for taking any action under Rule 33

except as stated in that rule).

     For the first time in his reply brief, Morales argues that:

(1) the trial court erred in applying the amended version of Rule

33 and that this constitutes an ex post facto violation; (2) the

trial court erred in interpreting Rule 33 to provide that the

district court did not have jurisdiction to consider the motion

if this court did not remand the case; and (3) Morales’s due

process rights were violated when the trial court dismissed his

motion.   This court will not consider issues raised for the first

time in a reply brief.   United States v. Brown, 305 F.3d 304, 307

n.4 (5th Cir. 2002).

     AFFIRMED.
