                                                        [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                   FOR THE ELEVENTH CIRCUIT            FILED
                     ________________________ U.S. COURT  OF APPEALS
                                                       ELEVENTH CIRCUIT
                                                          JUNE 16, 2010
                            No. 09-11723
                                                           JOHN LEY
                        Non-Argument Calendar
                                                            CLERK
                      ________________________

         D. C. Docket Nos. 06-60951-CV-FAM, 02-60069-CR-FAM


VINCENT LEE FERGUSON,

                                                         Petitioner-Appellant,

                                 versus

UNITED STATES OF AMERICA,

                                                       Respondent-Appellee.


                      ________________________

               Appeal from the United States District Court
                   for the Southern District of Florida
                     _________________________

                             (June 16, 2010)

Before TJOFLAT, EDMONDSON and ANDERSON, Circuit Judges.
PER CURIAM:



       Defendant-Appellant Vincent Lee Ferguson, proceeding pro se, appeals the

district court’s denial of his motion entitled “Motion to Reopen and Request For

Return of Property Base (sic) On Counsel For The Government Misrepresentation

To the Court and Witnesses Perjury Statements.” No reversible error has been

shown; we affirm.

       In July 2003, Ferguson was sentenced on two narcotics trafficking counts.

We affirmed Ferguson’s conviction and sentence.1 In June 2006, Ferguson filed a

pro se motion to vacate, set aside, or correct his sentence, pursuant to 28 U.S.C. §

2255; that motion was denied in December 2006. Shortly thereafter, Ferguson

moved for the return of property under the same case number as his section 2255

action; that motion was denied on 30 January 2007. More than two years later, on

2 February 2009, Ferguson filed the instant motion to reopen: he argued that the

government knowingly presented false and fabricated evidence to the district court

in its response to his December 2006 motion for return of property. Ferguson

argues that the government’s fraudulent acts authorize reopening consideration of



       1
       We first affirmed in January 2005. The Supreme Court vacated our decision and
remanded for further consideration in the light of United States v. Booker, 125 S.Ct. 738 (2005).
We reaffirmed upon reconsideration in March 2006.

                                                2
his motion.

       Although Ferguson fails to cite a rule that would authorize the district court

to reconsider, we will assume that he relies on Rule 60(b) of the Federal Rules of

Civil Procedure.2 Under Rule 60(b)(3), “the court may relieve a party or its legal

representative from a final judgment, order, or proceeding for ... fraud (whether

previously called intrinsic or extrinsic), misrepresentation, or misconduct by an

opposing party,” provided the Rule 60(b)(3) motion is made within a reasonable

time but “no more than a year after the entry of the judgment or order or the date of

the proceeding.” Fed.R.Civ.P. 60(c)(1).

       Ferguson’s motion for reconsideration was filed more than two years after

his motion for return of property was denied; his motion was untimely filed.3

       AFFIRMED.




       2
        It is unclear whether Ferguson’s motion for return of property was civil or criminal in
nature. A motion for reconsideration in a criminal proceeding is timely if filed within the time
frame for filing a notice of appeal. See United States v. Russo, 760 F.2d 1229, 1230 (11th Cir.
1985) ( addressing denial of motion for reconsideration of denial of Fed.R.CrimP. 35 motion).
And at the time Ferguson’s motion for return of property was denied, a notice of appeal in a
criminal proceeding was required to be filed within 10 days of the entry of either the judgment or
the order being appealed. Fed.R.App.P. 4(b)(1)(A)(i). Because Rule 60(b) -- applicable to civil
proceedings -- allows a broader time frame for filing a motion for reconsideration, we assume
Ferguson relies on Rule 60(b).
       3
        We note that the facts upon which Ferguson bases his allegations of fraud in support of
his 2009 motion to reconsider were known to him when his motion for return of property was
denied in 2007.

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