                                                          [DO NOT PUBLISH]


              IN THE UNITED STATES COURT OF APPEALS

                      FOR THE ELEVENTH CIRCUIT                    FILED
                        ________________________         U.S. COURT OF APPEALS
                                                           ELEVENTH CIRCUIT
                                                               June 16, 2008
                              No. 07-11461                  THOMAS K. KAHN
                          Non-Argument Calendar                 CLERK
                        ________________________

                       D. C. Docket No. 01-00045-CR-2

UNITED STATES OF AMERICA,


                                                                Plaintiff-Appellee,

                                    versus

SAMUEL WAYNE RYLEE,

                                                          Defendant-Appellant.


                        ________________________

                 Appeal from the United States District Court
                    for the Northern District of Georgia
                      _________________________

                               (June 16, 2008)

Before TJOFLAT, DUBINA and BLACK, Circuit Judges.

PER CURIAM:

     Appellant Samuel Wayne Rylee (“Rylee”) appeals the district court’s denial
of his motion to vacate the preliminary order and/or final order of forfeiture, in

connection with his 2002 convictions and sentences for conspiracy and possession

with intent to distribute methamphetamine, in violation of 21 U.S.C. §§ 841(a)(1),

(b)(1)(A), and (b)(1)(B), and 846, which the district court treated as a

Fed.R.Crim.P 41(g) motion for return of property. On appeal, Rylee argues that

the district court’s final order of forfeiture should be vacated because, by not

including the preliminary order of forfeiture in his written judgment and

commitment, the district court lacked jurisdiction to issue the final order after

sentencing. The government argues that we lack appellate jurisdiction to review

the district court’s order of forfeiture because Rylee failed to timely appeal the

order.

         We review our subject matter jurisdiction de novo. United States v.

Winingear, 422 F.3d 1241, 1245 (11th Cir. 2005). A defendant must file a notice

of appeal within the time prescribed by Fed.R.App.P. 4(b), or we lack appellate

jurisdiction to review the lower court’s decision on the merits. United States v.

Machado, 465 F.3d 1301, 1305 (11th Cir. 2006). Pursuant to Fed.R.App.P. 4(b), a

defendant must file a notice within 10 days after the entry of the judgment that is

being appealed, or within 40 days if the district court grants an extension due to

excusable neglect or good cause. Fed.R.App.P. 4(b)(1)(A)(i), (b)(4).



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      We review de novo the legal issues connected to a Rule 41(g) motion, and

review for abuse of discretion the district court’s decision to exercise its equitable

jurisdiction and deny a Rule 41(g) motion. Machado, 465 F.3d at 1307. Rule

41(g) provides that “[a] person aggrieved by an unlawful search and seizure of

property or by the deprivation of property may move for the property’s return.”

Fed.R.Crim.P. 41(g). A district court may exercise equitable jurisdiction over a

Rule 41(g) motion for return of property after the criminal proceedings have

concluded. Machado, 465 F.3d at 1307. For a district court to grant a Rule 41(g)

motion, the “owner of the property must have clean hands.” United States v.

Howell, 425 F.3d 971, 974 (11th Cir. 2005). In Machado, we noted that it would

be inequitable to “return to a criminal the fruits of his crimes, giving him an illicit

. . . windfall.” 465 F.3d at 1307. We also noted that it would be inequitable to

give back to a defendant “property that he voluntarily forfeited to the government

as part of a valid plea agreement, an agreement which gave him ample

consideration in return,” or to allow the defendant to “escape the burdens” after

receiving the “full benefit of his bargain.” Id.

      Based upon a review of the record and the parties’ briefs, we conclude that

there was no reversible error. We lack appellate jurisdiction to review the district

court’s order of forfeiture because Rylee did not timely appeal that order.



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Moreover, we conclude from the record that the district court did not abuse its

discretion in denying Rylee’s Rule 41(g) motion because it would be inequitable to

return to Rylee property that he obtained through criminal activity and voluntarily

forfeited pursuant to a plea agreement from which he benefitted. Accordingly, we

affirm the district court’s order denying the motion to vacate an order of forfeiture.

      AFFIRMED.




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