                              UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                              No. 08-4638


UNITED STATES OF AMERICA,

                  Plaintiff – Appellee,

             v.

WALLACE THOMAS LESTER,

                  Defendant – Appellant.



Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh.  James C. Dever III,
District Judge. (5:07-cr-00169-D-1)


Submitted:    January 26, 2009              Decided:   February 17, 2009


Before MICHAEL, TRAXLER, and GREGORY, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Bridgett Britt Aguirre, Fuquay-Varina, North Carolina, for
Appellant.   George E. B. Holding, United States Attorney, Anne
M.   Hayes,   Banumathi  Rangarajan,   Assistant  United States
Attorneys, Raleigh, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

            Wallace    Thomas      Lester      was   convicted   by   a   jury   of

possession of a firearm by a felon, in violation of 18 U.S.C.

§§ 922(g)(1), 924 (2006), and was sentenced to 240 months in

prison.    Lester’s sole argument on appeal is that the district

court erred when it denied his motion for leave to file an

untimely suppression motion.            Finding no error, we affirm.

            Under Fed. R. Crim. P. 12, motions to suppress must be

filed    prior   to   trial   or   by    the    deadline    established    by    the

court.     See Fed. R. Crim. P. 12(b)(3)(C), 12(c).                   A defendant

waives the right to file a suppression motion if he fails to

file the motion prior to the time set by the district court,

unless he can establish good cause for the waiver.                        Fed. R.

Crim. P. 12(e).        This court has found good cause to excuse an

untimely motion to suppress where, for instance, the delay in

filing the suppression motion was caused by the government’s

failure to turn over the evidence sought to be suppressed.                       See

United States v. Chavez, 902 F.2d 259, 263-64 (4th Cir. 1990).

            This court will not disturb a district court’s denial

of a motion for leave to file an untimely suppression motion

unless the district court committed clear error.                      Id. at 263.

“Accordingly, reviewing courts rarely grant relief from denials

of   untimely     suppression       motions.”         Id.    (recognizing       that

appellate courts generally deny relief from the denial of tardy

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suppression motions where the motion was made after the court-

imposed deadline and the defendant proffered only a “dubious

excuse”); see also United States v. Ruhe, 191 F.3d 376, 386-87

(4th Cir. 1999) (holding that there was no good cause to raise

an untimely suppression issue where the defendant could have

with   due    diligence      discovered        the    information    necessary      to

timely raise the issue).

             We conclude that the district court did not commit

error, clear or otherwise, when it denied Lester’s motion for

leave to file an untimely motion to suppress.                       Moreover, even

assuming that the district court clearly erred when it denied

Lester’s     motion    for   leave    to       file   the   untimely      suppression

motion, we find that the district court’s ultimate denial of

Lester’s pro se suppression motion on its merits renders any

assumed error harmless.           See United States v. Abu Ali, 528 F.3d

210, 231 (4th Cir. 2008) (recognizing that an error “will be

deemed harmless if a reviewing court is able to say, with fair

assurance, after pondering all that happened without stripping

the erroneous action from the whole, that the judgment was not

substantially    swayed      by    the   error”)       (internal    citations      and

quotation marks omitted).

             Accordingly, we affirm the district court’s judgment.

We   dispense   with    oral      argument      because     the   facts    and   legal



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contentions are adequately presented in the materials before the

court and argument would not aid the decisional process.


                                                           AFFIRMED




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