                              UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                              No. 08-8319


UNITED STATES OF AMERICA,

                  Plaintiff – Appellee,

             v.

DWAYNE FERGUSON,

                  Defendant – Appellant.



Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond.    Robert E. Payne, Senior
District Judge. (3:04-cr-00013-REP-1)


Submitted:    January 13, 2009               Decided:   January 20, 2009


Before WILLIAMS,     Chief   Judge,   and   TRAXLER   and   KING,   Circuit
Judges.


Affirmed by unpublished per curiam opinion.


Dwayne Ferguson, Appellant Pro Se.             Stephen David    Schiller,
Olivia N. Hawkins, OFFICE OF THE              UNITED STATES     ATTORNEY,
Richmond, Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

              Dwayne     Ferguson    appeals       the     district      court     order

denying his Fed. R. Crim. P. 33 motion for a new trial.                          We have

reviewed the record and find no reversible error.

              Ferguson filed his motion for a new trial over four

years after the jury returned its guilty verdict and more than

three years after the judgment of conviction was entered.                              A

motion for a new trial based on newly discovered evidence must

be    filed     within    three     years       after    the   finding      of     guilt.

Ferguson exceeded the time limit provided by Fed. R. Crim. P.

33.     Therefore, the district court properly denied the motion.

              Accordingly, we affirm for the order of the district

court.      We dispense with oral argument because the facts and

legal    contentions      are     adequately      presented     in    the    materials

before    the    court    and   argument        would    not   aid   the    decisional

process.

                                                                                 AFFIRMED




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