     Case: 17-20219      Document: 00514412710         Page: 1    Date Filed: 04/03/2018




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                          United States Court of Appeals
                                                                                   Fifth Circuit

                                    No. 17-20219                                 FILED
                                  Summary Calendar                            April 3, 2018
                                                                            Lyle W. Cayce
                                                                                 Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

JAMES RAMEY, also known as James Maceo Ramey, also known as James
Maceo Ramey, II, also known as Jim Ramey, also known as Henry Ramey, also
known as John Shuler, also known as Joe Hill, also known as Frank Bartuka,

                                                 Defendant-Appellant


                  Appeals from the United States District Court
                       for the Southern District of Texas
                            USDC No. 4:08-CR-502-1


Before DAVIS, CLEMENT, and OWEN, Circuit Judges.
PER CURIAM: *
       James Ramey, federal prisoner # 29206-179, moves for leave to proceed
in forma pauperis (IFP) in appealing the dismissal of his motion for a new trial
under Federal Rule of Criminal Procedure 33 and his motion for
reconsideration. His motions were based on his argument that no audit of the
claims against him was conducted and that newly discovered evidence


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
    Case: 17-20219     Document: 00514412710      Page: 2   Date Filed: 04/03/2018


                                  No. 17-20219

indicated that some of the claims against him were false. He also argued that
in view of Johnson v. United States, 135 S. Ct. 2551 (2015), the Bankruptcy
Code and the mail fraud statute are vague.
      The district court determined that Ramey’s Rule 33 motion was untimely
because it was not filed within three years after the verdict or finding of guilty.
See FED. R. CRIM. P. 33(b)(1). Although the district court may have abused its
discretion in raising the timeliness issue sua sponte in view of Eberhart v.
United States, 546 U.S. 12, 19 (2005), Ramey did not make the requisite
showing for a new trial based on newly discovered evidence under Rule 33. See
United States v. Reedy, 304 F.3d 358, 372 (5th Cir. 2002). Ramey’s motion for
reconsideration was untimely and therefore unauthorized, and the district
court lacked jurisdiction to consider it. See United States v. Gomez-Vasquez,
680 F. App’x 272, 273-74 (5th Cir. 2017).
      Ramey has not identified a nonfrivolous issue for appeal. Accordingly,
his motion for leave to appeal IFP is DENIED, and his appeal is DISMISSED
as frivolous. See Baugh v. Taylor, 117 F.3d 197, 202 & n.24 (5th Cir. 1997);
5TH CIR. R. 42.2. Ramey’s motion for bail pending appeal is also DENIED.




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