DLD-127                                                     NOT PRECEDENTIAL

                         UNITED STATES COURT OF APPEALS
                              FOR THE THIRD CIRCUIT
                                   ___________

                                       No. 12-3741
                                       ___________

                             UNITED STATES OF AMERICA

                                             v.

                                  LAVAR BROWN,
                                              Appellant
                        ____________________________________

                      On Appeal from the United States District Court
                         for the Eastern District of Pennsylvania
                          (D.C. Crim. No. 2:06-cr-00365-001)
                        District Judge: Honorable Anita B. Brody
                       ____________________________________

               Submitted for Possible Dismissal Due to a Jurisdictional Defect
       or Possible Summary Action Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6
                                     February 22, 2013
                 Before: AMBRO, SMITH and CHAGARES, Circuit Judges

                               (Opinion filed: March 8, 2013)
                                        _________

                                        OPINION
                                        _________

PER CURIAM

      LaVar Brown, a federal inmate proceeding pro se, appeals from an order of the United

States District Court for the Eastern District of Pennsylvania denying his motion for

reconsideration of the denial of his motion for a new trial pursuant to Fed. R. Crim. P. 33.
Because this appeal does not present a substantial question, we will summarily affirm the

District Court’s order. See 3d Cir. L.A.R 27.4; I.O.P. 10.6.

                                               I.

       On September 29, 2009, a jury convicted Brown of conspiracy to commit armed bank

robbery; aiding and abetting armed bank robbery; aiding and abetting the carrying and use of a

firearm during and in relation to a crime of violence; and being a convicted felon in possession

of a firearm.1 The District Court subsequently sentenced Brown to a total of 300 months’

incarceration. This Court affirmed his judgment of conviction and sentence. See United States

v. Brown, 445 F. App’x 474 (3d Cir. Sept. 20, 2011).

       In February 2012, Brown filed a motion pursuant to Fed. R. Crim. P. 33, alleging newly

discovered evidence and requesting that the District Court dismiss all of the charges against

him, remove his career offender status, or grant him a new trial. He later filed a supplement to

his motion. On April 19, 2012, the District Court denied his motion because it restated his

previously litigated claims and failed to present any newly discovered evidence. Brown filed a

motion for reconsideration on May 8, 2012,2 which the District Court denied on August 28,

2012. Brown then filed this appeal.




1
  Prior to trial, Brown filed a motion to suppress evidence and a motion to dismiss Counts One
through Three of the indictment, asserting that 18 U.S.C. § 2113 was an unconstitutional
exercise of Congress’ power to regulate interstate commerce. The District Court denied
Brown’s pretrial motions.
2
  Brown dated his motion for reconsideration May 8, 2012; however, it was not docketed until
July 31, 2012. Under the “mailbox rule,” Brown’s motion is considered filed as of May 8,
2012. See Burns v. Morton, 134 F.3d 109, 113 (3d Cir. 1998).
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                                               II.

       We must first determine the scope of this appeal. Under Fed. R. App. P. 4(b)(1)(A), a

defendant must file his notice of appeal “within 14 days . . . of the entry of either the judgment

or the order being appealed.” A motion for reconsideration can toll the time for taking an

appeal if filed within the period allotted for filing a notice of appeal. See United States v.

Christy, 3 F.3d 765, 767 n.1 (4th Cir. 1993); see also United States v. Vicaria, 963 F.2d 1412,

1413-14 (11th Cir. 1992) (per curiam) (noting that “the timely filing of such a motion in a

criminal action tolls the time for filing a notice of appeal and the time begins to run anew

following disposition of the motion”). The District Court’s order denying Brown’s motion for

a new trial was entered on April 19, 2012, but he did not file his motion for reconsideration

until May 8, 2012. Accordingly, Brown’s motion for reconsideration did not toll the period for

filing a notice of appeal. See United States v. Brewer, 60 F.3d 1142, 1144 (5th Cir. 1995).

       However, the time limit for filing an appeal in a criminal case is not jurisdictional.

Virgin Islands v. Martinez, 620 F.3d 321, 328 (3d Cir. 2010). Here, the Government failed to

raise the issue and therefore waived it. Id. at 329; see also United States v. Muhammud, 701

F.3d 109, 11 (3d Cir. 2012). Because the delay in filing the motion was not inordinate, we

exercise our discretion to consider the appeal from both the underlying order denying his Fed.

R. Crim. P. 33 motion and the District Court’s July 31, 2012 order denying Brown’s

reconsideration motion. See United States v. Mitchell, 518 F.3d 740, 750 (10th Cir. 2008)

(noting that a court should not sua sponte raise the time bar in criminal cases “when judicial

resources and administration are not implicated and the delay has not been inordinate”).



                                                3
       We exercise jurisdiction pursuant to 28 U.S.C. § 1291. Our review of the denial of a

motion for a new trial is for abuse of discretion, bearing in mind that such motions are not

favored and should be granted in exceptional cases only. See United States v. Silveus, 542

F.3d 993, 1005 (3d Cir. 2008) (citations omitted). A district court abuses its discretion when

“its decision rests upon a clearly erroneous finding of fact, an errant conclusion of law or an

improper application of law to fact.” United States v. Brown, 595 F.3d 498, 511 (3d Cir. 2010)

(quoting Montgomery v. Pinchak, 294 F.3d 492, 498 (3d Cir. 2002)). We also review the

denial of a motion for reconsideration for abuse of discretion. United States v. Dupree, 617

F.3d 724, 732 (3d Cir. 2010). The purpose of such a motion “is to correct a clear error of law

or to prevent a manifest injustice in the District Court’s original ruling.” Id.

                                                III.

       The test we apply to determine whether to grant a new trial based on newly discovered

evidence has five parts:

       (a) the evidence must be[,] in fact, newly discovered, i.e., discovered since trial;
       (b) facts must be alleged from which the court may infer diligence on the part of
       the movant; (c) evidence relied on[] must not be merely cumulative or
       impeaching; (d) it must be material to the issues involved; and (e) it must be
       such, and of such nature, as that, on a new trial, the newly discovered evidence
       would probably produce an acquittal.

United States v. Jasin, 280 F.3d 355, 361 (3d Cir. 2002) (quoting United States v. Iannelli, 528

F.2d 1290, 1292 (3d Cir. 1976)). Evidence is not newly discovered if it was actually known or

could have been known by the diligence of the defendant or his counsel. United States v.

Cimera, 459 F.3d 452, 460 (3d Cir. 2006).




                                                 4
       After reviewing the record, we determine that the District Court did not abuse its

discretion in denying Brown’s motion for a new trial. We agree that Brown’s motion merely

restates his previously litigated claims and fails to present any newly discovered evidence.

While Brown cites case law decided after his conviction to support his arguments, case law is

not evidence that satisfies the requirements of Fed. R. Crim. P. 33. Similarly, the District

Court did not abuse its discretion in denying Brown’s motion for reconsideration, as it only

restated his arguments from his motion for a new trial.

                                              IV.

       For the foregoing reasons, no substantial question is presented and we will affirm the

judgment of the District Court. See 3d Cir. L.A.R 27.4; I.O.P. 10.6.




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