                                                            [DO NOT PUBLISH]


              IN THE UNITED STATES COURT OF APPEALS

                       FOR THE ELEVENTH CIRCUIT            FILED
                         ________________________ U.S. COURT OF APPEALS
                                                             ELEVENTH CIRCUIT
                               No. 06-10964                  SEPTEMBER 7, 2006
                           Non-Argument Calendar              THOMAS K. KAHN
                                                                  CLERK
                         ________________________

                    D. C. Docket No. 94-00146-CR-T-17-A

UNITED STATES OF AMERICA,


                                                         Plaintiff-Appellee,

                                     versus

JIMMY LEE FIELDS,

                                                         Defendant-Appellant.


                         ________________________

                  Appeal from the United States District Court
                      for the Middle District of Florida
                       _________________________

                                (September 7, 2006)

Before BLACK, BARKETT and HULL, Circuit Judges.

PER CURIAM:

     Jimmy Lee Fields, proceeding pro se, appeals the district court’s denial of
 his Federal Rule of Criminal Procedure 33 motion for a new trial, filed over ten

 years after the jury convicted him in 1995 on drug charges. After review, we

 affirm.

           A district court “may vacate any judgment and grant a new trial if the

 interest of justice so requires.” Fed. R. Crim. P. 33(a). Motions for new trial based

 on newly discovered evidence must be filed within three years of a guilty verdict,

 while motions based on any other grounds must be filed within seven days of a

 guilty verdict. Fed. R. Crim. P. 33(b)(1), (2).1

           Fields’s Rule 33 motion is based on allegedly newly discovered evidence

 and had to be filed in 1998, within three years of the 1995 guilty verdict. Thus,

 Fields’s motion filed in 2005 is seven years too late. Given that his motion is far

 too late, Fields argues on appeal that the government has waived the timeliness

 issue.

           We have previously held that “[t]he timeliness of a motion for new trial is a

 jurisdictional question,” United States v. Correa, 362 F.3d 1306, 1308 (11th Cir.

 2004), which would mean waiver could not help Fields. However, the Supreme

 Court recently clarified that “Rule 33 . . . is a claim-processing rule,” not a

 jurisdictional rule, but “one that is admittedly inflexible because of Rule 45(b)’s


       1
        We review the denial of a motion for new trial for abuse of discretion. See United States
v. Martinez, 763 F.2d 1297, 1312 (11th Cir. 1985).

                                                 2
insistent demand for a definite end to proceedings.” Eberhart v. United States, 546

U.S. __, __, 126 S. Ct. 403, 407 (2005). Thus, Rule 33’s time limitations may be

waived or forfeited. Id. at __, 126 S. Ct. at 404, 407 (noting that because the

government opposed Eberhart’s untimely Rule 33 motion on the merits in the

district court and raised an untimeliness defense for the first time on appeal, the

government forfeited any untimeliness defense).

      Based on Eberhart, Fields argues on appeal that the government forfeited the

issue of timeliness. We disagree because the facts in Fields’s case are materially

different from Eberhart. In Eberhart, the government had opposed the Rule 33

motion on the merits and never raised the timeliness issue in the district court.

After the district court granted the Rule 33 motion, the government raised a

timeliness defense for the first time on appeal.

      In contrast, here the district court sua sponte denied Fields’s motion and

never directed the government to file a response to Fields’s motion. Further, the

government never filed a response to Fields’s motion. Nothing in Eberhart

precludes a sua sponte determination of untimeliness by the district court,

especially where Fields’s Rule 33 motion was filed ten years after the jury’s

verdict and was seven years too late. Accordingly, we affirm the district court’s




                                           3
 denial of Fields’s Rule 33 motion.2

           AFFIRMED.




       2
        Prior to 1998, the three-year time period for motions for new trial ran from the “final
judgment” rather than the “verdict or finding of guilty.” See Fed. R. Crim. P. 33(b)(1) (1998).
Under either the current or 1998 version of Rule 33, Fields’s motion was untimely under Rule
33(b)(1).

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