                                                        United States Court of Appeals
                                                                 Fifth Circuit
                                                              F I L E D
                IN THE UNITED STATES COURT OF APPEALS
                        FOR THE FIFTH CIRCUIT                  June 19, 2007

                                                           Charles R. Fulbruge III
                                                                   Clerk
                             No. 06-20151
                         Conference Calendar


UNITED STATES OF AMERICA,

                                     Plaintiff-Appellee,

versus

JAMES OSCAR COOPER,

                                     Defendant-Appellant.

                      --------------------
          Appeal from the United States District Court
               for the Southern District of Texas
                     USDC No. 4:90-CR-403-1
                      --------------------

Before JONES, Chief Judge, and JOLLY and DENNIS, Circuit Judges.

PER CURIAM:*

     James Oscar Cooper, federal prisoner # 55036-079, appeals

the denial of his FED. R. CRIM. P. 41(g) motion seeking the return

of property forfeited to the Government as a result of his

convictions for conspiracy to possess with intent to distribute

cocaine base and maintaining a place to use and distribute

cocaine base.   He argues that the district court erred in

dismissing his Rule 41(g) motion as time-barred and abused its

discretion in dismissing his motion to construe his Rule 41(g)

motion as a FED. R. CIV. P. 60(b) motion.

     *
       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this opinion should not be published and is not precedent except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.
                            No. 06-20151
                                 -2-

     The record establishes that Cooper knew no later than April

7, 1997, that his property had indeed been forfeited.       See

Gartrell v. Gaylor, 981 F.2d 254, 257 (5th Cir. 1993).

Consequently, his 2005 Rule 41(g) motion was untimely by roughly

two years.    See Clymore v. United States, 217 F.3d 370, 373 (5th

Cir. 2000).   The facts do not support application of the

equitable tolling doctrine because, by his own admission, Cooper

heard in 1995 that his property had been forfeited.       He therefore

failed to exercise due diligence in preserving his legal rights.

See Perez v. United States, 167 F.3d 913, 917 (5th Cir. 1999).

     In the district court, Cooper argued that his Rule 41(g)

motion should be liberally construed as a Rule 60(b)(3) motion

alleging fraud on the court.   A Rule 60(b)(3) motion must be

brought “not more than one year after the judgment, order, or

proceeding was entered or taken.”      FED. R. CIV. P. 60(b).

Consequently, any such motion would have been untimely because it

was filed more than one year after the default judgment was

entered on June 18, 1991.    See id.    To the extent that Cooper

argues that the district court should have liberally construed

his Rule 41(g) motion as one raised pursuant to other named civil

statutes, this argument was not raised below and is therefore

waived.   Yohey v. Collins, 985 F.2d 222, 224-25 (5th Cir. 1993).

     AFFIRMED.
