                                                                                  FILED
                                                                      United States Court of Appeals
                      UNITED STATES COURT OF APPEALS                          Tenth Circuit

                             FOR THE TENTH CIRCUIT                          October 4, 2016
                         _________________________________
                                                                          Elisabeth A. Shumaker
                                                                              Clerk of Court
UNITED STATES OF AMERICA,

      Plaintiff - Appellee,
                                                            No. 16-3074
v.                                                (D.C. No. 5:10-CR-40014-JTM-1)
                                                             (D. Kansas)
RITO VASQUEZ-GARCIA,

      Defendant - Appellant.
                      _________________________________

                             ORDER AND JUDGMENT*
                         _________________________________

Before BRISCOE, GORSUCH, and McHUGH, Circuit Judges.
                  _________________________________


      Rito Vasquez-Garcia, proceeding pro se, appeals the district court’s denial of

his motion seeking to recover weapons and ammunition seized from his home in

2009 by the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF). The

district court denied Mr. Vasquez-Garcia’s motion as being untimely and thus barred

under the applicable statute, 18 U.S.C. § 983. We affirm.

                                 I. BACKGROUND

      On June 17, 2009, ATF agents seized four firearms and ammunition from Mr.

Vasquez-Garcia’s prior residence. ATF began administrative forfeiture proceedings



      *
         This order and judgment is not binding precedent, except under the doctrines
of law of the case, res judicata, and collateral estoppel. It may be cited, however, for
its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
pursuant to 18 U.S.C. § 924(d). On June 29, 2009, ATF notified Mr. Vasquez-Garcia

of his right to contest the forfeiture in district court by filing a Claim of Ownership

with ATF within thirty-five days or by filing a Petition for Remission or Mitigation

of Forfeiture within thirty days. On July 2, 2009, July 9, 2009, and July 16, 2009,

ATF published notice of the seizure and pending administrative proceeding in the

Wall Street Journal. Although the government indicted Mr. Vasquez-Garcia on

February 10, 2010, it later moved to dismiss the indictment without prejudice. The

court granted the motion and closed the case on March 18, 2015.

      Over six years after ATF notified Mr. Vasquez-Garcia of his right to contest

forfeiture of the firearms and ammunition, on August 24, 2015, he filed a Petition for

Remission or Mitigation of Forfeiture. ATF denied the petition on August 31, 2015,

because the property had already been forfeited to the United States.

      On December 2, 2015, Mr. Vasquez-Garcia filed a motion to set aside the 2009

ATF administrative forfeiture of the firearms and ammunition, claiming to be an

innocent owner of the property. In response, the government asserted that the motion

was untimely pursuant to 18 U.S.C. § 983(e)(3). In his reply, Mr. Vasquez-Garcia did

not challenge the timeline asserted by the government but argued he was an innocent

owner of the property. Mr. Vasquez-Garcia also alleged he lacks the skills and ability

to raise the relevant objections to the seizure and does not speak English. On

March 15, 2016, the district court denied Mr. Vasquez-Garcia’s motion to set aside

forfeiture as untimely. Mr. Vasquez-Garcia also filed a motion for leave to appeal in

forma pauperis (IFP), which the district court denied because Mr. Vasquez-Garcia

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failed to raise a legally non-frivolous argument. Mr. Vasquez-Garcia has renewed his

request for IFP status before this court on appeal. After our independent examination

of the record, we affirm. Mr. Vasquez-Garcia’s motion was untimely and thus barred

under the applicable statute. In addition, we deny Mr. Vasquez-Garcia’s request to

proceed IFP.

                                    II. DISCUSSION

         We review questions of law relating to a motion for return of seized property

de novo. United States v. Shigemura, 664 F.3d 310, 312 (10th Cir. 2011). Mr.

Vasquez-Garcia argues that because the indictment against him was dismissed, he is

an innocent owner of the property seized by the ATF, and the district court therefore

erred by not returning the property to him. The plain statutory language defeats this

claim.

         18 U.S.C. § 983(e) provides “the exclusive remedy for the recovery of

administratively forfeited property.” United States v. Tinajero-Porras, 378 F. App’x

850, 851 (10th Cir. 2010) (unpublished). When a party claims it “did not know or

have reason to know of the seizure within sufficient time to file a timely claim,” the

party may file a motion to set aside forfeiture. 18 U.S.C. § 983(e)(1)(B). But such a

motion must be filed “not later than 5 years after the date of final publication of

notice of seizure of the property.” 18 U.S.C. § 983(e)(3). The district court correctly

determined Mr. Vasquez-Garcia’s motion is barred by this limitations period.

         The facts in this case are straightforward. On July 2, 2009, July 9, 2009, and

July 16, 2009, ATF published notice of the seizure and pending administrative

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proceeding. As a result, the latest date for filing a timely motion for return of

property was July 17, 2014. Mr. Vasquez-Garcia filed the motion to set aside

forfeiture on December 2, 2015, well past the end of the limitations period.

       Mr. Vasquez-Garcia does not dispute this timeline. And even assuming

without deciding that the statute of limitations in § 983 is subject to equitable tolling,

Mr. Vasquez-Garcia has alleged no facts that could establish he diligently pursued

his claim or that some extraordinary circumstance prevented him from timely filing.

Cobrar v. DEA, No. 12 Civ. 7415(KPF), 2014 WL 1303110, at *9 (S.D.N.Y. Mar.

31, 2014).

                                  III. CONCLUSION

       For the reasons explained above, we agree with the district court that Mr.

Vasquez-Garcia’s Petition for Remission or Mitigation of Forfeiture is barred by the

applicable statute of limitations. His appeal is therefore denied, and the district

court’s order is AFFIRMED. Mr. Vasquez-Garcia’s request to proceed IFP on appeal

is also DENIED, and he is accordingly reminded of his obligation to pay the filing

fee in full.

                                             Entered for the Court


                                             Carolyn B. McHugh
                                             Circuit Judge




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