                             UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                             No. 09-8110


UNITED STATES OF AMERICA,

                 Plaintiff - Appellee,

          v.

JOSE M. GOMEZ,

                 Defendant - Appellant.



Appeal from the United States District Court for the District of
Maryland, at Baltimore.     William D. Quarles, Jr., District
Judge. (1:08-cr-00083-WDQ-1)


Submitted:   May 6, 2010                      Decided:   June 14, 2010


Before WILKINSON, DUNCAN, and DAVIS, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Jose M. Gomez, Appellant Pro Se.           Albert David Copperthite,
Assistant United States Attorney,          Baltimore, Maryland, for
Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

             Jose     M.   Gomez   appeals     the    district      court’s   order

denying his motion for return of property under Fed. R. Crim. P.

41(g), and his subsequent motion to alter or amend the judgment.

             The denial of a motion for return of property under

Fed. R. Crim. P. 41(g) is reviewed for an abuse of discretion.

United States v. Chambers, 192 F.3d 374, 376 (3d Cir. 1999).                      A

district court abuses its discretion when it fails or refuses to

exercise its discretion, fails “adequately to take into account

judicially     recognized      factors      constraining      its    exercise”   of

discretion, or exercises its discretion based upon “erroneous

factual or legal premises.”           James v. Jacobson, 6 F.3d 233, 239

(4th Cir. 1993).

             Under Fed. R. Crim. P. 41(g), “[a] person aggrieved by

an   unlawful       seizure   of   property     or    by    the    deprivation   of

property may move for the property’s return.”                        A motion for

return of property, where no criminal proceedings are pending,

is a civil action against the United States.                      United States v.

Garcia, 65 F.3d 17, 19 n.2 (4th Cir. 1995).

             We   have     reviewed   the    record   and    conclude    that    the

district court did not abuse its discretion in denying Gomez’s

motion for return of property.                The United States never had

actual or constructive possession of the property that is the



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subject of Gomez’s motions, and is thus not the proper party to

an action for return of that property.

            We also conclude that the district court did not abuse

its discretion in denying Gomez’s Fed. R. Civ. P. 59(e) motion

to alter or amend the judgment.                Although Rule 59(e) does not

itself provide a standard under which a district court may grant

a motion to alter or amend a judgment, we have recognized three

grounds for amending or altering an earlier judgment: “(1) to

accommodate an intervening change in controlling law; (2) to

account for new evidence not available at trial; and (3) to

correct a clear error of law or prevent manifest injustice.”

Pac. Ins. Co. v. Am. Nat’l Fire Ins. Co., 148 F.3d 396, 403 (4th

Cir.    1998).     We    have   reviewed      the     record    and    conclude   that

Gomez’s motion does not satisfy any of these grounds.

            Accordingly,        we   affirm    the     orders    of    the   district

court.     We dispense with oral argument because the facts and

legal    contentions     are    adequately      presented       in    the    materials

before    the    court   and    argument      would    not     aid    the   decisional

process.

                                                                              AFFIRMED




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