UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 08-8319

UNITED STATES OF AMERICA,

Plaintiff – Appellee,

v.

DWAYNE FERGUSON,

Defendant – Appellant.

Appeal from the United States District Court for the Eastern District of Virginia, at Richmond. Robert E. Payne, Senior District Judge. (3:04-cr-00013-REP-1)

Submitted: January 13, 2009 Decided: January 20, 2009

Before WILLIAMS, Chief Judge, and TRAXLER and KING, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Dwayne Ferguson, Appellant Pro Se. Stephen David Schiller, Olivia N. Hawkins, OFFICE OF THE UNITED STATES ATTORNEY, Richmond, Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit.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

Dwayne Ferguson appeals the district court order

denying his Fed. R. Crim. P. 33 motion for a new trial. We have

reviewed the record and find no reversible error.

Ferguson filed his motion for a new trial over four

years after the jury returned its guilty verdict and more than

three years after the judgment of conviction was entered. A

motion for a new trial based on newly discovered evidence must

be filed within three years after the finding of guilt.

Ferguson exceeded the time limit provided by Fed. R. Crim. P.

33. Therefore, the district court properly denied the motion.

Accordingly, we affirm for the order 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

2