### FILED U.S. COURT OF APPEALS ELEVENTH CIRCUIT March 19,

2004 THOMAS K. KAHN CLERK

* Honorable Frank J. Magill, United States Circuit Judge for the Eighth Circuit, sitting by designation. [PUBLISH]

IN THE UNITED STATES COURT OF APPEALS FOR THE EL EVENTH C IRCUIT

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_______ Nos. 02- 15631 & 03-141 97

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_______ D. C. Docket No. 98- 6006-CR-GOLD UNITED STATES OF AMERICA, Plaintiff-Appellee,

versus ALEJANDRO CORREA, a.k.a. Alex Correa, a.k.a. Alex Alvarez, Defenda nt-Appell ant.

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_______ Appeals from the United States D istrict Court for the S outhern Di strict of Florida

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________ (March19, 2004) Before BLACK, BARKETT and MAGILL * , Circui t Judges. BLACK, Circuit Judge:1 This case has a con voluted pr

ocedura l history . Correa

has been repres ented by

at least eight a ttorney s, all of w hom have f

iled var ious motions . Additiona

lly, Correa has filed m

ultiple pro se motions himself. As this procedural history is not rele vant to this appeal, we refrain from catalog uing it in great er deta il. 2 We are asked to consider whether Federal R ule of Criminal Procedure 33's time limits on filing, as amended in 1998, apply to Appellant’s m otions for new trial wh ere he w as convicte d fewer than two m

onths before the amended rule becam e effec tive. In

this case, applicati on of the am ended rule

is both (1) just and practica ble, and ( 2) nonviolat

ive of the E

x Post Fac to Clause. We hold the

amen ded rule doe s apply

retroac tively

in this case . The A

ppellant f ailed to fi le his motions within the

timelimit s set out in a

mende d Rule 33. We the refore hold the district court did not err when i t dismissed t hem. I. BACKGROUND Defenda nt-Appell ant Alej andro Corr ea was c onvicted by

a jury of (1) conspiring to import cocaine into the United States, in violation of 21 U.S.C. § 963; and (2) conspiring t o possess wi th intent to d istribute c ocaine, in violation of 21 U.S .C. § 846 . The gui lty ver dict was entered on O ctober 7, 1998. Beginning in

Decem ber of 2001—

i.e., more than three

year s after h is guilty verdict w as entere d—Correa filed an a ssortm ent of motions in whi ch he sought t o obtain a ne w trial. 1 Such motions are governed by Feder al Rule of Criminal3

Procedure 33, which was am ended effective Decem ber 1, 1998. Supreme Court Order of Apr. 24, 1998, 523 U.S. 1229 [hereinafter Order]. S ince Correa was convicted before the amendm ent became effec tive, the issue that faced the district court, a nd faces u s today , is whe ther the ol d or the am ended vers ion of Rule33 applied. A. Old Rule 33 and Amended Rule 33 Compared With re spect to m

otions for n ew tria l based on gr ounds other t

han newly discover ed eviden ce, there is n o differenc e between th e old and t he amended rule. Both requ ire that all such motions be made within se ven days after th e verdict. See Fed. R. Crim . P. 33 ( 1998); Fed. R. Crim . P. 33( b)(2) (20 03) (incor

porating the 1998 Amendments). The old an d the am ended rule differ, however , with respect to m otions grounded on newly di scovered evidence. The old r ule requir es that suc h motio ns be made “

within two years after final judgment .” Fed. R. Crim . P. 33 ( 1998) (emp hasis added

). In co ntrast, t

he am ended rule

relies on the date of the verdict as the trigg ering even t and exten ds the rele vant timeframe to thre e years. See Fed. R. Crim . P. 33(

b)(1) (20 03) (“Any m

otion for a

new trial grounded on newly discovere d evidence

must be filed wi thin 3 ye ars afte r the ver dict or finding of guilty.”).4

B. The Distr

ict Court’ s Applicat

ion of Rule

33 The district court first found that none of Correa’s m otions for new trial were filed within seven days of the guilty verdict. Accordingly, it denied them as untimely to the extent they were grounded on anything but newly discovered evidence. To the ext ent the m

otions weregrounded on newly di scovered evidence, the district court concluded amended Rule 33 applied and denied the motions as untimely because t hey were not filed within th ree years of the gu ilty verdict. See Fed. R. Crim. P. 33(b)(1) (2 003). Correa n ow appea ls, arguing that the d istrict c ourt erre d in applying amended Rule 33. W e disagree. II. STANDARD OF REVIEW The timeliness of a motion for n ew trial is a juri sdictio nal quest ion. United States v. Bramlet

t , 116 F.3 d 1403, 1405 ( 11th Cir. 1997). A s such, the issue presented is a quest ion of law, an d we review de n ovo. See Sea-Land Serv., Inc. v. Sellan , 231 F.3d 848, 851 (11th Cir. 2000).5 III. DISCUSSION We affirm

the district court’s finding that Correa’s m otions for new trial were unt imely to the exte nt that they

were gr ounded on any

thing but new ly dis cov ered evi den ce. C lear ly, no ne o f th ese moti ons were fil ed wi thi n se ven days after th e guilty

verdict a s require d by both the old and t he am ended vers ions of Rule 33. See supra Part I.A. Assuming that Correa’s m otions did, in fact, also contain newly discovered evidence, the issue becomes whether the district court erre d when it applied

amen ded Rule 33. Ame nded Rule 33 may

be applied

retroac tively

if doing so is (1) just

and practicabl e, see Order, supra , and (2) not violative of the Ex Post Facto Clause. A. Just and Practicable Amended Rule 33 became effective on December 1, 1998. Orde r, supra . It “govern[s] all proceedings in crim inal cases thereafter comm enced, and, insofar as just and pract

icable , all proceedings in criminal cases then pending.” Id. (emphasis added). Only t wo Circuits have addressed in published opin ions whether applica tion of the am ended rule

to a pending criminal case like Correa’s is just and practicabl e. See United States v. Ristovski , 312 F.3d 206, 212 (6th Cir. 2002);6

United States v. Bowler , 252 F.3 d 741, 746 (5 th Cir. 20 01). In Ristovski , the Sixt h Circuit held that application of the amended rule was just and practicable w here the defen dant had 19 m

onths afte r the amended rule becam e effec tive in whi ch he could have f

iled a motion for ne w trial. 312 F.3d a t 212. In c ontrast, the Fifth Circuit reached th e opposite result in Bowler because, under am

ended Rule

33, the defendant would have

been required to fi le his m otion for ne w trial m ore than f ive months before

the am ended rule

becam e effec tive. 252 F .3d at 746. The fac ts of this c ase are most like those in Ristovski . The Ristovski court applied the

ame nded rule t o a defend ant who ha d 19 mont hs in which

he could have filed a motion for new trial after the amended rule became effective. Correa had more than 34 months. Sim ilarly, we conclude the application of the amended rule is j ust and pra cticable in this case

where C orrea ha d more

than 34 months to file his motion after the am ended rule became effec tive. B. Ex Post

Facto The only rem aining issue is whether retroactive application of amended Rule 33 viola

tes the E x Post Fac to Clause, which pro vides that “ [n]o . . . ex po st facto L aw shall b e passed. ” U.S. Const. ar t. I, § 9 , cl. 3; s ee also United States v. Grimes , 142 F.3d 1342, 1350 (11th Cir. 1998) (“[A] pplication of amended statutes to crim es com

mitte d before t

he am endme nt is suspec t and m ust be carefully7

scrutiniz ed.”). “A

law viola tes the E x Post Fac to Clause o nly if it ‘re troactive ly alter s the defin itio n of cr imes or i ncrea ses th e pun ishmen t for c riminal acts.’” United Stat

es v. Sauc edo-Pati

no , 11th Cir ., 2004, __ F.3d __ ( No. 03-10 946, Jan. 27, 2004) ( quoting California Dep’t of Corrs. v. Morales , 514 U. S. 499, 5 04–05, 115 S. Ct. 1597, 1601 (1995)) (citation and internal quotation marks omitted). The only Circuit t hat has cons idered thi s issue in a published opin ion is the Sixth Circuit, and we agree with it that the Ex Post Facto Clause is not violated here. See Ristovski , 312 F.3d at 212–213. In this case, changing the rule that determ ines whet her a motion for ne w trial i s time ly does not retroa ctively alter the definition of Corre a’s cr

imes. Nor does it increa se the punish ment f or any underlying crim

inal act. Accordi

ngly, we hold tha

t apply ing am ended Rule 33 retroactively does not violate the Ex Post Facto Clause. C. Applicati on of Ame nded Rule 33 Correa w as convicte d on Octobe r 7, 1998. He did not file the f irst of the subject motions for new trial based on newly discovered evidence until December of 2001. H e theref

ore fail ed to file his mot

ions within three y ears as r equired by amended Rule 33

. See Fed. R. Crim . P. 33( b)(1) (20 03). Ac cordingly , we hold that the district court did not err when it denied Correa’s motions for new trial as untimely. Moreover, g iven that Rule 33's t ime limits are jurisdi ctional, see United2 We reject the remainder of Correa’ s arguments without further discussion. 8 States v. Renick, 273 F.3 d 1009, 1019 ( 11th Cir. 2001), the district c ourt did not err whe n it dism

issed the m

otions witho ut reaching their m erits. 2 IV. CONCLUSION Apply ing am ended Rule

33 retroa ctively

in this case

is both (1) just and practica ble, and ( 2) nonviolat

ive of the E

x Post Fac to Clause. Correa failed to file his mot ions for ne w trial within eithe r of the spe cified ti me f rame s set out in amended Rule 33—i.e., within three years after the verdict for new ly discovered evidence, and within

seven day s after t

he verdic t for all o ther ground s. The district court therefore did not err when it dismissed his motions for new trial as unt imely. AFFIRMED.