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 ELEVENTH CIRCUIT

________________________

Nos. 02-15631 & 03-14197 

________________________

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,

Defendant-Appellant.

________________________

Appeals from the United States District Court

for the Southern District of Florida

_________________________

(March 19, 2004)

Before BLACK, BARKETT and MAGILL*, Circuit Judges.

BLACK, Circuit Judge:
1

 This case has a convoluted procedural history. Correa has been represented by at least

eight attorneys, all of whom have filed various motions. Additionally, Correa has filed multiple

pro se motions himself. As this procedural history is not relevant to this appeal, we refrain from

cataloguing it in greater detail.

2

We are asked to consider whether Federal Rule of Criminal Procedure 33's

time limits on filing, as amended in 1998, apply to Appellant’s motions for new

trial where he was convicted fewer than two months before the amended rule

became effective. In this case, application of the amended rule is both (1) just and

practicable, and (2) nonviolative of the Ex Post Facto Clause. We hold the

amended rule does apply retroactively in this case. The Appellant failed to file his

motions within the time limits set out in amended Rule 33. We therefore hold the

district court did not err when it dismissed them. 

I. BACKGROUND

Defendant-Appellant Alejandro Correa was convicted by a jury of

(1) conspiring to import cocaine into the United States, in violation of 21 U.S.C.

§ 963; and (2) conspiring to possess with intent to distribute cocaine, in violation

of 21 U.S.C. § 846. The guilty verdict was entered on October 7, 1998.

Beginning in December of 2001—i.e., more than three years after his guilty

verdict was entered—Correa filed an assortment of motions in which he sought to

obtain a new trial.1 Such motions are governed by Federal Rule of Criminal
3

Procedure 33, which was amended effective December 1, 1998. Supreme Court

Order of Apr. 24, 1998, 523 U.S. 1229 [hereinafter Order]. Since Correa was

convicted before the amendment became effective, the issue that faced the district

court, and faces us today, is whether the old or the amended version of Rule 33

applied.

A. Old Rule 33 and Amended Rule 33 Compared

With respect to motions for new trial based on grounds other than newly

discovered evidence, there is no difference between the old and the amended rule. 

Both require that all such motions be made within seven days after the verdict. 

See Fed. R. Crim. P. 33 (1998); Fed. R. Crim. P. 33(b)(2) (2003) (incorporating

the 1998 Amendments). 

The old and the amended rule differ, however, with respect to motions

grounded on newly discovered evidence. The old rule requires that such motions

be made “within two years after final judgment.” Fed. R. Crim. P. 33 (1998)

(emphasis added). In contrast, the amended rule relies on the date of the verdict as

the triggering event and extends the relevant timeframe to three years. See Fed. R.

Crim. P. 33(b)(1) (2003) (“Any motion for a new trial grounded on newly

discovered evidence must be filed within 3 years after the verdict or finding of

guilty.”).
4

B. The District Court’s Application of Rule 33

The district court first found that none of Correa’s motions 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 extent the motions were grounded on newly discovered evidence, the

district court concluded amended Rule 33 applied and denied the motions as

untimely because they were not filed within three years of the guilty verdict. See

Fed. R. Crim. P. 33(b)(1) (2003). 

Correa now appeals, arguing that the district court erred in applying

amended Rule 33. We disagree.

II. STANDARD OF REVIEW

The timeliness of a motion for new trial is a jurisdictional question. United

States v. Bramlett, 116 F.3d 1403, 1405 (11th Cir. 1997). As such, the issue

presented is a question of law, and we review de novo. 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 motions for new trial

were untimely to the extent that they were grounded on anything but newly

discovered evidence. Clearly, none of these motions were filed within seven days

after the guilty verdict as required by both the old and the amended versions of

Rule 33. See supra Part I.A. 

Assuming that Correa’s motions did, in fact, also contain newly discovered

evidence, the issue becomes whether the district court erred when it applied

amended Rule 33.

Amended Rule 33 may be applied retroactively if doing so is (1) just and

practicable, 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. Order, supra. It

“govern[s] all proceedings in criminal cases thereafter commenced, and, insofar as

just and practicable, all proceedings in criminal cases then pending.” Id.

(emphasis added).

Only two Circuits have addressed in published opinions whether application

of the amended rule to a pending criminal case like Correa’s is just and

practicable. See United States v. Ristovski, 312 F.3d 206, 212 (6th Cir. 2002);
6

United States v. Bowler, 252 F.3d 741, 746 (5th Cir. 2001). In Ristovski, the Sixth

Circuit held that application of the amended rule was just and practicable where

the defendant had 19 months after the amended rule became effective in which he

could have filed a motion for new trial. 312 F.3d at 212. In contrast, the Fifth

Circuit reached the opposite result in Bowler because, under amended Rule 33, the

defendant would have been required to file his motion for new trial more than five

months before the amended rule became effective. 252 F.3d at 746.

The facts of this case are most like those in Ristovski. The Ristovski court

applied the amended rule to a defendant who had 19 months in which he could

have filed a motion for new trial after the amended rule became effective. Correa

had more than 34 months. Similarly, we conclude the application of the amended

rule is just and practicable in this case where Correa had more than 34 months to

file his motion after the amended rule became effective.

B. Ex Post Facto

The only remaining issue is whether retroactive application of amended

Rule 33 violates the Ex Post Facto Clause, which provides that “[n]o . . . ex post

facto Law shall be passed.” U.S. Const. art. I, § 9, cl. 3; see also United States v.

Grimes, 142 F.3d 1342, 1350 (11th Cir. 1998) (“[A]pplication of amended statutes

to crimes committed before the amendment is suspect and must be carefully
7

scrutinized.”). “A law violates the Ex Post Facto Clause only if it ‘retroactively

alters the definition of crimes or increases the punishment for criminal acts.’”

United States v. Saucedo-Patino, 11th Cir., 2004, __ F.3d __ (No. 03-10946, Jan.

27, 2004) (quoting California Dep’t of Corrs. v. Morales, 514 U.S. 499, 504–05,

115 S. Ct. 1597, 1601 (1995)) (citation and internal quotation marks omitted).

The only Circuit that has considered this issue in a published opinion 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

determines whether a motion for new trial is timely does not retroactively alter the

definition of Correa’s crimes. Nor does it increase the punishment for any

underlying criminal act. Accordingly, we hold that applying amended Rule 33

retroactively does not violate the Ex Post Facto Clause.

C. Application of Amended Rule 33

Correa was convicted on October 7, 1998. He did not file the first of the

subject motions for new trial based on newly discovered evidence until December

of 2001. He therefore failed to file his motions within three years as required by

amended Rule 33. See Fed. R. Crim. P. 33(b)(1) (2003). Accordingly, we hold

that the district court did not err when it denied Correa’s motions for new trial as

untimely. Moreover, given that Rule 33's time limits are jurisdictional, see United
2

 We reject the remainder of Correa’s arguments without further discussion.

8

States v. Renick, 273 F.3d 1009, 1019 (11th Cir. 2001), the district court did not

err when it dismissed the motions without reaching their merits.2

IV. CONCLUSION

Applying amended Rule 33 retroactively in this case is both (1) just and

practicable, and (2) nonviolative of the Ex Post Facto Clause. Correa failed to file

his motions for new trial within either of the specified time frames set out in

amended Rule 33—i.e., within three years after the verdict for newly discovered

evidence, and within seven days after the verdict for all other grounds. The

district court therefore did not err when it dismissed his motions for new trial as

untimely.

AFFIRMED.