FILED
NOT FOR PUBLICATION MAY 20 2014
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 13-10132
Plaintiff - Appellee, D.C. No. 3:12-cr-00142-RS
v.
MEMORANDUM*
GERARDO MADRIGAL GUIZAR,
Defendant - Appellant.
Appeal from the United States District Court
for the Northern District of California
Richard Seeborg, District Judge, Presiding
Submitted May 13, 2014**
Before: CLIFTON, BEA, and WATFORD, Circuit Judges.
Federal prisoner Gerardo Madrigal Guizar appeals pro se from the district
court’s denial of his “Motion for Relief Pursuant to Fed. R. Civ. P. 60(b) and Fed.
R. Crim. P. 52(b).” We have jurisdiction under 28 U.S.C. § 1291, and we affirm in
part, reverse in part, and remand.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
Madrigal Guizar’s motion raised challenges to both his conviction and his
sentence. Federal Rule of Civil Procedure 60(b) is not a proper vehicle for
challenging a criminal conviction and sentence, and Federal Rule of Criminal
Procedure 52(b) merely prescribes a standard of review. See Fed. R. Civ. P. 1;
United States v. Speelman, 431 F.3d 1226, 1229-30 (9th Cir. 2005) (describing
three procedures for challenging a criminal sentence). We therefore affirm the
district court’s denial of the motion under Rules 52(b) and 60(b).
Pro se pleadings must be liberally construed, however, and at the time that
he filed his motion, Madrigal Guizar retained the right to challenge his conviction
and sentence collaterally under 28 U.S.C. § 2255. See 28 U.S.C. § 2255(f).
Madrigal Guizar’s motion raised both a claim of ineffective assistance of counsel
and a claim that his sentence is unconstitutional. Contrary to the government’s
contention, those claims are not barred by the appeal waiver in the parties’ plea
agreement. The record reflects that Madrigal Guizar explicitly reserved the right to
raise, in a section 2255 motion, the claim that his constitutional right to the
effective assistance of counsel was violated. Moreover, an otherwise valid appeal
waiver does not bar a claim that a sentence is unconstitutional. See United States
v. Bibler, 495 F.3d 621, 624 (9th Cir. 2007).
2 13-10132
Because the district court did not consider Madrigal Guizar’s challenges to
the constitutionality of his sentence and the effectiveness of his counsel, we reverse
and remand with instructions that the court evaluate Madrigal Guizar’s motion as
one arising under section 2255. See United States v. Eatinger, 902 F.2d 1383,
1385 (9th Cir. 1990) (per curiam). The district court must first, however, follow
the procedures set forth in Castro v. United States, 540 U.S. 375, 383 (2003).
AFFIRMED in part; REVERSED in part; REMANDED.
3 13-10132