                           NOT FOR PUBLICATION                           FILED
                     UNITED STATES COURT OF APPEALS                       APR 20 2017
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,                       No.    14-50213

                Plaintiff-Appellee,             D.C. No. 8:98-cr-00143-DDP

 v.
                                                MEMORANDUM*
JAVIER PONCE CASTELLON, a.k.a.
Harvey Castellon,

                Defendant-Appellant.

                   Appeal from the United States District Court
                      for the Central District of California
                   Dean D. Pregerson, District Judge, Presiding

                            Submitted April 11, 2017**

Before:      GOULD, CLIFTON, and HURWITZ, Circuit Judges.

      Javier Ponce Castellon appeals from the district court’s order denying his

pro se motion to reopen, which challenged his conviction and sentence for multiple

drug trafficking offenses. We have jurisdiction under 28 U.S.C. § 1291, and we

vacate and remand.


      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
      Castellon contends that the district court erred by failing to recharacterize his

motion to reopen as a 28 U.S.C. § 2255 motion and ordering the government to

respond. The district court’s order denying Castellon’s motion to reopen does not

disclose the basis for its decision. However, the court may have mistakenly

believed, based on a docketing error, that in 2005, a section 2255 motion had been

filed on Castellon’s behalf and denied on the merits. Because the relief Castellon

sought in his motion to reopen is available only through a section 2255 motion and

he has not filed a first section 2255 motion, we vacate and remand with

instructions that the district court evaluate Castellon’s motion as one arising under

section 2255. See United States v. Eatinger, 902 F.2d 1383, 1385 (9th Cir. 1990).1

We express no opinion as to the merits of Castellon’s claims.

      VACATED and REMANDED.




      1
        Recharacterized as a section 2255 habeas, Castellon’s motion appears to be
untimely. Any such finding, however, cannot be made until the district court
follows the procedures set forth in Castro v. United States, 540 U.S. 375, 383
(2003).


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