                           In the
 United States Court of Appeals
              For the Seventh Circuit
                       ____________

No. 08-2787
KEITH WASHINGTON,
                                                          Applicant,
                               v.

UNITED STATES OF AMERICA,
                                                         Respondent.
                       ____________
               On Motion for an Order Authorizing
             the District Court to Entertain a Second
           or Successive Motion for Collateral Review.
                       ____________
     SUBMITTED JULY 17, 2008—DECIDED AUGUST 8, 2008
                       ____________


 Before RIPPLE, MANION and KANNE, Circuit Judges.
  PER CURIAM. Keith Washington has filed an applica-
tion pursuant to 28 U.S.C. § 2244(b)(3), seeking authoriza-
tion to file a successive collateral attack under
section 2255. Mr. Washington pleaded guilty to three
counts of bank robbery and was sentenced in Novem-
ber 2005 to 108 months’ imprisonment. Consistent with
the terms of his plea agreement, he did not appeal. In
April 2008, he filed a motion to amend his sentence,
citing Federal Rule of Criminal Procedure 52(b) as the
source of the court’s power to recalculate his sentence; he
2                                                No. 08-2787

argued it ought to do so because the court erroneously
relied on the PSR’s recommendation to increase his offense
level under U.S.S.G. § 3C1.2 (endangerment during flight)
and U.S.S.G. § 5K2.21 (dismissed conduct) for the same act.
   The district court denied Mr. Washington’s motion.
Washington v. United States, No. 05 CR 396 (N.D. Ill.) (Order
of June 13, 2008). It set forth Mr. Washington’s claims
and then simply stated that “Washington’s motion there-
fore is an improperly filed motion under 28 U.S.C. § 2255.”
Id. Alternatively, the court held that the motion is an
improper attempt to appeal the sentence. The court con-
cluded that “in either event, Washington waived his
right to challenge his sentence,” id., and denied the mo-
tion. Mr. Washington sought reconsideration, which the
district court held was unavailable under the Federal
Rules of Criminal Procedure. Id. (Order of July 8, 2008).
Mr. Washington did not appeal that order but, on July 17,
filed this section 2244(b) application arguing two constitu-
tional claims: ineffective assistance of counsel and involun-
tary waiver of his rights to appeal and collateral review.
  Mr. Washington’s original motion to the district court
was not a mislabeled motion under section 2255: it did
not present a claim to relief arising under section 2255(a)
because it did not present a constitutional claim against
his conviction or sentence. See United States v. Evans, 224
F.3d 670, 673-74 (7th Cir. 2000) (“A bona fide motion for a
new trial falls outside § 2255 ¶1 because it does not con-
tend that the conviction or sentence violates the Constitu-
tion or any statute.”). Even if it had, the district court did
not properly warn Mr. Washington that it was construing
his motion as one under section 2255 as required by Castro
v. United States, 540 U.S. 375 (2003), and, thus, the motion
cannot count as Mr. Washington’s first collateral attack. It
No. 08-2787                                             3

therefore does not subject Mr. Washington to the
preapproval mechanism of section 2244(b), and
Mr. Washington has not filed any other postjudgment
motions that would do so.
  Accordingly, we construe Mr. Washington’s application
as a notice of appeal and forward it to the clerk for the
United States District Court for the Northern District
of Illinois for filing as of July 17, 2008, in case number
05 CR 396.




                          8-8-08
