                                                                   [DO NOT PUBLISH]

                      IN THE UNITED STATES COURT OF APPEALS

                                   FOR THE ELEVENTH CIRCUIT
                                    ________________________            FILED
                                                               U.S. COURT OF APPEALS
                                            No. 10-14933         ELEVENTH CIRCUIT
                                        Non-Argument Calendar        JULY 6, 2011
                                      ________________________        JOHN LEY
                                                                       CLERK
                               D.C. Docket No. 1:07-cr-20923-ASG-1

UNITED STATES OF AMERICA,

llllllllllllllllllllllllllllllllllllllll                        Plaintiff-Appellee,

                                               versus

GABRIEL MYRTHIL,

llllllllllllllllllllllllllllllllllllllll                        Defendant-Appellant.

                                     ________________________

                           Appeal from the United States District Court
                               for the Southern District of Florida
                                 ________________________

                                            (July 6, 2011)

Before HULL, PRYOR and ANDERSON, Circuit Judges.

PER CURIAM:

         Gabriel Myrthil appeals the district’s court’s denial of his petition

challenging the court’s subject matter and personal jurisdiction with respect to his
original convictions and sentences for (1) armed bank robbery, in violation of 18

U.S.C. §§ 2113(a) and (d) and 2; (2) using and carrying a firearm during and in

relation to a crime of violence and possessing a firearm in furtherance of a crime

of violence, in violation of 18 U.S.C. §§ 924(c)(1)(A) and 2; and (3) unlawful

possession of a firearm by a convicted felon, in violation of 18 U.S.C. § 922(g)(1).

The district court found that it lacked jurisdiction to consider the post-conviction

petition, but also ruled that the petition was untimely and lacked merit. Myrthil’s

relevant arguments first assert that, with respect to his original conviction, the

government failed to properly allege and prove the existence of the court’s

jurisdiction to convict and sentence him under the statutes charged. Myrthil

requests that the judgments against him be dismissed, and also requests a release

from prison.

      We review “de novo questions concerning the jurisdiction of the district

court.” United States v. Phillips, 597 F.3d 1190, 1194 n.9 (11th Cir. 2010).

Whether a district court has the authority to modify and vacate a sentence is a

question of law subject to de novo review. Id. “Pro se pleadings are held to a less

stringent standard than pleadings drafted by attorneys and will, therefore, be

liberally construed.” Tannenbaum v. United States, 148 F.3d 1262, 1263 (11th

Cir. 1998).

                                           2
       “A § 2255 motion is aimed at having a judgment of conviction and sentence

set aside because of some constitutional violation, jurisdictional defect, or other

ground that makes the judgment subject to collateral attack.” Gonzalez v. Sec’y

for Dep’t of Corr., 366 F.3d 1253, 1260 (11th Cir. 2004). See 28 U.S.C. § 2255(a)

(providing the basis for relief if a prisoner in custody claims “the right to be

released upon the ground that . . . the court was without jurisdiction to impose

such a sentence . . . .”).

       “Federal courts are obligated to look beyond the label of a pro se inmate’s

motion to determine if it is cognizable under a different statutory framework.”

United States v. Stossel, 348 F.3d 1320, 1322 n.2 (11th Cir. 2003). Therefore, a

district court is authorized to recharacterize a pro se litigant’s motion for relief

from a criminal judgment as a § 2255 motion to vacate. Castro v. United States,

540 U.S. 375, 382-83, 124 S. Ct. 786, 792 (2003). However, when a district court

       recharacterizes a pro se litigant’s motion as a first § 2255 motion . . . [,]
       the district court must notify the pro se litigant that it intends to
       recharacterize the pleading, warn the litigant that this recharacterization
       means that any subsequent § 2255 motion will be subject to the
       restrictions on ‘second or successive’ motions, and provide the litigant
       an opportunity to withdraw the motion or to amend it so that it contains
       all the § 2255 claims he believes he has. If the court fails to do so, the
       motion cannot be considered to have become a § 2255 motion for
       purposes of applying to later motions the law’s ‘second or successive’
       restrictions.



                                            3
Id. at 383, 124 S.Ct. at 792.

      After a review of the record and consideration of the parties’ briefs, we

conclude that since the record does not indicate that the district court considered

the possibility of construing Myrthil’s petition as his first § 2255 motion to vacate,

and since Myrthil’s jurisdictional claim can be properly brought under § 2255, the

district court should have explored this possibility, along with the issues of the

motion’s timeliness, whether equitable tolling applied, and whether the Castro

warnings must be given to Myrthil. See 28 U.S.C. § 2255(f) (establishing a one-

year statute of limitations for filing a § 2255 motion); Sandvik v. United States,

177 F.3d 1269, 1271 (11th Cir. 1999) (holding that “[e]quitable tolling is

appropriate when a movant untimely files because of extraordinary circumstances

that are both beyond his control and unavoidable even with diligence”); Castro,

540 U.S. at 382-83, 124 S. Ct. at 792. Accordingly, we vacate the judgment of the

district court, and remand for further proceedings in accordance with this opinion.

      VACATE AND REMAND.1




      1
             Myrthil’s request for oral argument is denied.

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