                              In the

    United States Court of Appeals
                For the Seventh Circuit
                    ____________________
No. 13-3506
FREDERICK T. GARNER,
                                                 Plaintiff-Appellant,

                                v.

UNITED STATES OF AMERICA,
                                                Defendant-Appellee.
                    ____________________

        Appeal from the United States District Court for the
        Southern District of Indiana, Indianapolis Division.
           No. 1:09-cv-739 — Larry J. McKinney, Judge.
                    ____________________

No. 15-3661
UNITED STATES OF AMERICA,
                                                  Plaintiff-Appellee,

                                v.

FREDERICK T. GARNER,
                                              Defendant-Appellant.
                    ____________________

        Appeal from the United States District Court for the
        Southern District of Indiana, Indianapolis Division.
          No. 05-cr-0194-01 — Larry J. McKinney, Judge.
2                                      Nos. 13-3506 & 15-3661




    ARGUED NOVEMBER 6, 2015 — DECIDED DECEMBER 21, 2015
                 ____________________

   Before WOOD, Chief Judge, and POSNER and EASTERBROOK,
Circuit Judges.
    WOOD, Chief Judge. In 2007 Frederick Garner was con-
victed by a jury for federal gun and drug crimes; the court
imposed a sentence of 322 months’ imprisonment. Garner
appealed, but counsel filed a no-merit brief under Anders v.
California, 386 U.S. 738 (1967). We agreed with that assess-
ment and dismissed the appeal. See United States v. Garner,
281 F. App’x 571 (7th Cir. 2008). About a year later, Garner
filed a motion for relief under 28 U.S.C. § 2255, in which he
asserted that he had received ineffective assistance of coun-
sel. That motion lay dormant until January 2013, when new
counsel revived it with an amendment raising two new ar-
guments: (1) the enhancement of his sentence using a state
conviction that was later vacated violated Garner’s due pro-
cess rights, and (2) his attorney was ineffective for failing to
object to the introduction at both the guilt and sentencing
stages of evidence that came directly from plea negotiations.
   The district court granted Garner’s motion. It found merit
in his first argument, but not the second one. The court’s
opinion, which is dated August 15, 2013, concludes as fol-
lows:
           The foregoing shows that Garner is entitled
        to relief pursuant to 28 U.S.C. § 2255 in the
        form of a new sentencing hearing. The amend-
        ed motion for relief pursuant to § 2255 [dkt 37]
Nos. 13-3506 & 15-3661                                       3

      is therefore granted. The sentence in the under-
      lying criminal action shall be vacated.
Garner filed a pro se notice of appeal from that judgment on
November 6, 2013 (No. 13-3506), and this court later recruit-
ed counsel for him. (We questioned the timeliness of his ap-
peal, because parties in a civil matter, including proceedings
under § 2255, have only 60 days from the date of judgment
to appeal in cases to which the United States is a party. See
28 U.S.C. § 2107(b)(1). But Garner explained that he had
written to the district court on October 11, 2013, to tell the
court that he wanted “to appeal the parts of my 2255 that
was denied.” This sufficed, we concluded, as a timely notice
of appeal.) On October 1, 2014, we issued a certificate of ap-
pealability that identified the question relating to the effec-
tiveness of counsel as appropriate for appeal.
   In the meantime, on October 24, 2013, the district court
held the promised resentencing hearing. The hearing was
limited in scope, however, because both parties believed that
the question of the effectiveness of counsel’s handling of the
evidentiary issue was not before the district court because of
the pending appeal in No. 13-3506. On November 6, 2013,
the court entered an amended judgment, in which it reduced
Garner’s sentence to 248 months. Garner did not file a timely
notice of appeal from that judgment, but as we explain be-
low, he has now appealed from the new criminal judgment
in No. 15-3661.
   As this brief account reveals, this case turned into an un-
necessary procedural snarl. The fundamental problem is
simple: Garner won everything he could receive in his § 2255
proceeding. The fact that the district court accepted one rea-
son for that outcome and rejected another is of no im-
4                                       Nos. 13-3506 & 15-3661

portance. What matters is the judgment, and once the court
ordered a full resentencing, that is what Garner should have
received.
   Matters went off the rails, through no fault of Garner’s
(who after all had been acting pro se), when he thought that
he needed to appeal from the adverse portion of the district
court’s August 2013 opinion. We should have spotted this
problem immediately, but we did not. Instead, we first fo-
cused on the timeliness issue, and once that was resolved,
we looked at the merits of the point Garner had briefed: his
ineffective assistance of counsel claim. That led to the certifi-
cate of appealability, and in time to the oral argument on
November 6, 2015, before this panel.
    At that argument, we asked the parties to file memoran-
da addressing the status of the appeal in No. 13-3506, in light
of the fact that Garner took the appeal notwithstanding the
fact that he had prevailed in the district court. We also asked
them to comment on the bearing that the November 6, 2013,
resentencing in the criminal proceeding has on Garner’s mo-
tion under § 2255. They have done so, and they now agree
that the appeal in the § 2255 case should not have been tak-
en. Their joint statement suggests that “[i]f a petitioner like
Garner wishes to challenge the portion of his § 2255 motion
the district court has denied (where the court also granted
part of the motion), the proper recourse is to appeal the
judgment in the related criminal case that follows resentenc-
ing on the granted portion of the § 2255 motion.”
     While this joint statement represents some progress, it
still fails to recognize that Garner did not win in part and
lose in part back in August 2013 when the court ruled on his
§ 2255 motion. He won, period. The only relief that he want-
Nos. 13-3506 & 15-3661                                        5

ed was resentencing, and resentencing is what the district
court promised him. But because of the misunderstanding
that arose after Garner tried to appeal from the district
court’s comments indicating that the court saw no merit in
Garner’s ineffective-counsel argument, Garner did not re-
ceive the full resentencing to which he was entitled.
    All that remains is to dispose of the two appeals before
us: No. 13-3506, which complains about the district court’s
rationale in the § 2255 case, and No. 15-3661, which is an un-
timely appeal from the resentencing. Because Garner pre-
vailed in the § 2255 proceeding, he is not entitled to take an
appeal in that case. We therefore DISMISS No. 13-3506. What
remains is Garner’s appeal from his resentencing, No.
15-3661. His notice of appeal in the criminal case is untimely
(by quite a lot), but the time-bar of Federal Rule of Appellate
Procedure 4(b) is not jurisdictional. See Bowles v. Russell, 551
U.S. 205, 212 (2007). Here, the government has agreed not to
invoke Rule 4(b), and so the appeal in No. 15-3661 is proper-
ly before us. For the reasons we have already stated, we
VACATE the new criminal sentence and REMAND this case to
the district court for full resentencing, at which both sides
will be free to present all their arguments.


                                                     So ordered.
