                                                                           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                            NOT FOR PUBLICATION                            MAY 20 2014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.




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