Washington v. U.S. (CA7)

Washington v. U.S., No. 08-2787 (CA7) — The Seventh Circuit granted permission to file a delayed appeal, in the guise of ruling on an application for permission to file a second or successive 2255 motion.  In November 2005, the defendant was sentenced to 108 months in prison after pleading guilty to bank robbery.  His plea agreement contained a waiver of the right to appeal, which the defendant followed.  Instead, in April 2008 he filed a motion under Fed. R. Crim. P. 52(b) asking the court to recalculate his sentence in light of what he considered to be an erroneous application of the Guidelines.  The district court denied the motion, reasoning it was an improperly labeled 2255 motion, which he was improperly using as a substitute for an appeal.  But the Seventh Circuit reasoned that because the defendant was not seeking constitutional review of his sentence, the district court erred in characterizing his 52(b) motion as a 2255 motion.  Furthermore, the district court failed to warn the defendant that it was recharacterizing his 52(b) motion, as Castro v. United States, 540 U.S. 375 (2003), required it to do.  Accordingly, the Seventh Circuit construed the SOS application as a notice of appeal and returned it to the district court for processing.