United States of America v. Gerson Reynoso-Reyes

* The government was not served with process in the district court and is not
participating in this appeal. After an examination of the briefs and the record, we
have concluded that oral argument is unnecessary. Thus, the appeal is submitted
on the appellant’s brief and the record. See Fed. R. App. P. 34(a)(2).
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted February 10, 2006*
Decided February 24, 2006
Before
Hon. JOHN L. COFFEY, Circuit Judge
Hon. MICHAEL S. KANNE, Circuit Judge
Hon. ILANA DIAMOND ROVNER, Circuit Judge
No. 05-1934
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
GERSON REYNOSO-REYES,
Defendant-Appellant.
Appeal from the United States District
Court for the Western District of Wisconsin
No. 02-CR-048-S-01
John C. Shabaz,
Judge.
O R D E R
Gerson Reynoso-Reyes pleaded guilty to one count of conspiring to distribute
MDMA, or Ecstacy, in violation of 21 U.S.C. § 841(a)(1). In December 2002 the
district court sentenced him to 100 months’ incarceration. He did not appeal or
otherwise challenge his conviction or sentence in the two years that followed. Then
in March 2005, Reynoso-Reyes filed a motion “to dismiss my case” on the ground
that, when he was arrested, he was not informed of his right under the Vienna
Convention on Consular Relations, Apr. 24, 1963, 21 U.S.T. 77, 596 U.N.T.S. 261, to
UNPUBLISHED ORDER
Not to be cited per Circuit Rule 53

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No. 05-1934 Page 2
consult with his nation’s consul. (Reynoso-Reyes describes himself as an “alien” but
does not identify his nationality.) The district court denied the motion without
analysis, noting only that Reynoso-Reyes “may file a motion under 28 U.S.C. § 2255
to challenge his conviction although it may be deemed untimely.” Reynoso-Reyes
appeals this denial.
The Supreme Court has granted certiorari in two cases to decide whether the
Vienna Convention confers rights enforceable by a defendant in a criminal case,
and, if so, what remedy is available for violations of its article on consular
notification. See Sanchez-Llamas v. Oregon, 108 P.3d 573 (Or. 2005), cert. granted,
126 S.Ct. 620 (2005); Bustillo v. Johnson, No. 042023 (Va. Mar. 7, 2004)
(unpublished order), cert. granted, 126 S.Ct. 621 (2005). But Reynoso-Reyes’ motion
suffers from an obvious procedural defect. What Reynoso-Reyes seeks is
“immediate dismissal of the indictment,” and thus he necessarily contends that he
was convicted and sentenced “in violation of the Constitution or laws of the United
States.” See 28 U.S.C. § 2255 ¶ 1; United States v. Scott, 414 F.3d 815, 816-17 (7th
Cir. 2005). And as we have held, “[a]ny motion filed in the district court that
imposed the sentence, and substantively within the scope of § 2255 ¶ 1, is a motion
under § 2255, no matter what title the prisoner plasters on the cover.” Melton v.
United States, 359 F.3d 855, 857 (7th Cir. 2004) (emphasis in original); see also
United States v. Lloyd, 398 F.3d 978, 979-80 (7th Cir. 2005); United States v. Evans,
224 F.3d 670, 672 (7th Cir. 2001). Thus, the district court should have
acknowledged that Reynoso-Reyes’ request for “immediate dismissal of the
indictment” is really a mislabeled motion under § 2255. The court also should have
made that fact known to Reynoso-Reyes, given him the chance to withdraw the
motion or to amend it to include all possible § 2255 claims, and warned him about
the restrictions on “second or successive” motions should he decide to proceed. See
Castro v. United States, 540 U.S. 375, 383 (2003); Peoples v. United States, 403 F.3d
844, 846 (7th Cir. 2005); Williams v. United States, 366 F.3d 438, 439 (7th Cir.
2004). Accordingly, we VACATE the decision of the district court and REMAND
with instructions to treat Wilson's filing as motion under § 2255.

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