# United States Court of Appeals

F o r t h e S e v e n t h C i r c u i t

C h i c a g o

, I l l i n o i s 6 0 6 0 4

Submitted May 23, 2008 ∗



### Decided June 4, 2008



## B e f o r e

F R A N K 

### H. E A S T E R B R O O K



### , Chief Judge

J O H N 

### L. C O F F E Y



### , Circuit Judge

M I C H A E L 

### S. K A N N E



### , Circuit Ju dge



## N o

. 07

- 3768

U N I T E D 

### S T A T E S O F 

### A M E R I C A



### , Plaintiff

- Appellee

,

v.

R A F A E L 

### G U E R E C A



### , also known as R O D O L F O



### G A R C I A



### , Defendant

- Appellant

. Appeal from the United

States District Court for the

Northern District of Illinois

, Eastern Division.

No. 92 CR 326 Harry D. Leinenweber

, Judge

.

Order

Almost a decade after we affirmed his conviction on direct appeal, 79 F.3d 74 (7th Cir. 1996), Rafael Guereca filed in the criminal case what he styled a motion for

∗ T h i s s u c c e s s i v e a p p e a l h a s b e e n s u b m i t t e d t o t h e o r i g i n a l p a n e l u n d e r O p e r a t i n g P r o c e d u r e 6 ( b )

. A f t e r

e x a m i n i n g t h e b r i e f s a n d t h e r e c o r d

, w e h a v e c o n c l u d e d t h a t o r a l a r g u m e n t i s u n n e c e s s a r y

. S e e F e d

. R

. A p p

. P

. 3 4 ( a ) ; C i r

. R

. 3 4 ( f )

. N O N P R E C E D E N T I A L D I S P O S I T I O N

T o b e c i t e d o n l y i n a c c o r d a n c e w i t h

F e d

. R

. A p p

. P

. 3 2

. 1

### No. 07

- 3768 Page 2

relief from judgment under Fed. R. Civ. P. 60( b). The district court denied this motion, and Guereca has appealed.

If this is indeed a motion in the criminal case, then the appeal is untimely, because the defendant had only 10 days to appeal in a criminal proceeding, see Fed. R. App. P. 4(b), and Gue reca took more than 40.

Guereca appears to have confused criminal with civil proceedings. Civil Rule 60(b) applies only to civil cases; it has no operation in criminal prosecutions. If Guereca

had filed a collateral attack under 28 U.S.C. § 2255, a proceed ing classified as civil, then he might have been able to use Civil Rule 60(b) to reopen the judgment. (We say

“ might ” because many motions nominally under Rule 60(b) are properly classified as successive collateral attacks, which district judges may not en tertain without prior approval by this court. See Gonzalez v. Crosby , 545 U.S. 524 (2005).) But Guereca has not commenced a proceeding under § 2255, so this motion must have been in the criminal

case.

The “ Rule 60(b) motion ” probably should have been treat ed as a motion under
§ 2255, see Melton v. United States , 359 F.3d 855 (7th Cir. 2004), but the district judge did not give Guereca the warning required by Castro v. United States , 540 U.S. 375 (2004).

Because the motion thus remained one in the criminal ca se, the appeal must be dismissed for lack of jurisdiction. The appeal would be dismissed even if we were to apply the 90

- day civil period, because if this proceeding were deemed a collateral attack Guereca would need a certificate of appealability, see Wes t v. Schneiter , 485 F.3d 393 (7th Cir. 2007), and he does not meet the statutory standards for one. Guereca should understand, moreover, that the time limit for a proper § 2255 motion has long since expired, and that there is no point in filing such a motio n in the district court unless the

criteria of § 2255(f) are satisfied.

A P P E A L D I S M I S S E D



### .