United States Court of Appeals Fifth Circuit 

## FILED February 26, 2007 Charles R. Fulbruge III Clerk 

## In the 

# United States Court of Appeals for the Fifth Circuit

_______________ 

### m 05-50980

_______________



### U NITED 

### S TATES OF 

### AMERICA 

### , Plaintiff-Appellee,
VERSUS


### L UIS 

### ALBERTO 

### S ANTANA 

### , also known as Victor Manuel Vivas, Defendant-Appellant.

_________________________ Appeal from the United States District Court fo r the Western District of Texas 

### m 5:02-CR-41-1

______________________________

Before S MITH , B ARKSDALE , and D ENNIS , Circuit Judges.
P ER C URIAM : *
Luis Santana appeals the denial of his mo tion, pursuant to 28 U.S.C. § 2255, to vacate his sentence. We reverse and remand. I. Sant ana pleaded guilty of possession with int ent to distribute 5 00 grams or m ore of cocaine in vio lat io n of 21 U.S.C. §§ 841(a)(1) an d (b)(1)(B)(ii) and 846. Based on a prior Texas conviction of manslaughter and a n olo contendere plea in Loui siana to a controlled substance of

fense, Santana qualified as a career of fender under U.S.S.G. § 4B1.1(a). That increased his sentencing guideline range from 87-108 mo nt hs to 188-235 mo nt hs. He was s entenced to 188 m

onths’ imprisonment follo wed by 5 years’ supervised release. * Pursuant to 5 TH C IR
. R. 47.5, the court has determined that this opinion s hould not be published and is not precedent except under the limited circumstances set forth in 5 TH C IR
. R
. 47.5.4.2

Aft er the convict ion was upheld on direct appeal, Santana mo ved fo r r e lief pursuant to 2255, asserting th at his nolo contendere plea was an inappropriate basis fo r classifying him as a career of

fender and th at his counsel was ineffect ive fo r not pur suing this argument on direct appeal. Th e district court adopted the recom mendation of the magistrate judge and held that Santana’s sentencing claim was not cognizable in a § 2255 proceeding, which is limit ed to constit u tional and jurisdictional issues, and th at it did not fall int o the “actual innocence” e xception, because Santana had pleaded nolo contendere , wit hout a plea agreement , to the controlled substance of fense. The court also fo und th at the ineffect ive assistance of counsel claim was unavailing.
Santana filed a notice of appeal and requested a certificat e of appealability (“COA”) to pursue his claim th at the district court erred in sentencing him as a care er offender; he attached to the pleading a copy of a recent document dismissing the Loui siana case in which he had pleaded nolo contendere

. The order of dismissal stated th at the mat ter was being dismi s sed because the “[v]ictim dropped the charges.” Now that the Loui siana state charge had been dismissed, Santana asserted th at he was entitled to § 2255 relief from his classification as a career of

fender fo r sentencing purposes. The district court denied relief, holding th at the conviction had been set aside for reasons unrelated to innocence or errors of law, and thus it could still properl

y be relied on in determining career of

fender status. The court granted a COA on the issue of whether the dismissal ent it led Santana to § 2255 relief. II. As a th reshold mat ter, we have jurisdiction to review Santana’s claim. When it denied Santan a ’s § 2255 mo tion, the district court was unaware of the dismissal of the Loui siana charges, which had occurred only a few days before t h e court denied relief. Santana’s notice of appeal, in which he brought the dismissal to the court’s attention, was f iled shortl

y aft er that denial of relief.
Because Santana is a pro se lit igant, we liberally construe his pleadings and briefs and apply less stringent standards in int erpreting his arguments th an we would in t he case of a counseled party

. G rant v. Cuellar , 59 F.3d 523, 524 (5th Ci

r. 1995). Consequently, we c onstrue Santana’s notice of appeal as a request fo r re lief pursuant to Federal Rule of Civil Procedure 60(b), so the district court had jurisdiction to rule on th e merits of the motion. 1 This conclusion is limited to the unusual circumstances of this case, in which extremely relevant evidence bearing on the correctness of Santana’s sentence came int o existence just before the denial of § 2255 relief and was presented prom

ptl y to the distric t court post-denial.
Section 2255 relief is appropri ate where, as here, a state conviction th at fo rm ed the basis of a career offender designation is invalidated aft er federal sentencing. U nited States v. Nichols , 30 F.3d 35, 36 (5th Cir. 1994). The government argues th at we should deny the peti tion because, under application note 10 to U.S.S.G. § 4A1.2, th e di smissal o f Santana’s

1 See Harcon Barge Co. v. D & G Boat Rentals, Inc. , 784 F.2d 665, 667 ( 5th Cir. 1986) (en banc) (“If

. . . the motion asks for some relief other than corre ction of a purely clerical error and is served after

. . . [ten days from the judgment], then Rule 60(b) governs its timeliness and effect.”).3

conviction w as unrel ated to hi s inno cence or errors of law. That note, in full, st ates the fo llo wing:
Convic ti on s Set Aside or Defendant Pardoned. A number of jurisdictions have vario us procedures pursuant to which previous convictio ns may be set aside or the defendant may be pardoned fo r reasons unrelated to inno cence or errors of law, e.g., in order to restore civil rights or to remove the stigma associated wit h a criminal conviction. Sentences resulting from such convictions are to be counted. However, expunged convictions are not counted. § 4A1.2(j).
Nothing in t he record suggests that Santana’s claim was dismissed under a procedure similar t o th ose described in application note 10. It was not di smissed to restore his civil rights or to remove the stigma associated wit h a criminal conviction, but rather because the state could no lo nger pursue t he charges aft er t he victim dropped them. The government concedes th at such a di smissal t ypically occurs when “t he state is unable to support it s ca se f actually.” It cannot be said that this is unrelated to inno cenc e or errors of law, and thus the application note does not apply to Santana.
In addition, the government and the district court cit e several cases in which a defendant received a diversionary disposition, such as deferred adju dication or assignment to a substance abuse program , and aft er the defendant com pleted the diversionary disposition the underlying offense was dismissed. A conviction under these circumstances, even aft er dismissal, is a valid basis fo r a career offender designation. S ee U.S.S.G. § 4A1.2, com ment

. (n.9). But these cases are fundamentally different from Santana’s, in which there was no diversionary disposition. Rather, the government dismissed the charges before sentencing, presumably because of it s inabilit y factually to prove its case.
For the fo regoing reasons, we REVERSE the denial of the § 225 5 motion, and we REMAND for resentencing.