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

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UNITED STATES OF AMERICA,

Plaintiff-Appellee,

VERSUS

LUIS ALBERTO SANTANA, also known as Victor Manuel Vivas,

Defendant-Appellant.

_________________________

Appeal from the United States District Court

for the Western District of Texas

m 5:02-CR-41-1

______________________________

Before SMITH, BARKSDALE, and DENNIS,

Circuit Judges.

PER CURIAM:

*

Luis Santana appeals the denial of his motion, pursuant to 28 U.S.C. § 2255, to vacate

his sentence. We reverse and remand.

I.

Santana pleaded guilty of possession with

intent to distribute 500 grams or more of cocaine in violation of 21 U.S.C. §§ 841(a)(1)

and (b)(1)(B)(ii) and 846. Based on a prior

Texas conviction of manslaughter and a nolo

contendere plea in Louisiana to a controlled

substance offense, Santana qualified as a career offender under U.S.S.G. § 4B1.1(a). That

increased his sentencing guideline range from

87-108 months to 188-235 months. He was

sentenced to 188 months’ imprisonment followed by 5 years’ supervised release.

* Pursuant to 5TH CIR. R. 47.5, the court has

determined that this opinion should not be published and is not precedent except under the limited

circumstances set forth in 5TH CIR. R. 47.5.4.
2

After the conviction was upheld on direct

appeal, Santana moved for relief pursuant to

2255, asserting that his nolo contendere plea

was an inappropriate basis for classifying him

as a career offender and that his counsel was

ineffective for not pursuing this argument on

direct appeal. The district court adopted the

recommendation of the magistrate judge and

held that Santana’s sentencing claim was not

cognizable in a § 2255 proceeding, which is

limited to constitutional and jurisdictional issues, and that it did not fall into the “actual innocence” exception, because Santana had

pleaded nolo contendere, without a plea agreement, to the controlled substance offense. The

court also found that the ineffective assistance

of counsel claim was unavailing.

Santana filed a notice of appeal and requested a certificate of appealability (“COA”)

to pursue his claim that the district court erred

in sentencing him as a career offender; he attached to the pleading a copy of a recent document dismissing the Louisiana case inwhich he

had pleaded nolo contendere. The order of

dismissal stated that the matter was being dismissed because the “[v]ictim dropped the

charges.” Now that the Louisiana state charge

had been dismissed, Santana asserted that he

was entitled to § 2255 relief from his classification as a career offender for sentencing purposes. 

The district court denied relief, holding that

the conviction had been set aside for reasons

unrelated to innocence or errors of law, and

thusit could still properly be relied on in determining career offender status. The court

granted a COA on the issue of whether the

dismissal entitled Santana to § 2255 relief.

II.

As a threshold matter, we have jurisdiction

to review Santana’s claim. When it denied

Santana’s § 2255 motion, the district court

was unaware of the dismissal of the Louisiana

charges, which had occurred only a few days

before the court denied relief. Santana’s notice of appeal, inwhich he brought the dismissal to the court’s attention, was filed shortly

after that denial of relief. 

Because Santana is a pro se litigant, we liberally construe his pleadings and briefs and apply less stringent standards in interpreting his

arguments than we would in the case of a

counseled party. Grant v. Cuellar, 59 F.3d

523, 524 (5th Cir. 1995). Consequently, we

construe Santana’s notice of appeal as a request for relief pursuant to Federal Rule of

Civil Procedure 60(b),so the district court had

jurisdiction to rule on the 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 into existence just

before the denial of § 2255 relief and was presented promptly to the district court

post-denial.

Section 2255 reliefis appropriate where, as

here, a state conviction that formed the basis

of a career offender designation is invalidated

after federal sentencing. United States v.

Nichols, 30 F.3d 35, 36 (5th Cir. 1994). The

government argues that we should deny the

petition because, under application note 10 to

U.S.S.G. § 4A1.2, the dismissal of 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 correction 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 was unrelated to his innocence or

errors of law. That note, in full, states the

following:

Convictions Set Aside or Defendant Pardoned. A number of jurisdictions have various procedures pursuant to whichprevious

convictions may be set aside or the defendant may be pardoned for reasons unrelated

to innocence or errors of law, e.g., in order

to restore civil rights or to remove the stigma associated with a criminal conviction.

Sentences resulting from such convictions

are to be counted. However, expunged

convictions are not counted. § 4A1.2(j).

Nothing in the record suggests that Santana’s claim was dismissed under a procedure

similar to those described in application

note 10. It was not dismissed to restore his

civil rights or to remove the stigma associated

with a criminal conviction, but rather because

the state could no longer pursue the charges

after the victim dropped them. The government concedes that such a dismissal typically

occurs when “the state is unable to support its

case factually.” It cannot be said that this is

unrelated to innocence or errors of law, and

thus the application note does not apply to

Santana.

In addition, the government and the district

court cite several cases in which a defendant

received a diversionarydisposition,such as deferred adjudication or assignment to a substance abuse program, and after the defendant

completed the diversionary disposition the underlying offense was dismissed. A conviction

under these circumstances, even after dismissal, is a valid basis for a career offender designation. See U.S.S.G. § 4A1.2, comment.

(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 its inability factually to

prove its case.

For the foregoing reasons, we REVERSE

the denial of the § 2255 motion, and we

REMAND for resentencing.