United States v. Santana

United States Court of Appeals
Fifth Circuit
F I L E D
February 26, 2007
Charles R. Fulbruge III
Clerk
In the
United States Court of Appeals
for the Fifth Circuit
_______________
m 05-50980
_______________
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 mo-
tion, 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 co-
caine 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 car-
eer 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 fol-
lowed by 5 years’ supervised release.
* Pursuant to 5TH CIR. R. 47.5, the court has
determined that this opinion should not be pub-
lished and is not precedent except under the limited
circumstances set forth in 5TH CIR. R. 47.5.4.

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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 is-
sues, and that it did not fall into the “actual in-
nocence” exception, because Santana had
pleaded nolo contendere, without a plea agree-
ment, 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 re-
quested a certificate of appealability (“COA”)
to pursue his claim that the district court erred
in sentencing him as a career offender; he at-
tached to the pleading a copy of a recent docu-
ment dismissing the Louisiana case in which he
had pleaded nolo contendere. The order of
dismissal stated that the matter was being dis-
missed 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 classifi-
cation as a career offender for sentencing pur-
poses.
The district court denied relief, holding that
the conviction had been set aside for reasons
unrelated to innocence or errors of law, and
thus it could still properly be relied on in deter-
mining 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 no-
tice of appeal, in which he brought the dismiss-
al to the court’s attention, was filed shortly
after that denial of relief.
Because Santana is a pro se litigant, we lib-
erally construe his pleadings and briefs and ap-
ply 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 re-
quest for relief pursuant to Federal Rule of
Civil Procedure 60(b), so the district court had
jurisdiction to rule on the merits of the mo-
tion.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 pre-
sented promptly to the district court
post-denial.
Section 2255 relief is 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 Rent-
als, 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.”).

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3
conviction was unrelated to his innocence or
errors of law. That note, in full, states the
following:
Convictions Set Aside or Defendant Par-
doned. A number of jurisdictions have var-
ious procedures pursuant to which previous
convictions may be set aside or the defen-
dant may be pardoned for reasons unrelated
to innocence or errors of law, e.g., in order
to restore civil rights or to remove the stig-
ma 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 San-
tana’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 govern-
ment 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 de-
ferred adjudication or assignment to a sub-
stance abuse program, and after the defendant
completed the diversionary disposition the un-
derlying offense was dismissed. A conviction
under these circumstances, even after dismiss-
al, is a valid basis for a career offender desig-
nation. See U.S.S.G. § 4A1.2, comment.
(n.9). But these cases are fundamentally dif-
ferent from Santana’s, in which there was no
diversionary disposition. Rather, the govern-
ment 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.

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