Filed: Feb. 26, 2007
Latest Update: Feb. 21, 2020
Summary: United States Court of Appeals Fifth Circuit F I L E D In the February 26, 2007 United States Court of Appeals Charles R. Fulbruge III for the Fifth Circuit Clerk _ 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, I. Circuit Judges. Santana pleaded guilty of possession
Summary: United States Court of Appeals Fifth Circuit F I L E D In the February 26, 2007 United States Court of Appeals Charles R. Fulbruge III for the Fifth Circuit Clerk _ 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, I. Circuit Judges. Santana pleaded guilty of possession w..
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United States Court of Appeals
Fifth Circuit
F I L E D
In the February 26, 2007
United States Court of Appeals Charles R. Fulbruge III
for the Fifth Circuit Clerk
_______________
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, I.
Circuit Judges. Santana pleaded guilty of possession with
intent to distribute 500 grams or more of co-
PER CURIAM:* caine in violation of 21 U.S.C. §§ 841(a)(1)
and (b)(1)(B)(ii) and 846. Based on a prior
Luis Santana appeals the denial of his mo- Texas conviction of manslaughter and a nolo
tion, pursuant to 28 U.S.C. § 2255, to vacate contendere plea in Louisiana to a controlled
his sentence. We reverse and remand. substance offense, Santana qualified as a car-
eer offender under U.S.S.G. § 4B1.1(a). That
increased his sentencing guideline range from
*
Pursuant to 5TH CIR. R. 47.5, the court has 87-108 months to 188-235 months. He was
determined that this opinion should not be pub- sentenced to 188 months’ imprisonment fol-
lished and is not precedent except under the limited lowed by 5 years’ supervised release.
circumstances set forth in 5TH CIR. R. 47.5.4.
After the conviction was upheld on direct II.
appeal, Santana moved for relief pursuant to As a threshold matter, we have jurisdiction
2255, asserting that his nolo contendere plea to review Santana’s claim. When it denied
was an inappropriate basis for classifying him Santana’s § 2255 motion, the district court
as a career offender and that his counsel was was unaware of the dismissal of the Louisiana
ineffective for not pursuing this argument on charges, which had occurred only a few days
direct appeal. The district court adopted the before the court denied relief. Santana’s no-
recommendation of the magistrate judge and tice of appeal, in which he brought the dismiss-
held that Santana’s sentencing claim was not al to the court’s attention, was filed shortly
cognizable in a § 2255 proceeding, which is after that denial of relief.
limited to constitutional and jurisdictional is-
sues, and that it did not fall into the “actual in- Because Santana is a pro se litigant, we lib-
nocence” exception, because Santana had erally construe his pleadings and briefs and ap-
pleaded nolo contendere, without a plea agree- ply less stringent standards in interpreting his
ment, to the controlled substance offense. The arguments than we would in the case of a
court also found that the ineffective assistance counseled party. Grant v. Cuellar, 59 F.3d
of counsel claim was unavailing. 523, 524 (5th Cir. 1995). Consequently, we
construe Santana’s notice of appeal as a re-
Santana filed a notice of appeal and re- quest for relief pursuant to Federal Rule of
quested a certificate of appealability (“COA”) Civil Procedure 60(b), so the district court had
to pursue his claim that the district court erred jurisdiction to rule on the merits of the mo-
in sentencing him as a career offender; he at- tion.1 This conclusion is limited to the unusual
tached to the pleading a copy of a recent docu- circumstances of this case, in which extremely
ment dismissing the Louisiana case in which he relevant evidence bearing on the correctness of
had pleaded nolo contendere. The order of Santana’s sentence came into existence just
dismissal stated that the matter was being dis- before the denial of § 2255 relief and was pre-
missed because the “[v]ictim dropped the sented promptly to the district court
charges.” Now that the Louisiana state charge post-denial.
had been dismissed, Santana asserted that he
was entitled to § 2255 relief from his classifi- Section 2255 relief is appropriate where, as
cation as a career offender for sentencing pur- here, a state conviction that formed the basis
poses. of a career offender designation is invalidated
after federal sentencing. United States v.
The district court denied relief, holding that Nichols, 30 F.3d 35, 36 (5th Cir. 1994). The
the conviction had been set aside for reasons government argues that we should deny the
unrelated to innocence or errors of law, and petition because, under application note 10 to
thus it could still properly be relied on in deter- U.S.S.G. § 4A1.2, the dismissal of Santana’s
mining career offender status. The court
granted a COA on the issue of whether the 1
dismissal entitled Santana to § 2255 relief. 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.”).
2
conviction was unrelated to his innocence or ment dismissed the charges before sentencing,
errors of law. That note, in full, states the presumably because of its inability factually to
following: prove its case.
Convictions Set Aside or Defendant Par- For the foregoing reasons, we REVERSE
doned. A number of jurisdictions have var- the denial of the § 2255 motion, and we
ious procedures pursuant to which previous REMAND for resentencing.
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-
3
