                                                                                  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
