                                                                                 United States Court of Appeals
                                                                                          Fifth Circuit
                                                                                        F I L E D
                        In The United States Court Of Appeals                          February 28, 2007
                                For The Fifth Circuit
                                                                                    Charles R. Fulbruge III
                                                                                            Clerk
                                           No. 04-51234


UNITED STATES OF AMERICA,

               Plaintiff - Appellee,

v.

SALVADOR SALTO,

               Defendant - Appellant.


                         Appeal from the United States District Court
                             For the Western District of Texas
                                     No. 5:02-CR-66-1


Before GARWOOD, DENNIS, and OWEN, Circuit Judges.

PER CURIAM:*

       Salvador Salto, a federal prisoner, pleaded guilty to conspiracy to distribute 1,000

kilograms or more of marijuana. The district court denied his 28 U.S.C. § 2255 motion to

vacate, set aside, or correct his sentence. Salto now appeals the district court’s denial of his

section 2255 motion.

       Salto previously requested that this court issue a Certificate of Appealability (COA)




       *
        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 R. 47.5, the court has determined that this opinion should not be
published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
on seven issues.1 On May 27, 2005, a judge of this court granted a COA on three of the

issues and denied Salto’s motion on the other four issues, including ineffective assistance of

counsel at sentencing. In this appeal, Salto briefed the three issues for which he was granted

a COA and did not address the other four issues. The Government now concedes, however,

that Salto’s counsel was ineffective at sentencing. In the interest of justice, the Government

requests that this court reconsider Salto’s motion for COA on the issue of ineffective

assistance of counsel at sentencing,2 issue Salto a COA on the issue,3 and remand this case

for resentencing.

       Salto argued in his original motion for a COA that his counsel was ineffective at

sentencing because his counsel failed to object to the drug quantity for which Salto was held

responsible at sentencing. Although Salto pleaded guilty to conspiracy to distribute more

than 1,000 kilograms of marijuana, the Government agreed to hold Salto responsible for only

581 kilograms of marijuana.          Despite agreeing to the lesser quantity, however, the

Government maintained at sentencing that a 10-year statutory minimum sentence applied.



       1
         See 28 U.S.C. § 2253(c)(1)(B) (2000) (“Unless a circuit justice or judge issues a certificate
of appealability, an appeal may not be taken to the court of appeals from the final order in a
proceeding under section 2255.”); FED. R. APP. P. 22(b)(1) (“[I]n a 28 U.S.C. § 2255 proceeding,
the applicant cannot take an appeal unless a circuit justice or a circuit or district judge issues a
certificate of appealability under 28 U.S.C. § 2253(c).”).
       2
        See Cole v. Dretke, 418 F.3d 494, 496 (5th Cir. 2005) (granting a COA after remand from
the Supreme Court on an issue in which a COA had been previously denied), cert. granted sub nom,
Abdul-Kabir v. Quarterman, 127 S. Ct. 432 (Oct. 13, 2006).
       3
       See 28 U.S.C. § 2253(2) (“A certificate of appealability may issue . . . only if the applicant
has made a substantial showing of the denial of a constitutional right.”).

                                                  2
The Government now admits that this was a mistake because the 10-year statutory minimum

only applies when the defendant is held responsible for 1,000 kilograms or more of

marijuana.4 The district court, however, sentenced Salto to ten years imprisonment and five

years supervised released based on 1,000 kilograms of marijuana.

      Because the Government concedes that Salto’s counsel was ineffective at sentencing,

we GRANT Salto’s motion for a COA on this issue, VACATE Salto’s sentence, and

REMAND for resentencing under a guideline range consistent with the amounts attributed

to him. We do not reach the other issues raised on appeal.




      4
       See 21 U.S.C. § 841(b)(1)(A) (2000).

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