Juan Cervante v. USA

Filing

UNPUBLISHED OPINION ORDER FILED. [10-50248 Vacated and Remanded] Judge: PEH , Judge: JES , Judge: CH. Mandate pull date is 01/10/2011; granting motion to proceed IFP filed by Appellant Mr. Juan Manuel Cervante [6561607-2] [10-50248]

Juan Cervante v. USAase: 10-50248 C

Document: 00511298476 Page: 1 Date Filed: 11/18/2010

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IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED
N o . 10-50248 S u m m a r y Calendar November 18, 2010 Lyle W. Cayce Clerk

J U A N MANUEL CERVANTE, P e titio n e r-A p p e lla n t v. U N IT E D STATES OF AMERICA, R e s p o n d e n t -A p p e lle e

A p p e a l from the United States District Court fo r the Western District of Texas U S D C No. 4:10-CV-15

B e fo r e HIGGINBOTHAM, SMITH, and HAYNES, Circuit Judges. P E R CURIAM:* J u a n Manuel Cervante, federal prisoner # 36300-177, filed in the district c o u r t a petition under 28 U.S.C. § 2241. He argued that he has been deprived o f benefits provided to other prisoners in light of his immigration status, in c lu d in g a possible one-year reduction of his sentence after completion of a drug t r e a t m e n t program under 18 U.S.C. § 3621(e) and placement in a less restrictive fa c ilit y at the end of his sentence pursuant to 18 U.S.C. § 3624(c). The district c o u r t dismissed Cervante's habeas petition for lack of subject matter jurisdiction,
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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
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Case: 10-50248 Document: 00511298476 Page: 2 Date Filed: 11/18/2010 No. 10-50248 c o n c lu d in g that his claims involved the conditions of his confinement and thus s h o u ld be presented in a civil rights action. Cervante now seeks leave to proceed in forma pauperis (IFP) on appeal in order to challenge the district court's a d v e r s e ruling. We grant the motion for leave to proceed IFP. Additionally, g iv e n our determination of the subject-matter jurisdiction question, we dispense w it h further briefing of the merits of Cervante's claims. C e r v a n te 's challenges to his inability to receive a one-year sentence r e d u c t io n after completion of a drug treatment program and to his ineligibility fo r placement in a halfway house or other less restrictive confinement designed t o prepare a prisoner for reentry into society affect the execution of his sentence. Thus, such claims may be raised under § 2241. See Rublee v. Fleming, 160 F.3d 2 1 3 , 214-17 (5th Cir. 1998); United States v. Cleto, 956 F.2d 83, 84 (5th Cir. 1 9 9 2 ). As a result, we vacate and remand to the district court for further p r o c e e d in g s . I F P GRANTED; VACATED AND REMANDED.

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