Juan Cervante v. USA, No. 10-50248 (5th Cir. 2010)
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Case: 10-50248 Document: 00511298476 Page: 1 Date Filed: 11/18/2010 IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED No. 10-50248 Summary Calendar November 18, 2010 Lyle W. Cayce Clerk JUAN MANUEL CERVANTE, Petitioner-Appellant v. UNITED STATES OF AMERICA, Respondent-Appellee Appeal from the United States District Court for the Western District of Texas USDC No. 4:10-CV-15 Before HIGGINBOTHAM, SMITH, and HAYNES, Circuit Judges. PER CURIAM:* Juan Manuel Cervante, federal prisoner # 36300-177, filed in the district court a petition under 28 U.S.C. § 2241. He argued that he has been deprived of benefits provided to other prisoners in light of his immigration status, including a possible one-year reduction of his sentence after completion of a drug treatment program under 18 U.S.C. § 3621(e) and placement in a less restrictive facility at the end of his sentence pursuant to 18 U.S.C. § 3624(c). The district court 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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. Case: 10-50248 Document: 00511298476 Page: 2 Date Filed: 11/18/2010 No. 10-50248 concluding that his claims involved the conditions of his confinement and thus should 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 adverse ruling. We grant the motion for leave to proceed IFP. Additionally, given our determination of the subject-matter jurisdiction question, we dispense with further briefing of the merits of Cervante s claims. Cervante s challenges to his inability to receive a one-year sentence reduction after completion of a drug treatment program and to his ineligibility for placement in a halfway house or other less restrictive confinement designed to 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 213, 214-17 (5th Cir. 1998); United States v. Cleto, 956 F.2d 83, 84 (5th Cir. 1992). As a result, we vacate and remand to the district court for further proceedings. IFP GRANTED; VACATED AND REMANDED. 2
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