FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT May 4, 2017
_________________________________
Elisabeth A. Shumaker
Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
No. 16-6340
v. (D.C. Nos. 5:16-CV-00490-F
& 5:13-CR-00189-F-1)
JEREMY PENA, (W.D. Okla.)
Defendant - Appellant.
_________________________________
ORDER AND JUDGMENT *
_________________________________
Before HARTZ, HOLMES, and BACHARACH, Circuit Judges.
_________________________________
Mr. Jeremy Pena was sentenced to 125 months for distributing
methamphetamine. In sentencing Mr. Pena, the court applied § 4B1.1 of the
U.S. Sentencing Guidelines, characterizing a prior crime as a crime of
violence based on § 4B1.2(a)’s residual clause. 1 Mr. Pena did not appeal,
but he moved under 28 U.S.C. § 2255 to vacate, set aside, or correct the
*
Because oral argument would not materially aid our decision-making,
we are deciding the appeal based on the briefs. See Fed. R. App. P.
34(a)(2); 10th Cir. R. 34.1(G).
Our order and judgment does not constitute binding precedent except
under the doctrines of law of the case, res judicata, and collateral estoppel.
But the order and judgment may be cited for its persuasive value under
Fed. R. App. P. 32.1(a) and 10th Cir. R. 32.1(A).
1
This residual clause has since been deleted from the guidelines.
sentence. The district court dismissed the motion and denied a certificate
of appealability.
Mr. Pena sought a certificate of appealability from our court so that
he could appeal the district court’s decision. At the time, our precedent
treated § 4B1.2(a)’s residual clause as unconstitutionally vague. United
States v. Madrid, 805 F.3d 1204 (10th Cir. 2015). Based on this precedent,
a member of this panel granted a certificate of appealability. But three
days later, the U.S. Supreme Court overruled our precedent in Beckles v.
United States, rejecting a vagueness challenge to § 4B1.2(a)’s residual
clause. 137 S. Ct. 886, 895 (2017). Based on Beckles, the government
seeks revocation of the certificate of appealability and dismissal of the
appeal.
The Court ordered Mr. Pena to respond, and he has not complied.
With the prior issuance of a certificate of appealability, we have
jurisdiction to decide this appeal on the merits. See Porterfield v. Bell, 258
F.3d 484, 485 (6th Cir. 2001) (stating that the court of appeals obtains
jurisdiction even when a certificate of appealability is improvidently
granted). Because the underlying claim was potentially meritorious when
the certificate of appealability was granted, we decline to revoke the
certificate. See United States v. Marcello, 212 F.3d 1005, 1007-08 (7th Cir.
2000) (stating that the appeals court will only rarely review the issuance of
a certificate of appealability, rather than go straight to the merits, to avoid
2
unnecessary complexity in appeals involving collateral attacks).
Nonetheless, we agree with the government that Beckles precludes relief on
Mr. Pena’s claim under § 2255. As a result, we summarily affirm the
sentence. 2
Entered for the Court
Robert E. Bacharach
Circuit Judge
2
We grant Mr. Pena’s motion for leave to proceed in forma pauperis.
3