                                                                                    FILED
                                                                        United States Court of Appeals
                      UNITED STATES COURT OF APPEALS                            Tenth Circuit

                             FOR THE TENTH CIRCUIT                             March 31, 2017
                         _________________________________
                                                                            Elisabeth A. Shumaker
                                                                                Clerk of Court
UNITED STATES OF AMERICA,

      Plaintiff - Appellee,

v.                                                          No. 16-6350
                                                     (D.C. No. 5:16-CV-00848-F)
LARRY EUGENE STUTSON,                                       (W.D. Okla.)

      Defendant - Appellant.
                      _________________________________

          ORDER RESCINDING CERTIFICATE OF APPEALABILITY
                  _________________________________

Before KELLY, MATHESON, and PHILLIPS, Circuit Judges.
                  _________________________________

      This matter comes on for consideration of the government’s Motion to Withdraw

or Rescind Certificate of Appealability and Dismiss Appeal and the defendant’s response.

Upon consideration thereof, the motion is granted.

      On February 15, 2017, this court granted a certificate of appealability as to

“Whether enforcement of a collateral attack waiver to prevent a constitutional challenge

to a sentence enhanced under the now-void residual clause of the United States

Sentencing Commission Guidelines would result in a miscarriage of justice.”

      The government argues in its motion that because Beckles v. United States, ___ S.

Ct. ___, 2017 WL 855781 (Mar. 6, 2017), held that the Guidelines are not

unconstitutionally vague under Johnson v. United States, 135 S. Ct. 2551 (2015), it

undercuts the rationale for granting COA in this case. The defendant agrees.
      In light of Beckles, we conclude that the aforementioned certificate of

appealability was improvidently granted. We RESCIND the certificate of appealability

issued on February 15, 2017, and DISMISS this appeal.




                                            Entered for the Court
                                            Per Curiam




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