                                                        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
