UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

_________________________________ 

UNITED STATES OF AMERICA, 

 Plaintiff - Appellee, 

v. 

JEREMY PENA, 

 Defendant - Appellant. 

No. 16-6340 

(D.C. Nos. 5:16-CV-00490-F 

& 5:13-CR-00189-F-1) 

(W.D. Okla.) 

_________________________________ 

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. 

FILED 

United States Court of Appeals 

Tenth Circuit 

May 4, 2017

Elisabeth A. Shumaker 

Clerk of Court
2 

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 
3 

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.