UNITED STATES CO URT OF APPEALS FOR THE TENTH CIRCUIT

__________________ _______________ UNITED STATES OF AMERICA,
Pl aintiff - Appellee,

v. JEREMY PENA,
De fendant - 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 wa s sentenced to 125 mo nths for distributing methamphetamine. In sent encing Mr. Pena, the court applied § 4B1.1 of the U.S. Sentencing Guidelin es, characterizing a prior crime as a crime of violence based on § 4B1.2(a)’s residual clause. 1 Mr. Pena di d not appeal, but he moved under 28 U.S. C. § 2255 to vacate, set aside, or correct the

* Because oral argument would not ma terially aid our decision-making, we are deciding the appeal based on the briefs. See Fed. R. App. P. 34(a)(2); 10th Ci r. R. 34.1(G). Our order and judgment does not constitute bi nding precedent except under the doctrines of law of the case, res judicata, and collateral estoppel. But the order and judgment may be ci ted 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 Court2 sentence. The district court dismisse d the motion and denied a certificate of appealability. Mr. Pena sought a certificate of appe alability from our court so that he could appeal the district court’s decision. At the ti me, our precedent treated § 4B1.2(a)’s residual clause as unconstitutionally vague. United States v. Madrid , 805 F.3d 1204 (10t h Cir. 2015). Based on this precedent, a member of this panel granted a cer tificate of appeal ability. But three days later, the U.S. Supreme Court overruled our precedent in Beckles v. United States , rejecting a vagueness challeng e to § 4B1.2(a)’s residual clause. 137 S. Ct. 886 , 895 (2017). Based on Beckles , the government seeks revocation of the cer tificate 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 certif icate of appealability, we have jurisdiction to decide th is appeal on the merits. See Porterfield v. Bell , 258 F.3d 484, 485 (6 th Cir. 2001) (stating that the court of ap peals obtains jurisdiction even when a certificate of app ealability is improvidently granted). Because the unde rlying claim was potenti ally meritorious when the certificate of appeal ability 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 appe als court will only rarely review the issuance of a certificate of appealability, rather than go straight to the merits, to avoid3 unnecessary complexity in appeal s involving colla teral attacks). Nonetheless, we agree with the government that Beckles precludes relief on Mr. Pena’s claim under § 2255. As a result, we summari ly 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.