UNITED STATES of America, Plaintiff-Appellee, v. Jeremy PENA, Defendant-Appellant, 687 F. App'x 756

ORDER AND JUDGMENT Robert E. Bacharach, Circuit Judge Mr. Jeremy Pena was sentenced to 125 months for distributing methamphetamine. In sentencing Mr. Pena, the court applied § 4B1.1 of 4he U.S. Sentencing Guidelines, characterizing a prior crime as a crime of violence based on § 4B1.2(a)’s residual clause. Mr. Pena did not appeal, but he moved under 28 U.S.C. § 2255 to vacate, set aside, or correct the sentence. The district court dismissed the motion and denied a certificate of appealability. Mr. Pena sought a certificate of appeala-bility 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. — U.S. -, 137 S.Ct. 886, 895, 197 L.Ed.2d 145 (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 appeala-bility, 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 ap-pealability is improvidently granted). Because the underlying claim was potentially 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 appeals court will only rarely review the issuance of a certificate of appealability, rather than go straight to the merits, to avoid 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. 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). . We grant Mr. Pena’s motion for leave to proceed in forma pauperis. . This residual clause has since been deleted from the guidelines.