United States v. Perez

FILED
United States Court of Appeals
Tenth Circuit
March 30, 2017
UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
Clerk of Court
TENTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 16-2271
(D.C. Nos. 2:16-CV-00545-RB-SMV
CARLOS PEREZ, and 2:04-CR-01308-RB-1)
(D.N.M.)
Defendant - Appellant.
ORDER
DENYING CERTIFICATE OF APPEALABILITY
Before KELLY, MURPHY, and MATHESON, Circuit Judges.
Defendant-Appellant Carlos Perez seeks a certificate of appealability
(“COA”) to appeal from the district court’s denial of his motion to correct his
sentence under 28 U.S.C. § 2255. Mr. Perez contends that the calculation of his
sentencing guideline range relied on language found unconstitutionally vague in
Johnson v. United States, 135 S. Ct. 2551 (2015). See U.S.S.G. § 4B1.2(a)(2).
The district court found that Mr. Perez’s status as a career offender resulted from
the application of an enumerated offense (burglary of a dwelling) in § 4B1.2(a),
not the language found wanting in Johnson. But even had that language been
applied, the Supreme Court recently held that the void-for-vagueness holding in
Johnson does not apply to the Sentencing Guidelines. Beckles v. United States,
No. 15-8544, 2017 WL 855781, at *6–7 (U.S. Mar. 6, 2017). Accordingly, we
DENY Mr. Perez’s request for a COA and DISMISS the appeal.
Entered for the Court
Paul J. Kelly, Jr.
Circuit Judge
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