United States v. Stutson

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT March 31, 2017
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Elisabeth A. Shumaker
Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 16-6350
(D.C. No. 5:16-CV-00848-F)
LARRY EUGENE STUTSON, (W.D. Okla.)
Defendant - Appellant.
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ORDER RESCINDING CERTIFICATE OF APPEALABILITY
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Before KELLY, MATHESON, and PHILLIPS, Circuit Judges.
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This matter comes on for consideration of the government’s Motion to Withdraw
or Rescind Certificate of Appealability and Dismiss Appeal and the defendant’s response.
Upon consideration thereof, the motion is granted.
On February 15, 2017, this court granted a certificate of appealability as to
“Whether enforcement of a collateral attack waiver to prevent a constitutional challenge
to a sentence enhanced under the now-void residual clause of the United States
Sentencing Commission Guidelines would result in a miscarriage of justice.”
The government argues in its motion that because Beckles v. United States, ___ S.
Ct. ___, 2017 WL 855781 (Mar. 6, 2017), held that the Guidelines are not
unconstitutionally vague under Johnson v. United States, 135 S. Ct. 2551 (2015), it
undercuts the rationale for granting COA in this case. The defendant agrees.
In light of Beckles, we conclude that the aforementioned certificate of
appealability was improvidently granted. We RESCIND the certificate of appealability
issued on February 15, 2017, and DISMISS this appeal.
Entered for the Court
Per Curiam
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