United States v. Perez

ORDER DENYING CERTIFICATE OF APPEALABILITY

Paul J. Kelly, Jr. Circuit Judge

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, — U.S. —, 135 S.Ct. 2551, 192 L.Ed.2d 569 (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 § 4B 1.2(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, — U.S. —, 137 S.Ct. 886, 900-02, 197 L.Ed.2d 145 (2017). Accordingly, we DENY Mr. Perez’s request for a COA and DISMISS the appeal.