United States v. Perez

• Court: Court of Appeals for the Tenth Circuit
• Decided: March 30, 2017
• Docket: 16-2271
• Status: Unpublished

Opinion

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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