UNITED STATES OF AMERICA v. LARRY EUGENE STUTSON

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United States Court of Appeals, Tenth Circuit.

UNITED STATES OF AMERICA, Plaintiff - Appellee, v. LARRY EUGENE STUTSON, Defendant - Appellant.

No. 16-6350

    Decided: March 31, 2017

Before KELLY, MATHESON, and PHILLIPS, Circuit Judges.

ORDER RESCINDING CERTIFICATE OF APPEALABILITY

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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