United States v. Ryle ( 2019 )

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT July 24, 2019
_________________________________
Elisabeth A. Shumaker
Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 19-8007
(D.C. Nos. 2:17-CV-00141-ABJ and
FRANKLIN JOSEPH RYLE, 2:09-CR-00124-ABJ-1)
(D. Wyo.)
Defendant - Appellant.
_________________________________
ORDER AND JUDGMENT*
_________________________________
Before BRISCOE, MATHESON and BACHARACH, Circuit Judges.
_________________________________
Defendant Franklin Joseph Ryle appeals the district court’s order dismissing as
untimely his motion filed pursuant to 28 U.S.C. § 2255. A judge of this court granted
a certificate of appealability on two issues raised by Mr. Ryle: 1) whether Mr. Ryle’s
motion was timely under 28 U.S.C. § 2255(f); and 2) assuming Mr. Ryle’s motion
was timely, whether Mr. Ryle’s conviction under 18 U.S.C. § 924(c)(1)(A) should be
set aside based on the unconstitutionality of 18 U.S.C. § 924(c)(3)(B).
*
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral
estoppel. It may be cited, however, for its persuasive value consistent with
Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
In 2009, Mr. Ryle was convicted, following the entry of a guilty plea, of one
count of deprivation of rights in violation of 18 U.S.C. § § 242 and one count of
using or carrying a gun during and in relation to a crime of violence in violation of 18
U.S.C. § 924(c)(1)(A). He was sentenced to 121 months for the § 242 conviction and
60 months, consecutive to the 121-month sentence, for the firearm offense. Mr. Ryle
did not appeal.
In 2017, Mr. Ryle filed the § 2255 motion which is the subject of this appeal.
He argued, among other things, that the 60-month consecutive sentence was
unconstitutional because the definition of crime of violence in § 924(c)(3)(B) is
unconstitutionally vague under Sessions v. Dimaya, 138 S. Ct. 1204 (2018). The
government argued that the motion was untimely because Dimaya did not recognize
the right Mr. Ryle asserted. The district court agreed with the government and
dismissed the motion as time-barred. The court also denied COA.
On appeal to this court, Mr. Ryle filed a motion for COA on the issues of
timeliness of the § 2255 motion and the constitutionality of § 924(c)(3)(B). While the
COA motion was pending before this court, the Supreme Court decided United States
v. Davis, 139 S. Ct. 2319 (2019), holding the § 924(c)(3)(B) is unconstitutionally
vague. As noted above, this court granted COA on these issues and, in addition,
ordered the government to file a response brief.
Rather than file the response brief, the government filed a motion to vacate the
district court’s judgment and remand with directions to grant Mr. Ryle’s requested
relief. (The government waives any timeliness argument.) Mr. Ryle does not object.
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Accordingly, the government’s motion is granted. This district court judgment
is VACATED, and this matter is REMANDED to the district court with instructions
to grant Mr. Ryle’s requested relief with respect to the sentence imposed under §
924(c)(1)(A).
Entered for the Court
Per Curiam
by: Ellen Rich Reiter
Counsel to the Clerk
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