Donovan Bolen v. United States

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS FEB 11 2020
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
DONOVAN JAMES BOLEN, No. 17-35379
Petitioner-Appellant, D.C. Nos. 1:16-cv-00233-BLW
1:11-cr-00143-BLW-2
v.
UNITED STATES OF AMERICA, MEMORANDUM*
Respondent-Appellee.
DAVID JOSEPH VON BARGEN, No. 17-35380
Petitioner-Appellant, D.C. Nos. 1:16-cv-00261-BLW
1:11-cr-00143-BLW-1
v.
UNITED STATES OF AMERICA,
Respondent-Appellee.
Appeal from the United States District Court
for the District of Idaho
B. Lynn Winmill, District Judge, Presiding
Submitted February 4, 2020**
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
Before: FERNANDEZ, SILVERMAN, and TALLMAN, Circuit Judges.
In these consolidated appeals, federal prisoners Donovan James Bolen and
David Joseph Von Bargen appeal from the district court’s judgments dismissing
their 28 U.S.C. § 2255 motions to vacate their sentences. We have jurisdiction
under 28 U.S.C. § 2253. Reviewing de novo, see United States v. Swisher, 811
F.3d 299, 306 (9th Cir. 2016) (en banc), we vacate and remand.
Appellants contend that their convictions for conspiracy to maliciously
damage federal property, in violation of 18 U.S.C. § 844(f)(1), and conspiracy to
use explosive materials, in violation of 18 U.S.C. § 844(i), are not crimes of
violence under 18 U.S.C. § 924(c). During the pendency of this appeal, the
Supreme Court issued its decision in United States v. Davis, 139 S. Ct. 2319(2019), which held that section 924(c)’s residual clause is unconstitutionally
vague. Id. at 2336. The government concedes, and we agree, that remand is
warranted for the district court to reconsider its ruling in light of Davis, including
whether the challenged convictions are crimes of violence under 18 U.S.C. §
924(c)(3)(A).
VACATED AND REMANDED.
2 17-35379 & 17-35380