Donovan James BOLEN, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee.
David Joseph Von Bargen, Petitioner-Appellant, v. United States of America, Respondent-Appellee.
No. 17-35379, No. 17-35380
Decided: February 11, 2020
Before: FERNANDEZ, SILVERMAN, and TALLMAN, Circuit Judges.
Melissa D. Winberg, Federal Defender Services of Idaho, Boise, ID, William Miles Pope, FPDWA - Federal Public Defender's Office (Eastern WA & ID), Spokane, WA, for Petitioner-Appellant Christian S. Nafzger, Esquire, Assistant U.S. Attorney, Office of the U.S. Attorney, Boise, ID, for Respondent-Appellee
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, ––– U.S. ––––, 139 S. Ct. 2319, 204 L.Ed.2d 757 (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.
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