United States v. 2020-02-11 | 17-35379 | DONOVAN BOLEN V. USA | nonprecedential | memorandum disposition |

NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

DONOVAN JAMES BOLEN,

Petitioner-Appellant,

v.

UNITED STATES OF AMERICA,

Respondent-Appellee.

No. 17-35379

D.C. Nos. 1:16-cv-00233-BLW
1:11-cr-00143-BLW-2

MEMORANDUM
*

DAVID JOSEPH VON BARGEN,

Petitioner-Appellant,

v.

UNITED STATES OF AMERICA,

Respondent-Appellee.

No. 17-35380

D.C. Nos. 1:16-cv-00261-BLW
1:11-cr-00143-BLW-1

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).
FILED

FEB 11 2020

MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

2 17-35379 & 17-35380

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.