NOT FOR PUBLICATION FILED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