DONOVAN BOLEN V. USA, No. 17-35379 (9th Cir. 2020)
Annotate this Case
Download PDF
FILED NOT FOR PUBLICATION UNITED STATES COURT OF APPEALS FEB 11 2020 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT DONOVAN JAMES BOLEN, Petitioner-Appellant, No. 17-35379 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, Petitioner-Appellant, No. 17-35380 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
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
