Opinion
No. 17-16825
07-23-2019
UNITED STATES OF AMERICA, Plaintiff-Appellee, v. ARISTIDES CARCAMO, AKA Indio, Defendant-Appellant.
NOT FOR PUBLICATION
D.C. Nos. 3:16-cv-03483-WHA 3:08-cr-0730-WHA-26 MEMORANDUM Appeal from the United States District Court for the Northern District of California
William Alsup, District Judge, Presiding Submission Withdrawn February 26, 2019
Submitted July 19, 2019 San Francisco, California Before: McKEOWN, W. FLETCHER, and MURGUIA, Circuit Judges.
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).
Aristides Carcamo was one of twenty-nine defendants charged with multiple offenses connected to their membership in the gang racketeering organization, La Mara Salvatrucha, or MS-13. In 2011, Carcamo pled guilty to conspiracy to violate the Racketeer Influenced and Corrupt Organizations Act ("RICO conspiracy") and conspiracy to commit murder in aid of racketeering ("VICAR conspiracy"). See 18 U.S.C. §§ 1959(a)(5), 1962(d). Carcamo also pled guilty to two other charges, including violating 18 U.S.C. § 924(c) for possessing or carrying a fireman in furtherance of a "crime of violence." The § 924 charge relied on the RICO and VICAR conspiracies. Following Johnson v. United States, 135 S. Ct. 2551 (2015), and Dimaya v. Lynch, 803 F.3d 1110 (9th Cir. 2015), Carcamo moved under 28 U.S.C. § 2255 to vacate his § 924(c) conviction and accompanying five-year mandatory sentence. We have jurisdiction under 28 U.S.C. §§ 1291, 2253(a), and 2255(d).
The only issues on appeal are whether Carcamo is entitled to relief under § 2255 because 18 U.S.C. § 924(c)(3)'s "residual" clause is void for vagueness and whether his petition is timely. The answer to both these questions is yes.
The district court only analyzed whether the residual clause was void for vagueness. On remand, the district court may consider, in the first instance, the government's argument that Carcamo's § 2255 petition should be denied under § 924(c)(3)(A), the "force" or "elements" clause. --------
The Supreme Court's recent decision in United States v. Davis, 139 S. Ct. 2319 (2019), settles both issues on appeal. In Davis, the Court determined that § 924(c)'s residual clause, 18 U.S.C. § 924(c)(3)(B), is unconstitutionally vague and therefore void. In light of Davis, we also resolve any issues of timeliness in Carcamo's favor.
REVERSED and REMANDED.