                                                                                FILED
                                                                    United States Court of Appeals
                      UNITED STATES COURT OF APPEALS                        Tenth Circuit

                            FOR THE TENTH CIRCUIT                            July 24, 2019
                        _________________________________
                                                                          Elisabeth A. Shumaker
                                                                              Clerk of Court
 UNITED STATES OF AMERICA,

       Plaintiff - Appellee,

 v.                                                        No. 19-8007
                                                (D.C. Nos. 2:17-CV-00141-ABJ and
 FRANKLIN JOSEPH RYLE,                                2:09-CR-00124-ABJ-1)
                                                             (D. Wyo.)
       Defendant - Appellant.
                      _________________________________

                            ORDER AND JUDGMENT*
                        _________________________________

Before BRISCOE, MATHESON and BACHARACH, Circuit Judges.
                  _________________________________

      Defendant Franklin Joseph Ryle appeals the district court’s order dismissing as

untimely his motion filed pursuant to 28 U.S.C. § 2255. A judge of this court granted

a certificate of appealability on two issues raised by Mr. Ryle: 1) whether Mr. Ryle’s

motion was timely under 28 U.S.C. § 2255(f); and 2) assuming Mr. Ryle’s motion

was timely, whether Mr. Ryle’s conviction under 18 U.S.C. § 924(c)(1)(A) should be

set aside based on the unconstitutionality of 18 U.S.C. § 924(c)(3)(B).



      *
        After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral
estoppel. It may be cited, however, for its persuasive value consistent with
Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
      In 2009, Mr. Ryle was convicted, following the entry of a guilty plea, of one

count of deprivation of rights in violation of 18 U.S.C. § § 242 and one count of

using or carrying a gun during and in relation to a crime of violence in violation of 18

U.S.C. § 924(c)(1)(A). He was sentenced to 121 months for the § 242 conviction and

60 months, consecutive to the 121-month sentence, for the firearm offense. Mr. Ryle

did not appeal.

      In 2017, Mr. Ryle filed the § 2255 motion which is the subject of this appeal.

He argued, among other things, that the 60-month consecutive sentence was

unconstitutional because the definition of crime of violence in § 924(c)(3)(B) is

unconstitutionally vague under Sessions v. Dimaya, 138 S.Ct. 1204 (2018). The

government argued that the motion was untimely because Dimaya did not recognize

the right Mr. Ryle asserted. The district court agreed with the government and

dismissed the motion as time-barred. The court also denied COA.

      On appeal to this court, Mr. Ryle filed a motion for COA on the issues of

timeliness of the § 2255 motion and the constitutionality of § 924(c)(3)(B). While the

COA motion was pending before this court, the Supreme Court decided United States

v. Davis, 139 S.Ct. 2319 (2019), holding the § 924(c)(3)(B) is unconstitutionally

vague. As noted above, this court granted COA on these issues and, in addition,

ordered the government to file a response brief.

      Rather than file the response brief, the government filed a motion to vacate the

district court’s judgment and remand with directions to grant Mr. Ryle’s requested

relief. (The government waives any timeliness argument.) Mr. Ryle does not object.

                                           2
      Accordingly, the government’s motion is granted. This district court judgment

is VACATED, and this matter is REMANDED to the district court with instructions

to grant Mr. Ryle’s requested relief with respect to the sentence imposed under §

924(c)(1)(A).


                                           Entered for the Court
                                           Per Curiam


                                           by: Ellen Rich Reiter
                                               Counsel to the Clerk




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