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

                            FOR THE TENTH CIRCUIT                          February 5, 2020
                        _________________________________
                                                                         Christopher M. Wolpert
                                                                             Clerk of Court
 UNITED STATES OF AMERICA,

       Plaintiff - Appellee,

 v.                                                            No. 17-1224
                                                    (D.C. Nos. 1:16-CV-01500-JLK &
 EARL ALBERT MOORE,                                      1:11-CR-00197-JLK-1)
                                                                (D. Colo.)
       Defendant - Appellant.
                      _________________________________

                            ORDER AND JUDGMENT*
                        _________________________________

Before HARTZ, KELLY, and MATHESON, Circuit Judges.
                  _________________________________

       Earl Albert Moore entered a plea agreement and pled guilty to using a destructive

device during and in relation to a crime of violence under 18 U.S.C. § 924(c). He filed a

motion under 28 U.S.C. § 2255 to vacate his conviction, arguing Johnson v. United

States, 135 S. Ct. 2551 (2015), invalidated § 924(c)’s residual clause. The district court

denied his motion as untimely but granted a certificate of appealability (“COA”). While

the appeal was pending, the Supreme Court decided United States v. Davis, 139 S. Ct.




       *
         This order and judgment is not binding precedent, except under the doctrines of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.

                                             1
2319, 2336 (2019), which invalidated § 924(c)’s residual clause as unconstitutionally

vague.

         Based on Davis, the parties agree Mr. Moore’s § 924(c) conviction should be

vacated. The Government, however, argues we also should “direct entry of a conviction

for the lesser included predicate arson offense” based on Mr. Moore’s plea agreement.

Aplee. Br. at 5. We disagree.

         Because the district court granted a COA, we have jurisdiction under 28 U.S.C.

§§ 1291 and 2253(a). We reverse the district court’s denial of Mr. Moore’s § 2255

motion as untimely and remand with instructions to vacate his § 924(c) conviction.

                                      I. BACKGROUND
                                     A. Legal Background
   Section 924(c)
         Under § 924(c)(1), “any person who, during and in relation to any crime of

violence . . . , uses or carries a firearm, . . . shall . . . be sentenced to a term of

imprisonment of not less than 5 years.” 18 U.S.C. § 924(c)(1)(A)(i). A firearm includes

“any destructive device” such as a bomb. Id. §§ 921(a)(3), (a)(4)(A)(i). Under the

statute’s residual clause, a “‘crime of violence’ means an offense that is a felony and that

by its nature, involves a substantial risk that physical force against the person or property

of another may be used in the course of committing the offense.” Id. § 924(c)(3)(B).




                                                 2
   Johnson v. United States

       In Johnson, the Supreme Court invalidated the residual clause of the Armed

Career Criminal Act (ACCA), 18 U.S.C. § 924(e)(2)(B)(ii),1 as unconstitutionally vague.

135 S. Ct. at 2557. It said “the residual clause produces more unpredictability and

arbitrariness than the Due Process Clause tolerates.” Id. at 2558. “Johnson announced a

substantive rule that has retroactive effect in cases on collateral review.” Welch v. United

States, 136 S. Ct. 1257, 1268 (2016).

   United States v. Davis
       In Davis, the Supreme Court invalidated 18 U.S.C. § 924(c)’s residual clause,

§ 924(c)(3)(B), as unconstitutionally vague. 139 S. Ct. at 2336. The “Court’s ruling in

Davis . . . is a new constitutional rule that is retroactive on collateral review.” United

States v. Bowen, 936 F.3d 1091, 1097-98 (10th Cir. 2019). After Davis, a defendant

“cannot be guilty of violating § 924(c)(1) if his . . . convictions qualify as crimes of

violence only under [the residual clause,] § 924(c)(3)(B).” Id. at 1101. The defendant

would be “actually innocent” and entitled to relief. Id. at 1108.

                                B. Procedural Background
       In 2011, Mr. Moore confessed to detonating a homemade bomb in a Colorado

shopping mall. A federal grand jury indicted him on one count of arson, in violation of



       1
         The ACCA’s residual clause provided that a “‘violent felony’ means any
crime . . . , that is burglary, arson, or extortion, involves use of explosives, or otherwise
involves conduct that presents a serious potential risk of physical injury to another.”
18 U.S.C. § 924(e)(2)(B)(ii) (emphasis added).

                                               3
18 U.S.C. § 844(i), and one count of using a destructive device during and in relation to a

crime of violence, in violation of 18 U.S.C. § 924(c). The alleged arson offense was the

underlying crime of violence for the § 924(c) charge.

       Under a plea agreement, Mr. Moore pled guilty to the § 924(c) charge. The

Government dismissed the § 844(i) arson charge. The district court sentenced Mr. Moore

to life in prison. He appealed the sentence as substantively unreasonable. We affirmed.

United States v. Moore, 514 F. App’x 764, 765-66 (10th Cir. 2013) (unpublished).

       After the Supreme Court decided Johnson, Mr. Moore moved under § 2255 to

vacate his conviction. He argued Johnson’s reasoning invalidated § 924(c)’s residual

clause, and that his conviction must be vacated because arson can be a § 924(c) “crime of

violence” only under the residual clause. The Government opposed Mr. Moore’s motion

as untimely, procedurally defaulted, and meritless, but conceded his conviction rested on

§ 924(c)’s residual clause.

       The district court denied Mr. Moore’s motion as untimely. To be timely, Mr.

Moore’s motion “must have been filed either within one year of the date the judgment

became final or within one year after ‘the date on which the right asserted was initially

recognized by the Supreme Court.’” ROA, Vol. I at 66 (quoting 28 U.S.C. § 2255(f)).

The court explained, “Mr. Moore filed his motion more than a year after the judgment

became final,” id., and “the Supreme Court ha[d] not recognized [in Johnson or

otherwise] the right [he] assert[ed],” id. at 64. It therefore denied his motion but granted

a COA. Mr. Moore timely appealed.

                                              4
       We abated the appeal pending the Supreme Court’s resolution of United States v.

Davis, 139 S. Ct. 2319 (2019). After Davis was decided, we requested the parties to “file

separate responses regarding the course of future proceedings.” Doc. 10659342 at 1-2.

Both parties agreed Mr. Moore’s § 924(c) conviction must be vacated. The Government

argued we should also “direct entry of a conviction for the lesser included predicate arson

offense” based on Mr. Moore’s plea agreement. Aplee. Br. at 5.2

                                   II. DISCUSSION

       “On appeal from the denial of a § 2255 motion, . . . we review the district court’s

findings of fact for clear error and its conclusions of law de novo.” Bowen, 936 F.3d at

1096-97. We reverse the district court’s denial of Mr. Moore’s § 2255 motion as

untimely and remand with instructions to vacate his § 924(c) conviction. We decline the

Government’s request to direct entry of an arson conviction.

                                      A. Timeliness
       While Mr. Moore’s appeal was pending, the Supreme Court in Davis recognized a

new right, retroactively applicable to cases on collateral review. See 28 U.S.C.

§ 2255(f)(3); Bowen, 936 F.3d at 1097-98. Based on the foregoing, the Government

waived its timeliness challenge. We therefore reverse the district court’s dismissal of Mr.

Moore’s § 2255 motion as untimely.




       2
         The Government waived its procedural defenses, including any argument based
on the statute of limitations or procedural default.

                                             5
                                         B. Remedy
   Vacate Conviction
       Mr. Moore’s conviction must be vacated because (1) the Supreme Court

invalidated § 924(c)’s residual clause as unconstitutionally vague in Davis, stating a “new

constitutional rule that is retroactive on collateral review,” Bowen, 936 F.3d at 1097-98,

and (2) Mr. Moore’s § 924(c) conviction depended on arson being a crime of violence.

Consistent with Davis, both parties agree Mr. Moore’s § 924(c) conviction must be

vacated on remand.

   No Other Remedy
       The Government contends this court should also “direct entry of a conviction for

the lesser included predicate arson offense under 18 U.S.C. § 844(i)” based on Mr.

Moore’s plea agreement and 28 U.S.C. § 2106, see Aplee. Br. at 5, 25-26, which provides

a federal court may “modify, vacate, set aside or reverse any judgment . . . lawfully

brought before it for review, and may remand the cause and direct the entry of such

appropriate judgment . . . as may be just under the circumstances.”

       The Government relies on United States v. Smith, 13 F.3d 380 (10th Cir. 1993), in

which we held that to reduce a conviction of a greater offense to that of a lesser included

offense under § 2106,

              [i]t must be clear (1) that the evidence adduced at trial fails to
              support one or more elements of the crime of which appellant
              was convicted, (2) that such evidence sufficiently sustains all
              the elements of another offense, (3) that the latter is a lesser
              included offense of the former, and (4) that no undue
              prejudice will result to the accused.

                                              6
Id. at 383 (quoting Allison v. United States, 409 F.2d 445, 451 (D.C. Cir. 1969)).

       Smith is inapposite. To reduce a conviction of a greater offense to that of a lesser

included offense under § 2106, we must have “evidence adduced at trial to support one or

more elements of the crime.” Id. Here, Mr. Moore pled guilty to the § 924(c) offense

under a plea agreement. There was no “evidence adduced at trial.” Id. On remand, if the

Government wishes to reinstate the § 844(i) arson charge under 18 U.S.C. § 3296, it may

ask the district court to do so.3

                                    III.   CONCLUSION

       We reverse the district court’s denial of Mr. Moore’s § 2255 motion as untimely

and remand with instructions to vacate his § 924(c) conviction.


                                              Entered for the Court


                                              Scott M. Matheson, Jr.
                                              Circuit Judge




       3
        Under 18 U.S.C. § 3296, the government may “move[] to reinstate . . . dismissed
counts [of a plea agreement] within 60 days of the date on which the order vacating the
plea becomes final.” 18 U.S.C. § 3296(a)(4); see United States v. Gibson, 400 F.3d 604,
606 (7th Cir. 2007) (“18 U.S.C. § 3296 allow[s] for the reinstatement of charges
dismissed pursuant to a plea agreement.”)

                                             7
17-1224, United States v. Moore

HARTZ, J., Circuit Judge, concurring

       I concur in the judgment and join all the majority opinion except for the “No Other

Remedy” section. In my view, we should not remand for sentencing on the lesser

included offense of arson, because Mr. Moore's guilty plea was unintelligent and

constitutionally invalid. See Bousley v. United States, 523 U.S. 614, 618–19 (1998)

(guilty plea is unintelligent and constitutionally invalid when defendant is not informed

correctly of the essential elements of the crime).
