                           NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                        JUL 23 2019
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,                       No.    17-16825

                Plaintiff-Appellee,             D.C. Nos.    3:16-cv-03483-WHA
                                                             3:08-cr-0730-WHA-26
 v.

ARISTIDES CARCAMO, AKA Indio,                   MEMORANDUM *

                Defendant-Appellant.

                   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                    Submission Withdrawn February 26, 2019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.

      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



      *
             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).
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. 1 The answer to both these questions is yes.

      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



      1
       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.

                                          2
Carcamo’s favor.

     REVERSED and REMANDED.




                              3
