United States of America v. ARISTIDES CARCAMO, AKA Indio

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
ARISTIDES CARCAMO, AKA Indio,
Defendant-Appellant.
No. 17-16825
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Submission Withdrawn February 26, 2019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.
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).
FILED
JUL 23 2019
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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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.

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Carcamo’s favor.
REVERSED and REMANDED.

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