UNITED STATES COURT OF APPEALS February 17, 2023

Christopher M. Wolpert FOR THE TENTH CIRCUIT Clerk of Court _________________________________

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v. No. 21-4003

JOSEPH LEE CHATWIN,

Defendant - Appellant. _________________________________

Appeal from the United States District Court for the District of Utah (D.C. Nos. 2:16-CV-00932-RJS & 2:12-CR-00617-RJS-1) _________________________________

Benjamin C. McMurray, Assistant Federal Public Defender (Scott Keith Wilson, Federal Public Defender, with him on the briefs), Salt Lake City, Utah, for Defendant-Appellant.

Nathan H. Hack, Assistant United States Attorney (Andrea T. Martinez, United States Attorney, with him on the brief), Salt Lake City, Utah, for Plaintiff- Appellee. _________________________________

Before PHILLIPS, Circuit Judge, LUCERO, Senior Circuit Judge, and McHUGH, Circuit Judge. _________________________________

PHILLIPS, Circuit Judge. _________________________________ Appellate Case: 21-4003 Document: 010110814422 Date Filed: 02/17/2023 Page: 2

Joseph Lee Chatwin appeals the district court’s denial and dismissal of

his 28 U.S.C. § 2255 motion. Exercising jurisdiction under 28 U.S.C. §§ 1291

and 1253, we reverse and remand.

BACKGROUND

In 2013, Chatwin pleaded guilty to two counts: (1) bank fraud (“Count 3”)

and (2) using or carrying (and brandishing) a firearm during and in relation to a

crime of violence, in violation of 18 U.S.C. § 924(c)(1)(A)(ii) (“Count 9”). As

part of the plea agreement, the government recommended dismissal of seven

other charged counts, and Chatwin waived any right to collaterally attack his

sentence (though not his convictions).

In 2016, Chatwin filed a pro se § 2255 motion challenging his

§ 924(c)(1)(A)(ii) conviction and sentencing as unconstitutional under Johnson

v. United States, 576 U.S. 591 (2016) (holding that 18 U.S.C.

§ 924(e)(2)(B)(ii)’s residual clause was unconstitutionally vague). As

“supporting facts,” Chatwin simply wrote that “police chase not a violent

crime.” R. vol. 1, at 9. The government moved to dismiss the § 2255 motion as

insufficiently pleaded. Choosing not to address the merits of the motion, the

government argued (1) that Chatwin had “knowingly and voluntarily waived his

§ 2255 rights in a Rule 11(c)(1)(C) plea agreement and that waiver is valid and

enforceable;” and (2) that he had not filed his motion “within one year of the

judgment” as required by § 2255(f)(1) and without an exception applying under

2 Appellate Case: 21-4003 Document: 010110814422 Date Filed: 02/17/2023 Page: 3

§ 2255(f)(3). Id. at 86. The government “deferred for later briefing” “other

defenses and merits arguments.” Id. at 87.

In 2020, by then represented by counsel, Chatwin moved to amend his

motion after the issuance of United States v. Davis, 139 S. Ct. 2319, 2336

(2019) (holding that § 924(c)(3)(B)’s residual clause was unconstitutionally

vague). Though neither the plea agreement nor the plea colloquy stated whether

the court based the § 924(c) conviction on § 924(c)(3)(A)’s elements clause,

§ 924(c)(3)(B)’s residual clause, or both, Chatwin contended that the district

court relied solely on the residual clause (a question not yet resolved by the

district court). From that, he argued under Davis that the district court needed

to vacate his § 924(c) conviction and resentence him. In r

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