UN PUBLISHED
UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 16
- 7757

UNITED STATES OF AMERICA , Plaintiff

- Appellee ,

v. JERRELL IVEY WOODLEY, a/k/a Rell , Defendant

- Appellant

.

Appeal from the United States District Court for the Eastern District of Virginia , at Norfolk

. Raymond A. Jackson , District Judge. ( 2:11

- cr - 00058

- RAJ

- FBS

- 2; 2:16

- cv 00333

- RAJ )

Submitted : June 30, 2021 Decided: July 15, 2021

Before GREGORY, Chief Judge, and WYNN and FLOYD , Circuit Judges.

Vacated and remanded by un published per curiam opinion

.
Frances H. Pratt, Assistant Federal Public Defender, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Alexandria, Virginia, for Appellant. Daniel Taylor Young, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Alexandria, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.2 PER CURIAM: Jerrell Ivey Woodley appeals the district court’s ord er denying his 28 U.S.C. § 2255 motion. Woodley pleaded guilty, pursuant to a written plea agreement, to possession of a firearm in furtherance of a crime of violence, in violation of 18 U.S.C. § 924(c)(1)(A). The predicate for the § 924(c) offense was a ssault with a dangerous weapon in aid of racketeering activity, which, in turn, was predicated on two Virginia state offenses. The district court sentenced Woodley to 120 months’ imprisonment and three years of supervised release. The district court deni ed Woodley’s § 2255 motion as untimely. On appeal, we granted a certificate of appealability on the following issue: whether, in light of United States v. Davis , 139 S. Ct. 2319 (2019), and In re Thomas , 988 F.3d 783 (4th Cir. 2021), the district court er red in dismissing Woodley’s § 2255 motion as untimely. The Government has withdraw n its timeliness defense to Woodley’s § 2255 motion but nevertheless suggests that we may affirm Woodley’s § 924(c) conviction because it remains lawful after Davis . Woodle y moves to remand this case so the district court may consider the merits of his claim in the first instance. When the district court previously considered Woodley’s § 2255 motion, it did not have the benefit of our recent holding in Thomas that “ Davis applies retroactively to cases on collateral review.” 988 F.3d at 786. We concluded that the Davis rule is substantive because it placed individuals “who had committed a crime .

. . that satisfied the [crime of violence] definition in .

. . [§ 924(c)’s] residual clause .

. . beyond the government’s power to prosecute,” id. at 789, and noted that the Supreme Court made Davis retroactive because the Court “has held that new substantive rules of constitutional law generally apply3 retroactively to cases on c ollateral review.” Id. at 790 (internal quotation marks omitted)

. T he district court determined that the § 2255 motion was untimely ; therefore, it did not reach the merits of Woodley’s § 2255 motion in the first instance. Because “we are a court of revi ew, not of first view,” Lovelace v. Lee , 472 F.3d 174, 203 (4th Cir. 2006) (internal quotation marks omitted), we vacate the district court’s order and grant Woodley’s motion to remand to the district court for consideration of the § 2255 motion in light o f Thomas

. We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before this court and argument would not aid the decisional
process. VACATED AND REMANDED