dissenting:

I agree with the majority that LaFrom-boise’s conviction and sentence must be *687 final before the one-year limitation period for filing a § 2255 motion begins to run. I also agree that finality does not occur until the district court has acted on our mandate and the time to appeal that action has passed. The majority errs, however, when it holds that an amended judgment is required to obtain finality in this case. Here, finality was achieved when the district court acted on this court’s mandate by dismissing the firearms charges, and the time passed to appeal that order. Col-vin supports this conclusion. Colvin held that finality was achieved in that case not when the time expired for filing a petition for writ of certiorari from our decision in his direct appeal as urged by the government, but rather when the time expired to appeal the amended judgment entered by the district court. Colvin’s holding hinged on the finality of the proceedings, not on the fact that finality was achieved through an amended judgment.

The purpose behind Colvin’s holding was to avoid a defendant having to speculate about the effect of a mandate on the finality of a judgment. 204 F.3d at 1225. We explained that when we reverse any portion of a conviction or sentence and remand to the district court, the judgment of conviction does not become final until the court has acted on remand and the time has passed for appealing the district court’s action. Id. at 1225-26. In Colvin, this happened to be achieved by the entry of an amended judgment. This is because the amended judgment satisfied this court’s mandate directing the district court to strike the conviction on a certain count and reduce the special monetary assessment, and because the amended judgment was not appealed. Likewise, finality was achieved for LaFromboise on September 1, 1997, when the time expired to appeal the district court’s order dismissing his firearms charges.

While the term “judgment” contemplates finality, so too does an order of dismissal. Nevertheless, the majority elevates form over substance to conclude that an amended judgment is required to obtain finality. Here, this court vacated LaFromboise’s gun convictions and remanded the case to the district court “for retrial as to those convictions.” The district court set the matter for retrial but ultimately dismissed the charges upon the government’s motion. The dismissal order signaled finality because it left nothing for the district court to do. It should not be disregarded because it was not styled as a judgment.

I also disagree with the majority’s conclusion that LaFromboise must be resen-tenced in this case. We held in Ruiz-Alvarez that the district court has the authority to resentence a defendant upon remand when this court partially reverses a conviction. 211 F.3d at 1184. Ruiz-Alvarez, however, does not require the district court to do so. Here, although the district court could have resentenced LaF-romboise consistent with our mandate, the fact that it chose not to does not affect the finality of LaFromboise’s conviction and sentence. The parties did not move for resentencing, and there was no reason for the district court to do so sua sponte. The firearms convictions were vacated by this court, thereby voiding the 360 month sentence for these charges. The original judgment on the drug charge remained undisturbed by our vacation, or by the district court’s subsequent dismissal of the gun charges.

Because the one-year statute of limitation began to run for LaFromboise on September 2, 1997, his § 2255 motion is untimely unless LaFromboise can establish that he is entitled to equitable tolling of the limitation period. The one-year statute of limitation was enacted in 1996 as *688 part of the Antiterrorism and Effective Death Penalty Act (AEDPA), and was codified at 28 U.S.C. § 2255 . LaFromboise contends that the statute of limitation should be tolled from April 28, 1997, until December 2,1998, while he was incarcerated at the Yellowstone County Detention Center, because during that time he was unaware of the newly-created limitation period and because the law library did not provide him with a post AEDPA copy of 28 U.S.C. § 2255 . He also argues that the district court record is incomplete on this point and that a remand therefore is required to develop the record.

LaFromboise is incorrect. The record contains evidence that the detention center replaced LaFromboise’s water-damaged legal books in June, 1998. The replacement books, including an up-to-date copy of Title 28 of the United States Code, were shipped to the detention center on June 11, 1998, and, according to Lieutenant Neiter of the Yellowstone County Sheriffs Office, were received shortly thereafter. The district court found that the books were replaced on approximately June 15, 1998. LaFromboise does not challenge this finding on appeal. Therefore, even if LaFromboise was entitled to equitable tolling until he received the up-to-date copy of Title 28 of the United States Code, his § 2255 motion was still filed after the one-year statute of limitation expired.

Because LaFromboise’s conviction and sentence became final on September 1, 1997, and because his § 2255 motion was filed more than one year after June 15, 1998, LaFromboise’s motion is untimely. I would affirm the district court’s denial of LaFromboise’s motion as time-barred. Accordingly, I respectfully DISSENT.