Acosta v. United States

Full title: Andrew Acosta, Petitioner, v. USA, Respondent.

Court: UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA

Date published: Mar 12, 2018

No. CV-16-4587-PHX-GMS (DKD) (D. Ariz. Mar. 12, 2018)

Opinion

No. CV-16-4587-PHX-GMS (DKD)

03-12-2018

Andrew Acosta, Petitioner, v. USA, Respondent.

David K. Duncan United States Magistrate Judge

REPORT AND RECOMMENDATION

TO THE HONORABLE G. MURRAY SNOW, U.S. DISTRICT JUDGE:

In case 03-CR-00075, Andrew Acosta was sentenced under Section 4B1.2(b) of the U.S. Sentencing Guidelines, a residual clause with similar wording to the Armed Career Criminal Act. (Doc. 6 at 9-10, ¶¶ 11-16) The United States Court of Appeals for the Ninth Circuit granted Andrew Acosta's application for authorization to file a second or successive 28 U.S.C. § 2255 motion because he made a prima facie showing for relief under Johnson v. U.S, 135 S.Ct. 2551 (2015), held to be retroactive under Welch v. U.S., 136 S.Ct. 1257 (2016). (Doc. 6 at 1) Subsequently, the U.S. Supreme Court concluded in Beckles v. U.S., 137 S.Ct. 886 (2017), that Sentencing Guidelines are not subject to a void for vagueness challenge under the Fifth Amendment Due Process clause. As a result, Acosta's Section 2255 motion cannot stand.

IT IS RECOMMENDED that Andrew Acosta's Motion to Vacate, Set Aside or Correct Sentence be denied. (Doc. 1)

IT IS FURTHER RECOMMENDED that a Certificate of Appealability and leave to proceed in forma pauperis on appeal be denied because Petitioner has not made a substantial showing of the denial of a constitutional right.

This recommendation is not an order that is immediately appealable to the Ninth Circuit Court of Appeals. Any notice of appeal pursuant to Rule 4(a)(1), Federal Rules of Appellate Procedure, should not be filed until entry of the district court's judgment. The parties shall have fourteen days from the date of service of a copy of this recommendation within which to file specific written objections with the Court. See, 28 U.S.C. § 636(b)(1); Rules 72, 6(a), 6(b), Federal Rules of Civil Procedure. Thereafter, the parties have fourteen days within which to file a response to the objections. Failure timely to file objections to the Magistrate Judge's Report and Recommendation may result in the acceptance of the Report and Recommendation by the district court without further review. See United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9^th Cir.2003). Failure timely to file objections to any factual determinations of the Magistrate Judge will be considered a waiver of a party's right to appellate review of the findings of fact in an order or judgment entered pursuant to the Magistrate Judge's recommendation. See Rule 72, Federal Rules of Civil Procedure.

Dated this 12th day of March, 2018.

/s/_________

David K. Duncan

United States Magistrate Judge