Opinion
Case No. 16-22418-Civ-COOKE/TORRES
04-20-2018
SERGIO ARIAS, Movant, v. UNITED STATES OF AMERICA, Defendant.
ORDER ADOPTING MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION
THIS MATTER was referred to the Honorable Edwin G. Torres, United States Magistrate Judge, pursuant to 28 U.S.C. §636(b)(1)(B), for a ruling on all pre-trial, non-dispositive matters and for a Report and Recommendation on any dispositive matters (ECF No. 7). Judge Torres issued an Amended Report and Recommendation on Motion to Correct Sentence Pursuant to 28 U.S.C. § 2255 ("Report") (ECF No. 11) recommending that Petitioner's Motion to Vacate Sentence be denied. Movant timely filed his Objections (ECF No. 12) to Judge Torres' Report.
Judge Torres' recommendation was based on an analysis of the crime of bank robbery under 18 U.S.C. §924(c)(3)(A). The analysis is therefore not affected by the recent U.S. Supreme Court decision, Sessions v. Dimaya, No. 15-1498, 2018 WL 1800371 (U.S. Apr. 17, 2018), which held 18 U.S.C. §16(b) (a clause with language identical to language in 18 U.S.C. §924(c)(3)(B)) to be unconstitutionally vague. --------
I have considered Judge Torres' Report, examined the relevant legal authorities, and conducted a de novo review of the record. I find Judge Torres' Report clear, cogent, and compelling, and Movant's Objections unpersuasive.
It is therefore ORDERED and ADJUDGED that Judge Torres' Report (ECF No. 11) is AFFIRMED and ADOPTED. Accordingly, the Motion to Vacate Sentence (ECF No. 1) is DENIED. The Clerk is directed to CLOSE this case.
It is FURTHER ORDERED and ADJUDGED that, pursuant to Rule 11(a) of the Rules Governing Section 2255 Cases, a Certificate of Appealability shall issue as to Movant's claim. "[J]urists of reason could disagree with the district court's resolution of his constitutional claims or that jurists could conclude the issues presented are adequate to deserve encouragement to proceed further." Miller-El v. Cockrell, 537 U.S. 322, 326 (2003); accord Lott v. Attorney Gen., Fla., 594 F.3d 1296, 1301 (11th Cir. 2010) (explaining that a "petitioner need not show he will ultimately succeed on appeal" in order to warrant a certificate of appealability).
DONE and ORDERED in chambers, at Miami, Florida, this 20th day of April 2018.
/s/_________
MARCIA G. COOKE
United States District Judge Copies furnished to:
Edwin G. Torres, U.S. Magistrate Judge
Counsel of record