Opinion
CV 305-134 (Formerly CR 304-021).
February 21, 2007
ORDER
After a careful, de novo review of the file, the Court concurs with the Magistrate Judge's Report and Recommendation, to which no objections have been filed. In lieu of objections, the government filed a response to the Report and Recommendation (doc. no. 15), stating that it agreed with the Magistrate Judge's recommendation and would agree to have this Court enter a new Judgment and Commitment Order ("J C"), without holding a new sentencing hearing, that would be identical in all respects to the previously entered J C (CR 304-021, doc. no. 15), save only for the date of entry. See United States v. Parrish, 427 F.3d 1345, 1347-48 (11th Cir. 2005) (per curiam) (finding district court not required to hold a resentencing hearing in similar circumstances).
Accordingly, the Report and Recommendation of the Magistrate Judge is ADOPTED as the opinion of the Court. Therefore, Petitioner's 28 U.S.C. § 2255 motion to vacate is GRANTED. Petitioner's judgment in the underlying criminal case is VACATED. (CR 304-021, doc. no. 15). Simultaneous with the entry of this Order, the Court is entering a new J C that reimposes the same sentence, identical in all respects to the original J C (CR 304-021, doc. no. 15), save only for the date of entry. Petitioner is HEREBY ADVISED that with the entry of the new J C, he shall have all the rights associated with an appeal from any criminal sentence. The Court also specifically advises Petitioner that the entry of the new J C creates a ten-day period within which Petitioner may prosecute a direct appeal of his criminal conviction. Thus, Petitioner shall have ten (10) days from the date of entry of the J C to file a notice of appeal.
Finally, the Clerk of Court is DIRECTED to CLOSE this civil action and ENTER a final judgment in this civil case in favor of Petitioner. This Order and the new J C shall be served on counsel of record by facsimile and by United States mail.
The Court notes that Attorney Laurel P. Landon has been appointed, under the Criminal Justice Act, to represent Petitioner on direct appeal. (CR 304-021, doc. no. 32).
SO ORDERED