Opinion
No. CV-16-02086-PHX-GMS No. CR-05-00225-001-PHX-GMS
10-02-2019
Jesus Medina-Nevarez, Petitioner, v. United States of America, Respondent.
ORDER
Pending before the Court are Petitioner's Amended Motion to Vacate, Set Aside or Correct Sentence under 28 U.S.C. 2255 and United States Magistrate Judge Eileen S. Willett's Report and Recommendation ("R&R") (Docs. 10, 20). The R&R recommends that the Court grant the motion (Doc. 20 at 2). The Magistrate Judge advised the parties that they had fourteen days to file objections to the R&R and that failure to file timely objections could be considered a waiver of the right to obtain review of the R&R. Id. at 3 (citing 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 6, 72); United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003)).
The parties did not file objections, which relieves the Court of its obligation to review the R&R. See Reyna-Tapia, 328 F.3d at 1121; Thomas v. Arn, 474 U.S. 140, 149 (1985) ("[Section 636(b)(1)] does not . . . require any review at all . . . of any issue that is not the subject of an objection."); Fed. R. Civ. P. 72(b)(3) ("The district judge must determine de novo any part of the magistrate judge's disposition that has been properly objected to."). The Court will accept the R&R and grant the motion. See 28 U.S.C. § 636(b)(1) (stating that the district court "may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate"); Fed. R. Civ. P. 72(b)(3) ("The district judge may accept, reject, or modify the recommended disposition; receive further evidence; or return the matter to the magistrate judge with instructions.").
IT IS ORDERED accepting Magistrate Judge Eileen S. Willett's Report & Recommendation (Doc. 20).
IT IS FURTHER ORDERED that the Court (i) vacate the portion of the Court's January 25, 2007 Judgment (CR Doc. 159) convicting Petitioner of violating Title 18, U.S.C. § 924(c)(1)(A)(ii) and (2), Possession or Use of a Firearm in a Crime of Violence, a Class A Felony offense, as charged in Count Five of the Indictment; (ii) hold a resentencing hearing (Counts 1-4); and (iii) direct the Probation Department to prepare an updated presentence investigation report prior to the resentencing hearing.
IT IS FURTHER ORDERED that the Clerk of Court must close the civil case opened in connection with this action, CV 16-02086-PHX-GMS, and enter judgment accordingly.
Dated this 2nd day of October, 2019.
/s/_________
G. Murray Enow
Chief United States District Judge