David G. Campbell Senior United States District Judge

ORDER

Defendant Carlos Alvarez-Espinoza has filed a second amended motion to vacate sentence pursuant to 28 U.S.C. § 2255. Doc. 29. Plaintiff, United States of America, conceded that the second amended § 2255 motion should be granted in light of United States v. Davis, 139 S. Ct. 2319 (2019). Doc. 61 United States Magistrate Judge Eileen S. Willett has issued a report and recommendation ("R&R") recommending that the motion to vacate sentence pursuant to 28 U.S.C. § 2255 be granted. Doc. 62. No objection has been filed, which relieves the Court of its obligation to review the R&R. See 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b)(3); Thomas v. Arn, 474 U.S. 140, 149 (1985); United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003). The Court will accept the R&R and grant the motion.

IT IS ORDERED:

1. The R&R (Doc. 62) is accepted.

2. The motion to vacate sentence (Doc. 29) is granted. The Court (i) vacates the portion of the Court's October 23, 2009 Judgment (CR Doc. 280) convicting Movant of five counts of violating 18 U.S.C. § 924(c), Use and

Carrying a Firearm in Relation to a Crime of Violence, and Possession of a Firearm in Furtherance of a Crime of Violence (Counts 10, 12-15); (ii) will hold a resentencing hearing (Counts 1, 2, and 4-9); and (iii) directs the Probation Department to prepare an updated presentence investigation report prior to the resentencing hearing.

3. A certificate of appealability and leave to proceed in forma pauperis on appeal are denied

4. The Clerk is directed to terminate this action.

Dated this 1st day of October, 2019.

/s/_________

David G. Campbell

Senior United States District Judge