Opinion
No. CV-16-02127-PHX-DGC (ESW) No. CR-04-00872-2-PHX-DGC
09-10-2019
United States of America, Plaintiff/Respondent, v. Jorge Avena-Pardo, Defendant/Movant.
REPORT AND RECOMMENDATION
TO THE HONORABLE DAVID G. CAMPBELL, SENIOR UNITED STATES DISCTRICT JUDGE:
Pending before the Court is Jorge Avena-Pardo's ("Movant") Second Amended "Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody" (the "Second Amended § 2255 Motion") (Doc. 21). On September 9, 2019, the United States filed a Supplemental Response conceding that the Second Amended § 2255 Motion should be granted in light of United States v. Davis, 139 S. Ct. 2319 (2019). (Doc. 38). The undersigned agrees that the Second Amended § 2255 Motion should be granted for the reasons stated in the United States' Supplemental Response (Doc. 38). Accordingly,
Citations to "Doc." are to the docket in CV-16-02127-PHX-DGC (ESW). Citations to "CR Doc." are to the docket in the underlying criminal case, CR-04-00872-2-PHX-DGC.
IT IS RECOMMENDED that the Court grant Movant's Second Amended § 2255 Motion (Doc. 21).
IT IS FURTHER RECOMMENDED that the Court (i) vacate the portion of the Court's June 15, 2006 Judgment (CR Doc. 94) convicting Movant of violating Title 18, U.S.C. §924(c)(1)(A)(ii), Possessing, Using and Carrying a Firearm During and in Relations to a Crime of Violence, as charged in Count 3 of the Indictment; (ii) hold a resentencing hearing (Counts 1, 2, and 4); and (iii) direct the Probation Department to prepare an updated presentence investigation report prior to the resentencing hearing.
This Report and Recommendation is not an order that is immediately appealable to the Ninth Circuit Court of Appeals. Any notice of appeal pursuant to Fed. R. App. P. 4(a)(1) 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 Report and Recommendation within which to file specific written objections with the Court. See 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 6, 72. Thereafter, the parties have fourteen days within which to file a response to the objections. Failure to file timely 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. Failure to file timely objections to any factual determinations of the Magistrate Judge may 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 United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003); Robbins v. Carey, 481 F.3d 1143, 1146-47 (9th Cir. 2007).
Dated this 10th day of September, 2019.
/s/_________
Honorable Eileen S. Willett
United States Magistrate Judge