Opinion
No. CV16-2127 PHX DGC (ESW) No. CR04-0872-2 PHX DGC
10-01-2019
United States of America, Plaintiff/Respondent, v. Jorge Avena-Pardo, Defendant/Movant.
ORDER
Defendant Jorge Avena-Pardo has filed a second amended motion to vacate sentence pursuant to 28 U.S.C. § 2255. Doc. 21. 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. 38. 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. 39. 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. 39) is accepted.
2. The motion to vacate sentence (Doc. 21) is granted. The Court (i) vacates 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) will hold a resentencing hearing (Counts 1, 2, and 4); 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