Honorable Eileen S. Willett United States Magistrate Judge

REPORT AND RECOMMENDATION

TO THE HONORABLE G. MURRAY SNOW, UNITED STATES DISTRICT JUDGE:

In 2006, a jury convicted Jesus Medina-Nevarez ("Movant") on (i) one count of Conspiracy to Commit Hostage Taking; (ii) one count of Hostage Taking; (iii) one count of Conspiracy to Harbor Illegal Aliens; (iv) one count of Harboring Illegal Aliens; and (v) one count of Possession or Use of a Firearm in a Crime of Violence, in violation of 18 U.S.C. § 924(c)(1)(A)(ii) and (2). (CR Doc. 159). The Court sentenced Movant to life imprisonment on the hostage-taking counts and to a 120-month prison term on the harboring illegal aliens counts. (Id.). Those sentences are to be served concurrently with each other. The Court sentenced Movant to an 84-month sentence on the Section 924(c) count, which is to be served consecutively to the other sentences. (Id.).

On November 23, 2016, Movant filed an Amended "Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody" (the "Amended § 2255 Motion") (Doc. 10). Movant argues that his § 924(c) conviction is unconstitutional.

On March 1, 2017, the Court granted the United States' "Motion to Stay Further Proceedings on the Motion to Vacate Sentence" (Doc. 12) and stayed this proceeding until (i) the Ninth Circuit Court of Appeals issues its decision in United States v. Begay, No. 3:13-cr-08073-NVW-1 (D. Ariz. Jan. 29, 2014), appeal docketed, No. 14-10080 (9th Cir. Feb. 20, 2014) and (ii) the U.S. Supreme Court issues its decision in Dimaya v. Lynch, 803 F.3d 1110 (9th Cir. 2015), cert. granted, 2016 WL 3232911 (U.S. Sept. 29, 2016) (No. 15-1498). (Doc. 15). On August 26, 2019, the Court lifted the stay and directed the United States to file its response to the Amended § 2255 Motion. (Doc. 18).

In its Response filed on September 9, 2019, the United States concedes that the Amended § 2255 Motion should be granted in light of United States v. Davis, 139 S. Ct. 2319 (2019). (Doc. 19). The undersigned agrees that the Amended § 2255 Motion should be granted for the reasons stated in the United States' Response (Doc. 19). Accordingly,

IT IS RECOMMENDED that the Court grant Movant's Amended § 2255 Motion (Doc. 10).

IT IS FURTHER RECOMMENDED that the Court (i) vacate the portion of the Court's January 25, 2007 Judgment (CR Doc. 159) convicting Movant 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.

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