Opinion
CASE NO. 4:04-cr-0011.
October 1, 2007
OPINION ORDER [Resolving Docs. No. 39, 42, 43.]
With this Opinion and Order, the Court decides whether to adopt Magistrate Judge George J. Limbert's Report and Recommendation on Petitioner Daniel Vigorito Jr.'s motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255. [Doc. 43.]
For the reasons presented below, the Court ADOPTS the Report and Recommendation of Magistrate Judge Limbert, GRANTS Petitioner's motion, and REMANDS the case for resentencing.
I. Background
On May 20, 2004, this Court sentenced Vigorito to a term of 151 months of imprisonment followed by three years of supervised release. [Docs. 27, 28.] After unsuccessfully appealing to the Sixth Circuit Court of Appeals and the United States Supreme Court, Petitioner Vigorito filed the instant motion with this Court on January 19, 2007. [Doc. 39.] On January 29, 2007, the Court referred the Petitioner's motion to Magistrate Judge George J. Limbert for a Report and Recommendation. [Doc. 40.] On February 16, 2007, Respondent filed a brief opposing the Petitioner's motion. [Doc. 42.]
After conducting a thorough analysis of the Petitioner's motion, on September 10, 2007, Magistrate Judge Limbert recommended that the Court grant Petitioner's motion and remand his case for resentencing. [Doc. 43.] The Magistrate Judge recommended that the Court find that "Petitioner's appellate counsel was not ineffective in failing to raise Booker/Barnett issues because he did eventually raise them in the Sixth Circuit pursuant to Rule 28(j) of the Federal Rules of Appellate Procedure before Petitioner's appeal was denied." Id. However, the Magistrate Judge nevertheless recommended that the Court remand Vigorito's case for resentencing because "Petitioner's sentence was pending on direct appeal when Booker and Barnett, cases finding that the Sentencing Guidelines are advisory, were decided." Id. Thus, the Magistrate Judge recommends finding plain error with regard to Vigorito's sentence.
II. Legal Analysis
The Federal Magistrates Act requires a district court to conduct a de novo review only of those portions of the Report and Recommendation to which an objection has been made. See 28 U.S.C. § 636(b)(1). Parties must file any objections within ten days of the Report's issuance. Id; see also Doc. 43. They waive their right to appeal the Recommendation if they fail to object within the time allowed. See, e.g., Thomas v. Arn, 474 U.S. 140 (1985); United States v. Walters, 638 F.2d 947 (6th Cir. 1981).
In the instant case, on September 10, 2007, Magistrate Judge Limbert issued a Report and Recommendation. [Doc. 43.] More than ten days have passed, and neither party has objected to his Recommendation. Having conducted its own review of the parties' briefs on the issue, the Court agrees with the conclusions of Magistrate Judge Limbert and adopts the Report and Recommendation as its own. Therefore, the Court incorporates Magistrate Judge Limbert's findings of fact and conclusions of law fully herein by reference.
III. Conclusion
For the reasons discussed above, the Court ADOPTS the Report and Recommendation of Magistrate Judge Limbert, GRANTS Petitioner's motion, and REMANDS the case for resentencing.
IT IS SO ORDERED.