Opinion
CV-20-2508-PHX-DGC CR-11-01622-05-PHX-DGC
10-21-2022
United States of America, Plaintiff/Respondent, v. Domingo Agustin-Simon, Defendant/Movant.
ORDER
David G. Campbell, Senior United States District Judge
Defendant Domingo Agustin-Simon has filed a second motion to vacate his sentence under 28 U.S.C. § 2255. Doc. 24. The government concedes that Defendant's motion should be granted in light of United States v. Davis, 139 S.Ct. 2319 (2019), and the fact that hostage taking does not qualify as a crime of violence under § 924(c)(3)(A). Doc. 29. United States Magistrate Judge Eileen S. Willett recommends that Defendant's motion be granted. Doc. 30 (R&R). The Court will accept the R&R and grant the motion.
IT IS ORDERED:
1. The R&R (Doc. 30) is accepted.
2. The Court will schedule a resentencing hearing after determining Defendant's current location and the time it will take to transfer him here, if needed. At the hearing, the Court will vacate the portion of the Court's January 18, 2013 Judgment (CR Doc. 329) convicting Defendant 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 Five of the Superseding Indictment. The Court will resentence Defendant on Counts One, Two, Three, and Four.
3. The Court directs the Probation Department to prepare an updated presentence investigation report prior to the resentencing hearing.