Opinion
CV 15-1183 KG/WPL CR 4-1746 KG
03-23-2016
UNITED STATES OF AMERICA, Plaintiff/Respondent, v. PATRICK JAMES PACHECO, Defendant/Movant.
PROPOSED FINDINGS AND RECOMMENDED DISPOSITION
Patrick James Pacheco filed a Motion to Correct Sentence Pursuant to 28 U.S.C. § 2255 (CV Doc. 1; CR Doc. 40). He challenges the validity of his sentence on the basis that he was unconstitutionally sentenced under the residual clause of the Armed Career Criminal Act, 18 U.S.C. § 924(e), which was found to be unconstitutionally vague in Johnson v. United States, --- U.S. ---, 135 S. Ct. 2551, 2563 (2015). The United States stipulates (see Doc. 6 at 3), and I agree, that Johnson applies retroactively to Pacheco's case as a new substantive rule pursuant to Schriro v. Summerlin, 542 U.S. 348, 352 (2004), and Griffith v. Kentucky, 479 U.S. 314, 328 (1987).
All citations to "CV Doc." refer to documents filed in the civil case, CV 15-1183 KG/WPL. All citations to "CR Doc." refer to documents filed in the criminal case, CR 4-1746 KG. Documents filed in both cases are cited by reference to the corresponding document in the civil case. --------
I conclude that Pacheco is entitled to resentencing based on Johnson. I recommend that the Court grant Pacheco's motion, vacate Pacheco's sentence, order that a new presentence report be prepared, and set this case for resentencing.
THE PARTIES ARE NOTIFIED THAT WITHIN 14 DAYS OF SERVICE of a copy of these Proposed Findings and Recommended Disposition they may file written objections with the Clerk of the District Court pursuant to 28 U.S.C. § 636(b)(1). A party must file any objections with the Clerk of the District Court within the fourteen-day period if that party wants to have appellate review of the Proposed Findings and Recommended Disposition. If no objections are filed, no appellate review will be allowed.
/s/_________
WILLIAM P. LYNCH
UNITED STATES MAGISTRATE JUDGE A true copy of this order was served on the date of entry--via mail or electronic means--to counsel of record and any pro se party as they are shown on the Court's docket.