Opinion
No. CV-16-02079-PHX-SPL No. CR-07-00428-PHX-SPL
09-27-2019
United States of America, Plaintiff/Respondent, v. Rufino Valdez-Lopez, Defendant/Movant.
ORDER
Movant Rufino Valdez-Lopez has filed a Motion to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody pursuant to 28 U.S.C. § 2255 ("Motion") (Doc. 1). The Honorable Eileen S. Willett, United States Magistrate Judge, has issued a Report and Recommendation ("R&R"), recommending that the Court grant the Motion. Judge Willett advised the parties that they had fourteen (14) days to file objections to the R&R and that failure to file timely objections could be considered a waiver of the right to obtain review of the R&R. (Doc. 24 at 4); 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 6, 72; United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003).
The parties did not file objections, which relieves the Court of its obligation to review the R&R. See Reyna-Tapia, 328 F.3d at 1121; Thomas v. Arn, 474 U.S. 140, 149 (1985) ("[Section 636(b)(1)] does not... require any review at all... of any issue that is not the subject of an objection."); Fed. R. Civ. P. 72(b)(3) ("The district judge must determine de novo any part of the magistrate judge's disposition that has been properly objected to."). The Court has nonetheless reviewed the R&R and finds that it is well-taken. The Court will adopt the R&R and grant the Motion. See 28 U.S.C. § 636(b)(1) (stating that the district court "may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate"); Fed. R. Civ. P. 72(b)(3) ("The district judge may accept, reject, or modify the recommended disposition; receive further evidence; or return the matter to the magistrate judge with instructions."). Accordingly,
IT IS ORDERED:
1. That Magistrate Judge Eileen S. Willett's Report and Recommendation (Doc. 20) is accepted and adopted by the Court;
2. That the Motion to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody pursuant to 28 U.S.C. § 2255 (CV-16-02079-PHX-SPL, Doc. 1; CR-07-00428-PHX-SPL, Doc. 276) is granted;
3. That the portion of the Court's June 4, 2008 Judgment (CR-07-00428-PHX-SPL; Doc. 222) convicting Movant of violating Title 18, U.S.C. §924(c), Possession or Use of a Firearm in a Crime of Violence, a Class A Felony offense, as charged in Count V of the Superseding Indictment is vacated;
4. That the Court shall hold a resentencing hearing for Counts I-IV in the underlying related criminal action, Case No. CR-07-00428-PHX-SPL;
5. That the Probation Department shall prepare an updated presentence investigation report prior to the resentencing hearing;
6. That the Clerk of Court shall file this Order in the underlying related criminal action, Case No. CR-07-00428-PHX-SPL; and
7. That the Clerk of Court shall enter judgment accordingly and terminate this action.
Dated this 27th day of September, 2019.
/s/_________
Honorable Steven P. Logan
United States District Judge