Valdez-Lopez v. United States ( 2019 )

1 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 United States of America, ) No. CV-16-02079-PHX-SPL ) CR-07-00428-PHX-SPL 9 ) Plaintiff/Respondent, ) 10 vs. ) 11 ) ) O RDER Rufino Valdez-Lopez, ) 12 ) 13 Defendant/Movant. ) ) 14 ) 15 Movant Rufino Valdez-Lopez has filed a Motion to Vacate, Set Aside, or Correct 16 Sentence by a Person in Federal Custody pursuant to 28 U.S.C. § 2255 (“Motion”) (Doc. 17 1). The Honorable Eileen S. Willett, United States Magistrate Judge, has issued a Report 18 and Recommendation (“R&R”), recommending that the Court grant the Motion. Judge 19 Willett advised the parties that they had fourteen (14) days to file objections to the R&R 20 and that failure to file timely objections could be considered a waiver of the right to obtain 21 review of the R&R. (Doc. 24 at 4); 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 6, 72; United 22 States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003). 23 The parties did not file objections, which relieves the Court of its obligation to 24 review the R&R. See Reyna-Tapia, 328 F.3d at 1121; Thomas v. Arn, 474 U.S. 140, 149 25 (1985) (“[Section 636(b)(1)] does not… require any review at all… of any issue that is not 26 the subject of an objection.”); Fed. R. Civ. P. 72(b)(3) (“The district judge must determine 27 de novo any part of the magistrate judge’s disposition that has been properly objected to.”). 28 The Court has nonetheless reviewed the R&R and finds that it is well-taken. The Court 1 | will adopt the R&R and grant the Motion. See 28 U.S.C. § 636(b)(1) (stating that the district 2| court “may accept, reject, or modify, in whole or in part, the findings or recommendations 3 | made by the magistrate”); Fed. R. Civ. P. 72(b)(3) (“The district judge may accept, reject, 4) or modify the recommended disposition; receive further evidence; or return the matter to the magistrate judge with instructions.”). Accordingly, 6 IT IS ORDERED: 7 1. That Magistrate Judge Eileen S. Willett’s Report and Recommendation (Doc. 8 | 20) is accepted and adopted by the Court; 9 2. That the Motion to Vacate, Set Aside, or Correct Sentence by a Person in Federal 10 | Custody pursuant to 28 U.S.C. § 2255 (CV-16-02079-PHX-SPL, Doc. 1; CR-07-00428- 11 | PHX-SPL, Doc. 276) is granted; 12 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 14| Firearm in a Crime of Violence, a Class A Felony offense, as charged in Count V of the 15 | Superseding Indictment is vacated; 16 4. That the Court shall hold a resentencing hearing for Counts I-IV in the 17 | underlying related criminal action, Case No. CR-07-00428-PHX-SPL; 18 5. That the Probation Department shall prepare an updated presentence 19 | investigation report prior to the resentencing hearing; 20 6. That the Clerk of Court shall file this Order in the underlying related criminal 71 action, Case No. CR-07-00428-PHX-SPL; and 22 7. That the Clerk of Court shall enter judgment accordingly and terminate this | action. 94 Dated this 27th day of September, 2019. 25 United States District Judge 28