Alvarez-Espinoza 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. CV16-4597 PHX DGC (ESW) 9 CR08-0611 PHX DGC Plaintiff/Respondent, 10 ORDER vs. 11 Carlos Alvarez-Espinoza, 12 13 Defendant/Movant. 14 Defendant Carlos Alvarez-Espinoza has filed a second amended motion to vacate 15 sentence pursuant to 28 U.S.C. § 2255. Doc. 29. Plaintiff, United States of America, 16 conceded that the second amended § 2255 motion should be granted in light of United 17 States v. Davis, 139 S. Ct. 2319 (2019). Doc. 61 United States Magistrate Judge Eileen S. 18 Willett has issued a report and recommendation (“R&R”) recommending that the motion 19 to vacate sentence pursuant to 28 U.S.C. § 2255 be granted. Doc. 62. No objection has 20 been filed, which relieves the Court of its obligation to review the R&R. See 28 U.S.C. § 21 636(b)(1); Fed. R. Civ. P. 72(b)(3); Thomas v. Arn, 474 U.S. 140, 149 (1985); United 22 States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003). The Court will accept the 23 R&R and grant the motion. 24 IT IS ORDERED: 25 1. The R&R (Doc. 62) is accepted. 26 2. The motion to vacate sentence (Doc. 29) is granted. The Court (i) vacates 27 the portion of the Court’s October 23, 2009 Judgment (CR Doc. 280) 28 convicting Movant of five counts of violating 18 U.S.C. § 924(c), Use and 1 Carrying a Firearm in Relation to a Crime of Violence, and Possession of a 2 Firearm in Furtherance of a Crime of Violence (Counts 10, 12-15); (ii) will 3 hold a resentencing hearing (Counts 1, 2, and 4-9); and (iii) directs the 4 Probation Department to prepare an updated presentence investigation 5 report prior to the resentencing hearing. 6 3. A certificate of appealability and leave to proceed in forma pauperis on 7 appeal are denied 8 4. The Clerk is directed to terminate this action. 9 Dated this Ist day of October, 2019. 10 11 . 12 » aur © Car phtl 13 DavidG. Campbell 14 Senior United States District Judge 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -2-