Hernandez v. United States ( 2021 )

UNITSEODU STTHAETRENS DDIISSTTRRIICCTT OCFO FULROTR FIODRA THE MIAMI DIVISION Case Number: 19-23193-CIV-MARTINEZ (Case number: 96-00443-CR-MARTINEZ) ORESTES HERNANDEZ, Movant, vs. UNITED STATES OF AMERICA, Respondent. _____________________________________/ ORDER ADOPTING REPORT AND RECOMMENDATION THE MATTER was referred to the Honorable Lisette Reid, United States Magistrate Judge, for a Report and Recommendation on Movant Orestes Hernandez’s Motion to Vacate, pursuant to 28 U.S.C. § 2255 (“Motion”). (ECF No. 1). Judge Reid filed a Report and Recommendation (“R&R”), recommending that the Motion be granted in part and denied in part. (ECF No. 15). Specifically, Judge Reid recommended that the Motion (1) be granted solely to the extent that Movant’s conviction and sentence as to Count 3 be vacated, and (2) denied as to Movant’s Davis1 challenge to his remaining 18 U.S.C. § 924(c) convictions and sentences, as charged in Counts 6 and 11. (Id. at 20–21). Movant timely filed Objections to the R&R, (ECF No. 16), to which the Government responded, (ECF No. 17). Movant concedes that his Objections to the R&R “are currently foreclosed by Eleventh Circuit precedent, but he preserves them for further review in case the law changes.” (ECF No. 16 at 2). The Court, having conducted a de novo review of the record and 1 United States v. Davis, 139 S. Ct. 2319 (2019) 1 the issues presented in Movant’s Objections, agrees with Magistrate Judge Reid’s R&R. Accordingly, after careful consideration, it is hereby: ORDERED AND ADJUDGED that 1. United States Magistrate Judge Reid’s Report and Recommendation, (ECF No. 15), is AFFIRMED and ADOPTED. 2. Plaintiff's Motion, (ECF No. 1), is GRANTED in part and DENIED in part. The Motion is GRANTED as to Count 3 and DENIED as to Counts 6 and 11. 3. Plaintiff shall be re-sentenced in accordance with United States v. Fowler, 749 F.3d 1010, 1016-17 (11th Cir. 2014). The Court will schedule a re-sentencing hearing by separate order on the criminal docket, Case Number: 96-00443-CR-MARTINEZ. 4. A Certificate of Appealability SHALL NOT ISSUE. 5. The Clerk of Court is directed to CLOSE this case. DONE AND ORDERED in Chambers at Miami, Florida, this 21st day of December, 2021. EM. JOSH E. MARTINEZ UNJTED STATES DISTRICT GE Copies provided to: Magistrate Judge Reid All Counsel of Record