Avena-Pardo v. United States

6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA United States of America, No. CV16-2127 PHX DGC (ESW) 9 CR04-0872-2 PHX DGC Plaintiff/Respondent, 10 ORDER vs. Jorge Avena-Pardo, 13 Defendant/Movant.

14 Defendant Jorge Avena-Pardo has filed a second amended motion to vacate sentence pursuant to 28 U.S.C. § 2255. Doc. 21. Plaintiff, United States of America, conceded that the second amended § 2255 motion should be granted in light of United States v. Davis, 139 S. Ct. 2319 (2019). Doc. 38. United States Magistrate Judge Eileen S.

18 Willett has issued a report and recommendation (“R&R”) recommending that the motion to vacate sentence pursuant to 28 U.S.C. § 2255 be granted. Doc. 39. No objection has 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 States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003). The Court will accept the R&R and grant the motion.

24 IT IS ORDERED: 25 1. The R&R (Doc. 39) is accepted.

26 2. The motion to vacate sentence (Doc. 21) is granted. The Court (i) vacates 27 the portion of the Court’s June 15, 2006 Judgment (CR Doc. 94) convicting 28 Movant of violating Title 18, U.S.C. §924(c)(1)(A)(ii), Possessing, Using 1 and Carrying a Firearm During and in Relations to a Crime of Violence, as 2 charged in Count 3 of the Indictment; (ii) will hold a resentencing hearing 3 (Counts 1, 2, and 4); and (iii) directs the Probation Department to prepare 4 an updated presentence investigation report prior to the resentencing 5 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.

11 .

12 d aud © Caur ple 13 David G. Campbell 14 Senior United States District Judge -2-