Opinion
No. CV-16-02018-PHX-SRB (BSB) No. CR-95-00386-PHX-SRB
11-01-2018
Tony Buck, Movant/Defendant, v. United States of America, Respondent/Plaintiff.
REPORT AND RECOMMENDATION
Movant/Defendant Tony Buck ("Defendant"), has filed an Amended Motion to Vacate, Set Aside, or Correct Sentence by a person in Federal Custody pursuant to 28 U.S.C. § 2255 (the "amended motion") and a supporting memorandum. (Doc. 3.) Respondent/Plaintiff, the United States of America ("the government"), has filed a response asserting that the amended motion should be denied. (Doc. 13.) Defendant has filed a reply in support of his amended motion. (Doc. 14.) For the reasons set forth below the Court recommends that the amended motion be denied.
Citations to "Doc." are to filings in CV-16-2018-PHX-SRB (BSB). Citations to "CR Doc." are to filings in CR-95-00386-PHX-SRB.
I. Factual and Procedural Background
A. Charges, Trial, and Sentencing
On November 7, 1995, an indictment was returned against Defendant, in the District of Arizona, charging him with the following offenses: (1) three counts of use of a firearm during and in relation to a crime of violence, in violation of 18 U.S.C. § 924(c)(1) and (2) (Counts Two, Four, and Six); (2) two counts of assault with intent to steal property of the United States, in violation of 18 U.S.C. § 2114(a) (Counts One and Five); and (3) one count of attempted murder of a postal employee in violation of 18 U.S.C. § 1114 (Count Three). (CR Doc. 2.) On July 25, 1996, a jury found Defendant guilty of all counts. (CR Doc. 158.) The Court sentenced Defendant to 210 months' imprisonment on Counts One, Three, and Five to be served concurrently, five years' imprisonment on Count Two, to run consecutively to the sentences on Counts One, Three, and Five, and twenty years' imprisonment on Counts Four and Six, to run concurrently to each other but consecutively to all other counts. (CR 191.) Defendant's convictions were affirmed on direct appeal, but Defendant did not raise on appeal the issue now presented in the amended motion. See United States v. Buck, 133 F.3d 929 (9th Cir. 1997) (unpublished).
B. The Amended § 2255 Motion
On June 22, 2016, Defendant filed a motion to vacate, set aside, or correct sentence pursuant to 28 U.S.C. § 2255. (Doc. 1.) On July 11, 2016, Defendant filed the pending amended motion in which he asserts that his convictions under § 924(c)(1) in Counts Two and Six are invalid because the two underlying offenses of armed postal robbery, in violation of 18 U.S.C. § 2114(a), are not crimes of violence under § 924(c)(3). (Doc. 3.) Defendant seeks relief under Johnson v. United States, ___ U.S.___, 135 S. Ct. 2551 (2015) (Johnson II). (Doc. 3.) On the government's motion, the Court stayed this proceeding pending the Supreme Court's decision on review of Dimaya v. Lynch, 803 F.3d 1110 (9th Cir. 2015), cert granted, ___ U.S.___, 137 S. Ct. 31 (2016). (Doc. 10.) After the Supreme Court issued its decision in Sessions v. Dimaya, ___U.S.___, 138 S. Ct. 1204 (2018), the Court lifted the stay. (Doc. 12.) Therefore, the Court considers Defendant's amended motion.
II. Defendant's Claims
Defendant argues that the Court should vacate his convictions under § 924(c) for use of a firearm "during and in relation to a crime of violence" because: (1) the "residual clause" of § 924(c)(3)(B) is unconstitutional under Johnson II and, therefore, his armed postal robbery convictions under § 2114(a) may no longer be considered "crimes of violence" under that clause; and (2) a conviction under § 2114(a) does not qualify as a "crime of violence" under the "elements" clause of § 924(c)(3)(A). (Doc. 3 at 3-4.) Thus, Defendant argues that his convictions for armed postal robbery under § 2114(a) were not "crimes of violence" that triggered the application of § 924(c), which imposes a mandatory consecutive term of imprisonment for using or carrying a firearm "during and in relation to any crime of violence." 18 U.S.C. § 924(c)(1)(A).
Section 924(c)(3) defines a "crime of violence" as an offense that is a felony and "(A) has as an element the use, attempted use, or threatened use of physical force against the person or property of another," (the "elements" or "force" clause) or "(B) that by its nature involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense" (the "residual" clause). See id. at § 924(c)(3)(A) and (B); see also United States v. Watson, 881 F.3d 782, 784 (9th Cir. 2018) (describing Sections A and B as the "elements" and "residual" clauses).
A. "Crime of Violence" under the Residual Clause
The Supreme Court has recently considered the constitutionality of statutes that contain language similar to the residual clause in § 924(c)(3)(B). In Johnson II, the Supreme Court considered a vagueness challenge to the residual clause of the Armed Career Criminal Act ("ACCA"), 18 U.S.C. § 924(e). 135 S. Ct. 2551. Under the ACCA, a defendant convicted of violating § 922(g) is subject to more severe punishment if that defendant has three prior "violent felony" convictions. The definition of "violent felony" in the ACCA's residual clause includes any crime that "involves conduct that presents a serious potential risk of physical injury to another." 18 U.S.C. § 924(e)(2)(B). The Court held that the residual clause in the ACCA was unconstitutionally vague because it "denie[d] fair notice to defendants and invite[d] arbitrary enforcement by judges." Johnson II, 135 S. Ct. at 2557. Accordingly, the Court held that increasing a defendant's sentence under the ACCA's residual clause violated the Due Process Clause. Id. at 2563. The Court clarified that its decision did not "call into question the application of the Act to the four enumerated offenses, or the remainder of the Act's definition of a violent felony." Id.
Following Johnson II, in Sessions, the Supreme Court considered whether the "residual" clause in an immigration statute, 18 U.S.C. § 16(b), which includes language similar to the residual clause of § 924(e)(2)(B)(ii), is unconstitutionally vague. 138 S. Ct. 1204 (2018). Section 16(b) defines "crime of violence" using language that is nearly identical to the ACCA's residual clause. The Court held that the definition of "crime of violence" in § 16(b)'s "residual" clause is unconstitutionally vague for the same reasons that it found the definition of a "crime of violence" in the ACCA's residual clause unconstitutionally vague in Johnson II. Dimaya, 138 S. Ct. at 1216. The Court explained that § 16(b) is invalid because it "produces, just as ACCA's residual clause did, more unpredictability and arbitrariness than the Due Process Clause tolerates." Id. at 1216. (internal quotation marks omitted).
"The term 'crime of violence' means . . . any other offense that is a felony and that, by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense." 18 U.S.C. § 16(b).
In the amended motion, Defendant argues that the Court should vacate his convictions under § 924(c) because the residual clause of § 924(c)(3)(B) is unconstitutional under Johnson II and, therefore, armed postal robbery cannot be considered a predicate "crime of violence" under that clause. (Doc. 3 at 3.) The government apparently concedes this argument by stating that the Supreme Court "following the reasoning of Johnson [II] has now ruled that the residual clause contained in 18 U.S.C. § 16(b) and therefore [§] 924(c)(1)(B), which contains the identical language is unconstitutionally vague." (Doc. 13 at 5 (citing Dimaya, 138 S. Ct at 1223).) Therefore, the Court need not resolve this issue and assumes that armed postal robbery under § 2114(a) is no longer a predicate "crime of violence" under the residual clause of § 924(c)(3)(B). Instead, the Court considers whether the predicate offense of armed postal robbery under 18 U.S.C. § 2114(a) is a crime of violence under the elements clause of § 924(c)(3)(A). (See Doc. 13 at 5-13.) If so, then Defendant's convictions under § 924(c) remain valid and he is not entitled to § 2255 relief.
B. "Crime of Violence" under the Elements Clause
Section 924(c)(1)(A) provides for increased penalties for a person "who, during and in relation to any crime of violence . . . uses or carries a firearm, or who, in furtherance of any such crime, possesses a firearm." 18 U.S.C. § 924(c)(1)(A). As defined in the elements clause of § 924(c)(3), a "crime of violence" is an offense that is a felony and that "has as an element the use, attempted use, or threatened use of physical force against the person or property of another." 18 U.S.C. § 924(c)(3)(A). To qualify as a crime of violence under this clause, the element of "physical force" must involve "violent physical force—'that is, force capable of causing physical pain or injury to another person.'" United States v. Gutierrez, 876 F.3d 1254, 1256 (9th Cir. 2017) (quoting Johnson v. United States, 559 U.S. 133, 140 (2010) ("Johnson I")).
Defendant was charged and convicted of two separate counts of violating § 2114(a), which provides that a person who assaults a mail carrier with intent to rob, steal, or purloin mail, money or other property of the United States, or who robs or attempts to rob a mail carrier of mail, money, or other property of the United States, "shall, for the first offense, be imprisoned not more than ten years." See 18 U.S.C. § 2114(a). The statute further provides that if the person "in effecting or attempting to effect such robbery [] wounds the [mail carrier], or puts his life in jeopardy by the use of a dangerous weapon, or for a subsequent offense, [he] shall be imprisoned not more than twenty-five years." Id.
Defendant was charged in Counts One and Five with armed postal robbery under § 2114(a). In Count One, the indictment alleged that Defendant assaulted a mail carrier, with the intent to rob, steal, or purloin mail, money, or property of the United States "and in commission of said offense, [Defendant] put in jeopardy the life of [the mail carrier], by use of a dangerous weapon, that is a firearm." (CR Doc. 2) (emphasis added). In Count Five, the indictment alleged that, on a separate date, Defendant assaulted another mail carrier with the intent to rob, steal, or purloin mail, money, or property of the United States "and in commission of said offense, [Defendant] did wound or otherwise put in jeopardy the life of [the mail carrier], by use of a dangerous weapon, that is a firearm." (Id.) (emphasis added).
Defendant argues that Court should vacate his convictions under § 924(c) because a conviction under § 2114(a) does not qualify as a "crime of violence" under the "elements" clause of § 924(c)(3)(A). (Doc. 3 at 3-4.) The government disagrees. (Doc. 13 at 5-13.) As set forth below, to determine whether armed postal robbery under § 2114(a) qualifies as a "crime of violence" under the elements clause of § 924(c)(3)(A), the Court applies the "categorical" approach or the "modified categorical" approach.
1. The Categorical Approach
To determine whether an offense qualifies as a "crime of violence" under § 924(c)(3), courts apply the "categorical approach" set forth in Taylor v. United States, 495 U.S. 575 (1990). Under the Taylor categorical approach, the court determines whether the statute of conviction is a "crime of violence" by comparing the elements of the statute of conviction with the generic federal definition. United States v. Caceres-Olla, 738 F.3d 1051, 1054 (9th Cir. 2013). The court "look[s] to the elements of the offense rather than the particular facts underlying the defendant's own conviction." United States v. Dominguez-Maroyoqui, 748 F.3d 918, 920 (9th Cir. 2014).
The court "must presume that the [offense] rest[s] upon nothing more than the least of the acts criminalized, and then determine whether even those acts are encompassed by the generic federal offense." Moncrieffe v. Holder, 569 U.S. 184, 190-91 (2013) (internal quotation marks and alterations omitted). If the elements of the offense "criminalize a broader swath of conduct" than the conduct covered by the generic federal definition, then the offense cannot qualify as a crime of violence, even if the facts underlying the defendant's case might satisfy the definition. Dominguez-Maroyoqui, 748 F.3d at 920 (internal quotation marks omitted).
In United States v. Hasan, 983 F.2d 150, 151 (9th Cir. 1992), the Ninth Circuit applied the categorical approach and determined that the defendant's prior conviction for unarmed postal robbery in violation of § 2114(a) was a crime of violence under the elements clause of United States Sentencing Guidelines ("U.S.S.G.") § 4B1.2. In its response to the amended motion, the government cites Hasan to support its argument that, under the categorical approach, § 2114(a) is a crime of violence. (Doc. 13 at 1, 7.) The government acknowledges that at least one district court within the Ninth Circuit has questioned whether Hasan remains good law after Johnson I. (Doc. 13 at 7-8)(citing Williams v. United States, 2017 WL 1166141, at *5 (W.D. Wash. Mar. 3, 2017)).)
Although Hasan was decided in the context of the Sentencing Guidelines, the elements clause of U.S.S.G. § 4B1.2(a)(1) and the elements clause of § 924(c)(3)(A) are nearly identical. Compare U.S.S.G. § 4B1.2(a)(1) with 18 U.S.C. § 924(c)(3)(A).
The government, however, does not explain why, after Johnson I, the Court should rely on Hasan to find that a violation of § 2114(a) is a crime of violence under the categorical approach. Similarly, the parties' briefing does not explain why the Court should decline to follow Hasan and, instead, conclude that assault and robbery under § 2114(a) are not crimes of violence under the elements clause of § 924(c)(3)(A). (Docs. 13, 14) In his reply, Defendant simply asserts that because the categorical approach requires that the least serious definition of a crime qualify as a "crime of violence," after Johnson I, "it is difficult to see how [§] 2114(a) still qualifies." (Doc. 14 at 5.) Defendant, however, does not further explain his argument. (Id.)
The Court does not need to resolve this issue because even if a crime is not a crime of violence under the categorical approach, it may be a crime of violence under the modified categorical approach. See Alvarado v. Holder, 759 F.3d 1121, 1126 (9th Cir. 2014); Rendon v. Holder, 764 F.3d 1077, 1083 (9th Cir. 2014).
2. The Modified Categorical Approach
When a crime is not a crime of violence under the categorical approach, the court may apply the modified categorical approach if the statute has a "divisible structure." Mathis v. United States, 136 S. Ct. 2243, 2249 (2016); see Rendon, 764 F.3d at 1083. A statute is divisible when it "'comprises multiple, alternative versions of the crime,' at least one of which 'correspond[s] to the generic offense.'" Alvarado, 759 F.3d at 1126 (quoting Descamps v. United States, 570 U.S. 254, 263 (2013)). Furthermore, a statute has a divisible structure when it "list[s] elements in the alternative, and thereby define[s] multiple crimes." Mathis, 136 S. Ct. at 2249. "Elements are the 'constituent parts' of a crime's legal definition—the things the prosecution must prove to sustain a conviction. . . . At a trial, they are what the jury must find beyond a reasonable doubt to convict the defendant." Mathis, 136 S.Ct. at 2248 (internal quotation marks and citations omitted). A statute is not divisible if, as opposed to alternative elements, it lists only "alternative means of committing the same crime." Almanza-Arenas v. Lynch, 2015 WL 9462976, at *5 (9th Cir. Dec. 28, 2015); Mathis, 136 S. Ct. at 2256.
If the statute is divisible, then under the "modified categorical approach" the court "may examine a limited class of judicially noticeable documents" to determine of which crime included in the statute, and with which elements, the defendant was convicted. United States v. Sahagun-Gallegos, 782 F.3d 1094, 1098 (9th Cir. 2015) (citing United States v. Gonzalez-Monterroso, 745 F.3d 1237, 1241 (9th Cir. 2014)). Specifically, the modified categorical approach "permits a court to determine which statutory phrase was the basis for the conviction by consulting the trial record—including charging documents, plea agreements, transcripts of plea colloquies, findings of fact and conclusions of law from a bench trial, and jury instructions and verdict forms" Johnson I, 559 U.S. at 144.
A court can generally determine whether a statute on its face contains alternative means or elements. Mathis, 126 S. Ct at 2256. "[W]here a statute sets out separate punishment clauses, each adding further elements to the crime, the punishment clauses constitute separate and distinct criminal offenses, rather than one offense with different punishments." United States v. Chapman, 528 F.3d 1215, 1218 (9th Cir. 2008) (citing Jones v. United States, 526 U.S. 227, 252 (1999)); see also Mathis, 136 S. Ct. at 2256 (stating that if "statutory alternatives carry different punishments, then under Apprendi [v. New Jersey, 530 U.S. 466 (2000)] they must be elements.").
a. § 2114(a) is Divisible
The Ninth Circuit has not yet determined whether § 2114(a) is a divisible statute. However, the Seventh Circuit and at least one district court within the Ninth Circuit have concluded that § 2114(a) is divisible. See United States v. Enoch, 865 F.3d 575, 581 (7th Cir. 2017); Williams v. United States, 2017 WL 1166141, at *4, *6 (W.D. Wash. Mar. 3, 2017) (appeal filed Mar. 30, 2017). As discussed below, the Court concludes that § 2114(a) is divisible.
Section 2114(a) includes the following language:
(a) Assault.—A person who assaults any person having lawful charge, control, or custody of any mail matter or of any money or other property of the United States, with intent to rob, steal, or purloin such mail matter, money, or other property of the United States, or robs or attempts to rob any such person of mail matter, or of any money, or other property of the United States, shall, for the first offense, be imprisoned not more than ten years; and if in effecting or attempting to effect such robbery he wounds the person having custody of such mail, money, or other property of the United States, or puts his life in jeopardy by the use of a dangerous weapon, or for a subsequent offense, shall be imprisoned not more than twenty-five years.18 U.S.C. § 2114(a) (emphasis added). Thus, "a defendant can commit the crime of robbery of government property, with or without wounding the victim or putting her life in jeopardy." Enoch, 865 F.3d at 579. The basic level of the offense is punishable by not more than ten years' imprisonment and may be committed by robbing, attempting to rob, or assaulting with the intent to rob, steal, or purloin. See 18 U.S.C. § 2114(a). The statute also provides for an aggravated offense, which requires that the defendant "wounds" the victim or "puts [the victim's] life in jeopardy by the use of a dangerous weapon," and carries a sentence of "not more than twenty-five years." Id.
"If statutory alternatives [in a criminal statute] carry different punishments, then . . . they must be elements of different crimes." Mathis, 136 S. Ct. 2556 (citing Apprendi, 530 U.S. at 490). Because § 2114(a) contains statutory alternatives that carry different punishments depending, in part, on whether the defendant wounds the postal employee or places the postal employee's life in jeopardy, those alternatives are elements of different crimes. See Rendon, 764 F.3d at 1084-85.
As the Seventh Circuit explained, an individual could commit unarmed postal robbery without wounding or placing the life of postal employee in jeopardy and, therefore would only be subject to a maximum sentence of ten years' imprisonment. Enoch, 865 F.3d at 580 (citing 18 U.S.C. § 2114(a)). However, if the defendant wounds the postal employee, or places the postal employee's life in jeopardy with a dangerous weapon, then the penalty increases to a maximum sentence of twenty-five years' imprisonment. Id. at 579. The statute further provides that the twenty-five year maximum sentence is triggered when a defendant commits a subsequent basic level offense. 18 U.S.C. § 2114(a) (stating that "or for a subsequent offense, shall be imprisoned not more than twenty-five years.").
Therefore, § 2114(a) includes alternative elements that carry different punishments. See Enoch, 865 F.3d at 579-89 (citing Mathias, 136 S. Ct. at 2248); see also Williams, 2017 WL 1166141, at *5 (concluding that 18 U.S.C. § 2114(a) is divisible because it "describes two levels of offenses subject to different punishments). Accordingly, the Court concludes that § 2114(a) is a divisible statute.
b. Defendant's Crimes of Conviction
Because the Court has determined that § 2114(a) is divisible, it applies the modified categorical approach to determine Defendant's crimes of conviction under that statute. See Enoch, 865 F.3d at 580; Williams, 2017 WL 1166141, at *5 (consulting the jury instructions and concluding that the defendant was charged with the aggravated form of robbery under 18 U.S.C. § 2114(a)). Under the modified categorical approach, the court may consult "the trial record—including charging documents, plea agreements, transcripts of plea colloquies, findings of fact and conclusions of law from a bench trial, and jury instructions and verdict forms," to determine under which part of the statute Defendant was convicted. Johnson, 559 U.S. at 144; Mathis, 136 S. Ct. at 2249.
The Court concludes that Counts One and Five of the indictment charged Defendant with the aggravated form of postal robbery, under the second clause of § 2114(a), by charging Defendant with placing the lives of the mail carriers in jeopardy by use of a dangerous weapon. (CR Doc. 2.) In Count Five, defendant was also charged with wounding the victim. (Id. at 3.) Additionally, at trial, the Court instructed the jury that one of the elements of Counts One and Five was that "the defendant put the life of [victim] . . . in jeopardy by the use of a dangerous weapon, that is a firearm." (CR Doc. 159 (jury instructions 15 and 22).) The jury had to unanimously find this element to convict the Defendant of Count One or Count Five. See Ramirez v. Lynch, 810 F.3d 1127, 1134 (9th Cir. 2016). Therefore, based on the elements of § 2114(a), the indictment, and the jury instructions, the Court concludes that Defendant was convicted of two counts of the aggravated form of robbery under § 2114(a), which included as an element that Defendant put the victims' lives in jeopardy by use of a dangerous weapon.
c. The Crimes of Conviction are Crimes of Violence
Finally, the Court considers whether the underlying crime of armed postal robbery under 18 U.S.C. § 2114(a), which includes as an element that the defendant wound the victim or put the life of victim in jeopardy by the use of a dangerous weapon, constitutes a crime of violence under § 924(c)(3). To qualify as a crime ofviolence under the elements clause of § 924(c)(3), the element of "physical force" must involve "force capable of causing physical pain or injury to another person." See Johnson I, 559 U.S. at 138-40 (interpreting the meaning of physical force in a different, but similar, subsection of § 924). Therefore, the Court must determine whether the degree of force required to commit the aggravated form of § 2114(a) rises to the level of force required by Johnson I.
The aggravated form of § 2114(a) requires the use of force that is sufficient to "wound[]" the victim, or the use of a dangerous weapon that "puts [the victim's] life in jeopardy." 18 U.S.C. § 2114(a); see Williams, 2017 WL 1166141, at *6 (comparing § 2114(a) to armed bank robbery under § 2113(d) and concluding that the aggravated form of § 2114(a) was a crime of violence). In the context of the crime of armed bank robbery, 18 U.S.C. § 2113(d), the Ninth Circuit has recognized that "[p]utting life in jeopardy . . . requires 'a holdup involving the use of a dangerous weapon actually so used during the robbery that the life of the person being robbed is placed in an objective state of danger.'" United States v. Coulter, 474 F.2d 1004, 1005 (9th Cir. 1973) (quoting Wagner v. United States, 264 F.2d 524, 530 (9th Cir. 1959)). Under this standard for "putting life in jeopardy," "the aggravated form of § 2114(a) robbery necessarily includes as an element the use, attempted use, or threatened use of force capable of causing physical pain or injury." See Williams, 2017 WL 1166141, at *6.
The Court concludes that "wounding a victim or putting the life of a victim in jeopardy is a violent crime." See Enoch, 865 F.3d at 581; United States v. Dowd, 451 F.3d 1244, 1251, n.8 (11th Cir. 2006) (stating, without discussion, that 18 U.S.C. § 2114(a) "describes a crime of violence"); In re Watt, 829 F.3d 1287, 1290 (11th Cir. 2016) (stating that, based on the allegations in the indictment, the jury had to find that the victim's "life was put in jeopardy" to find a violation of § 2114(a), which satisfied the elements clause that the underlying felony offense have "as an element, the use, attempted use, or threatened use of physical force against the person or property of another"). Thus, the Court concludes that the crime of aggravated postal robbery, as defined in the second clause of § 2114(a), is a crime of violence under the elements clause of 18 U.S.C. § 924(c)(3)(A).
III. Conclusion
For these reasons, the Court concludes that Defendant's convictions under § 924(c) are valid because his underlying convictions for aggravated postal robbery, in violation of § 2114(a), are crimes of violence under the elements clause of § 924(c)(3)(A). Therefore, Defendant is not entitled to relief on his amended § 2255 motion.
Accordingly,
IT IS RECOMMENDED that the Amended Motion to Vacate, Set Aside, or Correct Sentence pursuant to 28 U.S.C. § 2255 (Doc. 3) be DENIED.
IT IS FURTHER RECOMMENDED that a Certificate of Appealability and leave to proceed in forma pauperis on appeal be DENIED.
This recommendation is not an order that is immediately appealable to the Ninth Circuit Court of Appeals. Any notice of appeal pursuant to Rule 4(a)(1) of the Federal Rules of Appellate Procedure should not be filed until entry of the District Court's judgment. The parties shall have fourteen days from the date of service of a copy of this recommendation within which to file specific written objections with the Court. See 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 6, 72. The parties have fourteen days within which to file a response to the objections. Failure to file timely objections to the Magistrate Judge's Report and Recommendation may result in the acceptance of the Report and Recommendation by the District Court without further review. See United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003). Failure to file timely objections to any factual determinations of the Magistrate Judge may be considered a waiver of a party's right to appellate review of the findings of fact in an order or judgment entered pursuant to the Magistrate Judge's recommendation. See Fed. R. Civ. P. 72.
Dated this 1st day of November, 2018.
/s/_________
Bridget S. Bade
United States Magistrate Judge