Opinion
Civil Action No. 1:15-cv-202 Criminal No. 1:14-cr-158-1
09-06-2016
FRANCISCO LOPEZ-IBANEZ, Petitioner, v. UNITED STATES OF AMERICA, Respondent.
ORDER ADOPTING MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION
Before the Court is the Magistrate Judge's Report and Recommendation (hereafter "R&R") in the above-referenced cause of action, recommending that Lopez-Ibanez's sentence be vacated and that he be resentenced. Docket No. 43 at 1, 15. On August 19, 2016, Lopez-Ibanez filed an objection to the Magistrate Judge's R&R, stating that although he "generally agrees" with the R&R, the conclusion set forth in paragraph V of the R&R, Docket No. 43 at 15, contains some ambiguity, insofar as it states that "[a]ll other requests for relief should be denied without prejudice at this time." Docket No. 44 at 2. Lopez-Ibanez states that because the law regarding his sixteen (16) level enhancement for a "crime of violence" under United States Sentencing Guidelines § 2L1.2(b)(1)(A)(ii) has changed in light of the Supreme Court's rulings in Johnson v. United States, ___ U.S. ___, 135 S. Ct. 2551 (2015) and Welch v. United States, ___ U.S. ___, 136 S. Ct. 1257 (2016), he may be entitled to additional relief. As such, Lopez-Ibanez requests that in addition to resentencing him, this Court order the Probation Office to prepare an amended Pre-sentence Investigation Report (hereafter "PSR") and give both parties the opportunity to object.
After a de novo review of the file, the Magistrate Judge's Report and Recommendation is ADOPTED, and thereby Lopez-Ibanez's Motion to Vacate, Set Aside, or Correct Sentence under 28 U.S.C. § 2255, Docket No. 1, is GRANTED. It is further ORDERED that a resentencing hearing shall be held at 10:00 a.m. on October 5, 2016. The Probation Office is ORDERED to file an updated PSR on or before September 20, 2016. Objections to the PSR are due on or before September 27, 2016.
Signed on this 6th day of September, 2016.
/s/_________
Rolando Olvera
United States District Judge