Free Order on Motion to Vacate (2255) - District Court of Arizona - Arizona

1 2 3 4 5 6 7 8 9 10 11 Gregorio Miranda-Martinez, 12 Defendant/Movant. 13 14 15 Defendant/Movant ("Movant") has filed a Motion to Vacate, Set Aside or Correct 16 Sentence under 28 U.S.C. § 2255 (Criminal Dkt. 25). Movant was charged in an indictment 17 with three counts as follows: felon in possession of a firearm, in violation of 18 U.S.C. §§ 18 922(g)(1), 924(a)(2) (Count 1); illegal alien in possession of a firearm, in violation of 18 19 U.S.C. §§ 922(g)(5), 924(a)(2)(Count 2); and re-entry after deportation, in violation of 8 20 U.S.C. §§ 1326(a), (b)(2)(Count 3) (Criminal Dkt. 1). On June 28, 2004, Movant pleaded 21 guilty to Count 3, with Counts 1 and 2 to be dismissed at sentencing, pursuant to the terms 22 of a plea agreement (Criminal Dkt. 6, 12). On October 22, 2004, Movant was sentenced on 23 Count 3 to 87 months imprisonment, to be followed by 36 months of supervised release, and 24 Counts 1 and 2 were dismissed (Criminal Dkt. 11). Movant's conviction and sentence were 25 affirmed on appeal (Criminal Dkt. 24). 26 Movant filed his § 2255 motion on March 30, 2006. (Criminal Dkt. 25). Movant 27 contends that his criminal history was improperly calculated; that his plea was not consistent 28
Case 2:04-cr-00345-EHC Document 34 Filed 01/09/2008 Page 1 of 2

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA

United States of America, Plaintiff/Respondent, vs.

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No. CR 04-0345-PHX-EHC CV 06-0920-PHX-EHC ORDER

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with his sentence; and that defense counsel was ineffective regarding the terms of Movant's plea and sentence. The matter was referred to Magistrate Judge Bernardo P. Velasco who has issued a Report and Recommendation dated May 11, 2007 recommending that the § 2255 Motion be denied. (Criminal Dkt. 33). The Magistrate Judge found that Movant lawfully waived the right to seek post-conviction relief under the terms of his plea agreement. Movant has not filed an Objection or otherwise responded to the Report and Recommendation. Standard of Review The district court reviews de novo the portions of the Magistrate Judge's Report and Recommendation to which Movant has filed an objection. 28 U.S.C. § 636(b)(1)(C)("a judge of the court shall make a de novo determination of those portions of the report, ..., to which objection is made."); see also United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003). The district court is not required to review any issue that is not the subject of an objection. Schmidt v. Johnstone, 263 F. Supp. 2d 1219 (D. Ariz. 2003), citing Thomas v. Arn, 474 U.S. 140, 149 (1985). Discussion The Court adopts in full the Report and Recommendation of the Magistrate Judge and incorporates the same as a part of this Order. Accordingly, IT IS ORDERED that the Report and Recommendation of the Magistrate Judge (Criminal Dkt. 33) is adopted in full. IT IS FURTHER ORDERED that Movant's Motion to Vacate, Set Aside or Correct Sentence (Criminal Dkt. 25) is denied. DATED this 8th day of January, 2008.

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