Beaver v. USA

Filing 8

ORDER: The Court has before it Plaintiff's Motion to Vacate under §2255 (Doc. 1 ), the government's Response (Doc. 4 ), Plaintiff's Reply (Doc. 5 ), the Report and Recommendation (Doc. 6 ), and Plaintiff's Objections (D oc. 7 ), to which no response has been filed. We have reviewed de novo the objections and the R&R under Rule 72 (b)(3), Fed. R. Civ. P. We accept the recommended disposition (Doc. 6 ). Accordingly, it is ORDERED DENYING plaintiff's Motion to Vacate under 28 U.S.C. §2255 (Doc. 1 ). It is further ORDERED DENYING a Certificate of Appealability under Rule 11, Rules Governing Section 2255 Proceedings, for the reason that plaintiff has not made a substantial showing of the denial of a constitutional right under 28 U.S.C. §2253(c). Signed by Senior Judge Frederick J Martone on 1/17/2017. (REK)

1

WO

2
3
4
5
6

IN THE UNITED STATES DISTRICT COURT

7

FOR THE DISTRICT OF ARIZONA

8
9

Jeremy Wayne Beaver,
Plaintiff,

10
11

vs.

12
United States of America,
13
Defendant.
14

)
)
)
)
)
)
)
)
)
)
)
)

No. CV 16-01605-PHX-FJM
CR 10-00324-PHX-FJM
ORDER

15
16

The Court has before it Plaintiff’s Motion to Vacate under §2255 (Doc. 1), the

17

government’s Response (Doc. 4), Plaintiff’s Reply (Doc. 5), the Report and

18

Recommendation (Doc. 6), and Plaintiff’s Objections (Doc. 7), to which no response has

19

been filed.

20

Plaintiff argues that his bank robbery conviction is not a crime of violence. The

21

magistrate judge concludes that it is, as has the Ninth Circuit in an unpublished

22

Memorandum Decision. We agree with the magistrate judge and the panel. We note also

23

that the United States Sentencing Commission recently (August 1, 2016) amended its

24

Guidelines to list “robbery” as an enumerated offense for purposes of defining a crime of

25

violence. USSG §4B1.2. This certainly comports with one’s understanding of the difference

26

between robbery and other theft offenses.

27
28

We have reviewed de novo the objections and the R&R under Rule 72(b)(3), Fed. R. Civ.
P. We accept the recommended disposition (Doc. 6).

1
2

Accordingly, it is ORDERED DENYING plaintiff’s Motion to Vacate under 28 U.S.C.
§2255 (Doc. 1).

3

It is further ORDERED DENYING a Certificate of Appealability under Rule 11, Rules

4

Governing Section 2255 Proceedings, for the reason that plaintiff has not made a substantial

5

showing of the denial of a constitutional right under 28 U.S.C. §2253(c).

6
7

DATED this 17th day of January, 2017.

8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
-2-