Acosta v. USA
REPORT AND RECOMMENDATION recommending 6 Motion to Vacate, Set Aside orCorrect Sentence Case Transferred In be denied and that a Certificate of Appealability and leave to proceed in forma pauperis on appeal be denied because Petitioner has not made a substantial showing of the denial of a constitutional right. Signed by Magistrate Judge David K Duncan on 3/12/18. (DXD) Modified text on 3/12/2018 (DXD).
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ARIZONA
No. CV-16-4587-PHX-GMS (DKD)
REPORT AND RECOMMENDATION
TO THE HONORABLE G. MURRAY SNOW, U.S. DISTRICT JUDGE:
In case 03-CR-00075, Andrew Acosta was sentenced under Section 4B1.2(b) of
the U.S. Sentencing Guidelines, a residual clause with similar wording to the Armed
Career Criminal Act. (Doc. 6 at 9-10, ¶¶ 11-16) The United States Court of Appeals for
the Ninth Circuit granted Andrew Acosta’s application for authorization to file a second
or successive 28 U.S.C. § 2255 motion because he made a prima facie showing for relief
under Johnson v. U.S, 135 S.Ct. 2551 (2015), held to be retroactive under Welch v. U.S.,
136 S.Ct. 1257 (2016). (Doc. 6 at 1) Subsequently, the U.S. Supreme Court concluded
in Beckles v. U.S., 137 S.Ct. 886 (2017), that Sentencing Guidelines are not subject to a
void for vagueness challenge under the Fifth Amendment Due Process clause. As a
result, Acosta’s Section 2255 motion cannot stand.
IT IS RECOMMENDED that Andrew Acosta’s Motion to Vacate, Set Aside or
Correct Sentence be denied. (Doc. 1)
IT IS FURTHER RECOMMENDED that a Certificate of Appealability and
leave to proceed in forma pauperis on appeal be denied because Petitioner has not made a
substantial showing of the denial of a constitutional right.
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), 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); Rules 72, 6(a), 6(b), Federal Rules of Civil Procedure. Thereafter,
the parties have fourteen days within which to file a response to the objections. Failure
timely to file 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 timely to file objections to any factual determinations of the Magistrate Judge will
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 Rule
72, Federal Rules of Civil Procedure.
Dated this 12th day of March, 2018.
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