Acosta v. USA

Filing 18

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).

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Andrew Acosta,

No. CV-16-4587-PHX-GMS (DKD)

Petitioner,

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v.

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USA,

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REPORT AND RECOMMENDATION

Respondent.

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TO THE HONORABLE G. MURRAY SNOW, U.S. DISTRICT JUDGE:

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In case 03-CR-00075, Andrew Acosta was sentenced under Section 4B1.2(b) of

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the U.S. Sentencing Guidelines, a residual clause with similar wording to the Armed

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Career Criminal Act. (Doc. 6 at 9-10, ¶¶ 11-16) The United States Court of Appeals for

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the Ninth Circuit granted Andrew Acosta’s application for authorization to file a second

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or successive 28 U.S.C. § 2255 motion because he made a prima facie showing for relief

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under Johnson v. U.S, 135 S.Ct. 2551 (2015), held to be retroactive under Welch v. U.S.,

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136 S.Ct. 1257 (2016). (Doc. 6 at 1) Subsequently, the U.S. Supreme Court concluded

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in Beckles v. U.S., 137 S.Ct. 886 (2017), that Sentencing Guidelines are not subject to a

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void for vagueness challenge under the Fifth Amendment Due Process clause. As a

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result, Acosta’s Section 2255 motion cannot stand.

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IT IS RECOMMENDED that Andrew Acosta’s Motion to Vacate, Set Aside or
Correct Sentence be denied. (Doc. 1)

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IT IS FURTHER RECOMMENDED that a Certificate of Appealability and

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leave to proceed in forma pauperis on appeal be denied because Petitioner has not made a

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substantial showing of the denial of a constitutional right.

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This recommendation is not an order that is immediately appealable to the Ninth

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Circuit Court of Appeals. Any notice of appeal pursuant to Rule 4(a)(1), Federal Rules

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of Appellate Procedure, should not be filed until entry of the district court’s judgment.

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The parties shall have fourteen days from the date of service of a copy of this

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recommendation within which to file specific written objections with the Court. See, 28

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U.S.C. § 636(b)(1); Rules 72, 6(a), 6(b), Federal Rules of Civil Procedure. Thereafter,

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the parties have fourteen days within which to file a response to the objections. Failure

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timely to file objections to the Magistrate Judge’s Report and Recommendation may

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result in the acceptance of the Report and Recommendation by the district court without

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further review. See United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir.2003).

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Failure timely to file objections to any factual determinations of the Magistrate Judge will

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be considered a waiver of a party’s right to appellate review of the findings of fact in an

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order or judgment entered pursuant to the Magistrate Judge's recommendation. See Rule

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72, Federal Rules of Civil Procedure.

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Dated this 12th day of March, 2018.

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