Villarreal v. USA

Filing 58

ORDER Adopting and Affirming 53 Report and Recommendations: 35 Motion for Stay Pending Appeal is denied, by Judge Christine M. Arguello on 11/19/12.(dkals, )

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Judge Christine M. Arguello Civil Action No. 11-cv-01000-CMA-CBS SALOMON JUAN MARCOS VILLARREAL, Petitioner, v. UNITED STATES, Respondent. ORDER ADOPTING AND AFFIRMING AUGUST 14, 2012 RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE This case was referred to United States Magistrate Judge Craig B. Shaffer pursuant to 28 U.S.C. § 636 and Fed. R. Civ. P. 72. (Doc. # 4.) On November 28, 2011, Judge Shaffer issued a Recommendation (Doc. # 29) advising the Court to grant the Government’s July 22, 2011 “Motion for Summary Judgment with Respect to Petition to Quash a Summons Served on American National Bank and Motion for Enforcement of IRS Summons” (Doc. # 13). The Court agreed with Judge Shaffer and, on March 23, 2012, entered a written order adopting and affirming the Recommendation and, thereby, granting the Government’s summary judgment motion. (Doc. # 33.) Thereafter, Petitioner filed a notice of appeal (Doc. # 36) and also moved to stay the operation of the Court’s judgment, and the enforcement of the IRS summons, pending the outcome of the appeal (Doc. # 35). On May 22, 2012, after the motion was fully briefed,1 Judge Shaffer held a non-evidentiary hearing to address it. (See Doc. ## 47 and 54.) On August 14, 2012, Judge Shaffer convened a telephonic status conference with the parties and read his Recommendation into the record. (See Doc. ## 52; 53; and 55.) Petitioner timely filed objections to the August 14, 2012 Recommendation (Doc. # 56), to which the Government responded (Doc. # 57). When a magistrate judge issues a recommendation on a dispositive matter,2 Fed. R. Civ. P. 72(b)(3) requires that the district judge “determine de novo any part of the magistrate judge=s [recommended] disposition that has been properly objected to.” In conducting its review, “[t]he district judge may accept, reject, or modify the recommended disposition; receive further evidence; or return the matter to the magistrate judge with instructions.” Id. Accordingly, the Court has conducted a de novo review of this matter, including carefully reviewing the record, especially the briefing related to Petitioner’s motion to stay, the August 14, 2012 Recommendation, Petitioner=s objections to the Recommendation, and the Government’s response thereto. Based on this de novo review, the Court concludes that Judge Shaffer’s recommendation is correct and is not called into question by Petitioner’s objections – 1 The Government filed a response on April 27, 2012 (Doc. # 42), to which Petitioner replied on May 11, 2012 (Doc. # 46). 2 Judge Shaffer treated as dispositive Petitioner’s motion to stay. (See Doc. # 55 at 5.) The parties did not object to Judge Shaffer proceeding via Recommendation to this Court. As such, and in accordance with the standards set forth in the text, above, the Court has reviewed this matter de novo. 2 which merely rehash arguments raised in the briefing and with Judge Shaffer during the May 22, 2012 hearing. Accordingly, it is hereby ORDERED that Petitioner’s objections (Doc. # 56) are OVERRULED. It is FURTHER ORDERED that the Recommendation of United States Magistrate Judge Craig B. Shaffer (Doc. # 53) is AFFIRMED and ADOPTED as an Order of this Court. Pursuant to the Recommendation, it is FURTHER ORDERED that “Petitioner’s Motion for Stay Pending Appeal” (Doc. # 35) is DENIED.3 DATED: November 19th , 2012 BY THE COURT: _______________________________ CHRISTINE M. ARGUELLO United States District Judge 3 Such denial includes Petitioner’s request, raised for the first time in his “Reply in Further Support for Motion for Stay Pending Appeal,” that the Court “enter a stay sufficient to maintain the status quo while Petitioner seeks a stay pending appeal from the appellate court.” (Doc. # 46 at 9.) 3

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