Brito v. Upton

Filing 10

MEMORANDUM ORDER overruling objections and adopting the magistrate judge's 3 Report and Recommendation. Signed by Judge Thad Heartfield on 5/21/2012. (bjc)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
BEAUMONT DIVISION
PABLO SALINAS BRITO

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VS.

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JODY R. UPTON

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CIVIL ACTION NO. 1:11cv316

MEMORANDUM ORDER OVERRULING OBJECTIONS AND ADOPTING
THE MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION
Pablo Salinas Brito, an inmate confined within the Bureau of Prisons, proceeding
pro se, filed the above-styled petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241.
The court referred this matter to the Honorable Zack Hawthorn, United States Magistrate Judge,
at Beaumont, Texas, for consideration pursuant to applicable orders of this court. The
Magistrate Judge has submitted a Report and Recommendation of United States Magistrate
Judge concerning this matter. The Magistrate Judge recommends the petition be denied.
The court has received and considered the Report and Recommendation of United States
Magistrate Judge, along with the record and pleadings. Petitioner filed objections to the Report
and Recommendation.
The court has conducted a de novo review of the objections in relation to the pleadings
and the applicable law. After careful consideration, the court concludes the objections are
without merit. For the reasons set forth by the Magistrate Judge, the Supreme Court’s decision in
United States v. O’Brien, ___ U.S. ___, 130 S.Ct. 2169 (2010), does not provide petitioner with a
basis for relief in this proceeding. The Court’s decision in O’Brien, which held that the question
of whether a firearm is a machine gun is an element of the offense set forth in 18 U.S.C.
§ 924(c)(1)(B)(ii), did not decriminalize any of the conduct for which petitioner was convicted.
Day v. Tamez, 458 Fed.Appx. 343, 344 (5th Cir. 2012).
ORDER
Accordingly, petitioner’s objections are OVERRULED. The findings of fact and

conclusions of law of the Magistrate Judge are correct and the report of the Magistrate Judge is
ADOPTED. A final judgment shall be entered denying the petition.
SIGNED this the 21 day of May, 2012.

____________________________
Thad Heartfield
United States District Judge