ORDER ADOPTING REPORT AND RECOMMENDATION, GRANTING IN PART AND DENYING IN PART MOTION TO VACATE, VACATING PETITIONER'S SENTENCE, REFERRING MATTER TO MAGISTRATE JUDGE FOR APPOINTMENT OF COUNSEL, DIRECTING THE PROBATION DEPARTMENT TO AMEND THE PRE-SENTENCE INVESTIGATION REPORT AND SCHEDULING RE-SENTENCING HEARING

THOMAS L. LUDINGTON, District Judge.

On June 5, 2013, Petitioner Michael Anthony Gomez was charged with being a felon in possession of numerous firearms in violation of 18 U.S.C. §§ 922(g)(1) and 924(e). ECF No. 11. Gomez entered a guilty plea on August 29, 2013. He was then sentenced as an armed career offender to 200 months of imprisonment, three years of supervised release, and a special assessment fee of $100 on December 12, 2013. Judgment was entered that same day. See ECF No. 25.

Gomez filed a motion to vacate his sentence on October 13, 2015. ECF No. 26. Gomez argued that his status as an armed career offender under the Armed Career Criminal Act ("ACCA"), and therefore his sentence, necessarily depended on a conviction that fell under the ACCA residual clause, and that he was therefore entitled to relief under the United States Supreme Court's decision in United States v. Johnson, 135 S.Ct. 2551 (2015). He also argued that his former counsel had been ineffective. In its response, the United States agreed with Gomez's Johnson argument, but disputed all of his additional claims for relief. The United States therefore urged this Court to grant Gomez's motion in part, and resentence him without the ACCA enhancement. See ECF No. 31.

On March 23, 2016 Magistrate Judge Patricia T. Morris issued a report recommending that Gomez's motion be granted in part and denied in part. ECF No. 32. Judge Morris agreed that the Supreme Court's decision in Johnson required that Gomez be resentenced without the ACCA armed career offender enhancement. She rejected his claim of ineffective assistance of counsel.

Although Magistrate Judge Morris's report explicitly stated that the parties to this action could object to and seek review of the recommendation within fourteen days of service of the report, neither Petitioner nor Respondent have filed any objections. The election not to file objections to the Magistrate Judge's report releases the Court from its duty to independently review the record. Thomas v. Arn, 474 U.S. 140, 149 (1985). The failure to file objections to the report and recommendation waives any further right to appeal.

Accordingly, it is ORDERED that the magistrate judge's report and recommendation, ECF No. 32, is ADOPTED.

It is further ORDERED that Petitioner Gomez's motion to vacate, ECF No. 26, is GRANTED IN PART AND DENIED IN PART.

It is further ORDERED that Petitioner Gomez's sentence is VACATED.

It is further ORDERED that this matter is REFERRED to Magistrate Judge Patricia T. Morris for the purpose of appointing Defendant Gomez counsel pursuant to the Criminal Justice Act.

It is further ORDERED that the Probation Department is DIRECTED to amend Petitioner Gomez's presentence investigation report.

It is further ORDERED that Petitioner Gomez's re-sentencing hearing is SCHEDULED for July 28, 2016 at 3:30 PM.

It is further ORDERED that Petitioner Gomez shall remain in federal custody pending the resentencing hearing.