ORDER SUSTAINING OBJECTION, REJECTING REPORT AND RECOMMENDATION, AND REFERRING MATTER TO MAGISTRATE JUDGE FOR FURTHER CONSIDERATION

THOMAS L. LUDINGTON, District Judge.

On October 21, 2013, Petitioner Anthony Tyrone Snow pled guilty to Count 1 of the Information charging him with distribution of crack cocaine in violation of 21 U.S.C. § 841(a)(1). See ECF No. 14. On March 25, 2014, judgment was entered and Petitioner was sentenced as a career offender to 140 months' incarceration. See ECF No. 23. Petitioner did not file any appeal.

On April 25, 2015 Petitioner filed a motion to vacate his sentence under 28, U.S.C. § 2255, arguing that his sentence was rendered unconstitutional by the Supreme Court's decision in Johnson v. United States and its progeny. See Johnson v. United States 135 S.Ct. 2551 (2015) (striking down the residual clause of the Armed Career Criminal Act as unconstitutionally vague). That motion was referred to Magistrate Judge Patricia T. Morris for report and recommendation. See ECF No. 29.

On November 2, 2016, before a decision was reached on Petitioner Snow's first § 2255, Snow filed a second § 2255 arguing that his controlled substance offenses were not qualifying predicate offenses within the meaning of the Career Offender Guidelines in light of the Supreme Court's decision in Mathis v. United States, 136 S.Ct. 2243 (2016) (holding that, in determining whether a prior state court conviction counts toward a federal sentence enhancement, courts must apply the categorical approach — not the modified categorical approach — where a criminal statute establishes various means for satisfying a single element). Petitioner's motion was construed as a motion to supplement his pending § 2255 and referred to the magistrate judge. See ECF No. 43. The magistrate judge then granted Petitioner's motion to supplement. See ECF No. 44.

On November 17, 2016 the magistrate judge issued a report and recommendation finding Johnson and its progeny inapplicable to Petitioner Snow. See ECF No. 45. The report did not address Petitioner's arguments under Mathis. Petitioner Snow timely filed an objection on November 29, 2016 arguing that the magistrate judge erred in failing to address his supplementary arguments under Mathis. See ECF No. 46. Because Snow is correct, his objection will be sustained and the report and recommendation rejected.

Accordingly, it is ORDERED that Defendant Snow's objection, ECF No. 46, is SUSTAINED.

It is further ORDERED that the report and recommendation, ECF No. 45, is REJECTED.

It is further ORDERED that the matter is REFFERRED to Magistrate Judge Morris for reconsideration of Petitioner Snow's motion to vacate under 28 U.S.C. § 2255 in light of the arguments raised in his supplement, ECF Nos. 26, 41.