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Kemp v. U.S., 6:16-cv-1129-Orl-37GJK (2016)

Court: District Court, M.D. Florida Number: infdco20160809e49 Visitors: 6
Filed: Aug. 08, 2016
Latest Update: Aug. 08, 2016
Summary: ORDER ROY B. DALTON, Jr. , District Judge . This cause is before the Court on the Joint Stipulation Regarding Section 2255 Motion ("Joint Stipulation," Doc. 11) filed by the parties on August 2, 2016. Petitioner initiated this case by filing a Motion to Vacate, Set Aside, or Correct Sentence ("Motion to Vacate," Doc. 1), and the Court subsequently stayed this case pending a ruling from the Eleventh Circuit Court of Appeals on Petitioner's Application for Leave to File Second or Successive
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ORDER

This cause is before the Court on the Joint Stipulation Regarding Section 2255 Motion ("Joint Stipulation," Doc. 11) filed by the parties on August 2, 2016. Petitioner initiated this case by filing a Motion to Vacate, Set Aside, or Correct Sentence ("Motion to Vacate," Doc. 1), and the Court subsequently stayed this case pending a ruling from the Eleventh Circuit Court of Appeals on Petitioner's Application for Leave to File Second or Successive Section 2255 Motion ("Application for Leave"). (Doc. 4). On July 27, 2016, the Eleventh Circuit Court of Appeals granted Petitioner's Application for Leave. (Doc. 10-1).

The parties agree that the Motion to Vacate should be granted, that the Judgment (Criminal Case Doc. 35) entered in Petitioner's criminal case (6:98-cr-150-Orl-37GJK) should be vacated, and that Petitioner should be resentenced without the Armed Career Criminal Act ("ACCA") enhancement. As a result of the Joint Stipulation, the Court finds that Petitioner is entitled to relief.

Accordingly, it is ORDERED and ADJUDGED as follows:

1. The Clerk of the Court is directed to reopen this case.

2. The Motion to Vacate, Set Aside, or Correct Sentence (Doc. 1) is GRANTED.

3. The Judgement (Criminal Case Doc. 35) in criminal case 6:98-cr-150-Orl-37GJK is VACATED.

4. The United States Probation Office is DIRECTED to prepare an updated Presentence Investigation Report, copies of which shall also be provided to counsel of record. Upon receiving that report, the Court will promptly schedule a resentencing hearing.

5. The Clerk of the Court is directed to close this case and to enter judgment accordingly. A copy of this Order shall also be filed in criminal case number 6:98-cr-150-Orl-37GJK, with a notation that the criminal Judgment has been vacated.

6. The Clerk of the Court is directed to terminate the Motion to Vacate (Criminal Case Doc. 72) filed in criminal case number 6:98-cr-150-Orl-37GJK.

DONE and ORDERED.

Source:  Leagle

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