Case 5:22-cv-01470-MWF-JDE Document 28 Filed 03/15/23 Page 1 of 2 Page ID #:323

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 EASTERN DIVISION 11 ERIK LINDSEY SMITH, ) Case No. 5:22-cv-01470-MWF-JDE ) 12 Petitioner, ) ) ORDER ACCEPTING REPORT 13 v. ) ) AND RECOMMENDATION OF 14 FILIPE MARTINEZ, Warden, ) UNITED STATES MAGISTRATE ) JUDGE ) 15 Respondent. ) ) 16

17 Pursuant to 28 U.S.C. § 636, the Petition for Writ of Habeas Corpus by a 18 Person in Federal Custody under 28 U.S.C. § 2241 (Dkt. 1 “Petition”) filed by 19 Erik Lindsey Smith (“Petitioner”), through counsel, the Motion to Dismiss the 20 Petition (Dkt. 11, “Motion”), and supporting exhibits filed by Respondent 21 Filipe Martinez (“Respondent”), the Opposition (Dkt. 16) to the Motion filed 22 by Petitioner, the Reply (Dkt. 17) filed by Respondent, the Order re Further 23 Briefing and Setting Oral Argument issued by the assigned magistrate judge 24 (Dkt. 18), the supplemental brief filed by Petitioner (Dkt. 21), the supplemental 25 brief filed by Respondent (Dkt. 22), and the Report and Recommendation of 26 the United States Magistrate Judge filed on February 22, 2023 (Dkt. 25, 27 “Report”). 28 se 5:22-cv-01470-MWF-JDE Document 28 Filed 03/15/23 Page 2of2 Page ID#:32

1 || No party filed a timely file any objection to the Report or timely sought 2 || additional time in which to do so. Nonetheless, this Court has reviewed the 3 Report de novo. The Court agrees with the Magistrate Judge’s analysis of 4 || “seriousness.” (Report at 10-18). Specifically, this Court is persuaded by the 5 ||reasoning in United States v. Caso, 723 F.3d 215, 223 (D.C. Cir. 2013), and the 6 ||reliance of the Ninth Circuit on the Sentencing Guidelines in United States v. 7 || Hernandez-Vasquez, 513 F.3d 908, 919 (9" Cir. 2008), albeit for different 8 ||purposes. This Court accordingly accepts the findings and recommendation of 9 ||the Magistrate Judge. 10 || IT IS THEREFORE ORDERED as follows: 11 ||(1) Respondent’s Motion to Dismiss (Dkt. 11) is DENIED; 12 ||(2) the Petition (Dkt. 1) is GRANTED; and 13 ||(3) Judgment shall be entered conditionally granting a writ of habeas corpus 14 |/and ordering Respondent to release Petitioner on the 30th day after judgment 15 ||is entered, subject to the filing of any further charges and proceedings in the 16 Southern District of Florida before that date. Zz

18 || Dated: March 15, 2023 19 MICHAEL W. FITZGE United States District Judge 20 21 22 23 24 25 26 27 28