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`IN THE UNITED STATES DISTRICT COURT
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`FOR THE EASTERN DISTRICT OF TEXAS
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`TYLER DIVISION
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`VIVIAN YUSUF
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` §
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`v.
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`UNITED STATES OF AMERICA
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` § CIVIL ACTION NO. 6:15cv562
` Crim. No. 6:11cr28(1)
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` §
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`MEMORANDUM ADOPTING REPORT AND RECOMMENDATION
`OF THE UNITED STATES MAGISTRATE JUDGE
`AND ENTERING FINAL JUDGMENT
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`Movant Vivian Yusuf filed this motion to vacate or correct her sentence under 28 U.S.C.
`§2255, complaining of the validity of his conviction. This Court ordered that the matter be referred
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`to the United States Magistrate Judge pursuant to 28 U.S.C. §636(b)(1) and (3) and the Amended
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`Order for the Adoption of Local Rules for the Assignment of Duties to United States Magistrate
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`Judges.
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`Yusuf pleaded guilty to health care fraud and conspiracy to commit health care fraud,
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`receiving a sentence of 87 months in prison, three years of supervised release, a $100 special
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`assessment, and restitution in the amount of $1,629,368.00. She filed a motion to vacate or correct
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`sentence arguing that she received ineffective assistance of counsel in that her attorney did not object
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`to a sentencing enhancement of 250 or more victims. This enhancement raised her sentencing range
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`from 46 to 57 months to a range of 87 to 108 months.
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`In response, the Government filed a motion for re-sentencing, acknowledging that the
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`relevant amendment to the U.S. Sentencing Guidelines was improperly applied to Yusuf. The
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`Government asks that she be re-sentenced without application of the enhancement.
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`The magistrate judge issued a report recommending that Yusuf’s motion to vacate or correct
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`sentence be granted and that she be re-resentenced without application of the amendment to the
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`1
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`Case 6:15-cv-00562-MHS-JDL Document 10 Filed 02/05/16 Page 2 of 2 PageID #: 21
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`Sentencing Guidelines. No objections have been filed to the report; the parties are barred from de
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`novo review by the district judge of those findings, conclusions, and recommendations and, except
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`upon grounds of plain error, from appellate review of the unobjected-to factual findings and legal
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`conclusions accepted and adopted by the district court. Douglass v. United Services Automobile
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`Association, 79 F.3d 1415, 1430 (5th Cir. 1996) (en banc).
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`The Court has examined the pleadings in this cause and the report of the magistrate judge and
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`has concluded that this report is correct. See United States v. Wilson, 864 F.2d 1219, 1221 (5th
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`Cir.), cert. denied, 492 U.S. 918, 109 S.Ct. 3243 (1989) (where no objections to a magistrate judge’s
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`report are filed, the standard of review is “clearly erroneous, abuse of discretion and contrary to
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`law.”). It is accordingly
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`ORDERED that the report of the magistrate judge (docket no. 8) is ADOPTED as the
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`opinion of the District Court. It is further
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`ORDERED that the Movant’s motion to vacate or correct sentence, and the Government’s
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`motion for re-sentencing, are GRANTED. The Court shall re-sentence Yusuf under the proper
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`guidelines at the earliest available opportunity. A sentencing hearing will be set by separate order.
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`The granting of the Movant’s motion to vacate sentence is based upon the finding that she was
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`improperly sentenced under an amendment which did not apply to her; the Court does not find that
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`counsel rendered ineffective assistance.
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`2
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`____________________________________
`MICHAEL H. SCHNEIDER
`UNITED STATES DISTRICT JUDGE
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`SIGNED this 4th day of February, 2016.