United States District Court, S.D. California
ORDER GRANTING DEFENDANT'S MOTION TO VACATE, SET
ASIDE, OR CORRECT SENTENCE UNDER 28 U.S.C. §
Janis L. Sammartino, United States District Judge.
before the Court is Defendant Phillip McMillen's Motion
to Vacate, Set Aside, or Correct Sentence under 28 U.S.C.
§ 2255 (ECF No. 532). The Government has filed a
response and opposition to Defendant's motion and
Defendant has filed a reply, supplemental briefing, and a
supplemental notice. Having considered these submissions, the
applicable legal authority, and the record in this case, the
Court will grant Defendant's motion.
August 31, 2010, Defendant pled guilty, pursuant to a plea
agreement, to two counts of a superseding information. Count
1 of the superseding information charged a conspiracy to
conduct enterprise affairs through a pattern of racketeering
activity in violation of 18 U.S.C. § 1962(d); Count 2
charged Defendant with use and carrying of a firearm during
and in relation to a drug trafficking crime and a crime of
violence in violation of 18 U.S.C. § 924(c)(1)(A)(i).
(ECF No. 270.)
plea agreement set forth the elements of the Count 1 offense,
the RICO conspiracy, as:
1. The defendant was employed by or associated with an
enterprise, that is, a group of individuals associated in
fact, as defined within the meaning of Title 18, United
States Code, Section 1961(4);
2. The enterprise engaged in or its activities in some way
affected interstate commerce between one state and another
state, or between a state o[f] the United States and a
foreign country; [and]
3. The defendant knowingly agreed with at least one other
person to conduct or participate in the conduct of the
enterprise's affairs through a pattern of racketeering
activity, as that term is defined in Title 18, United States
Code, Sections 1961(1) and (5). That is, the defendant agreed
to participate in the enterprise with the knowledge and
intent that a least one member of the RICO conspiracy (which
could be the defendant himself) would commit at least two
racketeering acts described above in Section I of this
Agreement, ECF No. 275 at 2-3.
elements of Count 2, set forth under the heading "Use of
Firearm During and in Relation to a Crime of Violence, "
were: "1) the defendant committed a crime of violence or
a drug trafficking crime (as alleged in Count 1 of the
superseding information, the RICO conspiracy); and 2) the
defendant knowingly used a firearm during and in relation to
one of those crimes." Id. at 3. Regarding the
factual basis for the Count 2 offense, the Plea Agreement set
forth the following:
Among the acts that defendant committed as evidence of the
a. On August 30, 2008, in San Diego, McMillen, along with
other coconspirators, went to a residence in Coronado to
collect a drug debt. The conspirators, including McMillen,
entered the home and unlawfully restrained the occupants.
Several of the conspirators brandished firearms to prevent
the occupants from fleeing. Conspirators threatened the
occupants of the home with injury or death if they did not
pay $54, 000. McMillen searched the house for valuables while
others guarded the occupants downstairs. McMillen and his
co-conspirators, through intimidation and threats of
violence, prevented the occupants from fleeing or contacting
law enforcement. Eventually, McMillen and his co-conspirators
left the residence. When they left, they unlawfully took (1)
two Dodge trucks, (2) a Land Rover, (3) a Mercedes Benz, (4)
approximately $2, 000 in cash, (5) two laptop computers, (6)
several Movado watches and (7) miscellaneous jewelry. All of
these items were taken without permission by force or threats
or force. Just prior to leaving, McMillen came back into the
house and told the occupants not to call the police or they
would come back.
b. When McMillen left the house, his co-conspirators forced
an individual to leave the residence.
c. McMillen knowingly used a firearm during the commission of
the above-described offense. He knowingly carried a firearm
into the ...