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United States v. McMillen

United States District Court, S.D. California

September 23, 2019

UNITED STATES OF AMERICA, Plaintiff,
v.
PHILLIP MCMILLEN (3), Defendant.

          ORDER GRANTING DEFENDANT'S MOTION TO VACATE, SET ASIDE, OR CORRECT SENTENCE UNDER 28 U.S.C. § 2255

          Hon. Janis L. Sammartino, United States District Judge.

         Presently 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.

         BACKGROUND

         On 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.)

         The 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.

         Plea Agreement, ECF No. 275 at 2-3.

         The 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 conspiracy..., were:
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 ...

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