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 Mauricio Mendez's Motion to
Vacate, Set Aside, or Correct Sentence under 28 U.S.C. §
2255 (ECF No. 526). 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
September 10, 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 brandishing 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)(ii). (ECF No.
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 by 18 U.S.C. § 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 of the United States and a foreign
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
Plea Agreement, ECF No. 292 at 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; and 2) the defendant knowingly
brandished a firearm during and in relation to one of those
crimes." Id. Regarding the factual basis for
the Count 2 offense, the Plea Agreement set forth the
the acts that defendant committed as evidence of the
a. On August 30, 2008, in San Diego, Mendez, along with other
coconspirators, went to a residence in Coronado to collect a
drug debt. The conspirators, including Mendez, entered the
home and unlawfully restrained the occupants. Mendez
brandished a firearm to prevent the occupants from fleeing.
Mendez threatened the occupants of the home with injury or
death if they did not pay $54, 000. Mendez searched the house
for valuables while others guarded the occupants downstairs.
Mendez and his co-conspirators, through intimidation and
threats of violence, prevented the occupants from fleeing or
contacting law enforcement. Eventually, Mendez 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.
b. Mendez forced an individual to leave the residence.
c. Mendez knowingly brandished a firearm during the
commission of the ...