Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Gordillo Portocarrero v. United States

United States District Court, E.D. Virginia, Alexandria Division

January 11, 2019

JOSE ENRIQUE GORDILLO PORTOCARRERO, Movant,
v.
UNITED STATES OF AMERICA, Respondent.

          MEMORANDUM OPINION

          Leonie M. Brinkema, Judge

         Before the Court is Jose Enrique Gordillo Portocarrero's ("movant" or "Gordillo") Motion to Vacate Under 28 U.S.C. § 2255 [Dkt. No. 35] ("Motion to Vacate") and the Government's Motion to Dismiss Defendant's Petition Under 28 U.S.C. § 2255 [Dkt. No. 47] ("Gov't Mot."). For the reasons that follow, the Government's Motion will be GRANTED, and Gordillo's Motion to Vacate will be DISMISSED.

         I. BACKGROUND

         A. Factual Background

         On March 9, 2010, Gordillo waived indictment [Dkt. No. 13] and pleaded guilty to a two-count criminal information [Dkt. No. 14] charging him in Count 1 with aiding and abetting attempted murder in aid of racketeering in violation of Virginia Code §§ 18.2-26 and 18.2-32 and 18 U.S.C. §§ 1959(a)(5) and 2 and in Count 2 with aiding and abetting the discharge of a firearm during or in relation to a crime of violence in violation of 18 U.S.C. §§ 924(c)(1)(A)(iii) and 2. The aiding and abetting attempted murder charged in Count 1 was the predicate crime of violence for Count 2.

         During the time of the charged offenses, Gordillo was a member of the Western Locos Salvatrucha ("WLS"), a subgroup of the Mara Salvatrucha Thirteen ("MS-13") gang that operated within the Eastern District of Virginia. Dkt. No. 17 ¶ 3. In the Statement of Facts, which was part of his Plea Agreement, Gordillo admitted that:

In the evening hours on September 13, 2008, Gordillo drove to Sugarland Park, which is located in Sterling, Virginia, within the Eastern District of Virginia. At Sugarland Park, he picked up fellow MS-13 member Edgar Behitez Hernandez, a, k.a. "Shadow," a.k.a. "Clavo" and a MS-13 associate, K.C., a, k.a, "Sonic." Gordillo drove Benitez and K.C. to the Sterling Park area of Loudoun County, Virginia. Upon Benitez's entry into the vehicle, Gordillo observed the outline of what Gordillo believed was a firearm bulging out of Benitez's waistband.
As the three individuals drove through Sterling Park, one of the passengers informed Gordillo that an 18th Street gang member was visible from the car. The 18th Street gang is a rival of MS-13 and members of MS-13 refer to rival gang members as "chavalas." Gordillo drove around the corner from where the rival gang member was first spotted.
After parking his vehicle, Gordillo observed that K.C. had Gordillo's baseball bat. Gordillo and Benitez arranged that after Benitez and K.C. attacked the suspected rival gang member or members, they would return to where Gordillo was parked and get into his waiting vehicle. Gordillo observed Benitez and K.C. walk towards where the rival was last spotted. Gordillo then drove away from Benitez and K.C. Gordillo drove on or near Sterling Boulevard and as he drove he heard approximately two to three gun shots. After hearing the gun shots, Gordillo observed two police vehicles, with their emergency lights activated, responding towards the area where he had dropped off K.C. and Benitez. Gordillo received a phone call from Benitez explaining where to pick him up.
Gordillo picked up Benitez and observed Benitez putting the pistol back into his pants. At some point later in the evening, Gordillo drove Benitez to a highway overpass where Benitez threw the spent ammunition casings out of the window. Finally, Gordillo drove Benitez to a shed behind a house in Maryland in an attempt to get rid of the firearm used in the shooting. The individual who was to take custody of the firearm never met Gordillo and Benitez. Gordillo drove Benitez, who still had the firearm, back to Virginia.
The suspected rival gang member, W.R., and a pregnant female, J.V., were in fact wounded in the shooting that Gordillo drove Benitez and K.C. to commit on September 13, 2008.

Id. ¶¶ 5-9. On June 18, 2010, the Court sentenced Gordillo to 148 months of imprisonment- consisting of 28 months for Count 1 followed by 120 months for Count 2 with credit for time served-and a five-year term of supervised release, among other penalties. Dkt. No. 23. Gordillo did not appeal either his conviction or sentence. On June 25, 2016, Gordillo filed his Motion to Vacate, in which he argues that the predicate offense of aiding and abetting attempted murder does not qualify as a "crime of violence" under the § 924(c)(3)(A) "force clause" and no longer qualifies under the § 924(c)(3)(B) "residual clause" because the residual clause is void for vagueness under Johnson v. United States, 135 S.Ct. 2551 (2015). Motion to Vacate 1-2. The Court stayed the motion pending the Supreme Court's decision in Sessions v. Dimaya, 138 S.Ct. 1204 (2018). Dkt. No. 40. On April 17, 2018, the Supreme Court issued its decision in Dimava and, on April 19, 2018, the Court lifted the stay of the Motion to Vacate and set a briefing schedule. Dkt. No. 43. The Motion to Vacate has now been fully briefed, and the Court finds that oral argument would not aid the decisional process.

         B. Legal Background

         Under 18 U.S.C. § 924(c):

Except to the extent that a greater minimum sentence is otherwise provided by this subsection or by any other provision of law, any person who, during and in relation to any crime of violence or drug trafficking crime (including a crime of violence or drug trafficking crime that provides for an enhanced punishment if committed by the use of a deadly or dangerous weapon or device) for which the person may be prosecuted in a court of the United States, uses or carries a firearm, or who, in furtherance of any such crime, possesses a firearm, shall, in addition to the punishment provided for such crime of violence or drug trafficking crime- (i) be sentenced to a term of imprisonment of not less than 5 years; (ii) if the firearm is brandished, be sentenced to a term of imprisonment of not less than 7 years; and (iii) if the firearm is discharged, be sentenced to a term of imprisonment of not less than 10 years.

Id. § 924(c)(1)(A). Section 924(c) also provides a definition of the term "crime of violence" for purposes of that section:

[T]he term "crime of violence" means an offense that is a felony and-
(A) has as an element the use, attempted use, or threatened use of physical force against the person or property of another, or
(B) that by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.

Id. ยง 924(c)(3). The two prongs of this definition are commonly referred to as the "force clause" and the "residual clause," respectively. Nearly identical definitions of a "crime of violence" have appeared in other sections of the United States Code. For example, 18 ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.