United States District Court, E.D. Virginia, Alexandria Division
M. Brinkema, Judge
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.
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.
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.
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
(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. § 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 ...