United States v. Joe Gambill , 492 F. App'x 427 ( 2012 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 11-4049
UNITED STATES OF AMERICA,
Plaintiff – Appellant,
v.
JOE JACKSON GAMBILL,
Defendant - Appellee.
Appeal from the United States District Court for the Western
District of Virginia, at Abingdon. James P. Jones, District
Judge. (1:10-cr-00013-jpj-pms-1)
Submitted: January 10, 2012 Decided: August 17, 2012
Before TRAXLER, Chief Judge, and MOTZ and SHEDD, Circuit Judges.
Vacated and remanded by unpublished per curiam opinion.
Timothy J. Heaphy, United States Attorney, Ashley B. Neese,
Assistant United States Attorney, OFFICE OF THE UNITED STATES
ATTORNEY, Roanoke, Virginia, for Appellant. Larry W. Shelton,
Federal Public Defender, Roanoke, Virginia; Nancy C. Dickenson,
Assistant Federal Public Defender, OFFICE OF THE FEDERAL PUBLIC
DEFENDER, Abingdon, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Joe Jackson Gambill was convicted of unlawful possession of
a firearm, see 18 U.S.C. § 922(g)(1), and sentenced to 78
months’ imprisonment. The government appeals, challenging the
district court’s determination that Gambill lacked the predicate
convictions necessary for sentencing under the Armed Career
Criminal Act (“ACCA”), 18 U.S.C. § 924(e). We vacate and remand
for resentencing.
Under the ACCA, a defendant who violates § 922(g) after
sustaining three prior convictions for violent felonies or
serious drug offenses faces a mandatory sentence of at least 15
years’ imprisonment. See 18 U.S.C. § 924(e)(1). A “violent
felony” is a crime punishable by more than one year imprisonment
that “has as an element the use, attempted use, or threatened
use of physical force against” another person, id. §
924(e)(2)(B)(i); or “is burglary, arson, or extortion, involves
use of explosives, or otherwise involves conduct that presents a
serious potential risk of physical injury to another,” id. §
924(e)(2)(B)(ii). Gambill concedes that two of his prior
convictions are qualifying convictions under the ACCA. At issue
in this case is whether Gambill’s 1993 Virginia conviction for
breaking and entering counts as a conviction for burglary under
§ 924(e)(2)(B)(ii), a legal question we consider de novo. See
United States v. Foster, 662 F.3d 291, 293 (4th Cir. 2011).
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For purposes of the ACCA, “a person has been convicted of
burglary . . . if he is convicted of any crime, regardless of
its exact definition or label, having the basic elements of
unlawful or unprivileged entry into, or remaining in, a building
or structure, with intent to commit a crime.” Taylor v. United
States, 495 U.S. 575, 599 (1990). Whether a conviction is
violent felony under the ACCA is a determination generally made
categorically, “look[ing] only to the fact that the defendant
had been convicted of crimes falling within certain categories,
and not to the facts underlying the prior convictions.” Id. at
600. In this case, however, because the Virginia statute
defines burglary to include offenses that do not amount to
generic burglary, we employ the modified categorical approach,
which permits us to consult certain documents, including the
underlying indictment, to determine whether the defendant was
charged with a generic burglary. See Shepard v. United States,
544 U.S. 13, 16 (2005); Taylor, 495 U.S. at 602.
The indictment alleges that Gambill “did feloniously and
unlawfully break and enter Kools Restaurant, with the intent to
commit larceny.” J.A. 41. The district court concluded that
restaurants were not necessarily located in permanent structures
and that the indictment therefore did not establish that Gambill
was convicted of a generic burglary. On appeal, the government
contends the allegation that Gambill broke into a restaurant
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necessarily establishes that the crime involved a building or
structure, as required by Taylor. We agree.
We addressed this precise issue in Foster, supra, a case
decided after the district court’s ruling in this case. The
defendant in Foster had prior breaking-and-entering convictions
under the same Virginia statute at issue here. As in this case,
the indictments in Foster alleged the name of the businesses
involved -- the Corner Market and the Sunrise-Sunset Restaurant
-- but did not explicitly allege that the defendant unlawfully
entered a building or structure. See Foster, 662 F.3d at 292.
This court concluded that, in light of certain intricacies of
the Virginia burglary statute and the Virginia courts’
interpretation of the statute, the references to a market and a
restaurant were sufficient to establish that the prior
convictions were for generic burglaries. See id. at 296 (“[W]e
find that the indictments’ references to the ‘Sunrise–Sunset
Restaurant’ and the ‘Corner Market,’ in the context of the
applicable Virginia statute, ensure that Foster entered
buildings or structures and was thus convicted of generic
burglary for purposes of the ACCA.”).
The case before us is materially indistinguishable from
Foster. And under Foster, the indictment alleging the unlawful
breaking and entering of “Kools Restaurant” is sufficient to
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establish that Gambill was convicted of a generic burglary that
qualifies as a predicate offense under the ACCA.
Accordingly, we hereby vacate Gambill’s sentence and remand
this case to the district court for resentencing. We dispense
with oral argument because the facts and legal contentions are
adequately presented in the materials before the court and
argument will not aid the decisional process.
VACATED AND REMANDED
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