United States District Court, W.D. Virginia, Roanoke Division
Michael F. Urbanski United States District Judge
court previously granted Petitioner Peter Gabourel's
uncontested motion to vacate, set aside, or correct his
sentence pursuant to 28 U.S.C. § 2255 and Johnson v.
United States. 135 S.Ct. 2551 (2015). ECF No. 30. After
concluding that Gabourel no longer qualified as an armed
career criminal under the Armed Career Criminal Act
("ACCA"), the court granted Gabourel's motion
for issuance of amended judgment without a hearing and
resentenced him to 120 months imprisonment. ECF No. 47. As
promised, this memorandum opinion provides greater detail as
to the court's reasoning.
pled guilty on July 9, 2003 to one count of possession of a
firearm by a convicted felon in violation of 18 U.S.C. §
922(g). Pursuant to 18 U.S.C. § 924(e), the sentencing
judge found that Gabourel qualified as an armed career
criminal because he had previously been convicted of two
serious controlled substance offenses and one prior offense
for shooting into an inhabited dwelling in violation of Cal.
Penal Code § 246. These three predicate offenses
provided a mandatory minimum sentence of 180 months, rather
the 120 month maximum sentence authorized under 18 U.S.C.
§ 924(a)(2). The sentencing judge ultimately imposed a
sentence of 180 months and remanded Gabourel into the custody
of the Bureau of Prisons. ECF No. 16.
April 6, 2016, Gabourel filed an emergency motion for relief
pursuant to 28 U.S.C. § 2255, arguing that the Supreme
Court's decision in Johnson v. United States,
135 S.Ct. 2551 (2015), rendered his previous sentence
unconstitutional and entitled him to immediate release. The
thrust of Gabourel's argument is that his prior
conviction for shooting into an occupied dwelling does not
fit within the "force clause" of the ACCA based on
precedent from the Fourth and Ninth Circuits, and likewise
cannot fit within the "residual clause" in light of
Johnson. Absent this third predicate conviction
under the ACCA, Gabourel claims his re-calculated sentence
cannot exceed 120 months imprisonment. The government
initially concurred that Gabourel no longer qualified as an
armed career criminal, and conceded that Gabourel was
entitled to immediate relief. ECF No. 28.
on the government's concession-and mindful that Gabourel
had potentially over-served the maximum lawful sentence
authorized for his crime of conviction-the court granted
Gabourel's motion to vacate his prior sentence. ECF No.
30. Gabourel then moved for issuance of an amended judgment
without a hearing or preparation of a new presentence report,
arguing that the maximum penalty he faced on re-sentencing
was less than his current term of imprisonment. ECF No. 31.
The government again did not object.
the court asked the parties to address several issues
relating to Gabourel's prior conviction under Cal. Penal
Code § 246 and his potential resentencing in this case.
First, the court noted that the sentencing judge did not
specify whether Gabourel's prior conviction for shooting
into an inhabited dwelling qualified as a predicate offense
under the "force clause" or under the
"residual clause" of the ACCA. Given the
record's silence on whether the 2003 sentencing judge
invoked the residual clause declared unconstitutional in
Johnson, the court inquired whether Gabourel had met
his burden to seek relief under § 2255. Second, the
court asked the parties to analyze evolving Fourth and Ninth
Circuit precedent addressing whether convictions under Cal.
Penal Code § 246 and similar statutes qualify as violent
felonies under the ACCA's force clause. The parties
submitted the requested briefing on May 19,
convicted felon found guilty of possessing a firearm faces a
maximum sentence of 120 months. However, the ACCA provides
for a mandatory minimum sentence of 180 months when a
defendant was previously convicted of at least three prior
serious drug offenses or violent felonies. 18 U.S.C §
924(e)(1). A violent felony is defined as:
Any crime punishable by imprisonment for a term exceeding one
year . . . that -
(i) has as an element the use, attempted use, or threatened
use of physical force against the person of another; or
(ii) is burglary, arson, or extortion, involves use of
explosives, or otherwise involves conduct
that presents a serious potential risk of
physical injury to another.
2015, the Supreme Court invalidated the language in
subsection (ii) stricken above-known as the "residual
clause"-after finding it void for
vagueness. Johnson v. United States. 131
S.Ct. at 2555-56. However, the court did not nullify the
remaining sections of the violent felony definition,
including the "force clause" in subsection (i) and
the enumerated offenses in subsection (ii). As a result,
Johnson affords relief only to those defendants
whose statutory sentence depends on prior convictions that
qualify under the residual clause. Defendants whose predicate
convictions satisfy the force clause or one of the four
enumerated offenses are unaffected.
claim for relief depends on the interplay between
Johnson and circuit court precedent analyzing Cal
Penal Code § 246 and similar statutes. Both before and
after Gabourel's sentencing in 2003, no less than seven
decisions from the Fourth and Ninth Circuits have addressed
whether shooting into an occupied structure qualifies as
predicate offenses under the residual clause, the force
clause, or both. Some cases suggest that this type of offense
satisfies the ACCA's force clause. See, e.g.. United
States v. Wilkerson. 492 F.App'x 447, 449 (4th Cir.
2012); United States v. Cortez-Arrias. 403 F.3d
1111, 1115-16 (9th Cir. 2005). Others suggest that such an
offense satisfies only the ACCA's residual clause.
See, e.g.. United States v.
Parral-Dominguez, 794 F.3d 440, 445-47 (4th Cir. 2015);
United States v. Navaez-Gomez. 489 F.3d 970, 976-77
(9th Cir. 2007); United States v. Weinert, 1 F.3d
889, 890-91 (9th Cir. 1993); United States v.
Horton. No. 91-5766, 1991 WL 186865, *2 (4th Cir. Sept.
24, 1991). Gabourel hangs his hat on these latter
cases, arguing that his prior conviction under Cal. Penal
Code § 246 cannot qualify as a violent felony under the
force clause ...