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United States v. Gabourel

United States District Court, W.D. Virginia, Roanoke Division

June 16, 2016

UNITED STATES OF AMERICA,
v.
PETER GABOUREL, Defendant.

          MEMORANDUM OPINION

          Michael F. Urbanski United States District Judge

         The 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.

         I.

         Gabourel 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.

         On 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.

         Based 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.

         However, 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, 2016.[1]

         II.

         A 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.

§ 924(e)(2)(B).

         In 2015, the Supreme Court invalidated the language in subsection (ii) stricken above-known as the "residual clause"-after finding it void for vagueness.[2] 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.

         Gabourel's 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 ยง 246 cannot qualify as a violent felony under the force clause ...


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