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United States v. Gambill

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

October 7, 2016


          Jennifer R. Bockhorst and Jean B. Hudson, Assistant United States Attorneys, Abingdon and Charlottesville, Virginia, for United States, and Christine Madeleine Lee, Office of the Federal Public Defender, Roanoke, Virginia, for Defendant.


          JAMES P. JONES United States District Judge.

         Joe Jackson Gambill, a federal inmate previously sentenced by this court following his conviction by a jury of possession of a firearm after having been convicted of a felony, has filed a motion under 28 U.S.C. § 2255, contending that his enhanced sentence under the provisions of the Armed Career Criminal Act (“ACCA”), 18 U.S.C.A. § 924(e), is invalid. For the reasons that follow, I will grant the motion.


         At the defendant's sentencing on December 28, 2010, the government requested that his sentence be enhanced under the ACCA. The ACCA provides that a person convicted of a violation of § 922(g), who “has three previous convictions by any court . . . for a violent felony or a serious drug offense . . . shall be . . . imprisoned not less than fifteen years.” 18 U.S.C. § 924(e)(1). The defendant conceded at sentencing that he has been convicted of two qualifying felonies - drug distribution and robbery - but objected to the application of a third felony conviction, for a Virginia statutory burglary. The government introduced the Indictment and Judgment for that conviction. The Indictment, returned by a grand jury of the Circuit Court of Carroll County, Virginia, on September 20, 1993, charged a violation of Virginia Code section 18.2-91, and alleged as follows:

On or about the 25th day of April, 1993, in the County of Carroll, one Joe Jackson Gambill, did feloniously and unlawfully break and enter Kools Restaurant, with the intent to commit larceny, against the peace and dignity of the Commonwealth of Virginia.

(Gov't's Ex. 2, Nov. 15, 2010, ECF No. 66-2.)

         The defendant pleaded guilty to this Indictment on October 14, 1993. The Virginia statutory burglary statute cited, section 18.2-91 of the Virginia Code, in turn refers to Virginia Code section 18.2-90 for the elements of the crime. That section, as it read at the time of Gambill's offense in 1993, provided that

If any person in the nighttime enters without breaking or in the daytime breaks and enters or enters and conceals himself in a dwelling house or an adjoining, occupied outhouse or in the nighttime enters without breaking or at any time breaks and enters or enters and conceals himself in any office, shop, manufactured home, storehouse, warehouse, banking house, or other house, or any ship, vessel or river craft or any railroad car, or any automobile, truck or trailer, if such automobile, truck or trailer is used as a dwelling or place of human habitation . . . shall be deemed guilty of statutory burglary. . . .

Va. Code Ann. § 18.2-90 (1992). Thereafter, in 2004, the statute was amended to remove “office, shop, manufactured home, storehouse, warehouse, banking house, . . . or other house” and replace those words with “building permanently affixed to realty.” 2004 Va. Acts ch. 842. Before the language change, the Supreme Court of Virginia had opined that all of the places referred to in the first clause of the definitional part of section 18.2-90 (“office, shop, storehouse, warehouse, banking house, or other house”) referred to improvements affixed to the ground, or realty. Graybeal v. Commonwealth, 324 S.E.2d 698, 699, 700 (Va. 1985) (holding that mobile homes or house trailers do not fall within the definition of “other house” used in § 18.2-90).

         In Taylor v. United States, 495 U.S. 575, 598 (1990), the Supreme Court held that the word “burglary” as used in the ACCA meant a felony crime that had the elements of “an unlawful or unprivileged entry into, or remaining in, a building or other structure, with intent to commit a crime.” This generic definition, the Court noted, excluded various state crimes that were called burglaries, but involved a place other than a building or structure, such as an automobile, or a “‘booth or tent, or any boat or vessel, or railroad car.'” Id. at 599 (referring to Missouri burglary statute).

         I denied the government's request that Gambill's sentence be enhanced under the ACCA because I determined that, limited to the modified categorical approach of evaluation required by the Supreme Court, see Shepard v. United States, 544 U.S. 13, 16 (2005), the government had not proved that “Kools Restaurant” was a building or structure.

         The government appealed and the Fourth Circuit reversed. Relying on United States v. Foster, 662 F.3d 291 (4th Cir. 2011), reh'g en banc denied, 674 F.3d 391 (4th Cir. 2012), cert. denied, 133 S.Ct. 207 (2012), the court held that the name of the business recited in the Indictment was sufficient alone to show that the defendant had entered a building or structure, and thus was guilty of a generic burglary as defined in Taylor. United States v. Gambill, 492 F. App'x 427, 429 (4th Cir. 2012) (unpublished), cert. denied, 133 S.Ct. 899 (2013) (“Gambill I”). The court remanded the case and in obedience to its mandate, on November 26, 2012, I sentenced the defendant to an enhanced term of imprisonment under the ACCA. Gambill again appealed, “arguing that the Supreme Court's recent decisions in Alleyne v. United States, 133 S.Ct. 2151 (2013), and Descamps v. United States, 133 S.Ct. 2276 (2013), indicate that Foster and Gambill I were incorrectly decided and that his sentence violates the Sixth Amendment.” United States v. Gambill, 554 F. App'x 168, 168 (4th Cir. 2014) (unpublished), cert. denied, 134 S.Ct. 2857 (2014) (“Gambill II”). The Fourth Circuit rejected this argument and affirmed his new sentence. Id. at 169.

         On May 8, 2015, Gambill filed a pro se motion under § 2255 attacking his enhanced ACCA sentence on several grounds, including those that had been asserted on his second direct appeal.[1] On October 20, 2015, following Johnson v. United States, 135 S.Ct. 2551 (June 26, 2015), the Federal Public Defender for this district was appointed to represent Gambill in connection with his § 2255 motion. On January 7, 2016, the Federal Public Defender filed on Gambill's behalf an Amended Supplemental Motion Pursuant to 28 U.S.C. § 2255. Relying on Descamps v. United States, 133 S.Ct. 2276 (2013), it was asserted that both Gambill's prior burglary and robbery convictions were invalid predicates for his ACCA sentence enhancement.

         Because the Fourth Circuit has before it a case involving whether a Virginia robbery conviction is a valid ACCA predicate, United States v. Winston, No. 16-6978, the parties have agreed that at this time, the court need only take up the validity of Gambill's burglary predicate, leaving consideration of the robbery predicate for the decision in Winston, if necessary.

         The defendant's § 2255 motion has been fully briefed and orally ...

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