United States District Court, W.D. Virginia, Abingdon Division
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.
OPINION AND ORDER
P. JONES United States District Judge.
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
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
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.)
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,
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
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).
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.
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.
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. 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.
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.
defendant's § 2255 motion has been fully briefed and