United States v. Gabourel

• Decision Date: 16 June 2016
• Docket Number: Case No. 7:03-CR-045
• Citation: 192 F.Supp.3d 667
• Parties: UNITED STATES of America, v. Peter GABOUREL, Defendant.
• Court: U.S. District Court — Western District of Virginia

192 F.Supp.3d 667

UNITED STATES of America,

v.Peter GABOUREL, Defendant.

Case No. 7:03-CR-045

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

Signed June 16, 2016

Filed June 17, 2016

Ronald Andrew Bassford, United States Attorneys Office, Roanoke, VA, for United States of America.

Paul Anthony Dull, Christine Madeleine Lee, Federal Public Defenders Office, Roanoke, VA, for 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, ––– U.S. ––––, 135 S.Ct. 2551, 192 L.Ed.2d 569 (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, ––– U.S. ––––, 135 S.Ct. 2551, 192 L.Ed.2d 569 (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 re-sentencing 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,

§ 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, 135 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 Fed.Appx. 447, 449 (4th Cir.2012) ; United States v. Cortez – Arias, 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. Na r vaez – 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, 944 F.2d 902, 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 and likewise cannot qualify post-Johnson as a violent felony under the residual clause. Thus, Gabourel argues that Cal. Penal Code § 246 cannot be a predicate offense under any clause of the ACCA. Gabourel believes he now lacks the three predicate convictions necessary to be classified as an armed career criminal.

A.

First, the court must address whether it erred in granting Gabourel's initial § 2255 motion. Petitions under § 2255 proceed in two steps. United States v. Hadden, 475 F.3d 652, 661 (4th Cir.2007). First, a district court determines if the petitioner has shown by a preponderance of the evidence that his sentence or conviction was "imposed in violation of the Constitution or laws of the United States," that the sentencing court "was without jurisdiction to impose such sentence," that the sentence exceeds "the maximum authorized by law," or that the sentence or conviction is "otherwise subject to collateral attack." 28 U.S.C. § 2255(a). If the petitioner fails to carry this burden, the district court must deny relief. If the petitioner carries his burden, the district court must "vacate and set aside" the unlawful sentence. 28 U.S.C. § 2255(b). Only then may the district court proceed to the second step and fashion an appropriate remedy. "[T]he end result of a successful § 2255 proceeding must be the vacatur of the prisoner's unlawful sentence ... and (1) the prisoner's release, (2) the grant of a future new trial to the prisoner, (3) or a new [or corrected] sentence." Hadden, 475 F.3d at 661.

In this case, the court granted Gabourel's motion to vacate after the United States agreed that Gabourel no longer qualified as an armed career criminal. ECF No. 28. Specifically, both Gabourel and the United States initially agreed that Gabourel lacked the three predicate convictions required by the ACCA because his prior conviction under Cal. Penal Code § 246 qualifies as a violent felony only under the residual clause deemed unconstitutional in Johnson.³ However, review of the record revealed that the sentencing judge never explicitly concluded that Gabourel's conviction under Cal. Penal Code § 246 qualified as a predicate offense under the residual clause. For example, the original criminal judgment notes that Gabourel was sentenced to 180 months pursuant to 18 U.S.C. § 924(e), but does not mention his predicate convictions. ECF No. 16. Likewise, the transcript of Gabourel's sentencing hearing shows no discussion of Gabourel's prior convictions. See ECF No. 37. Indeed, the sentencing judge appears to have made no finding about whether Cal. Penal Code § 246 qualified as a violent felony under the ACCA's force clause, residual clause, or both. Id. These omissions are unsurprising—at the time Gabourel was sentenced, there was no need to distinguish between the force and residual clauses, nor was there a need to invoke any specific clause when finding that Gabourel qualified as an armed career criminal. Nevertheless, the bare record in this case complicates Gabourel's claim under § 2255.

In his supplemental brief, Gabourel acknowledges that the record does not conclusively show that the sentencing court invoked the residual clause. To overcome this hurdle, Gabourel points to precedent from 2003 suggesting that convictions under Cal. Penal Code § 246 qualified as violent felonies only under the ACCA's residual clause....