UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 11-4049

UNITED STATES OF AMERICA,

Plaintiff – Appellant,

v.

JOE JACKSON GAMBILL,

Defendant - Appellee.

Appeal from the United States District Court for the Western 

District of Virginia, at Abingdon. James P. Jones, District 

Judge. (1:10-cr-00013-jpj-pms-1)

Submitted: January 10, 2012 Decided: August 17, 2012

Before TRAXLER, Chief Judge, and MOTZ and SHEDD, Circuit Judges.

Vacated and remanded by unpublished per curiam opinion.

Timothy J. Heaphy, United States Attorney, Ashley B. Neese, 

Assistant United States Attorney, OFFICE OF THE UNITED STATES 

ATTORNEY, Roanoke, Virginia, for Appellant. Larry W. Shelton, 

Federal Public Defender, Roanoke, Virginia; Nancy C. Dickenson, 

Assistant Federal Public Defender, OFFICE OF THE FEDERAL PUBLIC 

DEFENDER, Abingdon, Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit.
2

PER CURIAM:

Joe Jackson Gambill was convicted of unlawful possession of 

a firearm, see 18 U.S.C. § 922(g)(1), and sentenced to 78 

months’ imprisonment. The government appeals, challenging the 

district court’s determination that Gambill lacked the predicate 

convictions necessary for sentencing under the Armed Career 

Criminal Act (“ACCA”), 18 U.S.C. § 924(e). We vacate and remand 

for resentencing.

Under the ACCA, a defendant who violates § 922(g) after 

sustaining three prior convictions for violent felonies or 

serious drug offenses faces a mandatory sentence of at least 15 

years’ imprisonment. See 18 U.S.C. § 924(e)(1). A “violent 

felony” is a crime punishable by more than one year imprisonment 

that “has as an element the use, attempted use, or threatened 

use of physical force against” another person, id. § 

924(e)(2)(B)(i); or “is burglary, arson, or extortion, involves 

use of explosives, or otherwise involves conduct that presents a 

serious potential risk of physical injury to another,” id. § 

924(e)(2)(B)(ii). Gambill concedes that two of his prior 

convictions are qualifying convictions under the ACCA. At issue 

in this case is whether Gambill’s 1993 Virginia conviction for 

breaking and entering counts as a conviction for burglary under 

§ 924(e)(2)(B)(ii), a legal question we consider de novo. See

United States v. Foster, 662 F.3d 291, 293 (4th Cir. 2011).
3

For purposes of the ACCA, “a person has been convicted of 

burglary . . . if he is convicted of any crime, regardless of 

its exact definition or label, having the basic elements of 

unlawful or unprivileged entry into, or remaining in, a building 

or structure, with intent to commit a crime.” Taylor v. United 

States, 495 U.S. 575, 599 (1990). Whether a conviction is 

violent felony under the ACCA is a determination generally made 

categorically, “look[ing] only to the fact that the defendant 

had been convicted of crimes falling within certain categories, 

and not to the facts underlying the prior convictions.” Id. at 

600. In this case, however, because the Virginia statute 

defines burglary to include offenses that do not amount to 

generic burglary, we employ the modified categorical approach, 

which permits us to consult certain documents, including the 

underlying indictment, to determine whether the defendant was 

charged with a generic burglary. See Shepard v. United States, 

544 U.S. 13, 16 (2005); Taylor, 495 U.S. at 602. 

The indictment alleges that Gambill “did feloniously and 

unlawfully break and enter Kools Restaurant, with the intent to 

commit larceny.” J.A. 41. The district court concluded that 

restaurants were not necessarily located in permanent structures 

and that the indictment therefore did not establish that Gambill 

was convicted of a generic burglary. On appeal, the government 

contends the allegation that Gambill broke into a restaurant 
4

necessarily establishes that the crime involved a building or 

structure, as required by Taylor. We agree.

We addressed this precise issue in Foster, supra, a case 

decided after the district court’s ruling in this case. The 

defendant in Foster had prior breaking-and-entering convictions 

under the same Virginia statute at issue here. As in this case, 

the indictments in Foster alleged the name of the businesses 

involved -- the Corner Market and the Sunrise-Sunset Restaurant 

-- but did not explicitly allege that the defendant unlawfully 

entered a building or structure. See Foster, 662 F.3d at 292. 

This court concluded that, in light of certain intricacies of 

the Virginia burglary statute and the Virginia courts’

interpretation of the statute, the references to a market and a 

restaurant were sufficient to establish that the prior 

convictions were for generic burglaries. See id. at 296 (“[W]e 

find that the indictments’ references to the ‘Sunrise–Sunset 

Restaurant’ and the ‘Corner Market,’ in the context of the 

applicable Virginia statute, ensure that Foster entered 

buildings or structures and was thus convicted of generic 

burglary for purposes of the ACCA.”).

The case before us is materially indistinguishable from

Foster. And under Foster, the indictment alleging the unlawful 

breaking and entering of “Kools Restaurant” is sufficient to 
5

establish that Gambill was convicted of a generic burglary that 

qualifies as a predicate offense under the ACCA. 

Accordingly, we hereby vacate Gambill’s sentence and remand 

this case to the district court for resentencing. We dispense 

with oral argument because the facts and legal contentions are 

adequately presented in the materials before the court and 

argument will not aid the decisional process.

VACATED AND REMANDED