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United States v. Gabrio

United States District Court, D. Minnesota

August 2, 2017

United States of America, Plaintiff,
v.
Robert Lawrence Gabrio, Defendant.

          MEMORANDUM AND ORDER

          Paul A. Magnuson United States District Court Judge

         This matter is before the Court on Defendant Robert Lawrence Gabrio's Motion to Vacate under 28 U.S.C. § 2255, filed with the assistance of counsel. Gabrio also filed a pro se Motion that appears to be an attempt to supplement the Motion to Vacate, as well as a Motion for compassionate release because his sister is gravely ill. For the following reasons, all of Gabrio's Motions are denied.

         BACKGROUND

         In 2001, Gabrio pled guilty to being a felon in possession of a firearm, after Aitkin County officials found four stolen firearms in his residence. In his plea agreement, Gabrio agreed that he was an armed career criminal under the definition set forth in 18 U.S.C. § 924(e)(1) (the “Armed Career Criminal Act” or “ACCA”). Specifically, Gabrio agreed that he had been convicted of at least three prior crimes of violence or enumerated offenses. (Plea Hr'g Tr. (Docket No. 40) at 25.) Those predicate offenses were three second-degree burglaries, a robbery, and felony terroristic threats. (Id.; see also PSR ¶ 42.) Because he was an armed career criminal under § 924(e), he was subject to a mandatory minimum 15-year term of imprisonment. The Court sentenced Gabrio to 15 years of imprisonment with three years of supervised release to follow. (Docket No. 35.)

         Gabrio was released from prison on May 27, 2014. Less than a month later, he sexually assaulted a woman in rural Carlton County. (Docket No. 58.) The Court revoked Gabrio's supervised release, sentencing him to 20 months' imprisonment, to run consecutively to the 60-month sentence the state court imposed for the sexual assault. (Docket No. 71.) Gabrio is currently incarcerated at the Federal Correctional Institution in Oxford, Wisconsin.

         In March 2017, Gabrio moved the Court for appointment of counsel to determine whether his predicate convictions qualified as violent felonies after the Supreme Court's decisions in Johnson v. United States, 135 S.Ct. 2551 (2015), and Mathis v. United States, 136 S.Ct. 2243 (2016). (Docket No. 73.) The Court appointed counsel, who subsequently filed the instant Motion. (Docket No. 76.) After the Government argued in opposition that the Motion was untimely, Gabrio filed a pro se supplemental Motion, contending both that his appellate counsel and current counsel rendered ineffective assistance in failing to raise his claims earlier. (Docket No. 88.) And, as noted, Gabrio recently moved the Court for compassionate release. (Docket No. 90.)

         DISCUSSION

         A. Motion to Vacate

         This Motion spotlights the rapidly evolving law regarding the Armed Career Criminal Act. Beginning with the Johnson decision in 2015, the Supreme Court and the Courts of Appeals have significantly narrowed the predicate offenses that qualify for ACCA treatment. Under the ACCA as it existed before Johnson, an individual qualified as an armed career criminal if they had “three previous convictions . . . for a violent felony or serious drug offense, or both, committed on occasions different from one another.” 18 U.S.C. § 924(e)(1). The ACCA defined “violent felony” 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.

Id. § 924(e)(2)(B). The definition of violent felony thus encompassed: crimes involving physical force-the “force” clause; certain enumerated crimes-the “enumerated” clause; and any other conduct involving a risk of physical injury-the “residual” clause. Four of Gabrio's five predicate convictions fell under either the enumerated clause-he had numerous prior convictions for burglary, three of which the Court used as predicates here-and the force clause. See United States v. Flannigan, 367 F. App'x 732, 733 (8th Cir. 2010) (per curiam) (Minnesota's terroristic threats statute has as an element the use, attempted use, or threatened use of physical force for purposes of the ACCA), overruled by United States v. McFee, 842 F.3d 572 (8th Cir. 2016).

         The Johnson decision invalidated the ACCA's residual clause as unconstitutionally vague. See Johnson, 135 S.Ct. at 2563. A year later, the Supreme Court determined that Johnson announced a new rule of constitutional law that was retroactively applicable to ...


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