Submitted: March 15, 2019
Appeals from United States District Court for the District of
SHEPHERD, ERICKSON, and KOBES, Circuit Judges.
SHEPHERD, CIRCUIT JUDGE.
conducting a series of malicious computer attacks, John
Gammell pled guilty to one count of conspiracy to cause
intentional damage to a protected computer, in violation of
18 U.S.C. § 1030(a)(5)(A), (b), (c)(4)(A)(i)(I),
(c)(4)(A)(i)(VI), and (c)(4)(B), and to two counts of being a
felon in possession of a firearm, in violation of 18 U.S.C.
§§ 922(g) and 924(e). The district
court sentenced Gammell to 60 months on the
conspiracy count and, after classifying Gammell as an armed
career criminal, to 180 months on the felon-in-possession
counts, with the sentences running concurrently. The district
court also ordered Gammell to pay $955, 656.77 in restitution
to 14 victims of his attacks. In this consolidated appeal,
Gammell challenges both his classification as an armed career
criminal and the district court's restitution order.
Having jurisdiction under 28 U.S.C. § 1291, we affirm.
2015 and 2017, Gammell engaged in a campaign of malicious
computer attacks against various entities with whom he had
personal grievances. The attacks, known as distributed denial
of service attacks, or DDoS attacks, use repeated attempts to
deny service to a computer or website, thereby making it
inaccessible to users or customers. In essence, DDoS attacks
flood a computer or website with massive amounts of internet
traffic to the point that the computer or website becomes
disabled and inaccessible to users or customers.
victimized approximately 40 different entities, comprised of
companies he used to work for, companies that did not hire
him, companies that he perceived as competitors to his
business, law enforcement agencies, and court systems. His
attacks lasted anywhere from weeks to two years and resulted
in the disruption or complete disabling of the victims'
websites, applications, or computer systems. Each of his
victims experienced difficulty in restoring the reliability,
functionality, and accessability of the affected websites,
and expended significant efforts and resources in identifying
the source of the attacks and in taking suitable mitigation
and infrastructure improvement measures.
the course of his attacks, Gammell made considerable efforts
to conceal his identity as the perpetrator. When using his
own computer to launch DDoS attacks, Gammell used a service
to mask his IP address, used encrypted and drive cleaning
tools to conceal any evidence of the attacks on his computer,
spoofed email addresses, and used names of victims'
former employees to create suspicion against other
individuals. Gammell also utilized third-party companies to
launch attacks, which significantly multiplied the number of
attacks and further concealed Gammell as the perpetrator.
Gammell also used cryptocurrency to pay the third-party
companies in a continued effort to conceal his identity. On
at least two occasions, Gammell also sent emails to affected
entities, bragging about the attacks and mocking the entities
for the disruptions.
was subsequently charged with conspiracy to cause intentional
damage to a protected computer, along with two counts of
being a felon in possession of a firearm. The two
felon-in-possession counts arose out of conduct that occurred
outside of Minnesota. In May 2017 in Colorado, Gammell
possessed the parts necessary to build an AR-15 assault rifle
and he possessed 420 rounds of ammunition. Also in May 2017,
in New Mexico, Gammell possessed two handguns and hundreds of
rounds of ammunition. Gammell pled guilty to all three counts
pursuant to a plea agreement, which included a waiver of
venue with respect to the felon-in-possession counts.
sentencing, the district court determined that Gammell had at
least three prior convictions for violent felonies that
qualified as predicate offenses under the Armed Career
Criminal Act (ACCA). The district court identified the three
predicate offenses as two convictions in Minnesota state
court in 1981 for aggravated robbery, in violation of Minn.
Stat. §§ 609.245 and 609.11 (1979), and a 1984
conviction in Minnesota state court for aiding and abetting
second-degree burglary, in violation of Minn. Stat.
§§ 609.582 subd. 2(a) and 609.05 (1983). The
district court determined a United States Sentencing
Guidelines range of 135 to 168 months imprisonment. However,
due to the ACCA-triggered mandatory minimum of 180 months for
each of the felon-in-possession counts, the district court
set the appropriate sentencing range at 180 months. The
district court imposed a 180-month sentence for each
felon-in-possession count and a 60-month sentence for the
conspiracy count. The district court ordered the sentences to
run concurrently, for a total term of imprisonment of 180
months. The district court also ordered that Gammell pay
restitution pursuant to the Mandatory Victims Restitution Act
(MVRA), 18 U.S.C. § 3663A, but left the amount pending
to allow for an evidentiary hearing. After the subsequent
two-day evidentiary hearing, the district court ordered
Gammell to pay restitution to 14 of his victims in the total
amount of $955, 656.77. This consolidated appeal follows.
first asserts that the district court erroneously sentenced
him as an armed career criminal, arguing that the district
court incorrectly concluded that he had the requisite
predicate offenses. "We review de novo whether a prior
conviction is a predicate offense under the ACCA."
United States v. Eason, 829 F.3d 633, 640 (8th Cir.
2016) (quoting United States v. Shockley, 816 F.3d
1058, 1062 (8th Cir. 2016)).
district court sentenced Gammell to the statutory minimum of
180 months as an armed career criminal based upon three
previous convictions for violent felonies under Minnesota
law. See 18 U.S.C. § 924(e)(1) ("In the
case of a person who violates section 922(g) of this title
and has three previous convictions . . . for a violent felony
or a serious drug offense, or both . . . such person shall be
. . . imprisoned not less than fifteen years . . . .").
Gammell argues that his two prior convictions for aggravated
robbery are not violent felonies and asserts that his
previous conviction for aiding and abetting second-degree
burglary cannot ...