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United States v. Gammell

United States Court of Appeals, Eighth Circuit

August 8, 2019

United States of America Plaintiff - Appellee
v.
John Kelsey Gammell Defendant-Appellant United States of America Plaintiff - Appellee
v.
John Kelsey Gammell Defendant-Appellant

          Submitted: March 15, 2019

          Appeals from United States District Court for the District of Minnesota

          Before SHEPHERD, ERICKSON, and KOBES, Circuit Judges.

          SHEPHERD, CIRCUIT JUDGE.

         After 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[1] 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.

         I.

         Between 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.

         Gammell 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.

         Throughout 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.

         Gammell 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.

         At 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.

         II.

         Gammell 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)).

         The 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. ยง 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 ...


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