                            UNPUBLISHED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Vacated and remanded by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.
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).

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       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

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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



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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




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