United States Court of Appeals
For the Eighth Circuit
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No. 12-3882
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United States of America
lllllllllllllllllllll Plaintiff - Appellee
v.
Lyons Lonnie Bynum
lllllllllllllllllllll Defendant - Appellant
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Appeal from United States District Court
for the District of Minnesota - St. Paul
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Submitted: October 21, 2013
Filed: October 31, 2013
[Unpublished]
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Before GRUENDER, BEAM, and SHEPHERD, Circuit Judges.
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PER CURIAM.
After trial, a jury found Lyons Lonnie Bynum guilty of unlawful possession of
a firearm by a previously convicted felon, in violation of 18 U.S.C. § 922(g)(1). The
district court1 sentenced Bynum to 120 months’ imprisonment, rejecting the
Government’s contention that at least one of Bynum’s prior convictions triggered the
180-month mandatory minimum under the Armed Career Criminal Act (“ACCA”).
See 18 U.S.C. § 924(e). Bynum appealed the sufficiency of the evidence supporting
his conviction, and the Government cross-appealed the district court’s refusal to apply
the ACCA mandatory minimum. We affirmed Bynum’s conviction but reversed the
district court’s sentence. We found that Bynum’s prior third-degree Minnesota drug
conviction was a predicate offence within the meaning of the ACCA, thus requiring
imposition of the mandatory minimum. United States v. Bynum, 669 F.3d 880, 887-
88 (8th Cir. 2012). On remand for resentencing, Bynum was sentenced to 180
months’ imprisonment. He appeals this sentence, arguing that—despite Almendarez-
Torres v. United States, 523 U.S. 224 (1998)—the Fifth and Sixth Amendments
require the fact of his prior conviction to be found by a jury. We affirm the new
sentence.
Bynum contends that this court can and must disregard the Almendarez-Torres
rule given recent indications that a majority of the Supreme Court may no longer
agree with it. In a supplemental Federal Rule of Appellate Procedure 28(j) letter,
Bynum asserts that the Supreme Court hinted at this jurisprudential shift in Alleyne
v. United States, 570 U.S. ---, 133 S. Ct. 2151 (2013). We recently observed,
however, that the Supreme Court in Alleyne “left intact the [Almendarez-Torres] rule
that enhancements based on the fact of a prior conviction are an exception to the
general rule that facts increasing the prescribed range of penalties must be presented
to a jury.” United States v. Abrahamson, --- F.3d ---, --- (8th Cir. 2013) (citing
Alleyne, 133 S. Ct. at 2160 & n.1). See also United States v. Torres-Alvarado, 416
F.3d 808, 810 (8th Cir. 2005) (“While it is unclear whether Almendarez-Torres and
1
The Honorable Richard H. Kyle, United States District Judge for the District
of Minnesota.
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its felony exception will remain good law, . . . we are bound by Almendarez-Torres
until the Supreme Court explicitly overrules it.”).
Therefore, we affirm Bynum’s sentence.
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