United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
Nos. 11-1156/1287
___________
United States of America, *
*
Appellee/Cross-Appellant, *
* Appeals from the United States
v. * District Court for the
* District of Minnesota.
Lyons Lonnie Bynum, *
*
Appellant/Cross-Appellee. *
___________
Submitted: October 18, 2011
Filed: February 28, 2012
___________
Before MELLOY, BEAM, and GRUENDER, Circuit Judges.
___________
GRUENDER, Circuit Judge.
After a jury trial, Lyons Lonnie Bynum was convicted of unlawful possession
of a firearm by a previously convicted felon, see 18 U.S.C. § 922(g)(1), and sentenced
to 120 months’ imprisonment. Bynum appeals his conviction, and the Government
cross-appeals the sentence. We affirm the conviction, vacate the sentence, and
remand for resentencing.
I. BACKGROUND
The evidence at trial was as follows. Bynum telephoned his girlfriend
Stephanie Anderson at approximately 1:00 a.m. on July 16, 2009, and asked her for
a ride. According to Anderson, when she met him, Bynum showed her that he was
carrying a handgun. Anderson allowed Bynum to stay at her home that night but
insisted that he not bring the gun into her home, suggesting that he leave it in the
trunk of her car instead. The next morning, Anderson allowed Bynum to leave the
gun in a box in her laundry room while he was at work. Later that day and again on
subsequent days, Anderson asked Bynum to retrieve the gun from her house. Six
days later, Bynum still had not retrieved the gun. Anderson contacted the police
about the gun, and the responding officers took possession of it.
The next day, at the request of an officer, Anderson contacted Bynum to
arrange for him to retrieve the gun. The police recorded the telephone call, and the
Government introduced the recording as evidence at trial. Anderson testified that
Bynum had previously told her not to use the word “gun” over the telephone because
she did not know who might be listening. During the phone call, Bynum and
Anderson referred to the gun obliquely as “it” or “shit.” Anderson agreed to leave
“it” in a bag under the driver’s seat of her car in a mall parking lot and told Bynum
to pick it up between 4:00 p.m. and 5:00 p.m. Bynum initially rejected Anderson’s
plan, preferring to wait until after sundown. When Anderson threatened that she
would throw “it” in the river if Bynum did not retrieve it, Bynum acquiesced, saying,
“Alright then . . . . Be there.”
The officers secured a lock to the gun, put the gun in a paper bag, and placed
the bag underneath the driver’s seat of Anderson’s car. The gun weighed
approximately five pounds. Bynum arrived at the mall parking lot at the appointed
time and visually scanned the area before entering a nearby store. After about two
minutes, Bynum exited the store, walked to Anderson’s car, and sat in the passenger’s
-2-
seat. The officers observed him reach underneath the driver’s seat and then exit the
vehicle holding the paper bag containing the gun. When he saw the officers
approaching, Bynum began to run and tossed the paper bag toward a nearby car. The
officers apprehended Bynum and retrieved the bag with the gun.
A grand jury indicted Bynum for possessing a firearm as a convicted felon
“[o]n or about July 23, 2009,” the day he was arrested in the parking lot. The
indictment alleged that Bynum had prior Minnesota state convictions for First Degree
Burglary, selling a narcotic drug in violation of Minn. Stat. § 152.023, subdiv. 1(1)
(“Third Degree drug conviction”), and selling a controlled substance in violation of
Minn. Stat. § 152.024, subdiv. 1 (“Fourth Degree drug conviction”). Bynum entered
a stipulation pursuant to Old Chief v. United States, 519 U.S. 172 (1997), stating that
he had been convicted of a qualifying felony “prior to July 23, 2009, . . . and was thus
prohibited from possessing a firearm.” Bynum proposed, and the district court gave,
jury instructions stating that the jury could consider the “prior conviction” element
of the offense as proven because of the Old Chief stipulation. As a result, the
Government introduced no other evidence of any qualifying convictions.
At the close of the Government’s case, Bynum moved for a judgment of
acquittal, which the district court denied. After the jury found Bynum guilty, the
United States Probation Office prepared a presentence investigation report in which
it concluded that Bynum qualified for a 180-month mandatory minimum sentence
under the Armed Career Criminal Act (“ACCA”) based on the three prior convictions
alleged in the indictment. Bynum objected to this classification, arguing that the
Third and Fourth Degree drug convictions were not qualifying predicate offenses
because, under Minnesota law, both drug sale convictions could be based merely on
an offer to sell a controlled substance.1 The district court held that an offer to sell a
1
Bynum does not dispute that his Minnesota state burglary conviction is a
predicate ACCA offense.
-3-
controlled substance is not a qualifying ACCA predicate offense and, after applying
the modified categorical analysis, found that Bynum’s Third Degree drug conviction
did not qualify as an ACCA predicate offense. Thus, the district court found that
Bynum was not an armed career criminal under the ACCA and sentenced him to a
120-month term of imprisonment. Bynum timely appeals his conviction, and the
Government timely appeals Bynum’s sentence.
II. DISCUSSION
A. Sufficiency of the Evidence
Bynum alleges that the evidence is insufficient to support the jury verdict. We
will affirm unless, viewing the evidence in the light most favorable to the
Government and accepting all reasonable inferences that may be drawn in favor of
the verdict, no reasonable jury could have found Bynum guilty. See United States v.
Walker, 393 F.3d 842, 846 (8th Cir. 2005). To convict Bynum of unlawful
possession of a firearm as a previously convicted felon, the Government was required
to prove beyond a reasonable doubt that Bynum knowingly possessed a firearm after
a qualifying felony conviction. See id. Bynum argues that the Government failed to
prove that he knew there was a gun in the bag he retrieved from Anderson’s car on
July 23, 2009. Bynum relies on a police officer’s testimony that suggested that
Bynum would have known the police were involved if he had seen that the gun in the
paper bag had a lock on it. Bynum contends that the jury was required to infer from
this testimony that he never looked in the bag, never saw the gun, and thus could not
have knowingly possessed the gun in the bag.
The Government presented more than sufficient evidence from which a
reasonable jury could infer that Bynum was aware that there was a gun in the paper
bag he was carrying on July 23, 2009. Anderson testified that Bynum had the gun
when she picked him up, that he left it at her house, and that she repeatedly asked him
-4-
to retrieve it. She further testified that he warned her not to call it a gun over the
telephone. Although Anderson and Bynum did not use the word “gun” on the
recorded telephone call, they repeatedly referred to a single item (“it”) in a fashion
consistent with that item being a gun. Bynum was very concerned about retrieving
this item and responded forcefully when Anderson threatened to throw “it” in the
river. He also was cautious about retrieving it, repeatedly asking Anderson to bring
it to him and initially refusing to retrieve it from the parking lot until after dark.
Moreover, after Bynum retrieved a five-pound item in a paper bag from under the seat
and observed police approaching him, he fled and discarded the bag. Based on
Anderson’s testimony, the recorded phone call, and Bynum’s behavior immediately
before and after he retrieved the bag, a reasonable jury could infer that Bynum knew
he had retrieved a gun from Anderson’s car. See United States v. Maloney, 466 F.3d
663, 666-67 (8th Cir. 2006) (holding that a reasonable jury could infer knowing
possession of a firearm despite the absence of evidence that the defendant had looked
inside a bag where the firearm was found because he was familiar with items stored
in the car near the bag, fled to avoid being associated with “things” in the car, and
attempted to avoid police apprehension). Bynum’s contention that the evidence was
insufficient because Anderson’s testimony lacked credibility is unavailing because
“[a] jury’s credibility determinations are well-nigh unreviewable.” United States v.
Hodge, 594 F.3d 614, 618 (8th Cir.), cert. denied, 560 U.S. ---, 130 S. Ct. 3401
(2010). Moreover, as detailed above, significant evidence corroborates her testimony.
We conclude that the evidence was sufficient to sustain Bynum’s conviction.2
2
Bynum also contends that the Government failed to prove he was a convicted
felon during his earlier putative possession of the gun on July 16 because his Old
Chief stipulation only specifies he was convicted “prior to July 23” and because the
Government never introduced any evidence of his earlier felony convictions.
Because we conclude that there is sufficient evidence of knowing possession of a
firearm on July 23, we need not reach this issue. We note, however, that an Old Chief
stipulation must have “equivalent” probative value to the “fuller record” proffered by
the Government to justify the restriction imposed by the stipulation on prosecutorial
-5-
B. ACCA Sentencing Enhancement
In its cross-appeal, the Government contends that the district court erred in
failing to sentence Bynum as an armed career criminal under the ACCA, which would
have required a mandatory minimum 180-month sentence. The Government argues
that Bynum’s Third and Fourth Degree drug convictions are categorically “serious
drug offenses” under 18 U.S.C. § 924(e), qualifying Bynum for the ACCA sentencing
enhancement, because offering to sell, give away, barter, deliver, exchange,
distribute, or dispose of drugs “involves” distribution of a controlled substance within
the meaning of 18 U.S.C. § 924(e)(2)(A)(ii). We review de novo whether a prior
conviction constitutes a serious drug offense under § 924(e). United States v. Mason,
440 F.3d 1056, 1057 (8th Cir. 2006).
The ACCA defines “serious drug offense,” in relevant part, as “an offense
under State law, involving manufacturing, distributing, or possessing with intent to
manufacture or distribute, a controlled substance . . . , for which a maximum term of
imprisonment of ten years or more is prescribed by law[.]” 18 U.S.C.
§ 924(e)(2)(A)(ii).3 To determine whether a prior conviction qualifies as a “serious
drug offense,” courts generally apply a categorical approach and “look only to the
fact of conviction and the statutory definition of the prior offense.” Taylor v. United
States, 495 U.S. 575, 602 (1990). When a statute criminalizes both qualifying and
discretion to introduce details of the prior convictions. See United States v. Walker,
428 F.3d 1165, 1169 (8th Cir. 2005). Here, the fuller record would have established
that Bynum was a convicted felon on July 16, 2009. Consistent with this view, the
district court accepted the portion of Bynum’s proposed jury instructions allowing the
jury to deem the prior-conviction element proved based on Bynum’s Old Chief
stipulation.
3
Bynum does not dispute that the maximum statutory penalties for violations
of Minn. Stat. § 152.023 and § 152.024 meet or exceed ten years of imprisonment as
required for predicate offenses under the ACCA.
-6-
non-qualifying conduct, courts apply a modified categorical approach and may
consider the charging document, plea agreement, plea-colloquy transcript, or “some
comparable judicial record of this information” to determine under which portion of
the statute the conviction arose. Shepard v. United States, 544 U.S. 13, 26 (2005).
Under either approach, the court must determine whether the defendant’s conviction
necessarily qualifies as an ACCA predicate. See id. at 17.
The Minnesota statute defines “sell” for the purposes of Bynum’s Third and
Fourth Degree drug convictions to mean “(1) to sell, give away, barter, deliver,
exchange, distribute or dispose of to another, or to manufacture; or (2) to offer or
agree to perform an act listed in clause (1); or (3) to possess with intent to perform
an act listed in clause (1).” Minn. Stat. § 152.01, subdiv. 15a. Because the district
court concluded that offering to sell drugs is not a “serious drug offense” within the
meaning of 18 U.S.C. § 924(e), it applied a modified categorical approach to
determine whether Bynum was necessarily convicted under the offer-to-sell part of
the statute or under the actual-sale part of the statute. After reviewing the transcripts
of Bynum’s change-of-plea hearings, the district court concluded that Bynum’s
Fourth Degree drug conviction necessarily arose under the actual-sale part of the
statute. However, the court was unable to eliminate the possibility that the Third
Degree drug conviction arose under the offer-to-sell part of the statute, and thus it
sustained Bynum’s objection to the ACCA enhancement. If, as the Government
argues, an offer to sell a controlled substance categorically “involves” distribution of
a controlled substance within the meaning of the ACCA, then both Bynum’s Third
and Fourth Degree drug convictions are qualifying offenses and Bynum should have
been sentenced as an armed career criminal under the ACCA.
Although the question of whether an offer to sell drugs “involves” drug
distribution within the meaning of the ACCA appears to be one of first impression in
this circuit, we are not the first circuit to confront this question. In United States v.
-7-
Vickers, the Fifth Circuit held that a conviction for offering to sell drugs “involved”
drug distribution and was thus a “serious drug offense” within the meaning of the
ACCA. 540 F.3d 356, 364-66 (5th Cir. 2008). Bynum urges us to reject Vickers and
interpret the ACCA’s definition of “serious drug offense” narrowly to conform to the
United States Sentencing Guidelines’ definitions of “controlled substance offense”
and “drug trafficking offense.” The Fifth Circuit specifically refused to construe the
ACCA’s definition of “serious drug offense” to conform to the sentencing guidelines’
definitions of “controlled substance offense” and “drug trafficking offense” under
U.S.S.G. §§ 2L1.2 and 4B1.2(b). See id. at 364-66 & n.3 (citing United States v.
Price, 516 F.3d 285 (5th Cir. 2008)). The Fifth Circuit reasoned that the guidelines’
definitions limit the relevant enhancements’ applicability to offenses that “prohibit”
the manufacture, distribution, and possession of drugs, whereas the ACCA requires
only that predicate offenses “involve” the manufacture, distribution, or possession of
drugs. See id.
We similarly reject Bynum’s argument that the ACCA’s definition of “serious
drug offense” should be interpreted narrowly to conform to the sentencing guidelines’
definitions of “controlled substance offense” and “drug trafficking offense.” The
sentencing guidelines expressly caution that the ACCA’s definition of “serious drug
offense” is “not identical to the definition[] of . . . ‘controlled substance offense’”
given in § 4B1.2. U.S.S.G. § 4B1.4 cmt. n.1. Unlike the sentencing guidelines, 18
U.S.C. § 924(e)(2)(A)(ii) uses the term “involving,” an expansive term that requires
only that the conviction be “related to or connected with” drug manufacture,
distribution, or possession, as opposed to including those acts as an element of the
offense. Vickers, 540 F.3d at 365 (quoting United States v. Winbush, 407 F.3d 703,
707 (5th Cir. 2005)).4 Knowingly offering to sell drugs is sufficiently “related to or
4
Other circuits also have concluded that Congress’s use of the word
“involving” evinces an intent to define the ACCA “serious drug offense” designation
expansively. See United States v. Gibbs, 656 F.3d 180, 184-85 (3d Cir. 2011); United
-8-
connected with” drug distribution within the meaning of the ACCA because those
who knowingly offer to sell drugs “intentionally enter the highly dangerous drug
distribution world.” See id. at 365-66 (quoting Winbush, 407 F.3d at 707). As a
result, we conclude that knowingly offering to sell drugs is a “serious drug offense”
under the ACCA.
Bynum contends that violation of the Minnesota offer-to-sell statute is not
sufficiently “related to or connected with” drug distribution because it lacks any
requirement that an offer to sell drugs “be genuine, made in good faith, or be
accompanied by an actual intent to distribute a controlled substance,” such that a
person who offers “to sell the proverbial Brooklyn Bridge” could be subject to
conviction. He argues that the ACCA limits serious drug offenses to crimes that
“require intent to distribute a controlled substance, actual or constructive possession
of a controlled substance, an act of distribution of a controlled substance, or any act
of drug trafficking,” and that because the Minnesota statute does not require actual
intent to follow through on the offer violation of that statute is not a “serious drug
offense” under the ACCA.
We reject Bynum’s assertion that an offer to sell drugs must be “genuine, made
in good faith, or be accompanied by an actual intent to distribute a controlled
substance” to “involve” drug distribution. We note that a mere agreement to
distribute a controlled substance, even absent some overt act in furtherance of the
conspiracy, is sufficient to violate federal drug conspiracy laws, see United States v.
States v. Williams, 488 F.3d 1004, 1009 (D.C. Cir. 2007); United States v. McKenney,
450 F.3d 39, 43 (1st Cir. 2006); United States v. King, 325 F.3d 110, 113-14 (2d Cir.
2003); United States v. Brandon, 247 F.3d 186, 190 (4th Cir. 2001). In United States
v. Lachowski, we offered a narrower definition of the term “involving” in the context
of 21 U.S.C. § 853(q), but we distinguished that statute’s use of the term from the
term’s “expansive connotations” in 18 U.S.C. § 924(e)(2). 405 F.3d 696, 698-700
(8th Cir. 2005) (quoting King, 325 F.3d at 113).
-9-
Shabani, 513 U.S. 10, 17 (1994), and thus also is sufficient to constitute a serious
drug offense under the ACCA, see United States v. McKenney, 450 F.3d 39, 44 (1st
Cir. 2006). The Texas offer-to-sell offense at issue in Vickers did not require that the
defendant actually have any drugs to sell or even intend to obtain them. Vickers, 540
F.3d at 365. Nevertheless, the Fifth Circuit held that neither element was necessary
for the offense to “involve” drug distribution. Id. at 364-66. Even if the Minnesota
statute at issue here does not require that the defendant possess any drugs or have
specific intent to complete the sale, see Minnesota v. Lorsung, 658 N.W.2d 215, 218-
19 (Minn. Ct. App. 2003), so long as that defendant has intentionally made an offer
to sell a controlled substance, he or she has “intentionally enter[ed] the highly
dangerous drug . . . marketplace as a seller,” which “is the kind of self-identification
as a potentially violent person that Congress was reaching by the ACCA.” See
Vickers, 540 F.3d at 365-66. Thus, Bynum’s argument fails to persuade.
We also reject Bynum’s contention that whether an offense “involves” drug
distribution within the meaning of the ACCA depends on whether the offense
requires an offer to exchange the drugs for value as opposed to an offer to distribute
them gratuitously. Bynum contends that without an “exchange of value” element to
the offered transaction the defendant has not self-identified as a participant in the
drug-trafficking market in a manner sufficient to justify the ACCA enhancement. To
the contrary, our drug laws do not require an “exchange of value” to “involve” drug
distribution. For example, federal drug distribution charges do not require an
exchange for value. See 21 U.S.C. § 841; 21 U.S.C. § 802(8), (11); see also United
States v. Lachowski, 405 F.3d 696, 699 (8th Cir. 2005) (stating that drug distribution
is “essentially the deliverance of a product to its intended recipients”). Similarly,
both conspiracy and attempt to distribute controlled substances are serious drug
offenses under the ACCA, and neither offense requires an exchange for value. See
21 U.S.C. § 846; United States v. Brown, 408 F.3d 1016, 1017-18 (8th Cir. 2005)
(holding that conviction under a statute making it “unlawful for any person . . . to
-10-
attempt to distribute, deliver, manufacture or produce a controlled substance”
qualified as a “serious drug offense” within the meaning of 18 U.S.C.
§ 924(e)(2)(A)(ii) (quoting Mo. Rev. Stat. § 195.211)); McKenney, 450 F.3d at 40,
43-44 (holding that state law conviction for conspiracy to possess a controlled
substance with intent to distribute is a “serious drug offense” because it “involves”
possession with intent to distribute). We see no reason to restrict the ACCA’s
definition of “serious drug offenses” to only those offers to sell for which the object
of the offer is an exchange of drugs for value.
In summary, we find the reasoning in Vickers persuasive and hold that
Bynum’s conviction for offering “to sell, give away, barter, deliver, exchange,
distribute or dispose of” drugs, regardless of the defendant’s specific intent or ability
to carry out the sale, “involves” the distribution of drugs and is thus categorically a
“serious drug offense” within the meaning of 18 U.S.C. § 924(e)(2)(A)(ii). Because
both the actual-sale and offer-to-sell parts of the Minnesota statute are “serious drug
offenses” within the meaning of the ACCA, we conclude that the district court erred
in refusing to designate Bynum as a career criminal offender and by failing to
sentence him accordingly.
III. CONCLUSION
For the foregoing reasons, we affirm the conviction, vacate the sentence,
and remand for resentencing applying the ACCA enhancement.
______________________________
-11-