United States v. Lyons Bynum

Filing

PER CURIAM OPINION FILED - THE COURT: Raymond W. Gruender, C. Arlen Beam and Bobby E. Shepherd. --(UNPUBLISHED)-- [4091221] [12-3882]

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[Unpublished]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

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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, 88788 (8th Cir. 2012). On remand for resentencing, Bynum was sentenced to 180
months’ imprisonment. He appeals this sentence, arguing that—despite AlmendarezTorres 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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