UNITED STATES of America, Plaintiff-Appellee v. Lyons Lonnie BYNUM, Defendant-Appellant, 536 F. App'x 669

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 court 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, 118 S.Ct. 1219, 140 L.Ed.2d 350 (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-Toms 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, 186 L.Ed.2d 314 (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, 731 F.3d 751, 752, 2013 WL 4780090 (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-Toms and 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. . The Honorable Richard H. Kyle, United States District Judge for the District of Minnesota.