United States v. Lyons

559 F. App'x 567

• Court: Court of Appeals for the Seventh Circuit
• Decided: June 16, 2014
• Docket: No. 14-1442
• Status: Published

Opinion

ORDER

Anthony M. Lyons appeals his sentence under the Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e). He previously appealed his conviction for possession of a firearm as a felon as well as his sentence. We affirmed his conviction but, finding procedural errors in the sentence, we remanded for resentencing. See United States v. Lyons, 733 F.3d 777 (7th Cir.2013), cert. denied, — U.S. -, 134 S.Ct. 1779, 188 L.Ed.2d 607 (2014). At resentencing, the district court imposed the same sentence that it had imposed before: 210 months’ imprisonment.

Lyons argues that the district court erred in sentencing him under the ACCA because the government did not allege the nature and fact of his prior convictions in the indictment or prove them beyond a reasonable doubt to a jury. He concedes, however, that his argument is foreclosed by Almendarez-Torres v. United States, 523 U.S. 224, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998), see, e.g., United States v. Long, 748 F.3d 322, 328-29 (7th Cir.2014), petition for cert. filed, (U.S. May 14, 2014) (No. 13-10155), and so he merely seeks to preserve the issue for review in the Supreme Court. As Lyons also concedes, Alleyne v. United States, — U.S. -, 133 S.Ct. 2151, 2155, 186 L.Ed.2d 314 (2013), did not overrule Almendarez-Torres’s exception for the fact of a prior conviction. Id. at 2160 n. 1. We are bound by Almendarez-Torres, Long, 748 F.3d at 329, and leave to the Supreme Court whether to revisit that decision.

Accordingly, we note that Lyons has preserved his objection to application of the ACCA and AFFIRM his sentence.