                  United States Court of Appeals
                             For the Eighth Circuit
                         ___________________________

                                 No. 18-3719
                         ___________________________

                              United States of America

                         lllllllllllllllllllllPlaintiff - Appellee

                                            v.

                                     Hubert Carter

                        lllllllllllllllllllllDefendant - Appellant
                                        ____________

                      Appeal from United States District Court
                 for the Western District of Missouri - Kansas City
                                  ____________

                           Submitted: November 11, 2019
                              Filed: February 19, 2020
                                   [Unpublished]
                                   ____________

Before SHEPHERD, GRASZ, and KOBES, Circuit Judges.
                           ____________

PER CURIAM.

       Hubert Carter pled guilty to unlawful possession of a firearm by a felon in
violation of 18 U.S.C. § 922(g)(1). The district court1 sentenced Carter to 180 months



      1
       The Honorable Beth Phillips, then District Judge, now Chief Judge for the
United States District Court for the Western District of Missouri.
of imprisonment, the mandatory minimum under 18 U.S.C. § 924(e)(1) of the Armed
Career Criminal Act (“ACCA”).

       On appeal, Carter argues the district court violated the Sixth Amendment by
determining Carter committed at least three ACCA predicate offenses on different
occasions. The Sixth Amendment, as Carter points out, requires any fact that
increases the maximum or mandatory minimum penalty for a crime must be submitted
to a jury and proven beyond a reasonable doubt. Alleyne v. United States, 570 U.S.
99, 111–12 (2013). Because committing an ACCA predicate offense on three
different occasions increases the minimum penalty for his crime, Carter argues a jury
— not the court — must determine whether the predicate offenses occurred on
different occasions. No jury found Carter committed ACCA predicate offenses on
three different occasions. Therefore, he contends his ACCA-enhanced sentence is
unconstitutional.

       As an initial matter, the underlying premise of Carter’s argument is flawed.
Under Federal Rule of Criminal Procedure 32(i)(3)(A), “[a]t sentencing, the court may
accept any undisputed portion of the presentence report as a finding of fact.” Fed. R.
Crim. P. 32(i)(3)(A). Here, the Presentence Report (“PSR”) clearly indicates Carter
had at least three convictions for six different transactions involving possession with
intent to sell, sale of, or distribution of, cocaine. Because Carter did not object to the
PSR, and specifically did not object to the dates listed for the prior offenses, the
district court did not err in relying on the prior convictions portion of the PSR as
findings of fact during sentencing. See United States v. Harris, 794 F.3d 885, 887
(8th Cir. 2015). As such, the Sixth Amendment was not implicated.

       Furthermore, our precedent is clear that while it is true “a fact increasing either
end of the [sentencing] range produces a new penalty and constitutes an ingredient of
the offense,” and that “a jury [must] find those facts beyond a reasonable doubt,” the
Supreme Court has deemed prior convictions a sentencing factor rather than a criminal

                                           -2-
element necessitating a jury finding. See Alleyne, 570 U.S. at 112, 111; Almendarez-
Torres v. United States, 523 U.S. 224, 226–27 (1998). As we recognized in United
States v. Wyatt, the implication of Carter’s argument is that Almendarez-Torres was
wrongly decided and our precedent following the case should be overruled, but we
have previously “unequivocally rejected” such an argument. 853 F.3d 454, 458–59
(8th Cir. 2017). The district court was correct in following our precedent and
applying the ACCA enhancement to Carter’s sentence.

      The judgment of the district court is affirmed.
                     ______________________________




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