                 United States Court of Appeals
                            For the Eighth Circuit
                        ___________________________

                                No. 13-3275
                        ___________________________

                             United States of America,

                       lllllllllllllllllllll Plaintiff - Appellee,

                                           v.

                               Eddie Prince Roberts,

                      lllllllllllllllllllll Defendant - Appellant.
                                       ____________

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

                             Submitted: June 13, 2014
                              Filed: August 14, 2014
                                  ____________

Before MURPHY, COLLOTON, and KELLY, Circuit Judges.
                         ____________

COLLOTON, Circuit Judge.

       A jury found Eddie Prince Roberts guilty of two counts of bank robbery, in
violation of 18 U.S.C. § 2113(a). The district court1 sentenced Roberts to life
imprisonment, because he previously had been convicted of two serious violent

      1
      The Honorable Nanette K. Laughrey, United States District Judge for the
Western District of Missouri.
felonies. See 18 U.S.C. § 3559(c)(1)(A)(i). Roberts appeals his sentence, and we
affirm.

       In February 1993, Roberts pleaded guilty to four counts of bank robbery. The
presentence report for this case explained that in three of the four robberies, Roberts
threatened to shoot the bank teller if the teller failed to comply with his demands. In
August 1999, a jury found Roberts guilty of another bank robbery. This court
affirmed Roberts’s conviction, noting that Roberts stipulated that Carl Mitchell, with
whom Roberts committed the robbery, told the teller: “I want the money and I do
have a gun.” United States v. Roberts, 47 F. App’x 422, 423 (8th Cir. 2002).

       In May 2012, a grand jury charged Roberts with two counts of bank robbery
in violation of 18 U.S.C. § 2113(a). Before trial, the government filed notice that it
would rely on Roberts’s prior convictions to seek a mandatory life sentence as to each
count, pursuant to 18 U.S.C. § 3559(c)(1). As relevant here, § 3559(c)(1)(A)(i)
provides that “a person who is convicted . . . of a serious violent felony shall be
sentenced to life imprisonment if . . . the person has been convicted . . . on separate
prior occasions . . . [of] 2 or more serious violent felonies.” Bank robbery, attempted
bank robbery, and conspiracy to commit bank robbery are all included in § 3559’s
definition of “serious violent felony.” Id. § 3559(c)(2)(F)(i).

       Section 3559 also provides an affirmative defense: Once the government
establishes that a defendant previously has been convicted of two or more serious
violent felonies, the defendant can avoid mandatory life imprisonment if he proves
that his prior robberies were nonqualifying felonies. Id. § 3559(c)(3); see United
States v. Davis, 260 F.3d 965, 968–69 (8th Cir. 2001). To demonstrate that a bank
robbery conviction is a nonqualifying felony, Roberts bore the burden to establish “by
clear and convincing evidence that . . . no firearm or other dangerous weapon was
used in the offense and no threat of use of a firearm or other dangerous weapon was
involved in the offense.” 18 U.S.C. § 3559(c)(3)(A)(I).

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      In December 2012, a jury found Roberts guilty of both counts of bank robbery.
At sentencing, the parties agreed that Roberts’s four 1993 convictions counted as one
conviction for purposes of § 3559, because the convictions did not occur “on separate
occasions.” Id. § 3559(c)(1)(A)(i). The parties also agreed that at least one of
Roberts’s 1993 convictions qualified as a predicate serious violent felony.

       Roberts argued, however, that his 1999 bank robbery conviction was not a
qualifying serious violent felony under § 3559(c)(3)(A)(i). He urged that because he
was the driver in the 1999 bank robbery and did not go into the bank, and because he
did not know that Mitchell had a gun in the glove box of the car, he established by
clear and convincing evidence that he “did not use a gun during the commission of
that offense.” The government responded that the affirmative defense was not
satisfied by proof that Roberts personally did not use a gun during the robbery, but
that “no threat of use of a firearm or other dangerous weapon was involved in the
offense.” Id. § 3559(c)(3)(A) (emphasis added). The district court found that Roberts
had two prior convictions for bank robbery, and that Roberts failed to establish the
affirmative defense by clear and convincing evidence. The court thus sentenced
Roberts to life imprisonment on the first count of bank robbery and 240 months’ on
the second count, to run concurrently. Roberts appeals his sentence.

       Roberts advances two arguments on appeal, both based on the Supreme Court’s
decision in Alleyne v. United States, 133 S. Ct. 2151 (2013). First, he argues that
Alleyne and the Sixth Amendment require that a jury, rather than a judge, must find
the fact of his prior convictions because it increased the maximum penalty to which
he was exposed. This contention is foreclosed by precedent. Almendarez–Torres v.
United States, 523 U.S. 224, 226–27, 247 (1998), held that recidivism is not an
element of an offense that must be submitted to a jury, and Alleyne did not revisit that
conclusion. 133 S. Ct. at 2160 n.1; see United States v. Abrahamson, 731 F.3d 751,
752 (8th Cir. 2013).



                                          -3-
       Second, Roberts argues that the affirmative defense of § 3559(c)(3), and its
placement of a burden of persuasion on the defendant to show that a prior bank
robbery conviction is nonqualifying, contravenes the Fifth and Sixth Amendments.
He complains that the statute “forces a court to presume, without facts, aggravating
circumstances the government would otherwise have to prove via indictment,”
namely, that the prior conviction involved a firearm. This contention is also
foreclosed by precedent. In United States v. Davis, 260 F.3d 965 (8th Cir. 2001), this
court held that the burden-shifting structure of § 3559—which classifies all robberies
as serious violent felonies but allows a defendant to prove the prior robbery
convictions are nonqualifying by proving certain facts—is constitutional, because
“Congress has the power to place on a defendant the burden of establishing an
affirmative defense that is not an essential element of the crime.” Id. at 970; see
United States v. Williams, 308 F.3d 833, 840 (8th Cir. 2002). Alleyne did not revisit
whether prior convictions are elements of an offense that must be found by a jury, and
the Court said nothing to undermine Davis. See United States v. Harris, 741 F.3d
1245, 1248–50 (11th Cir. 2014); United States v. Lucas, 542 F. App’x 510, 511 (6th
Cir. 2013) (per curiam).

                                  *       *       *

      The judgment of the district court is affirmed.
                     ______________________________




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