United States of America v. Kyle T. Wade

United States Court of Appeals
For the Eighth Circuit
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No. 19-1188
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United States of America
Plaintiff - Appellee
v.
Kyle T. Wade
Defendant - Appellant
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Appeal from United States District Court
for the Eastern District of Missouri - Cape Girardeau
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Submitted: December 9, 2019
Filed: February 7, 2020
[Unpublished]
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Before ERICKSON, ARNOLD, and MELLOY, Circuit Judges.
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PER CURIAM.
Kyle T. Wade pled guilty to being a felon in possession of a firearm in
violation of 18 U.S.C. § 922(g)(1). After determining that Wade qualified for
sentencing under the Armed Career Criminal Act (“ACCA”), the district court
sentenced Wade to fifteen years’ imprisonment, the statutory minimum. 18 U.S.C.
§ 924(e)(1). Wade appeals, contending the district court violated the Sixth

Amendment when it found, for ACCA purposes, that Wade had committed two
previous offenses charged in a single indictment on occasions different from one
another. Wade claims that under the Sixth Amendment this was a fact for a jury to
find. Because this argument is foreclosed by our precedent, we affirm.
On October 2, 2018, Wade pled guilty to being a felon in possession of a
firearm. The Presentence Investigation Report (“PSR”) indicated that because Wade
had three previous drug-related convictions, he qualified for a sentencing
enhancement under ACCA. One conviction was for possession of a controlled
substance with intent to distribute, in violation of Missouri law. The other two were
federal convictions for distribution of cocaine. The federal charges were brought in
the same indictment, which, along with the plea agreement in that case, made clear
that Wade had engaged in the conduct underlying one of the charges on February 24,
2012, and the conduct underlying the other charge on October 5, 2012.
The district court rejected Wade’s argument that his Missouri state conviction
did not count as a serious drug offense under ACCA. Wade asserts a new argument
on appeal. He claims the district court violated the Sixth Amendment when it, instead
of a jury, decided the question of whether the conduct underlying Wade’s two federal
drug offenses took place on different occasions. Wade’s claim is foreclosed by our
precedent. United States v. Harris, 794 F.3d 885, 887 (8th Cir. 2015). Even though
there has been recent discussion about the lasting viability of this holding in light of
recent Supreme Court precedent, United States v. Perry, 908 F.3d 1126, 1134-36 (8th
Cir. 2018) (Stras, J., concurring), we are bound by a prior panel’s decision, Mader v.
United States, 654 F.3d 794, 800 (8th Cir. 2011) (en banc).
We affirm Wade’s fifteen-year sentence under ACCA.
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