United States v. Jermel Lewis

PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

_____________

No. 10-2931

_____________

UNITED STATES OF AMERICA

v.

JERMEL LEWIS, a/k/a STAR, a/k/a PR-STAR,

a/k/a P

Jermel Lewis,

Appellant

On appeal from the United States District Court

For the Eastern District of Pennsylvania

(District Court No. 2-08-cr-00161-003)

District Judge: Honorable J. Curtis Joyner

Argued on May 27, 2014 before Merits Panel

Court Ordered Rehearing En Banc on November 25, 2014

Argued En Banc on February 19, 2015

Before: McKEE, Chief Judge, RENDELL, AMBRO,

FUENTES, SMITH, FISHER, CHAGARES, JORDAN,

HARDIMAN, GREENAWAY, JR., VANASKIE,

SHWARTZ and KRAUSE, Circuit Judges

(Opinion filed: September 16, 2015)

Paul J. Hetznecker, Esquire (Argued)

1420 Walnut Street, Suite 911

Philadelphia, PA 19102

Counsel for Appellant Jermel Lewis

Robert A. Zauzmer, Esquire (Argued)

Arlene D. Fisk, Esquire

Office of United States Attorney

615 Chestnut Street

Suite 1250

Philadelphia, PA 19106

Counsel for Appellee United States of

America

Michael P. Addis, Esquire (Argued)

J. Wesley Earnhardt, Esquire

Cravath, Swaine & Moore

825 Eighth Avenue

Worldwide Plaza

New York, NY 10019

Counsel for Amicus Amachi, Inc.

2

OPINION

RENDELL, Circuit Judge:

Jermel Lewis was sentenced for a crime with a seven-

year mandatory minimum—brandishing a firearm during and

in relation to a crime of violence—notwithstanding the fact

that a jury had not convicted him of that crime. Instead, he

had been convicted of the crime of using or carrying a firearm

during and in relation to a crime of violence, which has a

five-year mandatory minimum. Lewis was never even

indicted for the crime of brandishing. In Alleyne v. United

States, the Supreme Court held that this scenario, i.e.,

sentencing a defendant for an aggravated crime when he was

indicted and tried only for a lesser crime, violates a

defendant’s Sixth Amendment right to a jury trial. 133 S. Ct.

2151, 2163-64 (2013). Even though that constitutional issue

is settled, we still must address the issue of whether the error

that transpired in this case was harmless. We conclude that

the error was not harmless because it contributed to the

sentence Lewis received. Accordingly, we will vacate

Lewis’s sentence and remand for resentencing.

I. Background

Lewis and his codefendants Glorious Shavers and

Andrew White (collectively, “Defendants”) committed an

armed robbery of an unlicensed after-hours “speakeasy” in

North Philadelphia on November 8, 2005. Shavers and White

were charged on March 20, 2008, with robbery in violation

3

of the Hobbs Act, 18 U.S.C. § 1951(a), and with using or

carrying a firearm during and in relation to a crime of

violence, in violation of 18 U.S.C. § 924(c). On July 10,

2008, a superseding indictment charged Lewis with the same

offenses and added attempted witness tampering charges

under 18 U.S.C. § 1512(b)(1) against all Defendants. On

August 20, 2009, a second superseding indictment added

further witness tampering charges and a count of conspiracy

to commit robbery against all Defendants. Count three of the

second superseding indictment—the only count at issue

here—charged that Defendants “knowingly used and carried,

and aided and abetted the use and carrying of, a firearm . . .

during and in relation to a crime of violence.” (App. 71.)

The indictment did not include a count for brandishing a

firearm.

Defendants were tried in the District Court for the

Eastern District of Pennsylvania beginning on September 9,

2009. The District Court instructed the jury that Lewis was

charged with “using and carrying a firearm during the crime

of violence”; it did not instruct the jury on a brandishing

offense.1 (App. 2019.) The jury found all Defendants guilty

of using or carrying a firearm and the Hobbs Act violations,

but Lewis was acquitted of the witness tampering charges.

Lewis was ultimately sentenced to a term of 132 months’

incarceration to be followed by five years of supervised

release. The 132 months consisted of 48 months’

incarceration on each of the two Hobbs Act counts, to run

concurrently, and 84 months’ incarceration, the mandatory

1

At trial, two victims of the robbery testified that the robbers

threatened them with firearms; their testimony was consistent

with the statutory definition of “brandishing.”

4

minimum term of imprisonment for brandishing a firearm, to

run consecutively. Lewis timely objected to being sentenced

for brandishing a firearm because the jury found only that he

had used or carried.

Section 924(c)(1)(A) imposes differing mandatory

minimum sentences depending upon whether the defendant

“uses or carries,” “brandishe[s],” or “discharge[s]” a firearm

during and in relation to a crime of violence or drug

trafficking crime. These are three “separate, aggravated

offense[s].” Alleyne, 133 S. Ct. at 2162. Indeed, they are in

separate subparts of § 924(c)(1)(A). Compare 18 U.S.C.

§ 924(c)(1)(A)(i) (uses or carries), with id. § 924(c)(1)(A)(ii)

(brandishes), with id. § 924(c)(1)(A)(iii) (discharges).

Because Lewis was charged with and convicted of the “uses

or carries” offense, but sentenced for the “brandishes”

offense, he was sentenced for a crime for which he was

neither charged nor convicted.

Following sentencing, Defendants raised various

issues on appeal. Relevant here, we affirmed Lewis’s

sentence. United States v. Shavers, 693 F.3d 363, 397 (3d

Cir. 2012). The Supreme Court granted Defendants’ petition

for a writ of certiorari, vacated our judgment, and remanded

for further consideration in light of its decision in Alleyne,

which had been decided after our ruling. See Shavers v.

United States, 133 S. Ct. 2877 (2013).

On remand, the Government continued to oppose

Lewis’s Alleyne argument, urging that the error was harmless.

On September 9, 2014, a divided panel of this Court affirmed,

holding, “in light of the overwhelming and uncontroverted

evidence in support of the brandishing element that, had the

5

jury been properly instructed on that element, it would have

found that element beyond a reasonable doubt,” and “[a]ny

resulting error was therefore harmless.” United States v.

Lewis, 766 F.3d 255, 271 (3d Cir. 2014) (internal quotation

marks omitted). On November 25, 2014, we vacated the

panel opinion and subsequently reconsidered this appeal en

banc.

II. Jurisdiction and Standard of Review

We have jurisdiction pursuant to 28 U.S.C. § 1291.

Allegations of constitutional error at sentencing are subject to

plenary review. United States v. Barbosa, 271 F.3d 438, 452

(3d Cir. 2001).

III. Discussion

The parties do not agree on the framework that we

should apply to this appeal. Lewis urges that his Alleyne

error constitutes one of the following: a structural error, a

constructive amendment to the indictment, a presumptively

prejudicial error, or a pure sentencing error under harmless-

error review. The Government, conceding that there was an

Alleyne error, urges us to apply harmless-error review, but

would have us examine the trial record in addition to the

sentence. Because we will vacate based upon harmless-error

review, which is the standard less favorable to Lewis, we

need not address Lewis’s other arguments. We need address

only whether the error was a sentencing error or a trial error

and then apply the appropriate standard, which in our case is

the standard for sentencing errors. We note, accordingly, that

we do not opine as to the applicability of the alternative

6

standards more favorable to Lewis, the choice of which

would present particularly thorny issues of law.2

We begin by considering the Supreme Court’s opinion

in Alleyne, which held that brandishing a firearm was a

separate, aggravated offense from using or carrying a firearm,

and that the aggravated offense must be found by a jury

beyond a reasonable doubt. We will then discuss the

appropriate remedy here, in light of the Government’s

argument that the error was harmless.

A. Alleyne

The similarities between Alleyne and Lewis’s case are

noteworthy. Both Alleyne and Lewis were charged with

using or carrying a firearm. Alleyne, 133 S. Ct. at 2155.

Each jury considered only whether Alleyne or Lewis had used

or carried a firearm, not whether they had brandished one. Id.

at 2156. Both Alleyne and Lewis were convicted of using or

2

Our concurring colleagues assert that the failure to inform

Lewis of the charge of brandishing in the indictment renders

the error structural. We are not so sure. The indictment is not

the focus of Lewis’s argument; he seeks resentencing, not a

new indictment and retrial based on his having brandished the

weapon. The indictment and trial for gun possession did not

violate his rights; his sentencing for a crime with a greater

mandatory minimum did. Given that no court has held that

an Apprendi or Alleyne error is structural, we would be taking

a bold step if we were to rule that the error here infected the

entire trial process. However, we need not decide this issue

as the error here was certainly not harmless, and resentencing

is, as the concurrence concedes, the appropriate remedy.

7

carrying. Id. Both Alleyne’s and Lewis’s presentence report

recommended a seven-year sentence on the firearm count, in

accordance with the mandatory minimum for brandishing. Id.

Both Alleyne and Lewis timely objected and contended that

their Sixth Amendment right to a jury trial had been violated

because they were convicted of an offense with a five-year

mandatory minimum, but sentenced as if they had been

convicted of one with a seven-year mandatory minimum. Id.

Both district courts overruled the objection because Harris v.

United States, 536 U.S. 545 (2002), foreclosed the argument.3

Alleyne, 133 S. Ct. at 2156.

In Alleyne, the Supreme Court held that if a defendant

is convicted of using or carrying a firearm during and in

relation to a crime of violence, but is instead sentenced for

brandishing a firearm, the defendant’s Sixth Amendment

right to be tried by a jury for the crime of brandishing a

firearm has been violated. Id. at 2163-64. The Supreme

Court overruled Harris and held that brandishing a firearm is

a “separate, aggravated offense that must be found by the

jury.” Id. at 2162. The Alleyne Court thus “vacate[d] the

Fourth Circuit’s judgment with respect to Alleyne’s sentence

on the § 924(c)(1)(A) conviction and remand[ed] the case for

resentencing consistent with the jury’s verdict.” Id. at 2164.

The Supreme Court’s reasoning in Alleyne is based on

earlier Supreme Court precedent, Apprendi v. New Jersey,

3

Harris had held that it did not violate the Fifth or Sixth

Amendment for a judge to make a judicial finding by a

preponderance of the evidence that a defendant had

brandished a firearm, thereby increasing the defendant’s

mandatory minimum. 536 U.S. at 567-68.

8

530 U.S. 466, 490 (2000), in which it determined that a jury

must generally find facts that increase the penalty for a crime

beyond the mandatory maximum. In Alleyne, the Supreme

Court concluded that the Apprendi rule for mandatory

maximums also applies when the mandatory minimum is

increased, as is the case for a brandishing charge; indeed,

Alleyne is the logical extension of Apprendi. See Alleyne, 133

S. Ct. at 2163 (“[T]here is no basis in principle or logic to

distinguish facts that raise the maximum from those that

increase the minimum . . . .”). While an Apprendi error

occurs when a judge, rather than a jury, finds a fact that

increases the mandatory maximum, an Alleyne error occurs

when a judge, rather than a jury, finds a fact that increases the

mandatory minimum for a defendant. In both Apprendi and

Alleyne, the Supreme Court thus confirmed the fundamental

right of a criminal defendant to have the jury, not the judge,

find such facts.

B. Harmless Error

Alleyne thus establishes that when a defendant is

sentenced for brandishing but indicted, tried, and convicted of

using or carrying, the defendant’s constitutional rights have

been violated. The Government urges, however, that this

error can be harmless and correctly points out that the issue of

harmless error was neither raised nor discussed in Alleyne.

The Government also notes that the Supreme Court has

“adopted the general rule that a constitutional error does not

automatically require reversal of a conviction,” as “the Court

has applied harmless-error analysis to a wide range of errors

and has recognized that most constitutional errors can be

harmless.” Arizona v. Fulminante, 499 U.S. 279, 306 (1991).

Accordingly, we turn now to the issue of harmlessness.

9

The rule governing harmless error provides: “Any

error, defect, irregularity, or variance that does not affect

substantial rights must be disregarded.” Fed. R. Crim. P.

52(a). For harmless-error review, “the over-arching

consideration of Rule 52 is whether an error ‘affects

substantial rights.’” United States v. Adams, 252 F.3d 276,

281 (3d Cir. 2001). Harmless-error review “applies when the

defendant has made a timely objection to an error,” as Lewis

has in this case.4 Id. “Though the harmless error analysis

leaves room for certain convictions to stand, regardless of the

presence of constitutional error at trial, it places a decidedly

heavy burden on the Government to demonstrate that reversal

is not warranted.” United States v. Waller, 654 F.3d 430, 438

(3d Cir. 2011).

To begin, we note two different types of errors that we

routinely review on appeal in a criminal case: trial errors and

sentencing errors. See, e.g., United States v. Brennan, 326

F.3d 176, 180 (3d Cir. 2003). We must determine into which

category Lewis’s Alleyne error falls.

The error here was a sentencing error, as nothing was

wrong with Lewis’s indictment or trial. The indictment

charged Lewis with an offense—using or carrying—and did

not omit any elements of that charge. At trial, the jury

received the proper instructions for the using or carrying

offense. The jury properly entered a verdict finding Lewis

guilty of that offense, so Lewis was properly convicted of that

offense. But, then, the District Court sentenced Lewis for the

offense of brandishing. As in Alleyne, this was the error. See

4

Otherwise, plain-error review applies. See Fed. R. Crim. P.

52(b).

10

United States v. Pizarro, 772 F.3d 284, 294 (1st Cir. 2014)

(“In Alleyne itself, the error was of the sentencing variety.”).

We are not alone in reaching this conclusion, as the Courts of

Appeals for both the Fourth and Ninth Circuits have treated

particular Apprendi errors as sentencing errors. See, e.g.,

United States v. Mackins, 315 F.3d 399, 409-10 (4th Cir.

2003); United States v. Jordan, 291 F.3d 1091, 1095-97 (9th

Cir. 2002).5

This is not to say that all Alleyne or Apprendi errors

are pure sentencing errors. In United States v. Vazquez, 271

F.3d 93 (3d Cir. 2001) (en banc), we were confronted with

both a trial error and a resulting sentencing error. We noted

in Vazquez that, for the particular Apprendi error in that case,

“the sentencing error (imposing a sentence beyond the

prescribed statutory maximum) is inextricably intertwined

with a trial error (failing to submit an element of the offense

to the jury).” Id. at 101. The jury in Vazquez was never

instructed on one of the elements of the offense, i.e., drug

quantity, for which the defendant was indicted, tried, and

5

We recognize that the Court of Appeals for the Ninth Circuit

has not applied Jordan consistently. Compare Jordan, 291

F.3d at 1097 (“We hold that the government cannot meet its

burden under the harmless error standard when drug quantity

is neither charged in the indictment nor proved to a jury

beyond reasonable doubt, if the sentence received is greater

than the combined maximum sentences for the indeterminate

quantity offenses charged.”), with United States v. Salazar-

Lopez, 506 F.3d 748, 754-55 (9th Cir. 2007) (purporting to

apply Jordan but considering whether the evidence was

“overwhelming and uncontroverted”).

11

convicted—namely, conspiracy to possess and distribute

more than five kilograms of cocaine. See id. at 98 (“Vazquez

was indicted and tried for conspiracy to possess and distribute

more than 5 kilograms of cocaine . . . . [D]rug quantity was

neither submitted to the jury nor reflected in its verdict.”).

Thus, Vazquez involved a clear trial error: “failing to submit

to the jury an element of an offense” for which the defendant

was indicted and convicted. Id. at 102. Here, in contrast, the

jury instructions discussed all the elements of the crime for

which Lewis was indicted and convicted—i.e., using or

carrying. The District Court could have sentenced Lewis for

using or carrying, as the jury found every element of that

crime. But it sentenced him for a different crime. Thus, this

case, like Alleyne, involves a pure sentencing error, whereas

Vazquez involved a trial error.6

6

This case is materially distinguishable from Neder, Johnson,

and Vazquez. In those three cases, the defendants were

charged with the sentenced crime, but the jury was not

instructed to find one of the elements of that crime. See, e.g.,

Neder v. United States, 527 U.S. 1, 14 (1999) (“The trial

court, following existing law, ruled that the question of

materiality was for the court, not the jury.”); Johnson v.

United States, 520 U.S. 461, 464 (1997) (“[T]he District

Judge instructed the jury that the element of materiality was a

question for the judge to decide, and that he had determined

that her statements were material.”); Vazquez, 271 F.3d at 98

(“Vazquez was indicted and tried for conspiracy to possess

and distribute more than 5 kilograms of cocaine in violation

of 21 U.S.C. §§ 846 and 841. . . . In Vazquez’s case, drug

quantity was neither submitted to the jury nor reflected in its

verdict.”). To the extent that the concurrence and the dissent

rely on those cases in concluding that the error here was a

12

Harmless-error review for a sentencing error turns on

whether the error did or did not “contribute to the [sentence]

obtained.” Sochor v. Florida, 504 U.S. 527, 539 (1992)

(alteration in original) (quoting Chapman v. California, 389

U.S. 18, 24 (1967)). In other words, harmless-error review

for a sentencing error requires a determination of whether the

error “would have made no difference to the sentence.”

Parker v. Dugger, 498 U.S. 308, 319 (1991). This analysis

contrasts with the analysis appropriate for trial errors, which

turns on whether it is “clear beyond a reasonable doubt that a

rational jury would have found the defendant guilty absent the

error.” Neder v. United States, 527 U.S. 1, 18 (1999).

Because we are confronted here with a sentencing error, we

do not conduct the analysis reserved for trial errors.

There is a further reason that compels our rejection of

the Government’s assertion that we should look back to the

trial record in assessing harmless error when the mandatory

maximum or minimum is at play. Looking back to the trial

record would run directly contrary to the essence of Apprendi

and Alleyne. The motivating principle behind Apprendi and

Alleyne is that judges must not decide facts that change the

mandatory maximum or minimum; juries must do so. If we

affirm because the evidence is overwhelming, then we are

performing the very task that Apprendi and Alleyne instruct

judges not to perform. See, e.g., Alleyne, 133 S. Ct. at 2155

(“Any fact that, by law, increases the penalty for a crime . . .

must be submitted to the jury and found beyond a reasonable

trial error, those cases do not support that position. They do

not address the situation where, as here, the defendant was

sentenced for a crime for which he was neither indicted nor

tried.

13

doubt.”); id. at 2162 (“When a finding of fact alters the

legally prescribed punishment so as to aggravate it, the fact . .

. must be submitted to the jury.”); id. (“Indeed, if a judge

were to find a fact that increased the statutory maximum

sentence, such a finding would violate the Sixth Amendment

. . . .”); Apprendi, 530 U.S. at 490 (“Other than the fact of a

prior conviction, any fact that increases the penalty for a

crime beyond the prescribed statutory maximum must be

submitted to a jury, and proved beyond a reasonable

doubt.”).7

The Government relies heavily on United States v.

Cotton, 535 U.S. 625 (2002), and Washington v. Recuenco,

548 U.S. 212 (2006), in urging us to conduct the harmlessness

inquiry reserved for trial errors and to examine the nature and

quantum of the evidence introduced at trial in order to uphold

the sentence. However, these cases are distinguishable and

do not advance the Government’s position. In Cotton, the

Supreme Court decided that an Apprendi error does not

require reversal under plain-error review when the evidence

that the defendant committed the offense at issue was

overwhelming and uncontroverted. Cotton, 535 U.S. at 633.

7

We also note the Kafkaesque consequence of the

Government’s position, which was made starkly apparent at

oral argument: the Government conceded that “the logical

outcome of [its] position” that judges should consider the

evidence in the trial record is that, if a defendant were

charged and convicted of manslaughter, but the judge were to

find evidence of premeditation to be overwhelming and

uncontroverted, a sentence for the aggravated offense of

murder would be permissible. (Oral Arg. 51:20, Feb. 19,

2015.)

14

Cotton and Lewis’s case bear certain similarities—in each

case, the indictment, the jury instructions, and the conviction

all supported a lesser offense, yet the judge at sentencing

subjected the defendant to the sentencing range applicable for

an aggravated offense. See id. at 627-29. It follows that

Cotton, like Lewis’s case, involves a pure sentencing error.

But Cotton involved plain error because the defendant failed

to timely object to the error, id. at 634, not harmless error as

is the case here. The crucial consideration in Cotton was that,

because the evidence at trial was overwhelming and

uncontroverted, “the error did not seriously affect the

fairness, integrity, or public reputation of judicial

proceedings.”8 Id. at 632-33. Here, because Lewis’s case

does not involve review for plain error, the issue of whether

the error seriously affects the fairness, integrity, or public

reputation of judicial proceedings is not before us. See

Johnson v. United States, 520 U.S. 461, 466-67 (1997)

(noting that this is a question for plain-error review); see also

Jordan, 291 F.3d at 1096 n.7 (holding that Cotton “does not

control nor aid our analysis” because “that case was analyzed

under plain error, not harmless error”); Mackins, 315 F.3d at

409 (distinguishing Cotton because the integrity of judicial

proceedings step of plain-error review “has no application

when a defendant has objected in the trial court and so

preserved his contention for appellate review”).9

8

Crucially, the Cotton Court did not address whether the

presence of overwhelming and uncontroverted evidence at

trial was a consideration for the “substantial rights” stage of

the plain-error inquiry. 535 U.S. at 632.

9

We do not find the Court for Appeals for the Second

Circuit’s opinion in United States v. Confredo persuasive

15

Accordingly, Cotton does not dictate the analysis or result

here.

Recuenco is also off-point. In Recuenco, a jury found

that the defendant had committed an assault with a “deadly

weapon.” Recuenco, 548 U.S. at 215. The judge sentenced

the defendant pursuant to an enhancement for using a

“firearm,” which is a type of “deadly weapon.” Id. However,

the problem was that the jury did not specifically find that the

defendant committed an assault with a “firearm,” just that he

had committed an assault with a “deadly weapon.” Id. The

Supreme Court held that the “[f]ailure to submit a sentencing

factor to the jury, like failure to submit an element to the jury,

is not structural error.” Id. at 222. Importantly, at no point

did the Supreme Court explain what harmless-error review

should consist of. Instead, it merely “remand[ed] the case for

further proceedings not inconsistent with [its] opinion.” Id.

Thus, Recuenco provides no support for the Government’s

assertion that we should consider the evidence in the trial

record here.10

because it fails to recognize this distinction. See 528 F.3d

143, 156 (2d Cir. 2008) (“The Supreme Court has ruled [in

Cotton] that an Apprendi violation concerning an omission

from an indictment is not noticeable as plain error where the

evidence is overwhelming that the grand jury would have

found the fact at issue. We think the same analysis should

apply to harmless error.” (citation omitted)).

10

Both the concurrence and the dissent struggle unnecessarily

and incorrectly with the test for harmlessness. The dissent’s

inquiry into the evidence is wrongheaded, as the error

occurred at sentencing, and thus, the Government must prove

that the sentence would have been no different had the error

not occurred. Cotton’s concern with the integrity of judicial

16

Here, we are presented with a pure sentencing error

and thus must ask whether the Alleyne error in this case

contributed to Lewis’s sentence. As we explained supra, this

inquiry takes the form of asking whether Lewis’s sentence

would have been different had he been sentenced for using or

carrying, rather than brandishing. See Parker, 498 U.S. at

319 (explaining the inquiry as whether the error “would have

made no difference to the sentence”). Obviously, Lewis’s

sentence would have been different: Lewis received 84

months for brandishing—the seven-year mandatory

minimum—whereas the mandatory minimum for using or

carrying is two years less. Therefore, Lewis has been

sentenced to an extra two years as a result of this Alleyne

error. The Government bears the “decidedly heavy burden”

as to harmlessness, see Waller, 654 F.3d at 438, and it does

not and cannot contend that it “would have made no

difference to the sentence” if Lewis had been sentenced for

using or carrying, instead of for brandishing.11

proceedings and its resulting consideration of the evidence

has no place here: the integrity of judicial proceedings is the

last prong of the plain-error test, and it is absent from the

harmless-error test. The concurrence proceeds from the

vantage point of the purportedly defective indictment. This,

too, is flawed. Nothing was wrong with Lewis’s indictment:

the error was in sentencing Lewis using the mandatory

minimum applicable to a crime more serious than the crime

of conviction.

11

There may be a case where the sentencing court makes it

clear that it is not sentencing the defendant based on the

mandatory minimum. In such a case, we could conclude that

the Alleyne error did not impact the sentence. See United

States v. Langford, 516 F.3d 205, 215 (3d Cir. 2008) (“For

17

IV. Conclusion

For the foregoing reasons, we will vacate the District

Court’s sentence and remand for resentencing.

the error to be harmless, it must be clear that the error did not

affect the district court’s selection of the sentence imposed.”).

If the Government meets its heavy burden to show that the

error would have made no difference to the sentence—i.e.,

had the defendant been sentenced for the crime for which he

was convicted, his sentence would have been the same—then

we may affirm under harmless-error review. However, we

would remand for resentencing unless we are certain that the

error made no difference to the sentence.

18

United States v. Lewis, No. 10-2931

SMITH, Circuit Judge, concurring, joined by McKEE, Chief

Judge, AMBRO and JORDAN, Circuit Judges.

Jermel Lewis was charged with and convicted of using

or carrying a firearm, but was eventually sentenced on the

basis of a different, aggravated crime. Conviction of the

aggravated crime would have required proof of an element

unnecessary to a using or carrying offense: that Lewis had

brandished a firearm. Lewis’s indictment did not charge him

with brandishing, nor did the jury find that he had committed

that crime beyond a reasonable doubt. Yet Lewis was

subjected to the enhanced mandatory minimum sentence

required for brandishing. I agree with the majority that this

error demands resentencing; the new sentence should be

based solely on the crime with which Lewis was actually

charged and for which he was convicted. But I would hold

that this error was structural and therefore reversible if

properly preserved. Structural errors do not require a court to

inquire into whether the error was harmless.

I.

Analysis of the nature of the error here begins with

determining whether sentencing a defendant for an uncharged

crime is a “pure sentencing error” as the majority describes it,

or instead is an error that is inextricable from the contours of

the indictment. Our previous en banc decision in United

States v. Vazquez, 271 F.3d 93 (3d Cir. 2001), provides the

lens through which the error in this case must be viewed.

There we considered a violation of Apprendi v. New Jersey,

1

530 U.S. 466 (2000), in which the defendant was charged and

tried for conspiracy to possess and distribute more than five

kilograms of cocaine, a quantity sufficient to warrant an

enhanced sentence. Vazquez, 271 F.3d at 98. But the jury

was not asked to find drug quantity. Id. Nevertheless, the

district court sentenced the defendant to 292 months’

incarceration—over four years more than the applicable

statutory maximum for a conviction without quantity—after

finding by a preponderance that the defendant had been

“involved with”1 nearly two kilograms of cocaine. Id. at 98–

99. While the case was on direct appeal, the Supreme Court

decided Apprendi. Id. at 99. Applying Apprendi

retroactively, we said the failure to submit drug quantity to

the jury yet imposing an enhanced sentence for quantity was

“not just a sentencing error but also a trial error” because

the sentencing error (imposing a sentence

beyond the prescribed statutory maximum) is

inextricably intertwined with a trial error

(failing to submit an element of the offense to

the jury). On the one hand, the trial error exists

only because of the sentencing error. On the

other hand, the sentencing error cannot occur

without the trial error.

Id. at 101. Thus, we chose not to view the error in Vazquez as

a pure sentencing error because “the realities concerning the

nature of Apprendi violations” required a different result. Id.

1

The evidence at trial showed that the defendant had given

991 grams of powder cocaine and 859 grams of crack cocaine

to a co-conspirator for storage. Vazquez, 271 F.3d at 97.

2

This was also “more consonant” with the approaches

taken in Neder v. United States, 527 U.S. 1 (1999), and

Johnson v. United States, 520 U.S. 461 (1997). Vazquez, 271

F.3d at 102. Both Neder and Johnson involved the trial

court’s failure to submit a required element of a defendant’s

conviction to the jury.2 Neder, 527 U.S. at 18–19; Johnson,

520 U.S. at 470. We reasoned that because the errors in

Neder and Johnson were “trial error[s] result[ing] in a

constitutional defect,” the failure to submit an element to the

jury resulting in a sentence violating Apprendi must also

constitute both trial and sentencing error. Vazquez, 271 F.3d

at 102.

A similar series of events tainted the proceedings here.

The indictment charged Lewis with using and carrying a

firearm, and the District Court properly instructed the jury as

to that charge. Yet the District Court applied the enhanced

mandatory minimum for brandishing. The omission of

brandishing from the jury instructions and the resulting error

in sentencing for brandishing stemmed from the

Government’s decision not to charge brandishing in the

indictment. Similarly, the indictment was lacking only

because the District Court sentenced Lewis for brandishing.

Although prosecutorial discretion permitted the Government

to charge Lewis for a less significant crime than the evidence

might support, see United States v. Esposito, 968 F.2d 300,

306 (3d Cir. 1992) (“In our criminal justice system, if the

prosecutor has probable cause to believe a crime has been

committed and that the accused committed it, the decision

2

Notably, neither Neder nor Johnson involved indictment

omissions.

3

whether or not to prosecute and what charges to file generally

rests within the prosecutor’s broad discretion.”), the

Government’s decision not to charge brandishing gained

constitutional significance when the District Court sentenced

Lewis for the uncharged brandishing offense.

The majority concludes that “[t]he error here was a

sentencing error, as nothing was wrong with Lewis’s

indictment or trial.” But the same could have been said in

Vazquez: The instructions to the jury were sufficient to

support a conviction and sentence for a lesser-included

offense that did not require proof of drug quantity, and the

sentencing court erred by imposing a sentence greater than

that reflected in the instructions. Indeed, we characterized the

sequence of events in Vazquez as a combined “trial and

sentencing error” despite there being nothing incorrect about

instructing the jury and securing a conviction on a lesser-

included offense, as opposed to the aggravated crime charged

in the indictment. See Schmuck v. United States, 489 U.S.

705, 717 (1989) (Rule 31(c) of the Federal Rules of Criminal

Procedure “suggests that a lesser included offense instruction

is available in equal measure to the defense and to the

prosecution”); Keeble v. United States, 412 U.S. 205, 208

(1973) (“[T]he defendant is entitled to an instruction on a

lesser included offense if the evidence would permit a jury

rationally to find him guilty of the lesser offense and acquit

him of the greater.”); see also United States v. Petersen, 622

F.3d 196, 207 (3d Cir. 2010) (affirming conviction for lesser-

included offense under plain-error review where jury was

instructed only as to aggravated offense). Accordingly, that

the indictment here was initially error-free does not control

whether we must nevertheless consider the charges Lewis

4

faced to assess the implications of his erroneous sentence for

brandishing.

Indeed, as in Vazquez, the realities of the Alleyne error

here support the view that the District Court’s error was not

limited merely to sentencing. The Government from the

outset alleged facts consistent with brandishing. The second

superseding indictment described Lewis’s and his co-

defendants’ overt acts in relation to the Government’s

conspiracy count as follows:

Defendants Glorious Shavers, Andrew White,

and Jermel Lewis burst through the front door

of the Speakeasy armed with handguns and a

shotgun, announced a robbery, forced

customers and employees to the floor,

threatened to shoot them, herded the victims

into the basement and again forced them onto

the floor, and stole money, wallets and cell

phones.

This allegation was incorporated by reference into the count

charging Lewis under 18 U.S.C. § 924(c) and 18 U.S.C. § 2.

But that count charged Lewis only with “knowingly us[ing]

and carr[ying], and aid[ing] and abett[ing] the use and

carrying of, a firearm.” The Government’s decision not to

charge Lewis with brandishing under 18 U.S.C.

§ 924(c)(1)(A)(ii), despite alleging conduct clearly consistent

with brandishing in the operative count, transformed what

would have been a proper sentence for brandishing into

constitutional error.

5

The Government’s prosecution of this case may be

understandable given that this case was charged, tried, and

sentenced while Harris v. United States, 536 U.S. 545 (2002),

was still good law. Until overruled by Alleyne v. United

States, 133 S. Ct. 2151 (2013), Harris approved seeking an

enhanced sentence for brandishing without submitting that

element to the jury given that only a mandatory minimum

was affected. See Harris, 536 U.S. at 556. Nevertheless,

submitting an essential element affecting the applicable

mandatory minimum only to the court at sentencing is

impermissible after Alleyne.3 And because the sentencing

error of which Lewis complains exists only because of the

Government’s decision not to charge brandishing in the

indictment, we should consider the proceeding as a whole,

from the indictment through sentencing, to determine whether

the error was structural.

II.

The Supreme Court has taken a categorical approach

in distinguishing structural errors from those errors subject to

review for harmlessness. Most constitutional errors can be

harmless, Arizona v. Fulminante, 499 U.S. 279, 306 (1991),

but if an error is structural, it is “per se prejudicial” and

“lead[s] to [an] automatic reversal” if properly preserved.4

3

Similarly, only after Apprendi did it become clear that the

sentence in Vazquez was erroneous.

4

If the error was not properly preserved, under plain-error

review we may affirm a judgment even if there is a structural

error that affects substantial rights. See United States v.

Cotton, 535 U.S. 625, 632 (2002) (declining to resolve

6

Vazquez, 271 F.3d at 103. Several factors inform whether an

error is structural. Structural errors “necessarily render a

criminal trial fundamentally unfair or an unreliable vehicle

for determining guilt or innocence.” Puckett, 556 U.S. at 141

(quoting Neder, 527 U.S. at 9). They also “‘defy analysis by

harmless-error standards’ because they ‘affec[t] the

framework within which the trial proceeds,’ and are not

‘simply an error in the trial process itself.’” United States v.

Gonzalez-Lopez, 548 U.S. 140, 148–49 (2006) (alteration in

original) (internal quotation marks omitted) (quoting

Fulminante, 499 U.S. at 309–10). Thus, an error “with

consequences that are necessarily unquantifiable and

indeterminate, unquestionably qualifies as ‘structural error.’”

Id. at 150 (quoting Sullivan v. Louisiana, 508 U.S. 275, 282

(1993)). Errors can also be structural if harmlessness is

irrelevant to the right violated, as in the case of denials of the

right to self-representation. Id. at 149 n.4 (citing McKaskle v.

Wiggins, 465 U.S. 168, 177 n.8 (1984)).

Few errors are more significant to the proceedings that

follow than an indictment that fails to inform a defendant of

whether omission of drug quantity from indictment was

structural but affirming conviction on plain-error review);

Johnson v. United States, 520 U.S. 461, 468–69 (1997)

(declining to resolve whether omission of element from jury

instructions was structural but affirming conviction on plain-

error review). However, the Supreme Court has not yet

resolved whether a structural error automatically affects the

defendant’s substantial rights for the purposes of that review.

Puckett v. United States, 556 U.S. 129, 140 (2009); see also

United States v. Olano, 507 U.S. 725, 735 (1993).

7

the charges against him and the possible punishment he faces.

The Fifth Amendment provides that “[n]o person shall be

held to answer for a capital, or otherwise infamous crime,

unless on a presentment or indictment of a Grand Jury.” U.S.

Const. amend. V. Accordingly, a defendant has the

“substantial right to be tried only on charges presented in an

indictment returned by a grand jury.” Stirone v. United

States, 361 U.S. 212 (1960). This guarantee is “a basic right

of criminal defendants.” United States v. Syme, 276 F.3d 131,

154 (3d Cir. 2002). Thus, “a court cannot permit a defendant

to be tried on charges that are not made in the indictment

against him.” United States v. Vosburgh, 602 F.3d 512, 531

(3d Cir. 2010); see also Dunn v. United States, 442 U.S. 100,

106 (1979) (“To uphold a conviction on a charge that was

neither alleged in an indictment nor presented to a jury at trial

offends most basic notions of due process.”).

The Sixth Amendment also provides that “[i]n all

criminal prosecutions, the accused shall enjoy the right . . . to

be informed of the nature and cause of the accusation.” U.S.

Const. amend. VI. This right is violated when an indictment

“does not state the essential elements of the crime.” United

States v. Pirro, 212 F.3d 86, 92 (2d Cir. 2000) (citing Russell

v. United States, 369 U.S. 749, 761 (1962)). “A person’s

right to reasonable notice of a charge against him, and an

opportunity to be heard in his defense—a right to his day in

court—are basic in our system of jurisprudence.” In re

Oliver, 333 U.S. 257, 273 (1948). Prosecuting a defendant

for an aggravated crime when the indictment charges only a

lesser crime thus violates both the Fifth and Sixth

Amendments. See Apprendi, 530 U.S. at 476 (“[U]nder the

Due Process Clause of the Fifth Amendment and the notice

8

and jury trial guarantees of the Sixth Amendment, any fact

(other than prior conviction) that increases the maximum

penalty for a crime must be charged in an indictment,

submitted to a jury, and proven beyond a reasonable doubt.”

(quoting Jones v. United States, 526 U.S. 227, 243 n.6

(1999))); see also Alleyne, 133 S. Ct. at 2157 (facts that

aggravate “the prescribed range of sentences to which a

defendant is exposed” are “elements and must be submitted to

the jury and found beyond a reasonable doubt”).

Sentencing a defendant for a crime that was not

charged in the indictment renders the criminal proceedings

fundamentally unfair. An indictment that charges a different

crime than the one for which a defendant is sentenced does

not merely affect the criminal proceeding, it fundamentally

alters that proceeding. Put another way, the charging

instrument is “the framework within which the trial

proceeds,” Gonzalez-Lopez, 548 U.S. at 148 (quoting

Fulminante, 499 U.S. at 148), and forms the basis for the

Government’s proof, the accused’s defense, and the trial

court’s rulings. Indeed, whether a defendant decides to plead

guilty or instead exercises his right to trial by jury may

depend on the charges he faces and his potential punishment.

Thus, failing to notify a defendant of the crime of which he is

accused “infect[s] the entire trial process,” Neder, 527 U.S. at

8 (quoting Brecht v. Abrahamson, 507 U.S. 619, 630 (1993)),

and undermines any confidence that the sentence imposed

reflects a just outcome.

Further, inquiry into whether an error of this nature

was harmless is inherently unreliable. See Gonzalez-Lopez,

548 U.S. at 149 n.4 (holding error was structural because of

9

“the difficulty of assessing the effect of the error”). Would

Lewis have pled guilty if he had known of the applicable

mandatory minimum for brandishing, in hopes that his

acceptance of responsibility would result in leniency at

sentencing on the Hobbs Act counts? Or perhaps he would

have chosen to cooperate with law enforcement against his

co-conspirators to gain the Government’s support for a

sentence below the mandatory minimum, pursuant to

U.S.S.G. § 5K1.1 and 18 U.S.C. § 3553(e). Would he have

been successful in these efforts to reduce his sentence if he

had undertaken them? Assuming Lewis still chose to go to

trial, how would his defense have changed? Would he have

sought to develop evidence rebutting a charge of brandishing?

What would that evidence have been? What if Lewis’s

counsel chose not to attack the Government’s proof that

Lewis used or carried a firearm, but would have put on a case

against weak proof of brandishing? How might the

Government’s or Lewis’s counsel’s presentations of the case

changed? Would witnesses have changed their testimony in

response to questions probing brandishing? Would these

differences have impacted the jury? All parties to a criminal

proceeding, including the judge, the jury, the defendant,

defense counsel, witnesses, and prosecutors, are guided by the

charges in the indictment. And if that indictment charges a

crime different than the one for which a defendant is

sentenced, determining “what might have been” is an exercise

in rank speculation.

In my view, the Supreme Court’s rationale in United

States v. Gonzalez-Lopez dictates the outcome here. There,

the Supreme Court held that the violation of a defendant’s

Sixth Amendment right to counsel of choice was structural

10

error. Gonzalez-Lopez, 548 U.S. at 150. In doing so, the

Supreme Court observed that a different attorney might have

pursued “different strategies with regard to investigation and

discovery, development of the theory of defense, selection of

the jury, presentation of the witnesses, and style of witness

examination and jury argument.” Id. at 150. Further, the

choice of attorney “affects[s] whether and on what terms the

defendant cooperates with the prosecution, plea bargains, or

decides instead to go to trial.” Id. Thus, “[i]t is impossible to

know what different choices the rejected counsel would have

made, and then to quantify the impact of those different

choices on the outcome of the proceedings.” Id. So too when

an indictment charges a lesser crime than the one for which a

defendant is eventually sentenced. Assessing the effects of

the flawed indictment here is “a speculative inquiry into what

might have occurred in an alternate universe” and is a far cry

from the “quantitative[] assess[ment] in the context of other

evidence presented” that defines harmless-error analysis. Id.

at 148, 150 (quoting Fulminante, 499 U.S. at 307–08).

In an effort to demonstrate that the error here was not

harmless, the majority also distinguishes the Supreme Court

precedent on which the Government relies, including United

States v. Cotton, 535 U.S. 625 (2002), and Washington v.

Recuenco, 548 U.S. 212 (2006). As the majority correctly

notes, Cotton involved plain error and did not address

whether the type of error here was structural. See 535 U.S. at

632–33 (declining to resolve “whether respondents satisfy

[the substantial rights] element of the plain-error inquiry”).5

5

The majority also suggests that “Cotton, like Lewis’s case,

involves a pure sentencing error.” But Cotton did not opine

11

Further, apart from the majority’s analysis, Recuenco is not

applicable because the Supreme Court expressly declined to

consider whether an error under Blakely v. Washington, 542

U.S. 212 (2004),6 in the charging instrument was structural

error. See Recuenco, 548 U.S. at 220 n.3 (noting that

defendant sought to “characteriz[e] this as a case of charging

error, rather than of judicial factfinding” but rejecting that

distinction “[b]ecause the Supreme Court of Washington

treated the error as one of the latter type”); id. at 223

(Stevens, J., dissenting) (“[B]ecause the Court does not

address the strongest argument in respondent’s favor—

namely, that Blakely errors are structural because they deprive

criminal defendants of sufficient notice regarding the charges

they must defend against, this decision will have a limited

impact on other cases.” (citation omitted)). Indeed, after

Recuenco, the Supreme Court granted certiorari on the very

question presented in this case, but resolved that case on

alternative grounds. United States v. Resendiz-Ponce, 549

U.S. 102, 103–04 (2007) (granting certiorari “to answer the

question whether the omission of an element of a criminal

on whether it is a pure sentencing error or instead something

more when a defendant is sentenced for an aggravated crime

but the indictment, jury instructions, and conviction support

only a lesser offense.

6

Blakely, applying Apprendi, “clarif[ied] ‘that the “statutory

maximum” for Apprendi purposes is the maximum sentence a

judge may impose solely on the basis of the facts reflected in

the jury verdict or admitted by the defendant.’” Lloyd v.

United States, 407 F.3d 608, 612 (3d Cir. 2005) (emphasis

omitted) (quoting Blakely, 542 U.S. at 303).

12

offense from a federal indictment can constitute harmless

error” but reversing “without reaching the harmless-error

issue”). Accordingly, Cotton and Recuenco hold little

persuasive value as to whether the Alleyne error here was

structural.7

The majority suggests that its opinion does not

foreclose a holding that the omission of an element from an

indictment in violation of Alleyne is structural. Instead, the

majority emphasizes that left open is whether “the alternative

standards more favorable to Lewis,” including whether the

error is structural, might apply in a case like this. But by

limiting its harmless-error analysis to the record at Lewis’s

sentencing, I believe the majority implicitly rejects a

conclusion that the error here could be structural. It is

difficult to conceive of a pure sentencing error as “affect[ing]

the framework within which the trial proceeds,” rendering a

trial “fundamentally unfair,” or meeting any of the other

recognized criteria for structural error. Gonzalez-Lopez, 548

U.S. at 148–49 & n.4 (quoting Fulminante, 499 U.S. at 309–

10). Indeed, the majority undercuts its expressed restraint by

7

Some of our sister circuits, relying on cases like Recuenco

and Cotton, have decided this issue differently. See, e.g.,

United States v. Harakaly, 734 F.3d 88, 94–95 (1st Cir.

2013); United States v. Confredo, 528 F.3d 143, 156 (2d Cir.

2008); United States v. Salazar-Lopez, 506 F.3d 748, 753–54

(9th Cir. 2007); United States v. Baptiste, 309 F.3d 274, 277–

78 (5th Cir. 2002). For the reasons stated above and by the

majority, neither Recuenco nor Cotton support a holding that

the error here was not structural. Further, none of these cases

cited Gonzalez-Lopez or considered its rationale.

13

acknowledging that even if the same Alleyne error is made in

a future case—i.e., where neither the indictment, jury

instructions, nor conviction reflect the crime for which a

defendant is sentenced—we may nevertheless affirm the

sentence imposed “where the sentencing court makes it clear

that it is not sentencing the defendant based on the mandatory

minimum.” In my view, doing so would ratify a

fundamentally unsound principle: that a defendant may be

sentenced based on a crime for which he was never indicted

nor convicted, and the evidence of which he was never

afforded the opportunity to rebut.

Finally, the harmless-error analysis that the majority

suggests is applicable here is inherently flawed. As

envisioned by the majority, in order to be harmless, the record

must demonstrate clearly that the sentencing court would

have imposed the same sentence absent the error. United

States v. Langford, 516 F.3d 205, 215 (3d Cir. 2008). Put

another way, errors of the kind made here would require a

showing that the District Court would have imposed the same

sentence even if the defendant were charged and convicted of

a lesser crime than the one for which punishment was

imposed. Query whether a sentencing court’s reasoning that

it would impose the same sentence regardless of the crime

charged violates 18 U.S.C. § 3553(a)(1)’s mandate that the

sentencing court consider “the nature and circumstances of

the offense” when choosing an appropriate sentence. See

United States v. Merced, 603 F.3d 203, 215 (3d Cir. 2010)

(for a sentence to be procedurally reasonable, the district

court’s analysis must demonstrate “meaningful consideration

of the relevant sentencing factors”). So although the majority

indicates that harmless-error review is applicable, in practice

14

the kind of error here would rarely, if ever, warrant our

approval even under a harmless-error analysis.

III.

For these reasons, I would hold that a sentencing

court’s imposition of a sentence for an aggravated crime that

was not charged in a defendant’s indictment constitutes

structural error. On that basis, I would vacate the District

Court’s judgment and remand for resentencing based on the

crime of which Lewis was actually convicted.

15

UNITED STATES OF AMERICA v. JERMEL LEWIS, a/k/a

STAR, a/k/a PR-STAR, a/k/a P, Jermel Lewis, Appellant.

No. 10-2931

FISHER, Circuit Judge, dissenting, with whom CHAGARES

and HARDIMAN, Circuit Judges, join.

The plurality finds that Jermel Lewis’s substantial

rights were affected when he was sentenced to a seven-year

mandatory minimum sentence for brandishing a weapon

during a crime of violence, despite undisputed and

overwhelming testimony that he pointed a gun at many

people during a robbery. Though what occurred below was

error, in my view, for the reasons explained in Judge Smith’s

concurring opinion, the error occurred both at trial and at

1

sentencing.1 So, upon a review of the uncontroverted

evidence presented to the grand and petit juries, I would hold

that the error was harmless.

1

The plurality bases its ultimate decision on the

rationale introduced by an amicus curiae. This result causes

me concern because it allows defendants to take the tack most

expedient at any point in their appeal, regardless of what was

argued earlier. Our jurisprudence dictates that we should be

hesitant to consider amici’s arguments that were not squarely

raised by a party below, absent extraordinary circumstances

involving a pure question of law, which are not present here.

N.J. Retail Merchs. Ass’n v. Sidamon-Eristoff, 669 F.3d 374,

382-83 n.2 (3d Cir. 2012) (“‘Although an amicus brief can be

helpful in elaborating issues properly presented by the parties,

it is normally not a method for injecting new issues into an

appeal, at least in cases where the parties are competently

represented by the parties.’”); Webb v. City of Phila., 562

F.3d 256, 263-64 (3d Cir. 2009) (“We are not presented with

a pure question of law here, nor are we faced with exceptional

circumstances. We do not reach the merits of Webb’s

constitutional claims.”). Moreover, an argument can be made

that Lewis explicitly waived his ability to counter the

Government’s argument that any error was harmless. Far

from neglecting to raise the issue, Lewis forcefully disavowed

this argument, for instance, by beginning his argument to a

three-judge panel of this Court by emphasizing “I’m arguing

that harmless error doesn’t apply.” See also Lewis Br. at 15

(noting on the first page of the argument section, that “the

doctrine of ‘harmless error’ has no application”). However,

since the Government raised harmless error post-Alleyne,

arguably the question of harmless error at sentencing was

before us, so I will not couch my opposition on waiver.

2

I agree with the plurality that this error is not structural

and therefore is reviewed for harmless error or plain error

under Rule 52 of the Federal Rules of Criminal Procedure.

Because the Government has conceded that Lewis objected at

sentencing to his seven-year mandatory minimum sentence,

we review for harmlessness.2 Because in my view Lewis

would have received the same sentence had there been no

error—that is, had the grand jury been asked to charge

brandishing and had that charge been presented to the jury—

the error under Alleyne v. United States, 133 S. Ct. 2151

2

I note that our review for harmless error is

precipitated by a major concession by the Government—a

concession that appears to have little basis in what actually

occurred in the District Court. Lewis, in his first brief,

adopted his co-defendant’s statement that “[d]efense counsel

did not object to a consecutive sentence of seven years’

imprisonment for brandishing a firearm.” Brief for Appellant

Glorious Shavers at *5, United States v. Shavers, 693 F.3d

363 (3d Cir. 2012) (No. 10-2790), 2011 WL 2179274; see

Brief for Appellant Jermel Lewis at *xi, Lewis, 693 F.3d 363

(No. 10-2931), 2011 WL 2322206 (“Appellant rests upon the

arguments presented by co-defendant, Glorious Shavers’ brief

on this issue . . . .”). Years later, in a supplemental letter brief,

the Government conceded that Lewis objected to the

brandishing element at sentencing. It noted then that it gave

Lewis the considerable benefit of the doubt in doing so. More

than giving Lewis the benefit of the doubt, the Government

rewrote history. Read in context, Lewis’s comment at

sentencing had nothing to do with objecting to the seven-year

mandatory minimum. Absent that concession, we would

apply plain error review to this case, and the outcome there

would be obvious—Lewis would lose.

3

(2013), is harmless and we should affirm the District Court’s

sentence.

Alleyne held that “any fact that increases the

mandatory minimum is an ‘element’ that must be submitted

to the jury.” Id. at 2155. It followed in the footsteps of

Apprendi v. New Jersey, which held that, “[o]ther than the

fact of a prior conviction, any fact that increases the penalty

for a crime beyond the prescribed statutory maximum must be

submitted to a jury, and proved beyond a reasonable doubt.”

530 U.S. 466, 490 (2000). Because Alleyne is an extension of

Apprendi, we have held that they are to be implemented

similarly. See, e.g., United States v. Reyes, 755 F.3d 210, 212-

13 (3d Cir. 2014). If an objection to an Alleyne or Apprendi

error is made, we review for harmless error.

An error is harmless when it does not affect a

defendant’s substantial rights. In the context of combined trial

and sentencing error, that is the case when “it appears beyond

a reasonable doubt that the error complained of did not

contribute to the verdict obtained.” Neder v. United States,

527 U.S. 1, 15 (1999) (internal quotation marks omitted). To

determine if it appears beyond a reasonable doubt that the

error in Lewis’s case did not contribute to the verdict

obtained, we first identify the error and then evaluate what the

impact would be on Lewis had the error not occurred.

In identifying the error, the key point is that when

Lewis’s indictment, trial, and sentencing took place, the law

binding the District Court was Harris v. United States, 536

U.S. 545 (2002). Harris dictated that “[b]asing a 2-year

increase in the defendant’s minimum sentence on a judicial

finding of brandishing does not evade the requirements of the

Fifth and Sixth Amendments. . . . That factor need not be

alleged in the indictment, submitted to the jury, or proved

beyond a reasonable doubt.” Id. at 568. Thus, in this case, the

4

grand jury properly did not allege brandishing in the

indictment. The jury was properly not asked to find

brandishing. The judge properly found the brandishing

enhancement at sentencing by a preponderance of the

evidence. The District Court did not err at the time. Rather,

those errors only sprung into being because Lewis’s case was

still on direct appeal when Alleyne was decided, overturning

the procedures dictated by Harris.

This understanding of the interplay between Lewis’s

case and the changing Supreme Court precedent helps to

pinpoint the errors with regards to Lewis’s indictment and

trial. Alleyne made it improper to have a grand jury

indictment omit the brandishing element and made it

improper to withhold that element from the petit jury. If both

of these events had taken place, then the District Court would

have been correct in sentencing Lewis to the enhanced

mandatory minimum. Because the error in part occurred at

the indictment stage, we first review the evidence and

testimony presented to the grand jury to determine whether it

would have included the brandishing element in its

indictment. If we determine that it would have, we then ask

whether, given the evidence and testimony introduced at trial,

the petit jury would have convicted Lewis of the enhanced

offense. If so, we ask whether the mandatory minimum

sentence imposed on Lewis would have been the same. If the

answer to all three questions is “yes,” the errors of which

Lewis complains are harmless, for correcting them would not

change Lewis’s sentence—that is, would not affect his

substantial rights.

This is the essence of the harmless error review and of

the substantial rights inquiry in this context: Given the quality

and quantum of the evidence presented at the relevant stage,

would the outcome for the defendant have been different? At

5

base, this is the same inquiry faced by the Supreme Court in

United States v. Cotton, 535 U.S. 625 (2002), albeit there in

the plain error context. Plain error review and harmless error

review are nearly identical, with the exceptions that plain

error review (1) requires consideration of whether the error

seriously affects the fairness, integrity, or public reputation of

judicial proceedings and (2) shifts the burden of proof to the

defendant. See United States v. Vazquez, 271 F.3d 93, 99-100

(3d Cir. 2001) (en banc).

In Cotton, a district court at sentencing made a finding

of drug quantity neither alleged in the indictment nor found

by the jury, consistent with practice at the time. 535 U.S. at

628. This finding was not challenged in the district court. Id.

While the case was pending appeal, the Supreme Court

decided Apprendi, which made the district court’s quantity

finding erroneous. On appeal, the Fourth Circuit reviewed for

plain error and found that there was an error that seriously

affected the fairness, integrity, or public reputation of judicial

proceedings. Id. at 629. The Supreme Court reversed, holding

that because “[t]he evidence that the conspiracy involved at

least 50 grams of cocaine base was overwhelming and

essentially uncontroverted,” id. at 633 (internal quotation

marks omitted), the error did not seriously affect the fairness,

integrity, or public reputation of judicial proceedings. “Surely

the grand jury, having found that the conspiracy existed,

would have also found that the conspiracy involved at least

50 grams of cocaine base,” id., as the drug quantity was

referred to in other parts of the indictment.

This formulation—that the fairness and integrity of the

proceeding were not affected because the outcome would not

have been different—is precisely how we are to examine

substantial rights: Whether the outcome would have been

different for the defendant. Thus, the Supreme Court has

6

drawn a direct line between the “substantial rights” inquiry

and the “fairness/integrity/public reputation” inquiry in

criminal cases with these types of Apprendi/Alleyne errors.

The relevant inquiry in Lewis’s case is therefore

indistinguishable from the underlying question the Supreme

Court had to answer in Cotton: Was there sufficient evidence

of the missing element such that the substantive outcome

would have been the same?

That equivalence dictates the result here because the

evidence that Lewis brandished a firearm was overwhelming

and, more than being essentially uncontroverted, was in fact

completely uncontroverted. Brian Anderson, a witness at trial

who was a patron at the speakeasy on the night of the

robbery, identified Lewis as “a heavier light-skinned guy,

[who] had another type of handgun—I think it was black—in

his hand.” App. at 876. He stated that this person “stood in

the doorway with the gun on everybody,” id., and positively

identified Lewis at trial. Alberto Vazquez, another patron at

the time of the robbery, identified Lewis at trial as “the

general, the leader,” who “had a black 9-millimeter or .45

caliber. . . . It was a black automatic weapon. He pulled it out

of his right side pocket, of the hood pocket.” App. at 968-69.

Vazquez further testified that Lewis’s gun was “pointed at

[Vazquez] and pointed at several other people.” App. at 970.

At one point Lewis “pulled [Vazquez’s] shirt up, [and] put the

gun to [his] stomach.” App. at 971. Vazquez identified Lewis

as the defendant who robbed him that night.

Lewis presented no evidence to rebut the

Government’s showing at trial. The testimony from Anderson

and Vazquez clearly demonstrated that Lewis went beyond

mere “use” of a firearm and instead brandished it as per the

requirements of 18 U.S.C. § 924(c)(4) (defining

“brandishing” as “display[ing] all or part of the firearm, or

7

otherwise mak[ing] the presence of the firearm known to

another person, in order to intimidate that person, regardless

of whether the firearm is directly visible to that person”). This

evidence was undisputed. The grand jury certainly would

have found the missing element; indeed, the second count of

the indictment (one of the Hobbs Act counts) explicitly

charged that Lewis and his co-defendants “point[ed] firearms

at the customers and employees, order[ed] them to the floor,

and threaten[ed] to shoot them.” App. at 70. And the petit

jury heard evidence, described above, that Lewis pointed the

gun at people and held it at their bodies. Lewis introduced no

contrary evidence. Therefore, these errors would not have

changed the outcome at trial and, according to the logic of

Cotton, they do not affect Lewis’s substantial rights.

Let there be no mistake: This is not a case where

Lewis merely declined to introduce contrary testimony.

Although at the time the brandishing element did not need to

be found by the jury, Lewis and his counsel certainly knew

that it would be considered as a sentencing enhancement by

the judge after a verdict was returned. Lewis thus had every

incentive to call witnesses who could provide evidence that

he had not brandished a gun. He chose not to do so—

presumably because there were no such witnesses who could

testify on his behalf as to this fact. The fact that he at no

point—at trial or at sentencing—introduced contrary evidence

is fatal to his contention that the judge’s brandishing finding

affected his substantial rights. Therefore, the District Court’s

Alleyne error is harmless and I would affirm Lewis’s

sentence.

I dissent.

8