Alleyne error (924(c) count where defendant sentenced for brandishing but only charged with use) is not structural and was harmless

(Rendell, Fisher, and Chagares, Circuit Judges) (Fisher, majority; Rendell, dissent)

       United States v. Lewis, Appeal No. 10-2931, 2014 WL 4413535, was remanded from the Supreme Court for further consideration in light of Alleyne v. United States, 133 S.Ct. 2151 (2013), which held that facts increasing a mandatory minimum must be charged in an indictment, presented to a jury, and proven beyond a reasonable doubt.  

        Here, Lewis was charged with using and carrying a firearm during a crime of violence (indictment and jury instructions) but sentenced for brandishing a firearm, resulting in a consecutive seven-year, instead of five-year, term of incarceration.  The Third Circuit held that this Alleyne error is not structural and is reviewed for harmlessness when properly preserved.  The Court explained there is a strong presumption that constitutional errors are harmless, see Neder v. United States, 527 U.S. 1 (1999), and that the most analogous error, Apprendi v. New Jersey, 530 U.S. 466 (2000) (relating to facts not proved to a jury that increase the statutory maximum), was not structural.  The Court also rejected Lewis’s (1) due process argument, reasoning reversal is not necessary where an indictment fails to charge an element of the offense, (2) automatic reversal argument, distinguishing cases where no criminal conduct was alleged, and (3) constructive amendment argument, because the difference between use and brandishing changed proof with respect to a particular statutory subsection, not the entire theory of the case. 

As for harmlessness, the Court framed the substantial rights inquiry as whether “the sentence would have been the same absent the failure to submit [the brandishing element] for a jury determination.”  The Court found the grand and petit jury would have found brandishing: (1) the allegations in the indictment, that the “defendants pointed firearms at the customers and employees” satisfied the brandishing element; and (2) a victim testified to the petit jury that a gun was pointed at him and put to his stomach. 

       In dissent, Judge Rendell emphasized that Alleyne did not discuss structural or harmless error and would vacate the sentence as either structural error or not harmless.  Because this was a sentencing error, indeed Alleyne remanded for resentencing consistent with the jury verdict, the majority should not have looked at whether the charging and trial errors were harmless and should not have substituted judicial fact-finding for what the constitution required the grand and petit jury to find.  Instead, the question is simply whether Lewis was prejudiced by his unconstitutional sentence; he clearly was.  Judge Rendell also found this specific type of constitutional error, a defective indictment, which defies analysis by harmless error standards and presents special difficulty in assessing prejudice, was structural.