                                     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
