                                                               NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT
                              ________________

                                       No. 15-1700
                                    ________________

                          UNITED STATES OF AMERICA

                                            v.

                                LAMONT LAPRADE,
                          also known as Lamont LaPrade El,
                                                  Appellant
                                 ________________

                    On Appeal from the United States District Court
                       for the Western District of Pennsylvania
                         (D.C. Crim. No. 2-10-cr-00019-002)
                         District Judge: Donetta W. Ambrose
                                  ________________

                                   Argued: March 2, 2016

            Before: JORDAN, GREENBERG, and SCIRICA, Circuit Judges

                              (Filed: December 19, 2016)

Diana Stavroulakis, Esq. (Argued)
262 Elm Court
Pittsburgh, PA 15237
       Counsel for Appellant

Jane M. Dattilo, Esq.
Rebecca R. Haywood, Esq.
Michael L. Ivory, Esq. (Argued)
Office of United States Attorney
700 Grant Street
Suite 4000
Pittsburgh, PA 15219
       Counsel for Appellee
                                    ________________

                                        OPINION *
                                    ________________


SCIRICA, Circuit Judge

       Lamont LaPrade appeals from the denial of his motion seeking habeas corpus

relief under 28 U.S.C. § 2255 because of an Alleyne error when he was convicted for

using or carrying a firearm during and in relation to a crime of violence in violation of 18

U.S.C. § 924(c)(1)(A) but sentenced for a separate crime, discharging a firearm during

and in relation to a crime of violence in violation of 18 U.S.C. § 924(c)(1)(A)(iii), which

carries a higher mandatory minimum sentence by five years. We will grant LaPrade

habeas relief and remand for re-sentencing to correct the Alleyne error.

                                             I.

                                             A.

       LaPrade and David Mathis, a co-defendant, committed an armed robbery of

Westmoreland Community Federal Credit Union on January 8, 2010. While Mathis

entered the bank, shot the teller using a Glock 9 millimeter handgun, and forced other

tellers at gunpoint to empty cash from the drawers and vault into a bag, LaPrade waited

outside in the driver’s seat of their getaway vehicle, a green Land Rover. Once he had

the money—around $6,878—Mathis entered the passenger seat of the Land Rover. But



*
 This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.

                                             2
when LaPrade attempted to speed out of the parking lot in the getaway car, a prospective

bank customer drove into the parking lot, inadvertently blocking their escape route.

Mathis leaned out of the car and fired a shot toward the driver. The driver of the

incoming vehicle ducked and heard two more shots fired, although she did not see who

fired the other two shots.

       LaPrade and Mathis fled the scene via a different exit from the parking lot, but

both men were arrested by police shortly after the armed robbery and attempted escape.

Law enforcement officers recovered three spent casings in the parking lot: two 9

millimeter casings and one .45 caliber casing. Although police did not find the .45

caliber handgun, LaPrade admitted to police he was carrying that gun and discharged it

during the escape from the bank parking lot. He also admitted Mathis possessed and

fired the 9 millimeter handgun. Police officers discovered a partially full box of .45

caliber ammunition in LaPrade’s residence.

       Whether LaPrade discharged the firearm is not contested in this habeas

proceeding, and his attorney admitted in briefing and at oral argument that LaPrade

discharged the gun. Appellant Br. at 8.

       LaPrade was charged with four counts of criminal conduct: bank robbery in

violation of 18 U.S.C. § 2113(a) (Count 1); armed bank robbery, 18 U.S.C. § 2113(d)

(Count 2); conspiracy to commit robbery and armed robbery, 18 U.S.C. § 371 (Count 3);

and using and carrying a firearm during a crime of violence in violation of 18 U.S.C.




                                             3
§ 924(c)(1)(A)(iii) (Count 6) 1.

       LaPrade represented himself at trial and was convicted by a jury on all counts.

The District Court instructed the jury that in order to return a guilty verdict with respect

to Count 6, they needed to find the government proved only two elements beyond a

reasonable doubt: “That the defendant committed the crime of violence charged in Count

Two of the indictment, that is, armed bank robbery. And two, that the defendant during

and in relation to that offense used or carried a firearm or knowingly possessed a firearm

in furtherance of that same offense.” App. 472. The District Court further clarified

“[t]he government is not required to show that the defendant actually displayed or fired

the weapon.” App. 473. And in keeping with these instructions, the jury verdict slip

described Count 6 as “[u]sing, carrying and possessing a firearm in furtherance of a crime

of violence.” App. 32. The jury never made a finding that LaPrade actually discharged

the gun, or even brandished it.

       The District Court sentenced LaPrade to 190 months in prison. This sentence

included a mandatory minimum sentence of 10 years (120 months) for Count 6. 2


1
  In the indictment, Count 6 described the offense as “us[ing] and carry[ing] a firearm . . .
during and in relation to a crime of violence,” which corresponds to 18 U.S.C. §
924(c)(1)(A), not (c)(1)(A)(iii). But, despite the description of the offense, the
indictment listed the statutory provision violated as 18 U.S.C. § 924(c)(1)(A)(iii), which
is the aggravated offense for “discharg[ing]” a firearm during and in relation to a crime of
violence. At trial, the District Court provided jury instructions on the base offense of
using and carrying, and the jury found him guilty of that crime (the base crime). But the
District Court sentenced him for the separate crime of discharging a weapon, the most
aggravated version of the crime.
2
  18 U.S.C. § 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.” United States v.
                                              4
                                             B.

       LaPrade appealed his conviction, contending certain statements made to police

regarding his possession and discharge should have been suppressed, that evidence of his

gun use was insufficient to support Count 6, and that his due process rights were violated

when he wore an orange jumpsuit at his trial. We rejected these contentions and affirmed

his conviction on January 22, 2013. United States v. Laprade, 511 F. App’x 181 (3d Cir.

2013). At no point during trial or on direct appeal did LaPrade challenge the sufficiency

of the indictment or the jury instructions with respect to Count 6; nor did he challenge his

sentence. We denied LaPrade’s request for rehearing en banc.

       Within LaPrade’s ninety day timeframe to petition the Supreme Court for a writ of

certiorari, the Supreme Court decided Alleyne v. United States, 133 S. Ct. 2151 (2013).

Alleyne overruled Harris v. United States, 536 U.S. 545 (2002), and 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.” United States v. Lewis, 802 F.3d 449, 454 (3d Cir. 2015) (en banc) (citing

Alleyne, 133 S. Ct. at 2163–64). The Supreme Court clarified that 18 U.S.C.

§ 924(c)(1)(A) (using or carrying), (A)(ii) (brandishing) and (A)(iii) (discharging) are all

“separate, aggravated offense[s] that must be found by the jury” beyond a reasonable

doubt. Alleyne, 133 S. Ct. at 2162 (“When a finding of fact alters the legally prescribed

Lewis, 802 F.3d 449, 452 (3d Cir. 2015) (en banc). The mandatory minimum sentences
are five years, seven years, and ten years, respectively, depending on how the defendant
was convicted of using the firearm. 18 U.S.C. § 924(c)(1)(A).
                                             5
punishment so as to aggravate it, the fact necessarily forms a constituent part of a new

offense and must be submitted to the jury.”). This holding extends beyond

§ 924(c)(1)(A): “an Alleyne error occurs when a judge, rather than a jury, finds a fact that

increases the mandatory minimum for a defendant” because there is a “fundamental right

of a criminal defendant to have the jury, not the judge, find such facts.” Lewis, 802 F.3d

at 454.

          LaPrade did not file a petition for certiorari with the Supreme Court. Instead,

LaPrade filed a pro se habeas petition with the District Court under 28 U.S.C. § 2255

seeking to vacate, set aside, or correct his sentence, based in part on Alleyne. The

government opposed this motion, contending in part that LaPrade procedurally defaulted

on his Alleyne claim because LaPrade failed to object to the charge or sentencing at trial

or on direct appeal. The District Court denied LaPrade’s habeas petition, but granted him

a certificate of appealability. LaPrade timely appealed. 3

                                               II. 4

          LaPrade challenges only his sentence—not his conviction—and asks us to remand

for a new sentence. Because LaPrade did not object to his sentence at trial or on direct

appeal, his claim of Alleyne error is procedurally defaulted and LaPrade must




3
  As discussed at footnote 11 infra, there were irregularities with the indictment and the
jury instructions, in addition to the Alleyne error. But we consider only the Alleyne error
because LaPrade seeks habeas relief solely on the basis of this error.
4
  The District Court had jurisdiction under 28 U.S.C. §§ 2241 and 2255. We have
jurisdiction under 28 U.S.C. §§ 1291, 2253, and 2255.
                                                6
demonstrate why this default should be excused. 5 United States v. Frady, 456 U.S. 152,

167–68 (1982). “[T]o obtain collateral relief based on trial errors to which no

contemporaneous objection was made, a convicted defendant must show both (1) ‘cause’

excusing his double procedural default, and (2) ‘actual prejudice’ resulting from the

errors of which he complains.” Id.

                                            A.

       “To establish ‘cause’ for procedural default, a defendant must show that ‘some

objective factor external to the defense impeded [his] efforts to raise the claim.’” United

States v. Pelullo, 399 F.3d 197, 223 (3d Cir. 2005) (quoting McCleskey v. Zant, 499 U.S.

467, 493 (1991)). There is no “precise content” to the term “cause,” nor is there “a

comprehensive catalog of the circumstances that would justify a finding of cause.” Reed

v. Ross, 468 U.S. 1, 13 (1984); Smith v. Murray, 477 U.S. 527, 534 (1986). LaPrade

contends he can establish cause because he had no basis to object to the sentence for

Count 6 under Harris v. United States, 536 U.S. 545 (2002), which was the controlling


5
  Although we held “Alleyne cannot be applied retroactively to cases on collateral
review[,]” United States v. Winkelman, 746 F.3d 134, 136 (3d Cir. 2014), LaPrade is able
to seek relief by asserting an Alleyne violation because his case was not yet final when
Alleyne was decided. Griffith v. Kentucky, 479 U.S. 314, 321–22 (1987) (“[R]etroactivity
analysis for convictions that have become final must be different from the analysis for
convictions that are not final at the time the new decision is issued.”). In other words,
there are no retroactivity concerns preventing habeas relief on the basis of Alleyne
because “a new rule for the conduct of criminal prosecutions is to be applied retroactively
to all cases, state or federal, pending on direct review or not yet final, with no exception
for cases in which the new rule constitutes a ‘clear break’ with the past.” Id. at 328.
LaPrade’s case was not yet final because his time to file a petition for certiorari with the
Supreme Court had not expired. Id. at 321 n.6 (“By ‘final,’ we mean a case in which a
judgment of conviction has been rendered, the availability of appeal exhausted, and the
time for a petition for certiorari elapsed or a petition for certiorari finally denied.”).
                                             7
law at the time of his trial and sentencing. 6

       We believe LaPrade is able to establish cause. “[W]here a constitutional claim is

so novel that its legal basis is not reasonably available to counsel, a defendant has cause

for his failure to raise the claim” at trial or on direct review. Reed, 468 U.S. at 16. “By

definition . . . there will almost certainly have been no reasonable basis upon which an

attorney previously could have urged . . . the position that this Court has ultimately

adopted” when the Supreme Court “explicitly overrule[s] one of [its] precedents.” Id. at

17. Here, Alleyne explicitly overruled Harris. 133 S. Ct. at 2163. While we note that a

claim is “not a novel one” when “the Federal Reporters [are] replete with cases involving

[similar] challenges,” Bousley v. United States, 523 U.S. 614, 622 (1998), we do not see a

plethora of similar claims in the Federal Reporters, and the government has not pointed

us to any such cases. 7 We agree that LaPrade had “no reasonable basis” to challenge his

sentence under prevailing law at the time of his trial and sentencing. 8

                                                 B.

       LaPrade must also show that he suffered “actual prejudice” by demonstrating that

6
  Harris held “as a matter of statutory interpretation, § 924(c)(1)(A) defines a single
offense. The statute regards brandishing and discharging as sentencing factors to be
found by the judge, not offense elements to be found by the jury.” 536 U.S. at 556.
7
  Lewis is a lone exception. In Lewis, the defendant was convicted of violating 18 U.S.C.
§ 924(c)(1)(A) (using or carrying a firearm during and in relation to a crime of violence),
but following accepted practice under Harris, was sentenced for brandishing a firearm
under § 924(c)(1)(A)(ii). 802 F.3d at 452. Despite the fact that Alleyne was not yet
decided, the defendant in Lewis timely objected to his sentence. Id.
8
  The fact that the Supreme Court’s Alleyne opinion expressly overruled a prior decision
makes the cause analysis in this case different from the analysis in cases based on
Apprendi errors. As we have previously noted, Apprendi did not overrule Supreme Court
precedent and “the foundation for Apprendi was laid years before the decision was
announced.” United States v. Jenkins, 333 F.3d 151, 155 (3d Cir. 2003).
                                                 8
the District Court’s sentencing error “worked to his actual and substantial

disadvantage[.]” Frady, 456 U.S. at 170.

       The government concedes the District Court committed an Alleyne violation by

sentencing LaPrade for discharging a weapon under 18 U.S.C. § 924(c)(1)(A)(iii), when

the jury only convicted LaPrade of the base offense of using or carrying a firearm under

18 U.S.C § 924(c)(1)(A). Applying the Frady standard, we believe the Alleyne error was

prejudicial because it resulted in LaPrade being subject to a mandatory minimum

sentence of ten years for Count 6, instead of a mandatory minimum of five years—the

sentence corresponding to the jury's actual verdict. As the Supreme Court has noted,

“[e]levating the low-end of a sentencing range heightens the loss of liberty associated

with the crime[.]” Alleyne, 133 S. Ct. at 2161. And we have previously rejected the

argument that the difference in mandatory minimums between “using or carrying” a

firearm and the aggravated offenses under § 924(c)(1)(A) “would have made no

difference to the sentence[.]” See Lewis, 802 F.3d at 458. 9

       We reject the government’s contention in this case that the Alleyne error could not

have been prejudicial because the evidence LaPrade discharged a gun was overwhelming

and essentially uncontroverted. As we did in Lewis, we decline the government’s

invitation to look back at the trial record. In rejecting that approach, we said


9
  We are mindful that Lewis was decided on direct review under a harmless error
standard. Nonetheless, our analysis of the effect of mandatory minimums—in which we
concluded the “error . . . ‘contribute[d] to the [sentence] obtained,’” 802 F.3d at 456
(quoting Sochor v. Florida, 504 U.S. 527, 539 (1992) (in turn quoting Chapman v.
California, 386 U.S. 18, 24 (1967)))—is illustrative on prejudice, and LaPrade carries his
burden even under the higher actual prejudice standard.
                                              9
       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.

Id. at 456 (citing Alleyne, 133 S. Ct. at 2155, 2162; Apprendi, 530 U.S. at 490). The

same principle applies here.

       The government’s citation to United States v. Cotton, 535 U.S. 625 (2002), in

asking us to consider the evidence established at trial that LaPrade discharged the gun, is

likewise unavailing. Cotton held an Apprendi error did not “seriously affect the fairness,

integrity, or public reputation of judicial proceedings” because the “evidence [of

guilt] . . . was ‘overwhelming’ and ‘essentially uncontroverted.’” Id. at 632–33 (quoting

Johnson v. United States, 520 U.S. 461, 470 (1997)). The Court in Cotton thus looked to

the evidence established at trial to determine the effect of the Apprendi error, but it did so

on plain error review under the “fairness, integrity, or public reputation of judicial

proceedings” prong of that test. Id. It expressly did not decide whether the Apprendi

error “affect[ed] substantial rights,” a test which is akin to review for prejudice. Id. at

632; United States v. Dobson, 419 F.3d 231, 239 (3d Cir. 2005) (“In order to ‘affect

substantial rights,’ an error must have been prejudicial.”); United States v. Adams, 252

F.3d 276, 285 (3d Cir. 2001) (“Normally, in order for an error to ‘affect substantial

rights’ . . ., the error must have been ‘prejudicial[.]’”). When reviewing for prejudice, at

least in cases involving sentencing error and not trial error, we do not assess the “fairness,

integrity, or public reputation of judicial proceedings,” and consequently we do not look


                                              10
at the evidence at trial. 10 This principle, which we have applied in the harmless error

context, is equally applicable here. Accordingly, we decline to look at the evidence at

trial in determining whether the Alleyne error was prejudicial to LaPrade.

       Because it is undisputed that the Alleyne error resulted in LaPrade being subject to

a higher mandatory minimum sentence than he would have been subject to had he been

sentenced corresponding to the jury’s verdict, we conclude LaPrade carries his burden to

show actual prejudice resulting from the error. 11

                                            III.

       Because LaPrade has shown cause and prejudice to overcome procedural default,

we now consider the merits of his claim. Martinez v. Ryan, 132 S. Ct. 1309, 1320 (2012)


10
   See Lewis, 802 F.3d at 457; United States v. Jordan, 291 F.3d 1091, 1096 n.7 (9th Cir.
2002) (“[T]he fairness and integrity prong is inapplicable to . . . harmless error review.”);
see also United States v. Lane, 474 U.S. 438, 450 (1986) (“we are not required to review
records to evaluate a harmless-error claim, and do so sparingly” (quoting United States v.
Hasting, 461 U.S. 499, 510 (1983))).
11
   Beyond the Alleyne sentencing error, there were irregularities in LaPrade’s prosecution
and in the District Court proceedings. The indictment was flawed because although it
recited the statute LaPrade was charged with violating, 18 U.S.C. § 924(c)(1)(A)(iii), it
failed to list the elements of Count 6 (specifically the discharge of the firearm). See Fed.
R. Crim. P. 7(c)(1) (“The indictment . . . must be a plain, concise, and definite written
statement of the essential facts constituting the offense charged.”). Further, we believe
the jury instruction was erroneous because it charged them to find whether LaPrade
violated 18 U.S.C. § 924(c)(1)(A), the base offense of using or possessing a firearm, even
though LaPrade was indicted in Count 6 for the most aggravated offense of discharging a
firearm, § 924(c)(1)(A)(iii). In addition, the instruction erroneously instructed the jury
that it was irrelevant whether LaPrade discharged the firearm. App. 473. Despite these
apparent errors and irregularities, which could affect the classification of this case as one
involving pure sentencing error, or a mix of trial and sentencing errors, see Lewis, 802
F.3d at 455, the parties only discuss the Alleyne error in this habeas petition. Further,
LaPrade does not ask for a new trial but requests re-sentencing solely to correct the
Alleyne violation. Accordingly, we will not consider the effect of any of these errors
beyond the Alleyne violation.
                                             11
(“A finding of cause and prejudice . . . allows a federal court to consider the merits of a

claim that otherwise would have been procedurally defaulted.”). Although the

government does not argue that there was no Alleyne violation, it does argue that

LaPrade’s unpreserved Alleyne argument does not rise to the level of warranting relief

under the plain error standard.

       The government’s argument fails because, having cleared the cause and prejudice

hurdle applicable to procedurally defaulted claims, LaPrade need not also clear the plain

error hurdle. See Frady, 456 U.S. at 163–64 (“[T]he plain error standard is out of place

when a prisoner launches a collateral attack against a criminal conviction.”); Pelullo, 399

F.3d at 221 (same). Cause and prejudice analysis and plain error review serve equivalent

purposes—when satisfied, they forgive a defendant’s failure to raise his claim at an

appropriate time, with plain error review forgiving the failure to raise a claim at trial, and

cause and prejudice analysis forgiving the failure to raise it before his conviction became

final. Because LaPrade has shown cause and prejudice sufficient to excuse his failure to

raise an Alleyne objection before his conviction became final—a standard the Supreme

Court has emphasized is “a significantly higher hurdle” than plain error review, see

Frady, 456 U.S. at 166—we proceed to consider the merits of the Alleyne claim without

requiring the redundant step of excusing his failure to raise the objection at trial or

sentencing.

       The government does not contest that LaPrade was sentenced under the mandatory

minimum applicable to discharging a firearm under 18 U.S.C. § 924(c)(1)(A)(iii), even

though the jury only convicted him of the base offense of using or carrying a firearm

                                              12
under 18 U.S.C § 924(c)(1)(A). This was an obvious Alleyne error. As is evident in our

analysis under the actual prejudice prong of the cause and prejudice analysis, the District

Court’s error was not harmless because it resulted in LaPrade being subject to a higher

mandatory minimum sentence than had he been sentenced according to the jury’s verdict.

LaPrade has established a meritorious claim, and we will grant his habeas petition under

28 U.S.C. §2255.

                                            IV.

       For the foregoing reasons, we will reverse the District Court’s judgment denying

LaPrade’s § 2225 motion, and remand to the District Court with instructions to grant the

motion and resentence LaPrade in accordance with this opinion and in consideration of

18 U.S.C. § 924(c)(1)(A) and the Sentencing Guidelines.




                                            13
