United States v. Jermel Lewis

PRECEDENTIAL

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
______

No. 10-2931
______

UNITED STATES OF AMERICA

v.

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

Jermel Lewis,

Appellant
______

On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(E. D. Pa. 2-08-cr-00161-003)
District Judge: Honorable J. Curtis Joyner
______
 Argued May 27, 2014
Before: RENDELL, FISHER and CHAGARES,
Circuit Judges.

(Opinion Filed: September 9, 2014)

Paul J. Hetznecker, Esq. ARGUED
Suite 911
1420 Walnut Street
Philadelphia, PA 19102

Arlene D. Fisk, Esq.
Robert A. Zauzmer, Esq. ARGUED
Office of United States Attorney
615 Chestnut Street
Suite 1250
Philadelphia, PA 19106
______

OPINION OF THE COURT
______

2
FISHER, Circuit Judge.
This case requires us to determine the applicable
standard of review for situations where a district court has
imposed a mandatory minimum sentence based upon facts
that were never charged in the indictment or found by a jury
beyond a reasonable doubt. Such errors occur when a
sentence is imposed in violation of the rule recently set forth
in Alleyne v. United States, 133 S. Ct. 2151 (2013).
Appellant Jermel Lewis challenges his sentence and contends
that the failure of the indictment to charge
an Alleyne element, combined with Alleyne error in jury
instructions and at sentencing, is structural error. We hold
that Alleyne error of the sort alleged here is not structural and
is instead subject to harmless or plain error analysis under
Federal Rule of Criminal Procedure 52. We conclude that the
District Court’s error in Lewis’s case was harmless and will
therefore affirm.
I.
Although this case has a lengthy history, the facts are
largely undisputed. Lewis and his co-defendants Glorious
Shavers and Andrew White (collectively, “defendants”)
committed an armed robbery of an unlicensed after-hours
“speakeasy” in North Philadelphia on November 8, 2005.
The defendants committed the robbery by pointing firearms at
the customers and employees, ordering them to the floor, and
threatening to shoot them. Shavers and White were arrested
shortly after the robbery, and Lewis was apprehended at a
later time.
Shavers and White were charged on March 20, 2008
with Hobbs Act robbery in violation of 18 U.S.C. § 1951(a),
and with using and carrying a firearm during and in relation

3
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 against all three defendants. On August 20, 2009, a
second superseding indictment added additional witness
tampering charges and a count of conspiracy to commit
Hobbs Act robbery against all three defendants. Count three
of the Second Superseding Indictment—the only count at
issue here—provided that the defendants “knowingly used
and carried, and aided and abetted the use and carrying of, a
firearm, that is: (1) a shotgun; (2) a Smith & Wesson, .38
caliber, Special, six-shot revolver, serial number D479345,
and four live rounds of ammunition; and (3) a handgun,
during and in relation to a crime of violence.” App. at 71.
The defendants were tried in the Eastern District of
Pennsylvania beginning on September 9, 2009. The
government presented testimony from Brian Anderson, who
was a patron at the speakeasy the night of the robbery. He
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. That person “stood in the doorway with the gun
on everybody.” Id. Anderson positively identified Lewis at
trial.
The government also presented testimony from
Alberto Vazquez, another patron at the speakeasy at the time
of the robbery. Vazquez 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

4
gun to [his] stomach.” App. at 971. Vazquez identified
Lewis as the defendant who robbed him that night.
The District Court instructed the jury that Lewis was
charged with “using and carrying a firearm during the crime
of violence.” App. at 2019-21. The jury found all three
defendants guilty of the Hobbs Act violations and the §
924(c) violation, but Lewis was acquitted of all witness
tampering charges. Lewis was ultimately sentenced to a term
of incarceration of 141 months to be followed by five years of
supervised release. The term consisted of 57 months’
incarceration on each of two Hobbs Act counts, to run
concurrently with one another, and 84 months’ incarceration,
the mandatory minimum term of imprisonment, on the § 924
count for brandishing a firearm as set forth in 18 U.S.C. §
924(c)(1)(A)(ii), 1 to run consecutively.
Following sentencing, defendants appealed to this
Court. We vacated Shavers’s and White’s witness tampering
convictions and Shavers’s eight-year term of supervised
release, but affirmed the remaining convictions and Lewis’s
sentence. United States v. Shavers, 693 F.3d 363 (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.
Shavers v. United States, 133 S. Ct. 2877 (2013).
The government now concedes that the District Court
erred in imposing an enhancement on Shavers and White for
obstruction of justice pursuant to U.S.S.G. § 3C1.1, and those

1
Section 924(c)(1)(A) imposes differing mandatory
minimum sentences depending upon whether the defendant
“uses or carries,” “brandish[es],” or “discharge[s]” a firearm
during a crime of violence or drug trafficking crime.

5
cases have been remanded to the District Court for
resentencing. The government continues to oppose Lewis’s
Alleyne argument, however, which is the only issue remaining
in this appeal.
II.
The District Court had jurisdiction pursuant to 18
U.S.C. § 3231, and 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). “When the defendant has made a
timely objection to an error and [Federal Rule of Criminal
Procedure] 52(a) applies, a court of appeals normally engages
in a specific analysis of the district court record . . . to
determine whether the error was prejudicial.” United States
v. Olano, 507 U.S. 725, 734 (1993).
III.
Our discussion proceeds in three parts. First, we
examine the law of structural error as it has been developed
and applied to errors under Alleyne and its predecessor,
Apprendi v. New Jersey, 530 U.S. 466 (2000). Second, we
address Lewis’s particular arguments for finding structural
error in this case. Third, because we conclude that no
structural error occurred, we discuss why the Alleyne error in
this case was harmless.
A. Structural error jurisprudence and
Apprendi/Alleyne
Two bodies of law govern our structural error analysis.
The first includes Apprendi and Alleyne and sets forth the rule
that applies to Lewis’s situation—that facts increasing a
mandatory minimum sentence must be charged in an
indictment, presented to a jury, and found beyond a

6
reasonable doubt. The second arises from the Supreme
Court’s decision in Neder v. United States, 527 U.S. 1 (1999),
and considers the extent to which some constitutional errors
are “structural” such that they affect the fundamental fairness
of criminal proceedings and require automatic reversal.
1. Apprendi and Alleyne
Apprendi arose in the context of New Jersey’s hate
crime law, N.J. Stat. Ann. § 2C:44-3(e). That law permitted
judges to increase a defendant’s maximum sentence based
upon a factual finding by a preponderance of the evidence
that a crime was committed for the purpose of intimidating
the victim based upon race. Apprendi, 530 U.S. at 468-69.
Apprendi was sentenced to twelve years’ imprisonment after
the trial judge increased his statutory maximum term from ten
to twenty years pursuant to the hate crime statute. Id. at 470-
71. The Supreme Court determined that such an increase was
unconstitutional and 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.” Id. at 490.
In arriving at its conclusion, the Court rejected the distinction
between an element of a crime and a sentencing factor that
increased the potential maximum sentence. Id. at 478-81.
According to the Court, both types of facts are subject to the
same constitutional protections. Id. at 490.
Thirteen years later, the Supreme Court addressed the
corollary issue to that presented in Apprendi; that is, the
appropriate standard of proof for facts that increase the
statutory mandatory minimum penalty. The defendant in
Alleyne was charged with, among other crimes, using or
carrying a firearm in relation to a crime of violence, in
violation of § 924(c)(1)(A). 133 S. Ct. at 2155. At trial, the

7
jury convicted Alleyne of using or carrying a firearm, but
made no finding regarding whether the firearm was
brandished. Id. at 2156. The District Court nevertheless
found that Alleyne brandished the firearm by a preponderance
of the evidence—as was the practice at that time—thus
triggering the seven-year mandatory minimum sentence in §
924(c)(1)(A)(ii). Id.
The Alleyne Court extended the logic from Apprendi to
include those facts that increase the statutory minimum.
Alleyne, 133 S. Ct. at 2160 (“While Harris [v. United States,
536 U.S. 545 (2002)] limited Apprendi to facts increasing the
statutory maximum, the principle applied in Apprendi applies
with equal force to facts increasing the mandatory
minimum.”). Just as the facts at issue in Apprendi created a
new penalty by increasing the statutory ceiling, so too did the
facts in Alleyne that increased the floor. Id. The Court thus
held “that facts that increase mandatory minimum sentences
must be submitted to the jury” and found beyond a reasonable
doubt. Id. at 2163. Both Apprendi and Alleyne are watershed
decisions that continue to have a substantial impact on
sentencing law, as will be discussed below.
2. Structural error jurisprudence
The Supreme Court has recognized that “‘most
constitutional errors can be harmless.’” Neder, 527 U.S. at 8
(quoting Arizona v. Fulminante, 499 U.S. 279, 306 (1991)).
In general, if a defendant “‘had counsel and was tried by an
impartial adjudicator, there is a strong presumption that any
other [constitutional] errors that may have occurred are
subject to harmless-error analysis.’” Id. (quoting Rose v.
Clark, 478 U.S. 570, 579 (1986)) (alteration in original). The
types of errors identified by the Supreme Court as
“‘structural’ and thus subject to automatic reversal [are] ‘very

8
limited.’” Id. (quoting Johnson v. United States, 520 U.S.
461, 468 (1997) (listing structural errors as: the complete
denial of counsel; a biased trial judge; racial discrimination in
the selection of a grand jury; denial of self-representation at
trial; denial of a public trial; and a defective reasonable doubt
instruction)).
In Neder, the Supreme Court held that a jury
instruction that omits an element of an offense is subject to
only harmless error review. 2 527 U.S. at 15. In that case, the
defendant was charged with several counts of fraud, but the
district court failed to instruct the jury on the element of
“materiality.” Id. at 4. In reviewing the error, the Supreme
Court acknowledged that “[u]nlike such defects as the
complete deprivation of counsel or trial before a biased judge,
an instruction that omits an element of the offense does not
necessarily render a criminal trial fundamentally unfair or an
unreliable vehicle for determining guilt or innocence.” Id. at
9. As such, the Court looked to other cases involving
omission or “misdescription” of an element, and to situations
where Sixth Amendment violations occurred because the
jury, for various reasons, failed to return a “complete verdict”
on each element of an offense. Id. at 10-13 (citing California
v. Roy, 519 U.S. 2 (1996) (per curiam) (omission from jury
instruction); Carella v. California, 491 U.S. 263 (1989) (per
curiam) (jury applied an unconstitutional mandatory
conclusive presumption); Pope v. Illinois, 481 U.S. 497
(1987) (jury rendered a finding on the wrong element)).
Despite these errors, the Court in each prior instance

2
Federal Rule of Criminal Procedure 52(a) defines harmless
error review and provides that “[a]ny error, defect,
irregularity, or variance that does not affect substantial rights
must be disregarded.”

9
reviewed for harmlessness, thus supporting the conclusion in
Neder that Sixth Amendment errors arising from a jury
verdict are not structural defects.
This Court first addressed the implications of structural
error in the context of Apprendi in United States v. Vazquez,
271 F.3d 93 (3d Cir. 2001) (en banc). The defendant in
Vazquez was charged with conspiring to possess and
distribute “more than 5 kilos of cocaine” in violation of 21
U.S.C. §§ 846 and 841. Id. at 96. Neither the government
nor the defendant requested an instruction requiring the jury
to find a particular quantity of cocaine, but the judge at
sentencing found by a preponderance of the evidence that
nearly two kilograms of cocaine were attributable to the
defendant, and he was sentenced to twenty-four years’
imprisonment. Id. at 96-99.
On appeal we concluded that the defendant’s sentence
violated Apprendi because it was imposed based upon a drug
quantity finding that increased his guidelines sentence above
the twenty-year statutory maximum. Id. at 99. Applying
plain error review, 3 we accepted that the district court erred
and that the error was plain, but engaged in a lengthy
discussion about whether the error affected the defendant’s

3
When a party fails to preserve an issue for appeal we review
for plain error, which requires a showing of “‘(1) error, (2)
that is plain, and (3) that affect[s] substantial rights. If all
three conditions are met, an appellate court may then exercise
its discretion to notice a forfeited error, but only if (4) the
error seriously affect[s] the fairness, integrity, or public
reputation of judicial proceedings.’” Vazquez, 271 F.3d at 99
(quoting Johnson, 520 U.S. at 466-67).

10
substantial rights. 4 Id. at 99-100. We addressed that issue in
three parts.
We first characterized Apprendi error as a combination
of both trial and sentencing error rooted in the Due Process
Clause and Sixth Amendment’s notice and jury trial
guarantees. Id. at 101. In so concluding, we noted that
Apprendi error involves the interplay between errors both at
sentencing—“imposing a sentence beyond the prescribed
statutory maximum”—and at trial—“failing to submit an
element of the offense to the jury.” Id. “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. Thus, an appropriate remedy must recognize that each
Apprendi violation is both a trial and a sentencing error.” Id.
This conclusion allowed us to review the entire trial record
when considering whether “we [could] say beyond a
reasonable doubt that the sentence would have been the same
absent the trial error.” Id. We also noted that the combined
trial and sentencing error paradigm comported with Supreme
Court precedent in Neder and Johnson (which both addressed
trial errors) insofar as “in those cases the trial error resulted in
a constitutional defect, necessitating an inquiry as to whether
the defendant’s substantial rights were affected.” Id. at 102.
We next addressed structural error. Relying heavily
upon the structural error jurisprudence enunciated in Neder,
we concluded that Apprendi error, as a sentencing and trial
4
Importantly, we acknowledged that the substantial rights
prong of the plain error analysis is “essentially identical” to
harmless error analysis, “with the exception of the burden of
proof.” Vazquez, 271 F.3d at 100. The Government has the
burden of proof under harmless error, while the defendant has
the burden under plain error. Id.

11
error, is not structural. Id. at 103. In support, we identified
decisions recognizing that both trial error and sentencing
error can be harmless. Id. (citing Neder, 527 U.S. at 9 (trial
error harmless); Jones v. United States, 527 U.S. 373, 402-05
(1999) (sentencing error harmless)). Because the errors had
been found harmless individually, we determined that they
remained harmless even in conjunction with each other.
Vazquez, 271 F.3d at 103.
Finally, based upon our review of the trial record, we
concluded beyond a reasonable doubt that the defendant’s
sentence would have been the same had the jury been
properly instructed with respect to drug quantity. Id. at 104.
The Apprendi error did not affect the defendant’s substantial
rights and was, therefore, harmless. Id.
Several Supreme Court decisions since Vazquez have
continued to explore the interplay between Apprendi and
structural error. The Supreme Court addressed Apprendi in
the context of indictment and trial error in United States v.
Cotton, 535 U.S. 625 (2002). The indictment in that case
failed to allege a specific drug quantity that could have led to
enhanced penalties under 21 U.S.C. § 841(b), and the jury
was likewise not instructed to make a specific finding with
respect to drug quantity. Id. at 628. Cotton was nevertheless
sentenced in violation of Apprendi above the statutory
maximum based upon the trial judge’s factual findings. Id.
No party objected to these errors. Id. at 627.
In assessing Cotton’s case, the Supreme Court rejected
the notion that the failure to allege drug quantity in the
indictment was a “jurisdictional defect” that required
automatic reversal. Id. at 629-31. Reviewing for plain error,
the Court avoided the question of whether Apprendi error is
structural and held instead that Cotton’s claim failed under

12
the fourth prong of plain error review. Id. at 632-33. The
Court noted that the drug quantity evidence was
“‘overwhelming’ and ‘essentially uncontroverted,’” and thus
did not affect the fairness, integrity or public reputation of
judicial proceedings. Id. at 633 (quoting Johnson, 520 U.S. at
470). In concluding, the Court recognized that:
Respondents emphasize that the
Fifth Amendment grand jury right
serves a vital function in
providing for a body of citizens
that acts as a check on
prosecutorial power. No doubt
that is true. . . . But that is surely
no less true of the Sixth
Amendment right to a petit jury,
which, unlike the grand jury, must
find guilt beyond a reasonable
doubt. The important role of the
petit jury did not, however,
prevent us in Johnson from
applying the longstanding rule
“that a constitutional right may be
forfeited in criminal as well as
civil cases by the failure to make
timely assertion of the right.”

13
Id. at 634 (quoting Yakus v. United States, 321 U.S. 414, 444
(1944)). 5
The most recent Supreme Court decision in this area is
Washington v. Recuenco, 548 U.S. 212 (2006), which held
that error premised on Blakely v. Washington, 542 U.S. 296
(2004) 6 is not structural and is subject only to harmless error
review. Recuenco, 548 U.S. at 222. Recuenco is as close as
the Supreme Court has come to deciding the issue in this
case. The indictment in Recuenco charged the defendant with
assault with a deadly weapon and the jury found him guilty of
the same. Id. at 215. Despite the jury’s finding that the
defendant committed the assault with a “deadly weapon”
(which was subject to a one-year sentencing enhancement)
the trial court applied a three-year sentencing enhancement
for assault with a “firearm.” 7 Id. The Supreme Court found
the error to be harmless and reaffirmed its holding in
Apprendi that sentencing factors and elements are both
afforded similar constitutional protections. Id. at 220.

5
The Supreme Court also explicitly passed on deciding the
question at issue in this case, i.e., “whether the omission of an
element of a criminal offense from a federal indictment can
constitute harmless error,” in United States v. Resendiz-
Ponce. 549 U.S. 102, 104 (2007) (resolving the issue on
other grounds).
6
Blakely involved the application of Apprendi to a state
criminal conviction. 542 U.S. at 301.
7
The indictment did acknowledge that the defendant
possessed a handgun by charging “intentiona[l] assault . . .
with a deadly weapon, to-wit: a handgun.” Recuenco, 548
U.S. at 215. The charge, however, was assault with a deadly
weapon, not assault with a firearm. Id.

14
 The Supreme Court also rejected the argument that the
sentencing court’s finding amounted to “a directed verdict of
guilt on an offense (assault in the second degree while armed
with a firearm) greater than the one for which the jury
convicted him (assault in the second degree while armed with
any deadly weapon).” Id. at 221. In doing so, the Court
analogized to Neder and noted that “[b]ecause Neder’s jury
did not find him guilty of each of the elements of the offenses
with which he was charged, its verdict is no more fairly
described as a complete finding of guilt of the crimes for
which the defendant was sentenced than is the verdict here.”
Id. (noting that the differences between Recuenco’s case and
Neder should not be given “constitutional significance”). The
Court concluded by holding that “[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.
With these legal principles in mind, we now consider
whether Alleyne error of the sort alleged by Lewis is
structural or if it is subject only to review for harmlessness.

B. Alleyne error is not structural error
In concluding that the Alleyne error in this case is not
structural, we must address Lewis’s argument that his case is
unique because the indictment failed to allege the brandishing
element. As a result, he maintains that he was charged and
convicted of a different crime (use and carrying a firearm)
than that for which he was sentenced (brandishing a firearm).
This issue represents a subtle difference from the facts in
Vazquez, which involved an indictment that charged the

15
proper drug quantity. 8 Despite this difference, we find that
the rationale in Vazquez, along with subsequent Supreme
Court precedent, clearly establishes that the Alleyne error in
this case is not structural.
1. Alleyne error and structural error
We note at the outset that Lewis faces an uphill battle
with respect to structural error. The Supreme Court has
acknowledged a strong presumption that constitutional errors
are harmless, and that structural error exists only in a “limited
class of cases.” Neder, 527 U.S. at 8 (internal quotation
marks omitted). Bearing these general principles in mind, we
now turn to our decision in Vazquez, which held that the
analogous Apprendi error is not structural.
The primary difference between the facts of this case
and those in Vazquez is the addition of error at the indictment

8
We recognize that Vazquez addressed Apprendi error, but
find its reasoning equally applicable to cases implicating
Alleyne. See United States v. Lara-Ruiz, 721 F.3d 554, 557
(8th Cir. 2013) (applying same standards under both Apprendi
and Alleyne error).

16
stage. 9 In Vazquez, the indictment charged a drug quantity
that implicated a heightened statutory maximum penalty,
whereas the indictment in Lewis’s case failed to charge the
“brandishing” element in § 924(c)(1)(A)(ii). The addition of
the indictment error in this case implicates the Fifth
Amendment right to indictment by a grand jury. We relied in
Vazquez on the fact that Apprendi error was “grounded in the
Due Process Clause and the Sixth Amendment’s notice and
jury trial guarantees.” Vazquez, 271 F.3d at 101. Alleyne
recognized the same. 133 S. Ct. at 2156 (“The Sixth
Amendment provides that those ‘accused’ of a ‘crime’ have
the right to a trial ‘by an impartial jury.’ This right, in
conjunction with the Due Process Clause . . . .”). Although
neither specifically acknowledged it, we see no principled
reason why the Fifth and Sixth Amendment rights recognized

9
Lewis characterizes the error in this case as having occurred
at the indictment, trial, and sentencing phases of proceedings.
In one sense this is incorrect because the indictment, jury
charge, and verdict were all consistent with respect to the
“use and carrying” element of § 924. Viewed that way, the
error that occurred in this case was limited to sentencing,
where the District Court imposed the sentence for
brandishing. Error that occurs only at sentencing is not
structural. See, e.g., Jones, 527 U.S. at 402-05. As discussed
above, however, this “sentencing-error-only” interpretation is
inconsistent with our holding in Vazquez that Apprendi error
(along with the corollary Alleyne error) is both trial and
sentencing error. 271 F.3d at 101-02. Because Lewis does
not seriously challenge the application of the harmless error
test (and thus concedes that he loses under harmless error
review regardless of when that error occurred), we need not
resolve the issue today.

17
as potentially harmless in both Vazquez and Alleyne cannot
also be read to include the Fifth Amendment right to a grand
jury indictment.
Supreme Court precedent in this area strongly supports
our conclusion. Neder, like Vazquez, found that a defective
jury instruction on an essential element of the offense was
subject only to harmless error review. 527 U.S. at 15. The
underlying constitutional error identified in Neder was, of
course, the deprivation of the Sixth Amendment right to a
jury trial on that element. Id. at 12. Although Neder was
limited to the Sixth Amendment right and did not consider the
grand jury right under the Fifth Amendment, the Supreme
Court nevertheless acknowledged that “most constitutional
errors can be harmless.” Id. at 8 (internal quotation marks
omitted). The Neder Court, in listing the errors it has deemed
to be structural, likewise made no mention of the Fifth
Amendment right to a grand jury indictment. Id.
Recuenco, on the other hand, extended the reasoning in
Neder and found no structural error in a situation where the
indictment did not charge a required element. 548 U.S. at
222. In fact, Recuenco provides the missing link between this
case and our analysis in Vazquez because it recognized that
errors in an indictment can be harmless. 10 Because Vazquez
10
We acknowledge that the indictment in Recuenco did
mention that a firearm was present, even though the actual
charge was only for assault with a deadly weapon. We find
this point to be irrelevant, however, because the indictment in
this case also contained allegations of brandishing, albeit not
in so many words. See discussion at Section III.C., infra. To
the extent that the indictments in this case and in Recuenco
contained sufficient allegations in substance if not in form,
the two cases are indistinguishable.

18
based its holding upon Supreme Court precedent finding that
sentencing and trial error are subject to review for
harmlessness, Recuenco now allows us to extend that
rationale and conclude that omission of a sentencing factor
from an indictment is likewise subject only to harmless error
review. Because errors occurring at the indictment, trial, and
sentencing phases of proceedings are subject to harmless
error review individually, we conclude that the three in
conjunction likewise can be harmless. See Vazquez, 271 F.3d
at 103. In short, we see no reason why the differences
between this case and Vazquez should be given
“constitutional significance.” Recuenco, 548 U.S. at 220.
Our conclusion is also supported by Cotton,
which ultimately held that the Sixth Amendment petit jury
right, like the Fifth Amendment grand jury right, “serves a
vital function . . . as a check on prosecutorial power.” 535
U.S. at 634. It went on to state that the Sixth Amendment
petit jury right was “at least as important” as the Fifth
Amendment grand jury right. Id. The Court, therefore,
implied that it would not treat Fifth Amendment indictment
error differently than Sixth Amendment trial error because
the Fifth Amendment grand jury right is no more
sacrosanct—and thus no more worthy of heightened
protection—than the Sixth Amendment right that is subject
only to harmless error review.
Similarly, we are persuaded by the government’s
compelling argument highlighting the nature of the Fifth
Amendment grand jury right as it compares to the Sixth
Amendment right to a petit jury. Specifically, the
government notes that, unlike the right to a petit jury: (1) the
Fifth Amendment grand jury right has not been deemed so
fundamental as to be applicable to the states by way of the
Fourteenth Amendment; (2) the grand jury is not the final

19
arbiter of the facts, and must only find facts by a
preponderance of the evidence; and (3) the petit jury provides
far greater protection for the accused by operating in public,
relying upon admissible evidence from both the prosecution
and the accused, and voting unanimously to convict.
The government contends that, based upon the factors
listed above, the Sixth Amendment right to a petit jury
provides more robust protections that go to the “‘framework
within which the trial proceeds,’” and is thus more worthy of
protection under the ambit of structural error than the Fifth
Amendment grand jury right. Vazquez, 271 F.3d at 103
(quoting Fulminante, 499 U.S. at 310). Yet, despite these
important considerations, the Supreme Court has never
extended the structural error doctrine to include an
abridgment of the Sixth Amendment right of the type at issue
in this case. See Recuenco, 548 U.S. at 222 (“Failure to
submit a sentencing factor to a jury . . . is not structural
error.”); Neder, 527 U.S. at 15 (“The omission of an element
[from a jury instruction] is an error that is subject to harmless-
error analysis.”). Given the comparative weaknesses in the
Fifth Amendment right, the Supreme Court is therefore less
likely to find structural error in a situation like Lewis’s. We
agree with the government that this consideration weighs in
favor of applying harmless error review in this case.
Finally, we note that our decision comports with that
of every court of appeals to have addressed this issue in the
context of Alleyne error. See United States v. Harakaly, 734
F.3d 88, 94-95 (1st Cir. 2013) (noting that “[i]n light of the
long line of cases subjecting preserved Apprendi errors to
harmless-error review, there would appear to be no basis for
finding Alleyne error to be one of those rare cases to which
harmless-error review does not apply”); United States v.
McKinley, 732 F.3d 1291, 1295-96 (11th Cir. 2013) (applying

20
plain error review of Alleyne error in which indictment and
jury charge both involved use or carrying of a firearm, but
sentence was for brandishing); 11 United States v. Mack, 729

11
We note that almost none of the decisions Lewis cites in his
brief involve Apprendi error—which is the most closely
analogous situation to his case. This omission is unsurprising
because courts of appeals have “almost uniformly held that
the failure of the indictment to include the Apprendi-element,
like the failure to submit that element to the jury, [is] subject
to harmless error review.” 5 Wayne R. LaFave et al.,
Criminal Procedure § 19.3(a) (3d ed. 2007). Indeed, courts of
appeals routinely subject Apprendi errors at both the
indictment and conviction stage to harmless or plain error
review. See United States v. Confredo, 528 F.3d 143, 156 (2d
Cir. 2008) (finding that Apprendi errors stemming from
indictment omissions are reviewed for harmless error); United
States v. Perez-Ruiz, 353 F.3d 1, 14, 17 (1st Cir. 2003)
(finding that preserved Apprendi errors are reviewed for
harmless error); United States v. Mackins, 315 F.3d 399, 405-
06, 409-10 (4th Cir. 2003) (recognizing applicability of
harmless error review to Apprendi error); United States v.
Baptiste, 309 F.3d 274, 277 (5th Cir. 2002) (recognizing a
change in circuit precedent and applying harmless error
review to Apprendi error in indictment); United States v.
Stewart, 306 F.3d 295, 318-21 (6th Cir. 2002) (rejecting
structural error argument and applying harmless error review
to alleged Apprendi error); United States v. Jordan, 291 F.3d
1091, 1095-96 (9th Cir. 2002) (applying harmless error where
drug quantity was neither alleged in the indictment nor
proved to a jury beyond a reasonable doubt, but concluding
that record was not sufficient to demonstrate that error was
harmless); United States v. Adkins, 274 F.3d 444, 454 (7th

21
F.3d 594, 606-09 (6th Cir. 2013) (rejecting structural error
argument and analyzing Alleyne error for plain error); United
States v. Kirklin, 727 F.3d 711, 718-19 (7th Cir. 2013)
(applying plain error review to alleged Alleyne error); Lara-
Ruiz, 721 F.3d at 557-58 (recognizing that Apprendi errors
(and by extension, Alleyne errors) are not structural, but
reversing on ground that defendant failed to meet plain error

Cir. 2001) (recognizing that Apprendi errors of failing to
allege a drug quantity in an indictment are subject to harmless
error review); Vazquez, 271 F.3d at 103 (finding that
Apprendi error is not a structural defect); United States v.
Smith, 240 F.3d 927, 930 (11th Cir. 2001) (recognizing that
harmless error review applies to Apprendi errors);United
States v. Anderson, 236 F.3d 427, 429 (8th Cir. 2001)
(applying harmless error review to alleged Apprendi error).
Because courts have consistently analyzed Apprendi errors
under the paradigm set forth in Rule 52 (either under plain
error or harmless error), that practice is persuasive for finding
that structural error is not applicable in the present case. See
Harakaly, 734 F.3d at 94 (“Since Alleyne is an extension of
the Apprendi doctrine, the same standards should apply to
Alleyne errors.”).

22
standard). 12 Absent any authority to the contrary, harmless
error review is appropriate in this case.
In light of the foregoing, we hold that when an
indictment fails to charge a sentencing factor or element of an
offense and the jury fails to find the same beyond a
reasonable doubt, the resulting Alleyne error is not structural.
When properly preserved, such error is reviewed for
harmlessness under Rule 52(a).
2. Lewis’s due process, automatic reversal, and
constructive amendment arguments

Before we apply the harmless error test, we must
address Lewis’s remaining arguments that, even if Alleyne
error is not structural, reversal and remand is necessary in his
case. He asserts three arguments: First, that due process
considerations require reversal where a defendant was
charged and convicted of a crime different than that for which
he was sentenced; second, that the “automatic reversal” rule
requires remand in this case; and third, that his sentence

12
Lewis cites extensively to the Eighth Circuit’s decision in
Lara-Ruiz, but we find that his reliance is misplaced in the
context of his structural error argument. That case explicitly
rejected the application of structural error with respect to both
Apprendi and Alleyne. Lara-Ruiz, 721 F.3d at 557 (“This
circuit has held that Apprendi errors do not create structural
error that would require per se reversal. . . . Given this
background, and considering that Alleyne was decided to
reconcile statutory minimums with the Court’s reasoning in
Apprendi . . . it follows that review pursuant to Rule 52’s
standards should be applied to this case.” (citations omitted)).
Structural error was therefore not at issue in Lara-Ruiz.

23
reflects an impermissible constructive amendment of the
indictment. We address each argument below.
Due process
Lewis first relies upon the Supreme Court’s decision in
Dunn v. United States for the proposition that “appellate
courts are not free to revise the basis on which a defendant is
convicted simply because the same result would likely obtain
on retrial.” 442 U.S. 100, 107 (1979). Dunn, he contends,
identifies due process concerns in this case that require
reversal. We disagree. Dunn is distinguishable because it
involved a challenge to the defendant’s conviction on grounds
that the indictment was insufficient to support the conviction.
Dunn turned on whether an interview in an attorney’s
office constituted an “ancillary” proceeding as used in 18
U.S.C. § 1623. 13 442 U.S. at 102. The indictment charged
that the statements made in the attorney’s office were false
because they were inconsistent with the defendant’s prior
testimony before a grand jury. Id. at 103-04. The district
court and the court of appeals upheld the conviction based
instead on inconsistencies between the defendant’s grand jury
testimony and his testimony at an evidentiary hearing (not his
statements in the attorney’s office). Id. at 104-05.
The Supreme Court reversed, concluding that the
statements made in the attorney’s office were not “ancillary”
to a court proceeding. Id. at 113. Because the indictment

13
Section 1623 states, in pertinent part, that “[w]hoever under
oath . . . in any proceeding before or ancillary to any court or
grand jury of the United States knowingly makes any false
material declaration . . . shall be fined under this title or
imprisoned not more than five years, or both.” 18 U.S.C. §
1623(a).

24
relied solely on the statements in the attorney’s office, it
failed to state an offense within the scope of the statute. Id. at
107. The facts alleged in the indictment against Dunn
therefore did not support a finding of any criminal conduct,
even though other facts developed at trial did. Lewis, on the
other hand, does not challenge his conviction in this appeal.
Indeed, there is no dispute over whether the indictment stated
an offense. This fact alone is sufficient to distinguish Dunn
and render it inapplicable to this case.
Moreover, although Dunn did recognize the potential
due process pitfalls associated with an insufficient indictment,
its holding is consistent with ours today for two reasons.
First, Dunn was decided before the acknowledgement in
Neder that most constitutional errors can be harmless. Courts
now apply harmless error review even where the indictment
fails to include a sentencing factor. See Recuenco, 548 U.S.
at 221-22. To the extent that Dunn did not recognize that
constitutional errors can be harmless, it should be limited to
its facts and not be broadly applied to situations like Lewis’s.
Second, neither Neder nor Apprendi cited Dunn, nor has the
Supreme Court found reversal to be necessary when an
indictment fails to charge an element of the offense. See, e.g.,
Cotton, 535 U.S. at 629-33 (holding that failure to allege an
element in the indictment is not a “jurisdictional defect” that
requires automatic reversal where evidence of the missing
element was “overwhelming” and “essentially
uncontroverted”). In light of the subsequent Supreme Court
precedent, we conclude that the due process concerns
addressed in Dunn only arise in situations where an
indictment fails to charge any offense. It is thus not
controlling in this case.

25
 Automatic reversal
Lewis’s second argument is that we should apply the
so-called “automatic reversal rule” to the Alleyne error in this
case. He again relies upon decisions that predate Neder and
Apprendi in support, and we reject it on the basis that none of
the decisions he cites are analogous to this case.
Much like Dunn, the decisions Lewis cites in support
of automatic reversal involved defective indictments that
failed to allege any criminal conduct. See United States v.
Wander, 601 F.2d 1251, 1258-59 (3d Cir. 1979) (failure to
allege a subsequent overt act in a prosecution for violation of
the Travel Act, 18 U.S.C. § 1952(a)); United States v. Beard,
414 F.2d 1014, 1015 (3d Cir. 1969) (failure to allege
“unlawful or fraudulent intent” in prosecution for interstate
transport of stolen property, 18 U.S.C. § 2314); United States
v. Manuszak, 234 F.2d 421, 422-23 (3d Cir. 1956) (failure to
allege “the specific place or facility from which the goods
were taken” in prosecution for theft of goods from an
interstate shipment of freight pursuant to 18 U.S.C. § 659);
see also United States v. Pickett, 353 F.3d 62, 67-68 (D.C.
Cir. 2004) (failure to allege that false statements were made
“within an ‘investigation or review’” in a prosecution for
making false statements, 18 U.S.C. § 1001); United States v.
Du Bo, 186 F.3d 1177, 1179 (9th Cir. 1999) (failure to allege
that defendant acted knowingly or willingly in a prosecution
under the Hobbs Act, 18 U.S.C. § 1951). Lewis’s reliance on
these cases misses the mark because they all address
situations where there was no criminal conduct alleged, and
thus the indictment was susceptible to dismissal pursuant to
Federal Rule of Criminal Procedure 12(b)(3), or arrest of

26
judgment pursuant to Rule 34(a). 14 That is not the situation
here, where Lewis does not challenge his indictment or
conviction, and where both assert a valid § 924 offense.
Because courts of appeals almost universally apply harmless
error in Apprendi and Alleyne situations, we reject Lewis’s
contention that automatic reversal is appropriate in this case.
Constructive amendment
Lewis’s final argument is based upon the Eighth
Circuit’s decision in Lara-Ruiz, which addressed Alleyne
error under the plain error standard and found that substantial
rights were affected where the defendant “was sentenced for a
statutory crime different from that which the jury found him
guilty.” 721 F.3d at 558 (addressing situation where the
defendant was convicted of using a firearm under § 924 but
was sentenced for brandishing). We reject Lewis’s argument
because we find Lara-Ruiz’s reasoning to be inconsistent with
our interpretation of the substantial rights inquiry under
harmless error.

14
Courts have even applied harmless error where a defect in
the indictment could be grounds for dismissal. See, e.g.,
United States v. Cor-Bon Custom Bullet Co., 287 F.3d 576,
580-81 (6th Cir. 2002) (failure to allege an affirmative act in
a tax evasion case is harmless error); United States v.
Corporan-Cuevas, 244 F.3d 199, 201-02 (1st Cir. 2001)
(finding that failure to allege an element when there is
question as to whether the element is “essential” is subject to
harmless error); United States v. Mojica-Baez, 229 F.3d 292,
311 (1st Cir. 2000) (finding that the failure to allege an
essential element of the offense in the indictment is subject to
harmless error review where the indictment otherwise gives
the defendant notice of the charges against him).

27
 Without explicitly characterizing it as such, the court
in Lara-Ruiz appears to have arrived at the outcome in that
case by finding a constructive amendment of the indictment.
Constructive amendment “occurs where a defendant is
deprived of his ‘substantial right to be tried only on charges
presented in an indictment returned by a grand jury.’” United
States v. Syme, 276 F.3d 131, 148 (3d Cir. 2002) (quoting
United States v. Miller, 471 U.S. 130, 140 (1985)). We have
found constructive amendments to be “‘per se reversible
under harmless error review.’” United States v. Daraio, 445
F.3d 253, 259-60 (3d Cir. 2006) (quoting Syme, 276 F.3d at
136); see also Stirone v. United States, 361 U.S. 212, 217-19
(1960) (seminal decision recognizing constructive
amendment). 15 In essence, the Eighth Circuit emphasized the
dissonance between the indictment and conviction, on the one
hand, and the sentence imposed, on the other.
We are not persuaded by Lewis’s argument based
upon Stirone and its progeny because we have suggested in
dictum that constructive amendments are not structural errors.
Syme, 276 F.3d at 155 n.10 (“We note, however, that it is
doubtful that constructive amendments are structural errors as
the Supreme Court has defined that category. . . . Notably,

15
Stirone relied heavily upon the earlier decision in Ex Parte
Bain, 121 U.S. 1 (1887). Bain, however, was later overruled
by Cotton “insofar as [Bain] held that a defective indictment
deprives a court of jurisdiction.” Cotton, 535 U.S. at 631.
Lewis relies on United States v. Spinner, which, like Bain,
found automatic reversal to apply on grounds that “the
indictment in [Spinner’s] case was jurisdictionally defective.”
180 F.3d 514, 516 (3d Cir. 1999). Reversal for jurisdictional
reasons is now prohibited by the holding in Cotton, and
Spinner is thus of limited utility in this case.

28
neither Johnson nor Neder cited Stirone or listed constructive
amendments as one of the narrow class of recognized
structural errors.”). “Courts viewing the Apprendi-element
pleading error as essentially presenting a constructive
amendment issue . . . distinguish the Stirone precedent . . . in
the course of supporting application of a harmless error
standard.” LaFave et al., Criminal Procedure § 19.3(a)
(citing, inter alia, McCoy v. United States, 266 F.3d 1245,
1253-54 (11th Cir. 2001) (finding that Apprendi errors are not
constructive amendments subject to automatic reversal under
Stirone, but instead represent, at most, a variance subject to
harmless error review)). We agree with this approach and
likewise reject Lara-Ruiz’s constructive amendment
argument.
Multiple courts of appeals have similarly rejected the
notion that the Stirone constructive amendment rule requires
per se reversal in Apprendi cases. See McCoy, 266 F.3d at
1253-54; Mojica-Baez, 229 F.3d at 310-11 (rejecting an
argument seeking automatic reversal under Stirone and noting
that “there is no reason to think the grand jury would have
had any trouble in rendering an indictment specifying the
weapons used, and there was no variance”). McCoy provides
two reasons why automatic reversal is not necessary in
Apprendi/Alleyne error situations. First, Apprendi errors do
not present “typical” indictment problems, i.e., where the
indictment fails to state any offense; instead, the indictment in
an Apprendi case “still charges a complete federal offense.”
McCoy, 266 F.3d at 1253. Second, the court rejected the
notion that any variance in an Apprendi case is so substantial
as to require automatic reversal. Id. at 1253-54. Specifically,
the court noted that “Stirone involved a material difference
between the facts alleged in the indictment in support of that
element—extortion in the transportation of sand from other

29
states into Pennsylvania—and the facts shown at trial—
extortion in the transportation of steel from Pennsylvania into
Michigan and Kentucky.” Id. at 1253 (citing Stirone, 361
U.S. at 213-14). This difference in proof “materially
broadened and altered [the indictment] to such a significant
extent as to constitute an entirely new or different theory of
the case.” Id. No such difference in proof exists in Alleyne or
Apprendi cases, where the only difference is with respect to a
particular statutory subsection that aggravates the punishment
imposed, not the entire “theory of the case.” Id. We agree
with the reasoning in McCoy that constructive amendment
does not apply to the facts of this case and ultimately
conclude that Lewis’s substantial rights were not affected.
C. Harmless error standard
We now determine whether the facts of this case
demonstrate that the sentence imposed for brandishing was
harmless error. 16 Lewis makes no argument with respect to
the factual basis for finding harmless error, but the
government identifies several facts in the record indicating
that both the grand and petit juries in this case would, absent
the Alleyne error, have found beyond a reasonable doubt that
Lewis brandished a firearm.
In the context of Apprendi error, particularly where the
defendant challenges the sentence imposed (as is the case
here), we have defined the substantial rights inquiry as
“determining whether [the sentence] would have been the

16
We questioned whether Lewis objected to the
“brandishing” element at sentencing for purposes of
preserving his Alleyne argument on appeal. The government
concedes this point and we are thus satisfied that review for
harmless error is appropriate. See Fed. R. Crim. P. 52(a).

30
same absent the failure to submit [the brandishing element]
for a jury determination.” Vazquez, 271 F.3d at 104. That
determination must be made beyond a reasonable doubt, and
the government bears the burden of proof. Id.; Olano, 507
U.S. at 734. Because Lewis also alleges error at the
indictment stage, we first consider whether the grand jury, if
asked, would have charged him with brandishing a firearm.
With respect to the indictment, there is no question
that the grand jury did in fact find that the brandishing
element was satisfied. The Second Superseding Indictment,
in the context of the Hobbs Act count, alleges that the
defendants “point[ed] firearms at the customers and
employees, order[ed] them to the floor, and threatene[d] to
shoot them.” App. at 70. Section 924 defines “brandishing”
as “to display all or part of the firearm, or otherwise make 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.” 18 U.S.C. § 924(c)(4). The
allegations already in the indictment, therefore, are more than
sufficient to satisfy the brandishing element. The government
is correct that had prosecutors asked the grand jury to include
this language in the § 924(c) count it would have been
included and would have eliminated any defect with respect
to the indictment. Any error with respect to the indictment
was, therefore, harmless.
The evidence adduced at trial was likewise sufficient
to demonstrate beyond a reasonable doubt that Lewis’s
sentence would have been the same absent the failure to
submit the brandishing element to the jury. See Vazquez, 271
F.3d at 104. The government met its burden by presenting
testimony from Anderson and Vazquez, both of whom
confirmed that Lewis was one of the three men who entered
the speakeasy and “stood in the doorway with the gun on

31
everybody.” App. at 876. Vazquez testified that the gun was
“pointed at [him] and pointed at several other people,” App.
at 970, and at one point Lewis “pulled [Vazquez’s] shirt up,
[and] put the gun to [his] stomach.” App. at 971. He
reported “fearing for his life.” App. at 1044-45.
Lewis essentially concedes that this record evidence
supports the District Court’s finding that he brandished a
firearm during the robbery, and we agree that the testimony
supports that conclusion. See Neder, 527 U.S. at 17 (finding
error to be harmless “where a reviewing court concludes
beyond a reasonable doubt that the omitted element was
uncontested and supported by overwhelming evidence”).
Indeed, Lewis presents no evidence to rebut the government’s
showing at trial. The testimony from Anderson and Vazquez
clearly demonstrates that Lewis went beyond mere “use” of a
firearm, and instead brandished it as per the requirements of §
924(c)(4). It is safe to conclude, therefore, that in light of the
“‘overwhelming’ and ‘uncontroverted’ evidence” in support
of the brandishing element that, had the jury been properly
instructed on that element, it would have found that element
beyond a reasonable doubt. Any resulting error was therefore
harmless.
IV.
For the foregoing reasons we will AFFIRM the
sentence imposed by the District Court.

32
RENDELL, Circuit Judge, dissenting

Jermel Lewis was sentenced for the crime of
brandishing a firearm in relation to a crime of violence, when
he had been not been indicted for, and the jury had not
convicted him of, that crime. The District Court improperly
sentenced Lewis in accordance with a mandatory minimum of
seven years. Had this error not occurred, Lewis would have
been sentenced with a mandatory minimum of five years. I
submit that this constitutes reversible error that is not
harmless, because it violated Lewis’s Sixth Amendment
rights, as clearly announced in Alleyne, and the resulting
sentence was more harsh than it should have been.

At the outset, I note that Alleyne’s pronouncement –
which is controlling here – was made without the issue of
structural or harmless error having been discussed. Perhaps it
was not raised, or perhaps a sentencing error concerning the
mandatory maximum or minimum – based on facts not found
by the jury – was so clearly a harmful violation of the Sixth
Amendment that it made the very idea of harmless error
unthinkable. I also note that the jurisprudence in the area of
structural versus harmless error, discussed below, is very
nuanced and we lack specific guidance in the area before us.
Thus, we must reason as best we can in this difficult, but
important, area of the law.

We begin with the understanding that what happened
here was without a doubt wrong, and a wrong of
constitutional significance. The issue then is how wrong and
what to do about it. In Alleyne, an identical violation required
a remand “for resentencing consistent with the jury’s verdict.”
133 S. Ct. 2151, 2164 (2013). I suggest that here, no matter
what lens of review governs our reasoning, whether for
harmless or structural error, the result must be the same. The
District Court’s sentence must be vacated and Lewis
resentenced with the correct mandatory minimum; Alleyne
requires no less.

I. Sentencing Error

The most straightforward way to reason to this result is
to first concede, for the sake of argument, that harmless error
review governs (though I challenge this at length below). But
it is critical to locate precisely what type of error is at issue.
The error here was that Lewis was not sentenced “consistent
with the jury’s verdict,” as Alleyne requires. Id. The Alleyne
Court did not order a new trial, so that the missing
brandishing element could be proven to the jury, but rather
required a resentencing, thus properly regarding the error as
having occurred at the sentencing phase, and harmlessness
here must be judged from that vantage point. How can
Lewis’s sentence, imposing a mandatory minimum of seven
years, be harmless, when without the brandishing finding the
mandatory minimum would have been five years?

The error caused by the District Court was not, as it
was not in Alleyne, a trial error. Had it been, the majority’s
look back at what the evidence revealed at trial would be an
appropriate exercise in testing for harmlessness. But it is not
the proper inquiry here. I suggest, after Alleyne, that given
the nature of the error before us, the question is simply
whether Lewis was prejudiced by his unconstitutional
sentence. He clearly was.

2
 Our precedent concerning non-constitutional
sentencing errors confirms this conclusion. In United States
v. Langford, 516 F.3d 205, 216 (3d Cir. 2008), we held that
where a district court uses an erroneous Guidelines range at
sentencing, “[t]he record must show that the sentencing judge
would have imposed the same sentence under a correct
Guidelines range, that is, that the sentencing Guidelines range
did not affect the sentence actually imposed.” That inquiry
involves only an examination into the district court’s
statements at sentencing, to determine whether it would have
imposed the same sentence even absent the Guidelines error.
Id. at 219. We do not delve into the facts of a defendant’s
conviction, to determine whether the improper sentence could
somehow be justified. Thus, it appears that if Lewis had
framed his challenge as one asserting that the District Court
improperly calculated his Guidelines range, the case would be
remanded for resentencing. The same should occur pursuant
to his challenge of the far more serious constitutional
violation: that the District Court sentenced him for an
uncharged, unproven crime. 1

In justifying its use of the trial record to uphold
Lewis’s sentence, the majority relies heavily on our 2001
opinion in Vazquez, where we determined that an Apprendi
error was both a trial and a sentencing error. 271 F.3d 93 (3d

1
Indeed, we are bound by statute to remand under such
circumstances. See 18 U.S.C. § 3742(f)(1) (“If the court of
appeals determines that . . . the sentence was imposed in
violation of law or imposed as a result of an incorrect
application of the sentencing guidelines, the court shall
remand the case for further sentencing proceedings with such
instructions as the court considers appropriate . . . .”).

3
Cir. 2001) (en banc). Of note, Vazquez was a close case, with
six of our thirteen judges agreeing with Judge Sloviter’s view
in dissent that – as I again posit – Apprendi and therefore
Alleyne involve errors that require us to decide whether what
occurred at sentencing was harmless. As Judge Sloviter
noted, courts have routinely remanded for resentencing when
an Apprendi error occurs. Id. at 120 (Sloviter, J. dissenting).
Distinguishing Johnson and Neder, relied upon by the
majority in Vazquez, and again cited by the majority today,
Judge Sloviter recognized that:

In neither case was the sentence at
issue; rather the issue was
whether to uphold or reverse the
jury’s verdict of guilty. Here, we
must decide whether an increase
in prison time as a result of the
error affects the defendant’s
substantial rights. As a result,
those cases are inapposite here.

Id. at 121.

I joined Judge Sloviter's dissent and also wrote
separately to emphasize that at no point did Apprendi indicate
that such an unconstitutional sentence might be harmless
simply because judges find it justified. Id. at 130 (Rendell, J.
dissenting). The same can be said for Alleyne. As Judge
Sloviter concluded in Vazquez: “An error that will cause a
defendant to spend four plus years more in prison than
statutorily authorized by the jury’s verdict necessarily
adversely affects the defendant’s substantial rights.” Id. at
120 (Sloviter, J dissenting). This is an even clearer case for

4
remand than Vazquez, which was examined for plain error, as
here we review Lewis’s appeal de novo, requiring only
“harm” under Fed. R. Crim. Pro. 52(a).

Even leaving aside Judge Sloviter’s persuasive
reasoning in Vazquez, that case is materially distinguishable
in a way that should alter the result here. In Vazquez the
indictment properly alleged that the defendant had conspired
to possess and distribute five kilograms or more of cocaine.
271 F.3d at 101. The Vazquez court therefore determined that
the case involved a “trial error, which occurred when drug
quantity was not submitted for a jury determination.” Id.
(emphasis in original). Thus, it was at least arguable in that
case that an error had occurred at trial because the jury was
not asked to find the crime alleged in the indictment.

But, in Alleyne as here, there was no trial error. There
was nothing wrong with the count of the indictment charging
Lewis with a using or carrying violation. There was similarly
no omission at trial, in the jury charge or on the verdict sheet.
And once the jury had been instructed, and had convicted
Lewis of using or carrying a gun in relation to a violent crime,
the District Court was required to sentence him pursuant to
the applicable five year mandatory minimum. This the Court
failed to do. Instead, it violated Lewis’s due process and
Sixth Amendment rights when it sentenced him for an offense
not found by the jury. In sum, Lewis was charged, tried and
convicted of one complete crime, but the District Court
sentenced him for a different offense. This was a pure and
simple sentencing error.

Looking just to the length of Lewis’s prison term, if
the error had not been committed he would have been

5
sentenced for his crime of conviction, such that his sentence
would have been likely shortened by two years. This alone
constitutes clear prejudice and, therefore, reversible error.
See United States v. Promise, 255 F.3d 150, 160 (4th Cir.
2001) (finding prejudice where defendant was sentenced for
term in excess of that charged or found by jury).

More fundamentally, it is inherently prejudicial for a
defendant to be sentenced for a crime of which he was neither
charged nor convicted. The Eighth Circuit recognized this
point in deciding one of the few other cases involving an
Alleyne violation where a defendant was sentenced for a
crime that was neither alleged in the indictment nor submitted
to the petit jury. United States v. Lara-Ruiz, 721 F.3d 554
(8th Cir. 2013). That court examined the case from the
perspective of sentencing error, and held correctly that the
defendant there was prejudiced “because he was sentenced
for a statutory crime different from that which the jury found
him guilty.” Id. at 558.

The Supreme Court has long upheld this elementary
principle. In Cole v. State of Arkansas, two defendants were
charged and convicted of promoting an unlawful assemblage,
but on appeal the state supreme court affirmed the conviction
pursuant to a different offense involving the use of violence.
333 U.S. 196 (1948). In a unanimous opinion the Supreme
Court reversed. It found that the state supreme court had
“affirmed [defendants’] conviction as though they had been
tried and convicted of a violation of [section 1] when in truth
they had been tried and convicted only of a violation of a
single offense charged in [section 2], an offense which is
distinctly and substantially different from the offense charged
in [section 1].” Id. at 202. The Court added, “[i]t is as much

6
a violation of due process to send an accused to prison
following conviction of a charge on which he was never tried
as it would be to convict him upon a charge that was never
made.” Id. at 201. In this case, Lewis was sent to prison on a
brandishing charge which was never made and on which he
was never tried.

That this violates the basic guarantee of due process
has been repeatedly reaffirmed both by the Supreme Court
and the Third Circuit. Dunn v. U.S., 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 the most basic notions of due process.”) 2; Jackson v.
Virginia, 443 U.S. 307, 314 (1979) (“It is axiomatic that a
conviction upon a charge not made or upon a charge not tried
constitutes a denial of due process.”); Lambert v. Blackwell,
387 F.3d 210, 246 (3d Cir. 2004) (“[A] defendant’s due
process rights are violated when his conviction is affirmed on

2
The majority misconstrues Dunn. The Court there noted
that the defendant had been charged and convicted on the
basis of false statements made in an interview in September,
but the Tenth Circuit affirmed the conviction on the basis of
testimony made in October. 445 U.S. at 106. The Court held
that “appellate courts are not free to revise the basis on which
a defendant is convicted simply because the same result
would likely obtain on retrial.” Id. at 107. Thus, the
conviction had to stand or fall on the sufficiency of the charge
presented to the jury, namely the September statements alone.
The relevance of that case is obvious: “[f]ew constitutional
principles are more firmly established than a defendant’s right
to be heard on the specific charges of which he is accused.”
Id. at 106.

7
an offense that he was not charged with and that was not
presented to the jury or court that tried him.”).

Alleyne itself adhered to this understanding. Writing
for the Court, Justice Thomas found that:

It is obvious, for example, that a
defendant could not be convicted
and sentenced for assault, if the
jury only finds the facts for
larceny, even if the punishments
prescribed for each crime are
identical. One reason is that each
crime has different elements and a
defendant can be convicted only if
the jury has found each element of
the crime of conviction.

133 S. Ct. at 2162 (emphasis added). The Court proceeded to
hold that “similarly,” a brandishing offense constitutes a
“separate, aggravated offense” from a using or carrying
offense. Id. Thus, pursuant to Alleyne, sentencing a
defendant for brandishing when he was only convicted of
using or carrying, is not materially different from sentencing
a defendant for assault if he was only convicted of larceny.

In sum, Supreme Court precedent establishes that
sentencing a defendant for an uncharged, untried crime
constitutes reversible error. It is equally clear that a
defendant is prejudiced where an appellate court affirms a
conviction or sentence upon anything other than the crime in
the indictment and jury verdict. To condone Lewis’s

8
sentence here as merely “harmless error” would violate both
fundamental precepts of our criminal justice system. 3

Indeed, the majority’s exercise, in determining
whether there was sufficient evidence of brandishing at trial
to render the error harmless, guts the essence of Alleyne.
There, the Court concluded that:

The District Court imposed the 7–
year mandatory minimum
sentence based on its finding by a
preponderance of evidence that
the firearm was “brandished.”
Because the finding of
brandishing increased the penalty
to which the defendant was

3
Comparing this violation to a constructive amendment
further establishes the necessity of resentencing. “An
indictment is constructively amended when, in the absence of
a formal amendment, the evidence and jury instructions at
trial modify essential terms of the charged offense in such a
way that there is a substantial likelihood that the jury may
have convicted the defendant for an offense differing from the
offense the indictment returned by the grand jury actually
charged.” United States v. Vosburgh, 602 F.3d 512, 532 (3d
Cir. 2010). “Constructive amendments are per se reversible
under harmless error review . . . .” United States v. Daraio,
445 F.3d 253, 260 (3d Cir. 2006). I cannot reconcile our
established precedent concerning constructive amendment
with the majority’s decision. Going forward, constructively
amending the indictment during trial is per se reversible, but
the same act during sentencing may be harmless.

9
 subjected, it was an element,
which had to be found by the jury
beyond a reasonable doubt. The
judge, rather than the jury, found
brandishing, thus violating
petitioner's Sixth Amendment
rights.

Id. at 2163-64. The look back to the trial record that the
majority performs perpetuates the very error deemed to be
reversible in Alleyne: judges substituting their view for the
jury verdict, and thereby imposing a sentence which violates
the Sixth Amendment. In so doing, today’s decision
impermissibly designates both the indictment and petit jury
verdict a “mere preliminary to a judicial inquisition into the
facts of the crime the State actually seeks to punish.” Blakely
v. Washington, 542 U.S. 296, 307 (2004) (emphasis in
original).

The lesson of Alleyne is that juries, not judges, must
find the elements of a crime that support the sentence
imposed. The majority’s harmlessness exercise completely
upends this principle, finding that judges can determine
statutory elements from the facts in a trial, and uphold a
sentence in direct conflict with the indictment and verdict.
For that reason, even under a harmless error standard, I would
vacate the sentence and remand for resentencing.

II. Charging Error

As noted above, the majority’s analysis proceeds from
an entirely different premise: the sentence is fine as long as

10
the other “errors,” namely charging errors and trial errors,
were all harmless. I do not endorse this mode of analysis and
Alleyne certainly did not rule on that basis, having discussed
the deficient indictment (which also failed to allege
brandishing) only as it related to the conclusion that
brandishing constitutes an element of a distinct crime. At no
point in that opinion did the Court characterize the issue as a
charging or trial error.

It is clear why that was the case. To deem this a case
of trial error, one must hold that error infected every aspect of
Lewis’s proceedings except for the sentence itself. That is,
the majority assumes that the grand jury charge, the petit jury
charge, the verdict sheet and the verdict itself were all in
error, but then says those errors are subjected to a
harmlessness inquiry, rather than a finding of structural error.
This analysis turns the case on its head, in defiance of both
logic and common sense.

But even if we were to view the case upside down, as
the majority insists we must, the errors at issue then become
clearly structural. Specifically, how can the failure to charge
a crime, for which a defendant is later sentenced, not infect
the entire proceedings so as to be structural error? In 2006,
the Supreme Court granted certiorari on the exact question the
majority addresses today: whether a materially defective
indictment can constitute harmless error. Yet in that case,
United States v. Resendiz-Ponce, 549 U.S. 102 (2007), the
Court avoided the question, instead deciding that the

11
indictment at issue was adequate. We are therefore left
without any binding precedent on this issue. 4

The majority’s assessment of the relevant case law in
this area is selective and incomplete. First, the majority cites
to our holding in Vazquez where we held that the Apprendi
violation there, the failure to submit a drug quantity to a jury,
constituted harmless error. Yet the majority concedes that
Lewis’s case is significantly different from Vazquez as here
we have the “addition of error at the indictment stage.” (Maj.
Op. at 17.) Given that we characterized Vazquez as a case
involving both trial error and sentencing error, under the
majority’s view this case involves indictment error, trial error
and sentencing error all of constitutional magnitude. Thus,
even under the majority’s formulation, a constitutional error
affected Lewis’s case from beginning to end.

I agree with the majority when it acknowledges that
Vazquez does not control the analysis here, as it did not
concern a materially defective indictment. (Maj. Op. at 17.)
Perhaps recognizing this yawning gap in case law, the
majority relies most heavily on Washington v. Recuenco, 548
U.S. 212 (2006), urging that it “provides the missing link . . .
because it recognized that errors in an indictment can be
harmless.” (Maj. Op. at 18.) This is incorrect. The majority
opinion in Recuenco never once mentions errors in an

4
The circuit split that compelled the Court to take the case
still remains. Compare United States v. Higgs, 353 F.3d 281,
305-06 (4th Cir. 2003) (reviewing defective indictment for
harmless error) with United States v. Inzunza, 638 F.3d 1006,
1016-17 (9th Cir. 2011) (“A defective indictment is a
structural flaw not subject to harmless error review.”)

12
indictment, the Fifth Amendment, or the defendant’s right to
a grand jury, and it is obvious why. That case concerned a
state prosecution which involved an information, rather than
an indictment. Recuenco, 548 U.S. at 224 (Ginsburg, J.
dissenting).

Further, the Court there noted that the defendant had
attempted to “characterize[e] this as a case of charging error,
rather than of judicial factfinding.” Id. at 220 n.3. But, the
Supreme Court of Washington had looked only to whether the
lack of a petit jury finding on a sentencing factor was
structural error. The Supreme Court therefore decided to
“treat” the case “similarly.” Id. Accordingly, the sole
holding of Recuenco was the uncontroversial proposition that,
“[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. In sum, the majority opinion in Recuenco does not deal
at all with the issue of indictment error, and accordingly could
not have “recognized” that “errors in an indictment can be
harmless.” Recuenco is not the “missing link” the majority is
searching for.

Yet the majority agrees with the Government and
reiterates its claim that the Sixth Amendment is “more worthy
of protection under the ambit of structural error than the Fifth
Amendment grand jury right.” (Maj. Op. at 20.) This is a
dubious proposition at best, and has never been propounded
by any opinion of the Supreme Court or our court. 5 Vazquez,

5
The majority overlooks the fact that indictments safeguard
not only the Fifth Amendment guarantee of charging by a
grand jury, but also the Sixth Amendment right to “to be
informed of the nature and cause of the accusation.” U.S.

13
seemingly cited by the majority as authority for this idea, says
nothing of the sort. 6

The question is not which Amendment is more worthy
of protection. The issue before us is simply whether a
specific type of constitutional violation is significant enough

Const. amend. VI; see, e.g., United States v. Radowitz, 507
F.2d 109, 111-12 (3d Cir. 1974) (finding that an “indictment:
(1) fulfills the Sixth Amendment ‘apprisal’ requirement by
providing a defendant with notice of the charges against him
in order that he may prepare a defense . . . .”).
6
I disagree with the majority’s claim that, in Cotton, the
Court “implied that it would not treat Fifth Amendment
indictment error differently than Sixth Amendment trial
error . . . .” (Maj. Op. at 19.) In fact, the issue before the
Court was waiver of rights, and the Court briefly compared
the two Amendments only to note the “longstanding rule ‘that
a constitutional right may be forfeited in criminal as well as
civil cases by the failure to make timely assertion of the
right . . . .’” 535 U.S. at 634 (quoting Yakus v. United States,
321 U.S. 414, 444 (1944)). In other words, the Court
clarified that both Fifth and Sixth Amendment violations may
be waived, and thus reviewable only for plain error, due to a
failure to timely object. That is not at issue here, as both
parties agree that Lewis timely asserted his Fifth Amendment
rights. Cotton does not speak to the question before us, nor
does it “imply” any answer, as the Court explicitly did “not
resolve” the question of whether defective indictments could
constitute structural error. Id. at 632.

14
to constitute structural error. 7 It is this question, left
unaddressed by the majority, to which I now turn.

The Supreme Court has used varying language in
categorizing constitutional errors. 8 In one of the more recent

7
I note separately that the majority’s claim of uniform
agreement with other circuits is misplaced. The Ninth Circuit
has maintained that a deficient indictment is structural error.
United States v. Inzunza, 638 F.3d 1006, 1016-17 (9th Cir.
2011). In addition, three of the cases cited by the majority
either involved a proper indictment or simply did not address
the issue of whether a defective indictment would constitute
structural error, and thus provide no support for the majority’s
position. See United States v. Mack, 729 F.3d 594, 607 (6th
Cir. 2013); United States v. Kirklin, 727 F.3d 711, 716 (7th
Cir. 2013); United States v. McKinley, 732 F.3d 1291, 1295
(11th Cir. 2013). The fourth case, United States v. Harakaly,
734 F.3d 88, 94 (1st Cir. 2013), concerned a guilty plea and
the issue of structural error was raised only on reply, such that
the court devoted only a few sentences to the analysis. It is
also worth noting that the majority here cited some of these
cases to note that they had reviewed an Alleyne claim for
plain error, perhaps under the assumption that structural
errors are automatically reversible even when not timely
raised, and thus not amenable to plain error review. This is
incorrect. Cotton itself noted that the question of structural or
harmless error is resolved at step three of the plain error
review process, but decided not to answer that question
because step four resolved the case. Thus, even structural
errors are reviewed for plain error if not timely raised.
8
I note that Stirone v. U.S., 361 U.S. 212, 219 (1960) found a
deficient indictment to be “far too serious to be treated as

15
and concise summaries, Puckett v. United States, 556 U.S.
129, 140 (2009) outlined three factors which it used to
determine whether a plea breach was a structural error:
whether it (1) necessarily rendered a trial unfair or unreliable
for determining guilt or innocence, (2) defied analysis by
harmless-error standards by affecting the entire adjudicatory
framework, and/or (3) presented difficulty in assessing the
effect of the error, more than for other errors subject to
harmless error review.

Factors two and three indicate that if an error can be
plausibly reviewed for harmlessness, then it should be. As
such, we must first determine how harmless error review of a
deficient indictment would proceed, before deciding whether
such a review is workable. The original formulation of
harmless error in Chapman was “whether it appears beyond a
reasonable doubt that the error complained of did not
contribute to the verdict obtained.” 386 U.S. at 24 (internal
quotation omitted). In other words, the Chapman harmless
error standard was developed for use in the trial context, and
requires a judgment that the error did not affect the jury’s
verdict. The majority appears to agree that this is the proper
inquiry, such that any harmless error review must take into
account the total effect of a defective indictment. That is,
harmless error review in this context would require a court to
ask whether the indictment error contributed to the petit jury
verdict.

nothing more than a variance and then dismissed as harmless
error.” However, as this case preceded Chapman and the
development of the harmless error doctrine, I cannot assume
that it controls the question faced today.

16
 With this in mind, we examine the three factors the
Puckett Court cited to determine whether a deficient
indictment constitutes structural error. First, there can be no
doubt that a deficient indictment affects the entire
adjudicatory framework, and consequently defies analysis by
harmless error standards. In Arizona v. Fulminante, the Court
listed certain structural errors that affect the entirety of trial,
such as deprivation of counsel and a biased trial judge. 499
U.S. at 309. The Court noted that “[t]he entire conduct of the
trial from beginning to end is obviously affected by the
absence of counsel for a criminal defendant, just as it is by the
presence on the bench of a judge who is not impartial. . . .
Each of these constitutional deprivations is a similar
structural defect affecting the framework within which the
trial proceeds, rather than simply an error in the trial process
itself.” Id. at 309-10.

It is hard to think of a more “structural defect” than
one affecting the indictment, which initiates and provides the
foundation for a federal criminal trial. See Kaley v. United
States, 134 S. Ct. 1090, 1097 (2014) (“This Court has often
recognized the grand jury’s singular role in finding the
probable cause necessary to initiate a prosecution for a
serious crime.”) Prosecutors are barred from informally
amending or materially varying from the indictment; it puts
the defendant on notice of the charges against him, protects
him from double jeopardy, and serves as the direct
interposition of the public in the charging process.

Further, it is axiomatic that a trial proceeds according
to the crimes as described in the indictment. The defendant
will attempt to rebut the crimes alleged and impeach
testimony relating to the listed elements of those crimes. He

17
would have no call to even consider whether to attack
evidence with regard to any omitted element. This is
especially so where, as here, the indictment alleges one
complete crime, which lacks an element of an uncharged,
distinct offense. From indictment to conviction, neither
Lewis nor any similarly situated defendant would foresee the
need to defend against such a separate offense, asserted only
at the sentencing phase. In short, it is clear that a deficient
indictment affects the entire framework of the trial and defies
analysis by harmless error standards.

Next, we consider the related question of whether this
error presents special difficulty in assessing prejudice. It
clearly does. In United States v. Gonzalez-Lopez, the Court
found that denial of counsel of one’s choice constituted
structural error. 548 U.S. 140 (2006). In so concluding the
Court held that:

It 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 . . . .
Harmless-error analysis in such a
context would be a speculative
inquiry into what might have
occurred in an alternate universe.

Id. at 150. Similarly, here, assessing prejudice flowing from
a faulty indictment would require sheer speculation into the
possible decisions of the defendant and trial counsel if a
different crime had been charged. Just as in Gonzalez-Lopez,

18
to determine what would have happened if a proper
indictment had been entered, we would need to enter “an
alternate universe.” 9

The last factor, whether a defective indictment renders
a trial unfair or unreliable, requires the least analysis. In
failing to put a defendant on notice of the elements of those
charges against him, through a deficient indictment, the
defendant is disadvantaged and has no reason to contest such
omitted elements at trial. Further, enabling the prosecution or
Court to change the crime charged without formal process,
either at trial or sentencing, undermines any notion of fairness
in an adversarial context. There can be no doubt that a
material defect in the foundation of the trial necessarily
renders it an unfair and unreliable vehicle for determining
guilt or innocence.

In short, a defective indictment satisfies all of the
criteria used to determine structural error, such that it is not
reviewable for mere harmlessness. See United States v.
Inzunza, 638 F.3d 1006, 1016-17 (9th Cir. 2011) (“A
defective indictment is a structural flaw not subject to

9
The majority overlooks this issue in conducting its own
harmless error analysis. It examines the testimony presented
at trial and concludes that a brandishing charge was
sufficiently proven. In fact, a harmless error inquiry would
require a showing, beyond a reasonable doubt, that
brandishing would still have been proven if the indictment
had properly alleged that crime. The inherently speculative
nature of such an inquiry presents special difficulty in
assessing prejudice, thus satisfying this structural error
criterion.

19
harmless error review.”). This conclusion stands firmly upon
Alleyne, which held that where a brandishing charge is neither
alleged in the indictment nor charged to the jury, such an
error requires a remand “for resentencing consistent with the
jury’s verdict.” 133 S. Ct. at 2164. In that case, the Court did
not pause to consider the issue of harmless error. Its
precedent, however, clearly dictates that where an indictment
lacks the offense for which the defendant is later sentenced,
structural error has occurred. I dissent from the majority’s
conclusion to the contrary.

III. Conclusion

Over a decade ago in Vazquez, I noted that the logic in
that decision would mean that the “government can charge
and convict a defendant of manslaughter, but sentence him
for murder, and, as long as the government produced
evidence at trial that would support that sentence, we would
not notice or correct the error under [plain error review] and
require resentencing in accordance with the jury’s verdict.”
271 F.3d at 130 (Rendell, J. dissenting). Today the majority
goes beyond even that dire prediction as it upholds a sentence
for a crime different from that of conviction, under de novo
review. Under the majority’s reasoning, and contrary to
Alleyne, a district court may now sentence a defendant
pursuant to an improper mandatory minimum, in violation of
the Sixth Amendment, and we would be obligated to uphold
the sentence if we, an appellate court, find the evidence at
trial to have been sufficient. In short, today’s decision strikes
at the very heart of the jury trial and grand jury protections
afforded by the Constitution.

20
 But perhaps I am wrong. Perhaps we live in a brave
new world where judges may determine what crimes a
defendant has committed without regard to his indictment or
jury verdict, and sentence him accordingly. Or maybe
Alleyne does not really mean what it says, when it proclaims
brandishing and carrying offenses to be separate and distinct
crimes, and that a defendant is entitled to be sentenced
consistent with the jury’s findings. But I take the Supreme
Court at its word. Until clearly instructed otherwise, I
maintain that different crimes are just that, and district court
judges cannot sentence a defendant to an uncharged crime
simply because the evidence fits, nor can an appellate panel
affirm such a sentence because they find that the evidence
fits. I adhere to the principle that both appellate and trial
judges are required by the Constitution to respect, and
sentence according to, a valid jury verdict, and on this basis I
respectfully dissent.

21