United States v. Pizarro

United States Court of Appeals
For the First Circuit

No. 12-1759

UNITED STATES OF AMERICA,

Appellee,

v.

ANGEL LUIS PIZARRO, a/k/a WEE,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO

[Hon. Gustavo A. Gelpí, U.S. District Judge]

Before

Torruella, Lipez and Kayatta,
Circuit Judges.

Mauricio Hernández Arroyo for appellant.
Myriam Yvette Fernández-González, Assistant United States
Attorney, with whom Rosa Emilia Rodríguez-Vélez, United States
Attorney, Nelson Pérez-Sosa, Assistant United States Attorney,
Chief, Appellate Division, and Thomas F. Klumper, Assistant United
States Attorney, were on brief, for appellee.

November 14, 2014
 LIPEZ, Circuit Judge. In this appeal of Angel Luis

Pizarro-Morales ("Pizarro") from his conviction and sentence for

conspiracy to distribute cocaine and heroin and for possession with

intent to distribute cocaine, we must examine the impact of Alleyne

v. United States, 133 S. Ct. 2151 (2013), on the aggravated drug

conspiracy and possession convictions. Pursuant to that inquiry,

we hold that the district court erred by failing to instruct the

jury on the essential element of individualized drug quantity for

the aggravated conspiracy count and the essential element of drug

quantity for the aggravated possession count before applying a

statutory sentencing range that included a mandatory minimum

sentence on each count. However, since we "conclude[] beyond a

reasonable doubt that the omitted element[s] [were] uncontested and

supported by overwhelming evidence, such that the jury verdict

would have been the same absent the error[s]," we find the

instructional Alleyne errors harmless. Neder v. United States, 527

U.S. 1, 17 (1999). Therefore, we affirm Pizarro's convictions for

the aggravated conspiracy and possession charges with enhanced drug

quantities under 21 U.S.C. § 841(b)(1)(A).

Still, we must vacate Pizarro's sentence and remand for

a fourth sentencing under § 841(b)(1)(A) because the district court

overlooked our prior remand order by refusing to engage in

credibility assessments with respect to the conspiracy drug

-2-
quantity the court attributed to Pizarro and by refusing to

consider Pizarro's arguments regarding the firearm enhancement.

I.

A. First Sentencing and Appeal

After a ten-defendant trial that lasted approximately

seven months in 1999, Pizarro was found guilty of conspiracy to

distribute cocaine and heroin and possession with intent to

distribute cocaine. In 2002, pursuant to an order of the First

Circuit Judicial Council, the case was reassigned for sentencing.1

The statutory sentencing ranges for drug conspiracy and

possession, prescribed in 21 U.S.C. § 841(b)(1), vary depending

upon the amount of drugs involved. For a conspiracy or possession

that involves only small or non-quantified amounts of cocaine or

heroin, there is no mandatory minimum sentence and the statutory

maximum sentence is twenty years of imprisonment. See 21 U.S.C.

§ 841(b)(1)(C). At the other end of the spectrum, when a

conspiracy or possession involves five kilograms or more of cocaine

or one kilogram or more of a mixture or substance containing a

detectable amount of heroin, the sentencing range runs from a

1
In response to a backlog of cases on the trial judge's
docket, the case was randomly reassigned to another district judge
so that sentencing could be expedited. See United States v. Casas,
425 F.3d 23, 54-55 (1st Cir. 2005).

-3-
mandatory minimum of ten years to a maximum of life imprisonment.

Id. § 841(b)(1)(A).2

At sentencing, the district court determined that

§ 841(b)(1)(A)'s statutory maximum of life imprisonment applied

because the conspiracy involved five kilograms or more of cocaine

or one kilogram or more of a mixture or substance containing

heroin. By a preponderance of the evidence, the court found

Pizarro accountable for more than 150 kilograms of cocaine and

applied a two-level enhancement for weapon possession and a three-

level role enhancement. The court then imposed a life sentence,

which at that time was mandated by the Sentencing Guidelines.

Pizarro appealed his conviction and sentence. We affirmed

Pizarro's conviction but vacated his sentence because of error

under United States v. Booker, 543 U.S. 220 (2005). See United

States v. Casas, 425 F.3d 23, 59-60 (1st Cir. 2005).3

Pizarro and multiple co-appellants also argued that there

was error under Apprendi v. New Jersey, 530 U.S. 466 (2000). In

Apprendi, the Supreme Court held that "[o]ther than the fact of a

2
Section 841(b)(1)(B) provides for a five-year mandatory
minimum and a forty-year statutory maximum sentence for specified
drug quantities less than those listed in subsection (A).
3
We held that Booker error existed insofar as the sentencing
had occurred under a mandatory Guidelines system. Given that the
government conceded that it could not prove harmless error, i.e.,
it could not "show beyond a reasonable doubt that a lower sentence
would not be imposed under the post-Booker regime," we vacated
Pizarro's sentence and remanded for resentencing. Casas, 425 F.3d
at 59-60.

-4-
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. Pizarro

and his co-appellants asserted that since drug quantity for the

conspiracy count was a fact that increased the statutory maximum

sentence, it should have been found by a jury beyond a reasonable

doubt. They argued that in the absence of such a jury

determination, § 841(b)(1)(C)'s default statutory maximum sentence

of twenty years should have applied to the conspiracy count.

In response to this argument, we held that "for Apprendi

purposes, it is the drug quantity attributable to the entire

conspiracy that determines the statutory maximum." Casas, 425 F.3d

at 66 n.58. We concluded that any Apprendi error, if one occurred,

was harmless because (1) the evidence overwhelmingly established

that the conspiracy involved at least five kilograms of cocaine or

one kilogram of heroin, amounts that support a statutory maximum of

life imprisonment, and (2) Pizarro and his co-appellants had not

pointed to any evidence that the conspiracy-wide quantity was under

that threshold amount or offered any argument as to how the jury

could have found otherwise. Id. at 65-66. We explained that the

appellants did not contest the evidence of conspiracy-wide drug

quantity -- the amount that sets the statutory maximum for

Apprendi purposes. Id. at 66 & n.58. We therefore ordered that

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"on remand for re-sentencing the appropriate statutory maximum will

be life imprisonment as stated in § 841(b)(1)(A)." Id. at 66.

In remanding, we "clarif[ied] that the jury verdict of

guilty did not determine the amount of drugs attributed to each

defendant," id. at 64 n.56, which was necessary for sentencing

under the Sentencing Guidelines. Cooperating witnesses had

testified about drug quantity, and, at sentencing, defendants had

called into question the credibility of those witnesses. Id. We

explained that the district court had to make credibility

determinations in order to calculate individualized drug quantity,

and we made clear that "[a]ny conclusion as to individual drug

quantity should be based on review of the entire record." Id. We

also observed that a number of the Presentence Reports ("PSRs")

contained the "defect" of not including "findings as to the

quantities or types of drugs attributable to the individual

defendants." Id. at 63.

Pizarro and his co-appellants had also argued that the

successor judge responsible for the initial sentencing had not

adequately familiarized himself with the voluminous record. We

held that a replacement judge could become sufficiently familiar

with the record to assess credibility, but we declined to analyze

the sentencing judge's familiarity because we were vacating the

sentences on independent Booker grounds. Casas, 425 F.3d at 56-57.

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B. Second Sentencing and Appeal

In 2006, the district court found Pizarro responsible for

more than 4,200 kilograms of cocaine. The court imposed a two-

level firearm enhancement and a two-level enhancement for Pizarro's

leadership role in the offense. The court resentenced Pizarro to

360 months (30 years) in prison. Pizarro again appealed, and we

vacated his sentence for a second time because the district court

had not analyzed witness credibility in calculating the drug

quantity in the conspiracy foreseeable to Pizarro. United

States v. Correy, 570 F.3d 373, 378-82 (1st Cir. 2009). We ordered

the district court on remand to make independent credibility

assessments as necessary to resolve the facts in dispute. Id. at

379-82, 400, 402.

We also found that Pizarro's PSR had the same problematic

lack of support that, on Pizarro's first appeal, we had

specifically noted in the PSRs of several of Pizarro's co-

appellants. Id. at 398-400. Therefore, we ordered the Probation

Office to provide Pizarro with a proper PSR that identified

specific drug quantities attributable to him, "include[d]

references to the trial record" that supported those drug

quantities, and "identifie[d] the trial transcripts which

support[ed] any conclusion that he possessed weapons or that weapon

possession by co-conspirators was foreseeable to him." Id. at 384,

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401.4 We further ordered that "Pizarro should have a real

opportunity to challenge [an] inference [that he could foresee the

use of weapons] by arguing the question of foreseeability to a

fact-finder willing to consider his arguments," and we left

Pizarro's challenge to a leadership enhancement, a fact-specific

issue, to be resolved on remand. Id. at 401.

C. Third Sentencing and Appeal

Pizarro's case was reassigned for a second time to a

different district court judge because the former sentencing judge

had retired. On May 15, 2012, the district court found Pizarro

responsible for in excess of 150 kilograms of cocaine and

resentenced him under § 841(b)(1)(A) to 280 months (23 1/3 years)

of imprisonment as to each count to be served concurrently.

Pizarro now appeals for a third time, making numerous arguments,

including that the district court committed an Alleyne error by

applying a mandatory minimum sentence without the requisite drug

quantity findings by the jury. Notably, that argument challenges

the convictions for the aggravated offenses with enhanced drug

4
Pursuant to Federal Rule of Criminal Procedure 32(c), the
probation officer generally must conduct a presentence
investigation and submit a report to the court before it imposes a
sentence. Rule 32(e) provides that the Probation Office must
provide the PSR to the defendant, the defendant's attorney, and an
attorney for the government at least thirty-five days before the
sentencing, and Rule 32(f) provides the procedures for the parties'
objections to the PSR. The sentencing court then examines the PSR
and the objections to the PSR when deciding the proper sentence and
considering the requisite factors for that sentence, such as the
credibility determinations here.

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quantities under § 841(b)(1)(A). He also maintains that the

district court committed multiple sentencing errors, some of which

resulted from its failure to comply with our remand instructions in

Casas and Correy.

II.

We first analyze the claim of Alleyne error related to

Pizarro's convictions.

A. The Alleyne Rule

In Alleyne, the Supreme Court held that "any fact that

increases the mandatory minimum is an 'element' that must be

submitted to the jury." Alleyne, 133 S. Ct. at 2155. Therefore,

a district court errs by applying a statutory mandatory minimum as

the sentencing starting point without a jury finding on the fact

that triggers that minimum. The Supreme Court held that such a

rule was required by the Apprendi principle that "[a]ny fact that,

by law, increases the penalty for a crime is an 'element' that must

be submitted to the jury and found beyond a reasonable doubt."

Alleyne, 133 S. Ct. at 2155 (citing Apprendi, 530 U.S. at 483 n.10,

490). In Alleyne, the Supreme Court expressly overruled its prior

holding in Harris v. United States, 536 U.S. 545 (2002), that the

jury did not need to find a fact that increases the mandatory

minimum. Alleyne, 133 S. Ct. at 2155. The government properly

concedes that Alleyne error occurred with respect to both the

conspiracy and possession counts.

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B. The Application of Alleyne to this Appeal

The Supreme Court's decision in Alleyne applies to any

case pending on direct appeal at the time Alleyne was decided. See

Griffith v. Kentucky, 479 U.S. 314, 328 (1987) ("[A] new rule for

the conduct of criminal prosecutions is to be applied retroactively

to all cases . . . 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."). In Ramirez-Burgos v. United States, 313

F.3d 23 (1st Cir. 2002), we held that a new Supreme Court precedent

-- Jones v. United States, 526 U.S. 227 (1999) -- applied

retroactively to Ramirez's case. Ramirez-Burgos, 313 F.3d at 29.

We had previously affirmed Ramirez's convictions, vacated his

sentence, and remanded to the district court for resentencing. Id.

at 27. After Ramirez was resentenced and one day after he filed

his reply brief in his second appeal, the Supreme Court decided

Jones. Id. at 28. Citing Griffith, we held that Ramirez could

bring a new claim of jury-instruction error under Jones because

Ramirez's case was still on direct appeal at the time Jones was

decided. Id. at 29 (citing Griffith, 479 U.S. at 328). See also

Berman v. United States, 302 U.S. 211, 212 (1937) ("Final judgment

in a criminal case means sentence. The sentence is the

judgment."); United States v. Dodson, 291 F.3d 268, 275-76 (4th

Cir. 2002) (holding that where court of appeals affirms convictions

-10-
but vacates sentence and remands for resentencing on any count,

judgment of conviction is not final as to all counts).

Alleyne was decided in 2013 after we had twice vacated

Pizarro's sentence and remanded for resentencing, and after Pizarro

had filed his opening brief in this third appeal. The fact that

the Supreme Court denied Pizarro's petition for a writ of

certiorari after his first appeal, Pizarro-Morales v. United

States, 546 U.S. 1199 (2006), does not change the fact that his

judgment of conviction was not final at the time Alleyne was

decided, given that we had vacated his sentence and remanded for

resentencing. See Berman, 302 U.S. at 212 (indicating that a

judgment of conviction would not be final if the sentence were

vacated); see also Mercer v. Theriot, 377 U.S. 152, 153 (1964) (per

curiam) (holding "it is settled that [the Supreme Court] may

consider questions raised on the first appeal [after which the

Court denied a petition for a writ of certiorari], as well as those

that were before the court of appeals upon the second appeal,"

after which the Court granted a petition for a writ of certiorari

(internal quotation marks omitted)); Dodson, 291 F.3d at 276 n.3

(citing Mercer for the proposition that following a second direct

appeal brought after a resentencing hearing ordered by the court of

appeals in a criminal defendant's first direct appeal, the

defendant can petition the Supreme Court for certiorari as to every

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issue, including those the court of appeals denied in his first

appeal).

Therefore, as the government recognizes in its

supplemental brief,5 Pizarro's case was pending on direct appeal at

the time that the Supreme Court handed down Alleyne, and Pizarro

can now challenge his convictions under the new rule announced in

Alleyne. See Ramirez-Burgos, 313 F.3d at 29.

C. The Alleyne Errors Here

Before explaining the Alleyne errors that the government

concedes, we must first address the government's claim that Pizarro

may have waived his Alleyne argument because of the way he

conducted this appeal. The government takes the position that

"[w]hen Pizarro filed his appellate brief on February 13, 2013, he

had the opportunity but failed to raise on appeal the claim that

his sentence was imposed in violation of Apprendi v. New Jersey,

530 U.S. 466 (2000), since the 10-year mandatory minimum was based

on the court's findings as to drug quantity." However, the

government is simply wrong. Pizarro did raise his Alleyne claim in

his opening brief by arguing that "a conspiracy-wide, judicial

determination of quantity by a preponderance [of the evidence] for

the purpose of establishing a statutory sentencing range in a 21

U.S.C. § 846 conspiracy is error." He concluded that "after

5
During oral argument, we instructed the government and
Pizarro to file supplemental briefs on the Alleyne issue.

-12-
Apprendi, a jury should be required to make an individual

determination of drug quantity beyond a reasonable doubt to

establish a statutory sentencing range in a 21 U.S.C. § 846

conspiracy." The argument that the "statutory sentencing range"

was applied in error inescapably encompassed an Alleyne claim

regarding the mandatory minimum. As the government says he should

have done, Pizarro cited Apprendi to support this argument. Hence,

under the standard set out by the government itself, Pizarro raised

his Alleyne claim on appeal in his opening brief.6

Moreover, in his supplemental brief filed after oral

argument, Pizarro specifically characterizes his claim as one under

Alleyne. Under our precedent on Apprendi, Pizarro's supplemental

brief alone would have been sufficient to raise the Alleyne claim.

See United States v. LaFreniere, 236 F.3d 41, 48 (1st Cir. 2001)

(finding that Apprendi issue was "properly submitted for

disposition" where "we extended an invitation to LaFreniere and the

government to supplement their briefs addressing the possible

relevance of Apprendi"). Hence, we reject the government's

position in its supplemental brief that Pizarro's "Alleyne claim is

potentially waived" on appeal.

Under Apprendi and now Alleyne, each of the subsections

of 21 U.S.C. § 841(b)(1), with its associated drug quantities and

6
As the government itself implicitly recognizes, Pizarro
could not have cited Alleyne as authority in his opening brief
because it was filed before Alleyne was decided.

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sentencing ranges, is a separate crime. Indeed, the Supreme Court

has so held. Citing Alleyne and Apprendi, the Supreme Court in

Burrage v. United States, 134 S. Ct. 881 (2014), explained that

because an aggravating element in § 841(b)(1) -- that death results

from the use of the distributed drug -- "increased the minimum and

maximum sentences to which [the defendant] was exposed, it is an

element that must be submitted to the jury and found beyond a

reasonable doubt." Burrage, 134 S. Ct. at 887 (citing Alleyne, 133

S. Ct. at 2162-63; Apprendi, 530 U.S. at 490).7 Burrage concluded

that a violation of § 841(a)(1), without a finding on the "death

results" aggravating element, is a lesser-included offense of the

aggravated offense that includes the "death results" element under

§ 841(b)(1). 134 S. Ct. at 887 n.3. See also United States v.

Pena, 742 F.3d 508, 517, 519 (1st Cir. 2014) (same). Just as the

"death results" element makes the distribution of drugs where death

results a separate crime from the distribution of drugs without a

death resulting, drug quantity in § 841(b)(1) creates aggravated

conspiracy and possession offenses.

Under Alleyne, the operative question for a drug

conspiracy is whether it is the individualized drug quantity that

is a "fact that increases the mandatory minimum" sentence, Alleyne,

133 S. Ct. at 2155. We have already answered that question in

United States v. Colón-Solís, 354 F.3d 101 (1st Cir. 2004), where

7
Like the aggravating element of drug quantity, "death
results" is a distinct aggravating element in § 841(b)(1).

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we held that a mandatory minimum "is made potentially available by

a finding that the conspiracy as a whole handled (or at least

contemplated) the necessary triggering amount," but a mandatory

minimum "cannot be applied in [a particular coconspirator's] case

without an individualized finding that the triggering amount was

attributable to, or foreseeable by, him." Id. at 103.8 Colón-

Solís was decided prior to Alleyne; therefore, after Colón-Solís,

that individualized finding was made by the sentencing judge.

However, following the Supreme Court's decision in Alleyne, the

drug quantity that triggers the mandatory minimum for a 21 U.S.C.

§ 846 conspiracy, like the drug quantity that triggers the

statutory maximum under Apprendi, must now be found by a jury

beyond a reasonable doubt.9 But, those quantities serve different

purposes: while it is the conspiracy-wide quantity that governs

the statutory maximum, Casas, 425 F.3d at 66 n.58, it is the

individualized quantity, i.e., the quantity that is foreseeable to

8
Casas itself recognized this principle: "In the absence of
such an individualized finding, the drug quantity attributable to
the conspiracy as a whole cannot automatically be shifted to the
defendant." Casas, 425 F.3d at 57-58 (quoting Colón-Solís, 354
F.3d at 103).
9
In United States v. Paladin, 748 F.3d 438 (1st Cir. 2014),
the defendant also made the argument that, after Alleyne, Colón-
Solís required the jury to find an individualized drug quantity
triggering a mandatory minimum, but it was unnecessary for us to
decide the issue in that case. See id. at 452-53 ("Paladin urges
a collective reading of Colón-Solís and Alleyne to require that the
jury make an individualized finding as to the quantity of drugs
attributable to a particular defendant.").

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the defendant, that triggers the mandatory minimum, Colón-Solís,

354 F.3d at 103.

Having been indicted for conspiring to possess with

intent to distribute 1.4 kilograms of heroin and 9,445 kilograms of

cocaine, Pizarro most recently was sentenced on the conspiracy

count to 23 1/3 years in prison under 21 U.S.C. § 841(b)(1)(A),

which applies a mandatory minimum sentence of ten years

imprisonment. Pizarro is correct, however, that the jury did not

make a finding with respect to the quantity of drugs in the

conspiracy foreseeable to him.10 Indeed, we have already held that

to be the case: "We wish to clarify that the jury verdict of

guilty did not determine the amount of drugs attributed to each

defendant." Casas, 425 F.3d at 65 n.56. Therefore, Alleyne error

occurred in Pizarro's case in the conspiracy conviction.

There was also Alleyne error in Pizarro's possession

conviction. He was indicted for possession with intent to

distribute eighty-one kilograms of cocaine and, as with the

conspiracy count, was sentenced on the possession count to 23 1/3

years of imprisonment under § 841(b)(1)(A), carrying the ten-year

mandatory minimum. However, the jury did not make the requisite

finding of drug quantity for that sentence. In fact, the jury was

instructed that quantity was irrelevant: "The United States is not

10
Pizarro's trial occurred years before the Supreme Court
decided Alleyne; hence, there was no precedent at the time
requiring the jury to make the individualized drug quantity finding
on the conspiracy count.

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required to prove that the amount or quantity was as charged in the

indictment. It need only prove beyond reasonable doubt that there

was a measurable amount of the controlled substance."11

Henceforth, under Alleyne and Apprendi, the jury must

find the mandatory-minimum and statutory-maximum triggering

elements. In a drug conspiracy or possession conviction with a

mandatory minimum and statutory maximum based on drug quantity, the

jury must find those requisite drug quantities.12 For example, for

a cocaine conspiracy conviction under § 841(b)(1)(A), which imposes

a mandatory minimum of ten years and a statutory maximum of life

imprisonment, the jury must now find that the defendant (1)

conspired, § 846; (2) knowingly or intentionally to distribute

11
Again, this instruction reflected the state of the law at
that time.
12
On the other hand, where the mandatory minimum and statutory
maximum do not depend on drug quantity, the court, without any jury
finding, may make its own drug quantity findings for sentencing
purposes. For example, during sentencing for a conviction under
§ 841(b)(1)(C), where the indictment had not specified the quantity
of cocaine or heroin or only charged small amounts, a district
court may make an individualized drug quantity finding for a
conspiracy charge (and a drug quantity finding for a possession
charge) by a preponderance of the evidence to determine the
advisory Guidelines sentence. See Ramírez-Negrón, 751 F.3d at 48-
49 (recognizing that the district court may make drug quantity
findings by a preponderance of the evidence to calculate an
advisory Guidelines sentence for a § 841(b)(1)(C) offense). After
calculating that advisory Guidelines sentence, the district court
must then use its discretion to impose a sentence within the
statutory sentencing range mandated by the jury's verdict. If, for
a conviction under § 841(b)(1)(C), the court determines that the
advisory Guidelines sentence is greater than twenty years,
§ 841(b)(1)(C)'s statutory twenty-year maximum nevertheless caps
any sentence that the district court can give.

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cocaine, § 841(a)(1); (3) in a conspiracy that involved a total of

five kilograms or more of cocaine, § 841(b)(1)(A); Apprendi, 530

U.S. at 490; (4) where at least five kilograms of cocaine were

foreseeable to the defendant, § 841(b)(1)(A); Alleyne, 133 S. Ct.

at 2155; Colón-Solís, 354 F.3d at 103.13 For a possession

conviction under § 841(b)(1)(A), a crime that by its nature only

assesses the conduct of an individual, rather than the conduct of

co-conspirators, the jury must find that the defendant (1)

knowingly or intentionally possessed with intent to distribute,

§ 841(a)(1); (2) at least five kilograms of cocaine,

§ 841(b)(1)(A); Apprendi, 530 U.S. at 490; Alleyne, 133 S. Ct. at

2155.14

13
In the case of a cocaine conspiracy, if the jury makes the
required threshold findings of at least five kilograms, but does
not indicate a specific quantity, and the district court chooses to
sentence above the mandatory minimum, the court must make an
individualized drug quantity finding by a preponderance of the
evidence. The court would have to find the specific quantity of
cocaine foreseeable to the defendant to determine the recommended
sentence under the Sentencing Guidelines. See Colón-Solís, 354
F.3d at 103. That fact-finding may require credibility assessments
for any witnesses on whose testimony the court relies. See Correy,
570 F.3d at 380-81. In its discretion, the court will then impose
a sentence within the statutory range.
14
As with a conspiracy conviction, if the jury makes the
required threshold finding of at least five kilograms for a cocaine
possession count, but does not indicate a specific quantity, and
the district court chooses to sentence above the mandatory minimum,
it must make a drug quantity finding by a preponderance of the
evidence to determine the recommended sentence under the
Guidelines. The court will then use its discretion to impose a
sentence within the statutory range.

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D. The Nature of Alleyne Error

There are different forms of Alleyne error that can lead

to a sentence, imposed after a jury trial, involving the improper

application of a mandatory minimum without the requisite jury

finding. One form of Alleyne error is analyzed as a trial error,

another as a sentencing error. The nature of the Alleyne error

affects the remedy that might be available to a defendant.

In Alleyne itself, the error was of the sentencing

variety. The jury verdict form in Alleyne had included the

applicable minimum-triggering element in that case (brandishing of

a firearm) as an optional finding that the jury should consider.

The jury instead "indicated on the verdict form that Alleyne had

'[u]sed or carried a firearm during and in relation to a crime of

violence,' but did not indicate a finding that the firearm was

'[b]randished.'" Alleyne, 133 S. Ct. at 2156. The trial court,

however, applied the mandatory minimum based on its own finding by

a preponderance of the evidence that the defendant had brandished

the weapon. Id. Thus, the error in Alleyne was confined to

sentencing, where the district court made a finding on an

aggravating element that was presented to and rejected by the jury.

In essence, the trial judge sentenced Alleyne for "a separate,

aggravated offense," id. at 2162, that the jury had itself decided

not to find beyond a reasonable doubt. See, e.g., Price v.

Georgia, 398 U.S. 323, 328-29 (1970) (holding that where jury was

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instructed on both a greater offense and lesser-included offense

and the jury convicted on the lesser-included offense, the double

jeopardy provision prohibited retrial on the greater offense).

Therefore, the Supreme Court vacated Alleyne's sentence and

"remand[ed] for resentencing consistent with the jury's verdict,"

id. at 2164, which would mean that Alleyne should only be sentenced

for the offense of using or carrying a firearm in relation to a

crime of violence.

On the other hand, where a defendant was indicted for and

convicted of an aggravated offense and the jury was not instructed

on the element triggering the statutory mandatory minimum sentence,

but that minimum was nevertheless applied at sentencing, the

Alleyne error is analyzed as an instructional error, occurring at

trial. The Supreme Court's decision in Washington v. Recuenco, 548

U.S. 212 (2006), dictates this conclusion. There, the jury had

found the defendant guilty of assault while armed with a deadly

weapon, but the judge sentenced the defendant, over his objection,

for assault while armed with a firearm, a separate, aggravated

offense subject to a greater statutory maximum sentence. See id.

at 215-216, 225. Unlike in Alleyne, the Recuenco jury had not been

given the option of finding the aggravating element, i.e., that the

deadly weapon was a firearm. Id. The trial court, therefore,

committed Apprendi error by imposing a mandatory statutory

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sentencing enhancement without a jury finding on the requisite

aggravating element of a firearm.15

The Supreme Court held that the "[f]ailure to submit a

sentencing factor to the jury," which increases the statutory

maximum, i.e., the Apprendi error, was "indistinguishable" from the

"failure to submit an element to the jury" that occurred in Neder

v. United States, 527 U.S. 1 (1999).16 Recuenco, 548 U.S. at 220,

222. In Neder, the district court erred by refusing to instruct

the jury on "materiality" as an element of tax fraud. Neder, 527

U.S. at 4. Recuenco explained 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." Recuenco, 548 U.S. at 221.

Hence, in a case where the jury was not instructed on an

15
The Supreme Court characterized the Apprendi error in
Recuenco as Blakely error. Recuenco, 548 U.S. at 216. As the
Court explained, "In Blakely [v. Washington, 542 U.S. 296 (2004)],
we clarified that 'the "statutory maximum" for Apprendi purposes is
the maximum sentence a judge may impose solely on the basis of the
facts reflected in the jury verdict or admitted by the defendant.'"
Recuenco, 548 U.S. at 216 (quoting Blakely, 542 U.S. at 303).
16
The element that increased the statutory maximum in Recuenco
is more properly termed an "aggravating element" than a "sentencing
factor." The Supreme Court explained in Apprendi that the term
"sentencing factor" "appropriately describes a circumstance, which
may be either aggravating or mitigating in character, that supports
a specific sentence within the range authorized by the jury's
finding that the defendant is guilty of a particular offense."
Apprendi, 530 U.S. at 494 n.19. Hence, we refer to a factor that
increases the statutory maximum or minimum as an "aggravating
element," as opposed to a "sentencing factor."

-21-
aggravating element and thus necessarily did not make a finding on

that element, the Supreme Court explicitly equated the Apprendi

error of imposing that element's associated statutory sentencing

enhancement with the Neder failure to instruct on an element of the

offense. Likewise, even before the Supreme Court decided Recuenco,

we too had analyzed Apprendi error as a failure to instruct the

jury. See, e.g., United States v. Pérez-Ruiz, 353 F.3d 1, 17 (1st

Cir. 2003) (analyzing an Apprendi error in a drug conspiracy case

as "the failure to submit the necessary drug type and quantity

questions to the jury").

Just as an Apprendi error can result from the failure to

instruct on the maximum-triggering element, an Alleyne error can

result from the failure to instruct on the minimum-triggering

element. Indeed, the Alleyne errors in Pizarro's case resulted

from such instructional omissions. The district court did not

instruct the jury on the individualized drug quantity element of

the conspiracy charge or the drug quantity element of the

possession charge. Hence, an instructional Alleyne error, like an

instructional Apprendi error, is properly reviewed under the

Supreme Court's jurisprudence on the failure to instruct on an

element of the crime.

The distinction between the Alleyne sentencing error that

occurred in Alleyne itself and the Alleyne instructional errors

that we have here affects the availability of harmless or plain

-22-
error review. In a case where the trial court made a finding on an

aggravating element that was rejected by the jury (as in

Alleyne itself), the standard of review makes no difference. After

Apprendi and Alleyne, if a sentencing court imposes a sentence for

an aggravated crime that the jury has considered and rejected, the

error will always be plain and such an aggravated sentence must

necessarily be vacated. On the other hand, where the court failed

to instruct the jury on an aggravating element (as in Recuenco),

the jury never had a chance to make a finding on that element. In

such a situation, either harmless or plain error review (depending

on whether the error was preserved) is appropriate to determine

whether a reasonable jury necessarily would have found the

aggravating element beyond a reasonable doubt. See United States

v. Delgado-Marrero, 744 F.3d 167, 184 (1st Cir. 2014); cf. United

States v. Cotton, 535 U.S. 625, 631-34 (2002) (applying plain error

review to an unpreserved Apprendi error).17

17
The writing judge believes that, because each subsection of
§ 841(b)(1) defines a separate crime, Burrage, 134 S. Ct. at 887 &
n.3, a court may not solve a non-harmless (or plain) Alleyne
instructional error by taking a mandatory minimum (or the absence
of one) from one subsection and a statutory maximum from another.
In other words, if the court had found the Alleyne error here non-
harmless, the writing judge believes the new sentencing range could
not have been zero years to life imprisonment -- i.e., taking the
absence of a mandatory minimum from § 841(b)(1)(C) and the
statutory maximum of life imprisonment from § 841(b)(1)(A). He
concludes that, under the logic of Burrage, such an approach would
amount to legislating a wholly new crime and, hence, a non-harmless
(or plain error) failure to instruct on the drug quantity elements
would require vacating the conspiracy and possession convictions
under § 841(b)(1)(A) carrying the mandatory minima.

-23-
E. Pizarro's Preservation of the Alleyne Error at Sentencing

Although instructional errors ordinarily must be

preserved at the time of trial, our precedent holds that

instructional Apprendi errors are preserved even if a defendant

does not object until sentencing. See, e.g., United States v.

Díaz-Arias, 717 F.3d 1, 25 (1st Cir. 2013). Observing that a party

has an obligation to object only to something "inimical to his

cause," we have noted that a defendant would have "no interest in

ensuring his eligibility for a longer sentence." Pérez-Ruiz, 353

F.3d at 14. Moreover, we have recognized that "a defendant will

not know whether there is an Apprendi error until sentencing, and

then only if the court considers a sentence above the maximum."

United States v. Nelson-Rodriguez, 319 F.3d 12, 47 (1st Cir. 2003).

Hence, we have held that a claim of Apprendi error is preserved for

appeal if a defendant at sentencing challenges "the imposition or

proposed imposition of a term that exceeds the applicable statutory

maximum." Pérez-Ruiz, 353 F.3d at 14. In Casas, we also treated

Apprendi claims as preserved as long as the defendants had objected

at sentencing. Casas, 425 F.3d at 59-60.18

18
At least one member of the panel disagrees with our
reasoning in Pérez-Ruiz, Nelson-Rodriguez, and their progeny
holding that a defendant preserves an Apprendi claim by objecting
at sentencing. Under this view, Pérez-Ruiz et al. cannot survive
the Supreme Court's recognition that drug quantity -- or any
sentencing factor -- is an element of the charged offense. The
rationale is that, when the indictment charges an enhanced offense,
a defendant can hardly stand by silently (and then later invoke
harmless error review) when the instructions fail to include

-24-
 In its supplemental brief, the government claims the

Alleyne error was unpreserved below and applies the plain error

test as part of its argument.19 As we reported in Casas, "Pizarro

objected [at his initial sentencing] that the jury did not make a

finding on the issue of drug quantity. When the district judge

asserted that there was no Apprendi issue, Pizarro's counsel

responded that '[w]e believe, Your Honor, that there is room in

that respect.'" Casas, 425 F.3d at 59. We observed that this

objection "by its nature raised Apprendi concerns," id. at 60 n.48,

which also would have sufficed to raise an Alleyne claim based on

the same Sixth Amendment right to a jury trial, see Alleyne, 133

S. Ct. at 2163 & n.5 (noting that "there is no principle or logic

to distinguish facts that raise the maximum from those that

increase the minimum"). Although Pizarro did not explicitly object

on these grounds again at his most recent sentencing hearing (his

third), our precedent suggests that, assuming Pizarro did not

abandon his original objection, the objection would have preserved

appropriate mention of drug quantity any more than the defendant
could withhold objection to the omission of any other element (such
as mens rea in a murder case that enhances the base level offense).
Adopting that view would require our court to revisit our
precedents holding otherwise. In any event, as Pizarro's
conviction survives both plain-error and harmless-error review, our
result does not depend on whether Pizarro preserved an objection to
the Alleyne error.
19
Even though Alleyne had not been decided yet, if there had
been no objection below, an Alleyne claim would have been reviewed
for plain error. See United States v. Harakaly, 734 F.3d 88, 94
(1st Cir. 2013).

-25-
the Alleyne claim for our review now. See United States v.

Amirault, 224 F.3d 9, 14 (1st Cir. 2000) (holding that claim was

preserved for subsequent appeal by objection at original sentencing

hearing). We need not resolve whether Pizarro in fact preserved

his Alleyne claim for this appeal, however, as we can conclude that

the error was in any event harmless. See, e.g., United States v.

Soto-Beníquez, 356 F.3d 1, 49 (1st Cir. 2004) ("We have already

determined that any Apprendi error as to drug amount or type would

be harmless; a fortiori, no plain error occurred."). We therefore

presume, without deciding, that harmless error review applies here.

F. Harmless Error Review for Instructional Errors

The Supreme Court addressed harmless error review for an

omitted element in Neder v. United States, 527 U.S. 1 (1999),

describing the inquiry as whether it is "clear beyond a reasonable

doubt that a rational jury would have found the defendant guilty

absent the error." Id. at 18. The Court held that "[i]n this

situation, where a reviewing court concludes beyond a reasonable

doubt that the omitted element was uncontested and supported by

overwhelming evidence, such that the jury verdict would have been

the same absent the error, the erroneous instruction is properly

found to be harmless." Id. at 17. The concurrence by the writing

judge asserts that, based on the Court's statements in Neder and

its prior precedent, the omission of an element is harmless only

when the reviewing court draws two conclusions beyond a reasonable

-26-
doubt: the element is uncontested, and the element is supported by

overwhelming evidence. In this case of instructional

Alleyne error, the concurrence takes the position that the omission

would not be harmless if the defendant had asserted either below or

on appeal that a properly instructed jury could have found in his

favor on the omitted element. The panel need not decide whether

this view of the law is correct because, in this case, we conclude

beyond a reasonable doubt both that Pizarro has never contested the

omitted drug quantity elements and that they were supported by

overwhelming evidence.

In its supplemental brief, the government argues that

Pizarro conceded that he was responsible for at least five

kilograms of cocaine. We do not examine whether Pizarro

affirmatively admitted that threshold quantity, however, because we

conclude that, like Neder, Pizarro has not contested the omitted

elements. At his first sentencing, Pizarro asserted only that the

jury did not make any drug quantity findings; he did not argue that

a contrary finding on the elements was possible. Moreover,

Pizarro's argument on appeal regarding the failure to instruct on

the drug quantity elements "establishes only that there was Alleyne

error; it says nothing about whether that error was harmless." See

United States v. Harakaly, 734 F.3d 88, 95-96 (1st Cir. 2013).

Finally, while Pizarro did make credibility arguments at sentencing

and on appeal to challenge the court's drug quantity determination

-27-
at sentencing, there is no indication that Pizarro's argument

called into question anything other than the sentencing court's

conclusion that Pizarro was responsible for more than 150 kilograms

of cocaine. Pizarro did not argue that the jury that convicted him

could have found him responsible for less than five kilograms of

cocaine.20 Hence, Pizarro did not contest the omitted drug quantity

elements.

The government also argues that overwhelming evidence

introduced at Pizarro's trial established that Pizarro was

responsible for at least five kilograms of cocaine, the requisite

drug quantity for § 841(b)(1)(A)'s ten-year mandatory minimum. A

reviewing court may conclude beyond a reasonable doubt that the

omitted element was "supported by overwhelming evidence" if the

evidence was of such a significant quantity and quality that it

"incontrovertibly establishes" the element. Neder, 527 U.S. at 16-

17; see also United States v. Bailey, 270 F.3d 83, 89 (1st Cir.

2001) (finding that evidence was not "overwhelming" because

"[w]hile a judge could permissibly find those facts by a

preponderance of the evidence, and a jury could permissibly find

them beyond a reasonable doubt, it is not so clear that a

reasonable jury must have found them beyond a reasonable doubt");

Pérez-Ruiz, 353 F.3d at 18-19 (similar). Even where the

20
We do not mean to suggest that a credibility argument,
explaining how a finding of less than five kilograms was possible,
could not have "contested" the omitted elements, as the term is
used in Neder.

-28-
government's evidence on the omitted element is "strong," that

evidence is not overwhelming if competing evidence is "not

inherently incredible." United States v. Prigmore, 243 F.3d 1, 22

(1st Cir. 2001) (citing Neder, 527 U.S. at 19).

In this case, overwhelming evidence supports the

requisite findings of at least five kilograms. The jury found

Pizarro guilty of possession with intent to distribute cocaine, and

Pizarro explained in his opening brief that DEA Agent Jay Stoothoff

testified that 81 kilograms of cocaine was the amount seized. See

also Casas, 425 F.3d at 29, 54 n.39 (explaining that two DEA agents

identified Pizarro as one of the suspects participating in the

March 21, 1994 airport transaction from which the agents secured

four suitcases containing the 81 kilograms of cocaine). At

Pizarro's first sentencing hearing, Pizarro's counsel stated that

the 81 kilograms had actually been presented in court. Further,

Pizarro's own description of the evidence includes multiple

witnesses testifying that Pizarro was involved in distributing

quantities of cocaine well over five kilograms. In fact, evidence

showed that "Pizarro coordinated the shipment of drugs through the

airport in Puerto Rico," Correy, 570 F.3d at 375, and "seven

cooperating witnesses . . . identified Pizarro as a member of the

conspiracy and described his role and specific activities therein,"

Casas, 425 F.3d at 54 n.39. Hence, we conclude beyond a reasonable

-29-
doubt that the omitted element was "supported by overwhelming

evidence." Neder, 527 U.S. at 17.

In sum, because we have found the omitted element of drug

quantity to be both uncontested and supported by overwhelming

evidence, we need not decide whether the absence of a contest is

required in order to find harmless error. In the circumstances of

this case, the jury verdict would have been the same absent the

error. We therefore find the error harmless beyond a reasonable

doubt.21

III.

We thus turn to Pizarro's claims of error related to his

most recent sentence. Independent of the Alleyne errors, which

implicated his convictions, Pizarro argues that the district court

ignored our prior remand order by refusing to engage in credibility

assessments with respect to the conspiracy drug quantity

attributable to him and by refusing to consider his arguments

21
In addition to his Alleyne arguments, Pizarro claims that
his "statutory and constitutional rights to a speedy trial and
sentencing were denied as a result of the commencement of trial 41
months after [his] indictment and the further delay of sentencing
until years after." As the government properly points out, Pizarro
has not developed this argument beyond this one sentence;
therefore, the argument is waived. See United States v. Zannino,
895 F.2d 1, 17 (1st Cir. 1990) ("[I]ssues adverted to in a
perfunctory manner, unaccompanied by some effort at developed
argumentation, are deemed waived."). Furthermore, as to pretrial
delay, we have already held that there was no Speedy Trial Act or
Sixth Amendment violation. See Casas, 425 F.3d at 30-36.

-30-
regarding the firearm enhancement. We agree, and hence we must

vacate his sentence.22

A. Individualized Drug Quantity

During the first two sentencings, the district court

concluded that the jury's guilty verdict resolved any credibility

issues about the testimony relating to the drug quantity

foreseeable to Pizarro. In both Casas and Correy, we explained

that the district court was wrong, see Casas, 425 F.3d at 64 n.56;

Correy, 570 F.3d at 378-79, and we twice ordered the district court

to conduct credibility assessments, "based on the whole record,"

see Correy, 570 F.3d at 381, when calculating individualized drug

quantity.

Pizarro pointed the district court to our decisions when

arguing that credibility assessments were required for all

witnesses on whose testimony the court was relying for its

individualized drug quantity determination. In Correy, we

explained:

On remand, the appellants developed arguments attacking
the credibility and reliability of other witnesses.
Though our discussion in the prior opinion was focused on
Martínez and Pérez, equally applicable to all witnesses
was the rationale for requiring independent credibility
assessments by the sentencing judge . . . . [A]fter our
remand, the district court should have made credibility

22
This next resentencing will be Pizarro's fourth sentencing.
As explained above, Pizarro was initially sentenced in 2002 to life
imprisonment. After his first appeal, Pizarro was resentenced in
2006 to 30 years in prison. After his second appeal, Pizarro was
resentenced in 2012 to 23 1/3 years in prison.

-31-
 determinations as necessary to resolve the facts in
dispute.

570 F.3d at 379 (emphasis added). Nevertheless, in the 2012

resentencing that is the subject of this appeal, the district court

again took the position that "credibility is not an issue" to be

considered for any witnesses other than Thomas Martínez and Israel

Pérez-Delgado. Therefore, the district court relied on testimony

from other witnesses without conducting any credibility

assessments. This improper course, now repeated, directly

contravened Correy's explicit order.

The government claims that the following statement from

the district court during the 2012 resentencing indicates that it

did perform the required credibility determinations:

You point out [sic] to cross examination, to some
impeachment, other testimony, but I have to part from
that premise. There were convictions in this case as to
your client. Some others may have been acquitted, other
matters, but if you look at the global [sic] and
summarize the testimony, if you look at it globally I
understand by the preponderance of the evidence it
supports that drug finding.

(Emphasis added.) Contrary to what the government posits, the most

natural reading of this passage, particularly in light of the

district court's explicit statement that "credibility is not an

issue" for witnesses other than Martínez and Pérez-Delgado, is that

yet again "the district court did not heed our instruction, but

rather persisted in its view that the jury verdict was

controlling." Correy, 570 F.3d at 379.

-32-
 "[W]here the district court has expressly made clear that

it is not conducting a credibility inquiry, it would be

disingenuous of us to act otherwise." Id. at 381. Therefore, we

must vacate Pizarro's sentence and remand for resentencing under

§ 841(b)(1)(A). The district court's credibility assessments must

be based on the whole record for all witnesses on whose testimony

the court has relied to calculate the conspiracy drug quantity

foreseeable to Pizarro. We understand the particular burden that

credibility assessments impose on the district court under the

circumstances here; however, that burden does not permit a sentence

that does not fully comport with all legal requirements.

B. Firearm Enhancement

Pizarro also asserts that the district court erred by

refusing to consider his arguments refuting the two-point firearm

enhancement. We agree. In Correy, we unambiguously asserted:

Pizarro should have a real opportunity to challenge this
inference [that the conspiracy's use of weapons would be
foreseeable to Pizarro] by arguing the question of
foreseeability to a fact-finder willing to consider his
arguments. Thus, on remand, . . . [h]e will be able to
make factual arguments attacking credibility and
foreseeability, which the court will consider and
resolve.

Correy, 570 F.3d at 401. Nevertheless, the district court refused

to hear Pizarro's arguments concerning the firearm enhancement,

incorrectly asserting numerous times that consideration of the

enhancement was "outside the scope of the remand order."

-33-
 The government attempts to salvage the district court's

application of the enhancement by referring to the court's

statement that "[a]gain I mentioned that I was not going to disturb

that enhancement, but even if I were to make it anew, counsel made

the arguments, but I understand there has been testimony in this

particular case for example and again this gentleman has not been

acquitted of any Counts, other defendants have." Contrary to the

government's argument, it appears that, as with its refusal to

conduct the credibility determinations for individualized drug

quantity, the district court relied on the jury verdict instead of

conducting the inquiry we directed. While the court did point to

witness testimony regarding the "foreseeability of possession of

firearms" to Pizarro, the court erred by not considering Pizarro's

arguments regarding the enhancement or performing the credibility

determinations that we said were necessary. The court must

consider Pizarro's arguments on remand.

C. Remaining Issues

1. PSR

With respect to both the individualized drug quantity and

the foreseeable use of firearms, Pizarro claims that the most

recent PSR repeated the deficiencies that we ordered corrected in

our prior decisions. We disagree.

Previously, we directed that "the sentencing court

should, on remand, provide Pizarro with a PSR which identifies

-34-
specific drug quantities." Correy, 570 F.3d at 400. We explained

that, "[a]rmed with this PSR, Pizarro will be given a genuine

opportunity to argue that the testimony was incredible, that it

does not support the incriminating inference, and/or that it was

not foreseeable." Id. With respect to the firearm enhancement, we

directed that the PSR identify trial transcript portions that

support any conclusion that he possessed weapons or that weapon

possession was foreseeable to him. Id. at 401. We also "ordered

that the PSR include references to the trial record." See id. at

384.

As we ordered, the Second Amended PSR filed on July 7,

2011 included in paragraphs 92 through 102 a synopsis of testimony

with respect to specific drug quantities that arguably were

foreseeable to Pizarro. With respect to a firearm, paragraph 92

specifically cited testimony that Pizarro received a firearm

through the mail in August 1993. Hence, the Second Amended PSR

satisfied our order in Correy.

2. Drug Type

Pizarro argues that because the jury instructions on

conspiracy did not include the type and quantity of drugs, the jury

could have found him guilty only of conspiracy to distribute

heroin, possibly producing a lower base offense level under the

Guidelines. We disagree. The superseding indictment charged that

the conspiracy involved "approximately one thousand four hundred

-35-
grams of heroin . . . and approximately nine thousand four hundred

forty five (9,445) kilograms of cocaine." (Emphasis added.)

"Because those drug quantities and types were joined by the

conjunctive term 'and' rather than the disjunctive 'or,' there was

no ambiguity about the crime charged." Soto-Beníquez, 356 F.3d at

48-49. Further, the district court instructed the jury numerous

times that the charged conspiracy involved heroin "and" cocaine,

including when summarizing the conspiracy charge, when reading the

indictment, and when describing the proof of the conspiracy itself

and the element of intent that would be necessary for a guilty

verdict.

3. Other Sentencing Arguments

Pizarro makes a host of other sentencing arguments,

including that the sentencing court "was not familiar with the

entire record," improperly considered 18 U.S.C. § 3553 factors, and

should have granted certain downward departures and variances.

Since we are already vacating Pizarro's sentence and ordering

resentencing, we need not reach Pizarro's alternate claims. See

Correy, 570 F.3d at 401 (citing United States v. Vidal-Reyes, 562

F.3d 43, 48 (1st Cir. 2009)).

IV.

In conclusion, we hold that the district court committed

instructional Alleyne errors by failing to charge the jury on the

essential element of individualized drug quantity for the

-36-
conspiracy count and the essential element of drug quantity for the

possession count before applying the § 841(b)(1)(A) statutory

sentencing range that included a mandatory minimum sentence on each

count. Nevertheless, because we conclude beyond a reasonable doubt

that the errors did not contribute to the results obtained, we find

the errors harmless.

However, since the district court ignored our order to

conduct credibility assessments when calculating individualized

drug quantity, and to consider Pizarro's firearm enhancement

arguments, we vacate Pizarro's sentence and remand for

resentencing. When resentencing Pizarro under § 841(b)(1)(A), the

district court must (1) conduct credibility determinations, based

on the whole record, for all witnesses on whose testimony it has

relied in calculating an individualized drug quantity; (2) consider

Pizarro's arguments regarding a firearm enhancement; and (3)

consider, as usual, any additional sentencing arguments that

Pizarro has not waived and that we have not already resolved and

"such new arguments or new facts as are made newly relevant by

[our] decision -- whether by the reasoning or by the result."

United States v. Ticchiarelli, 171 F.3d 24, 32 (1st Cir. 1999)

(internal quotation mark omitted).

Pizarro was arrested in 1996 and tried in 1999. Hence,

as we consider this third direct appeal, he has been in custody for

nearly two decades without a resolution of his case. Pizarro has

-37-
already been sentenced three times, and we are now remanding for a

fourth sentencing proceeding. The district court arrived at the

last concurrent sentence of 23 1/3 years of imprisonment and five

years of supervised release after calculating individualized drug

quantity and applying a firearm enhancement, without weighing

Pizarro's potentially mitigating credibility arguments. Our

vacatur and remand are for the purpose of correcting the district

court's failure to evaluate those arguments, and we therefore see

no justification for the court to impose a longer sentence on

remand than it deemed appropriate without considering credibility.

We conclude that it is just under these circumstances to direct the

district court, after considering Pizarro's arguments, to impose a

sentence no longer than the concurrent sentence of 23 1/3 years of

imprisonment and five years of supervised release. See 28 U.S.C.

§ 2106. We intimate no view on whether the sentence should be

lower.

We therefore affirm Pizarro's convictions, vacate his

sentence, and remand for resentencing consistent with this opinion.

So ordered.

– Concurring Opinions Follow –

-38-
 LIPEZ, Circuit Judge, concurring. In analyzing the

complex issues in this case, I became aware of the significant

inconsistency in the way courts have reviewed for harmlessness the

failure to instruct on an element of a crime. I write separately

to express my concern regarding this inconsistency, which exists

within my circuit and in other courts, and the potentially

unconstitutional applications of Neder v. United States, 527 U.S.

1 (1999), that have resulted from it. Given that the Sixth

Amendment right to a jury trial is at stake, I urge the Supreme

Court to clarify the line between an unconstitutional, directed

guilty verdict and a harmless failure to instruct on an element.

I.

A constitutional error is harmless where the reviewing

court concludes "'beyond a reasonable doubt that the error

complained of did not contribute to the verdict obtained,'" i.e.,

"that the jury verdict would have been the same absent the error."

Neder, 527 U.S. at 15, 17 (quoting Chapman v. California, 386 U.S.

18, 24 (1967)).23 Neder expressly states that a "jury verdict would

23
My colleague incorrectly states in his concurrence that I
have rejected the Chapman harmless error standard as applicable to
this case. To the contrary, I fully embrace use of the Chapman
standard here. My view, as elaborated below, is that the Chapman
standard has a unique application where the error asserted is the
failure to obtain a jury verdict on an element of the crime.
The misunderstanding of my view is reflected in the
hypothetical offered in Section VI of the responding concurrence.
As I interpret Neder, that hypothetical could not happen. The
proposed scenario assumes that a reviewing court could conclude
beyond a reasonable doubt that the jury verdict would have been the

-39-
have been the same absent" a failure to instruct on an element,

"where a reviewing court concludes beyond a reasonable doubt that

the omitted element was uncontested and supported by overwhelming

evidence." Neder, 527 U.S. at 17 (emphasis added). Hence, since

we have concluded beyond a reasonable doubt that the threshold five

kilogram cocaine quantities were both uncontested by Pizarro and

supported by overwhelming evidence, Neder mandates our conclusion

here that the errors under Alleyne v. United States, 133 S. Ct.

2151 (2013), were harmless.

Neder, however, did not unequivocally answer whether its

two-part formulation for finding an omitted element harmless in

Neder's case -- that the element was both uncontested and supported

by overwhelming evidence -- was merely descriptive of the

circumstances in Neder itself or also prescriptive for any finding

of harmlessness where an element was omitted. In Neder, the jury

instructions for the charge of filing a false income tax return did

not include the element of materiality. Neder, 527 U.S. at 6. The

evidence showed that Neder failed to report over five million

dollars in income on his tax returns. Id. at 16. The Court

same absent the error even where the defendant contested the
omitted element. Under my reading of Supreme Court precedent,
however, a court could only reach such a conclusion about the
jury's verdict if it determined that the evidence on the omitted
element was overwhelming and that the element was uncontested.
Importantly, and also contrary to my colleague's
representations, my view does not derive "almost entirely from a
single quote from Neder." It is based on both a careful analysis
of the Neder decision and on longstanding principles developed in
the Court's precedent on directed guilty verdicts.

-40-
described two available standards for materiality24 and concluded

that "[u]nder either of these formulations, no jury could

reasonably conclude that Neder's failure to report substantial

amounts of income on his tax returns was not 'a material matter.'"

Id. The Court then explained:

The failure to report such substantial income
incontrovertibly establishes that Neder's false
statements were material to a determination of his income
tax liability. The evidence supporting materiality was
so overwhelming, in fact, that Neder did not argue to the
jury -- and does not argue here -- that his false
statements of income could be found immaterial.

Id. at 16-17.

The Court ultimately declared its holding using the

formulation quoted above, concluding that "[i]n this situation,

where a reviewing court concludes beyond a reasonable doubt that

the omitted element was uncontested and supported by overwhelming

evidence, such that the jury verdict would have been the same

absent the error, the erroneous instruction is properly found to be

harmless." Id. at 17. Notwithstanding the conjunctive "and"

linking "uncontested" and "supported by overwhelming evidence,"25

24
Under one formulation, "a false statement is material if it
has a natural tendency to influence, or [is] capable of
influencing, the decision of the decisionmaking body to which it
was addressed." Neder, 527 U.S. at 16 (alteration in original)
(internal quotation marks omitted). Under the other definition,
"any failure to report income is material." Id. (internal
quotation marks omitted).
25
My concurring colleague asserts that I have unduly relied
on the conjunctive "and" as used by the Supreme Court in this
passage from Neder while ignoring the arguably inconsistent
parallel use of that word later in the opinion. While the

-41-
courts have taken inconsistent positions on whether a defendant's

contest of an omitted element, even one supported by overwhelming

evidence, renders the omission non-harmless. In addition,

Neder left unresolved the related question of what a defendant is

required to do to "contest" the omitted element under Neder. In my

view, Neder, especially when analyzed against the backdrop of the

Supreme Court's cases regarding directed guilty verdicts, requires

that an omitted element be uncontested in order to be found

harmless. However, this circuit has not uniformly approached the

question, and there is significant inconsistency among the circuits

and state courts.

A. The Debate over "Uncontested"

1. Inconsistency in this Circuit

In certain cases, our harmlessness inquiry has examined

both whether the omitted element was uncontested and whether it was

supported by overwhelming evidence. See, e.g., United States v.

Harakaly, 734 F.3d 88, 95-96 (1st Cir. 2013) (finding omission

harmless where overwhelming evidence supported omitted element of

conjunctive formulation I describe here is important to my
analysis, my view of the harmless error analysis in Neder is based
on the entire opinion construed against the backdrop of the Supreme
Court's precedent on directed guilty verdicts.
Moreover, in contrast to the Court's statement of its holding
as quoted here, the later use of "and" highlighted by my colleague
is explicitly offered as an "example." See Neder, 527 U.S. at 19.
Nonetheless, I have acknowledged that Neder's language is
susceptible to my colleague's reading despite my view that, in
light of Supreme Court precedent, that reading cannot be correct.

-42-
threshold drug quantity and defendant, instead of contesting that

threshold quantity, "acknowledged responsibility for a quantity of

drugs that far exceeds the triggering amount"); United States v.

Zhen Zhou Wu, 711 F.3d 1, 20 (1st Cir. 2013) ("But here, the

defendants did contest the prosecution's claim[,] . . . thus making

this case different from Neder."); United States v. Nelson-

Rodriguez, 319 F.3d 12, 48-51 (1st Cir. 2003) (finding preserved

Apprendi errors harmless after concluding that defendants did not

contest omitted element and that overwhelming evidence supported

element); United States v. Bailey, 270 F.3d 83, 89 (1st Cir. 2001)

("The error cannot be harmless where, as here, the defendant has

contested the omitted element and the evidence is sufficient to

support a contrary finding.").

Our cases that have performed this dual inquiry, however,

have not made clear whether a defendant's contest of an omitted

element precludes a finding of harmlessness, or whether such a

contest is merely relevant to the harmlessness inquiry, but not

determinative of it. In United States v. Prigmore, 243 F.3d 1 (1st

Cir. 2001), we indeed contemplated that a defendant's contest of an

omitted element might itself preclude a finding of harmlessness.

See id. at 22 ("Unlike Neder, the government's evidence . . . was

contested by the defendants; as we have stated, defendants

introduced testimonial evidence [to the contrary] . . . . Given

Neder's repeated emphasis on the 'uncontested' nature of the

-43-
evidence of materiality in that case, the contested nature of the

. . . evidence in this case might well suffice to distinguish it

from Neder in and of itself." (citation omitted)). However, we did

not need to decide the question because the contested element was

not supported by overwhelming evidence. Id.

Conversely, other cases in this circuit seem to have

equated harmlessness solely with overwhelming evidence. See, e.g.,

United States v. Soto-Beníquez, 356 F.3d 1, 48 (1st Cir. 2004) ("In

determining whether an Apprendi error is harmless, the

determinative question is whether the evidence overwhelmingly

establishes the amount of drugs distributed by the conspiracy as a

whole."); United States v. Pérez-Ruiz, 353 F.3d 1, 18 (1st Cir.

2003) (citing Nelson-Rodriguez, 319 F.3d at 45-49, and Bailey, 270

F.3d at 89 -- cases that had themselves considered whether the

omitted element was uncontested -- for the principle that "[i]n

drug-trafficking cases involving Apprendi errors, we sometimes have

treated the presence of 'overwhelming evidence' of the requisite

drug types and quantities as a proxy for harmlessness").

Still other cases appear to have taken an ambivalent

stance, focusing the analysis primarily on whether overwhelming

evidence supported the omitted element, but also considering

whether the element was uncontested. See, e.g., United States v.

Martinez-Medina, 279 F.3d 105, 121-22 (1st Cir. 2002) (explaining

that "[n]either appellant seriously denies that the conspiracy

-44-
involved at least five kilograms of cocaine" but also that "it is

settled that an Apprendi error can be harmless where the evidence

overwhelmingly establishes the minimum drug quantity needed to

justify a higher statutory maximum").

2. Inconsistency Among Other Circuits

This circuit's internal inconsistency mirrors the inter-

circuit conflict on the interpretation of Neder. I cite cases from

the Ninth, Eleventh, Second, and Fourth Circuits as examples.

Earlier this year, the Ninth Circuit, applying the

Neder standard, held that an Apprendi error was not harmless beyond

a reasonable doubt because the defendant had contested the omitted

element. See United States v. Guerrero-Jasso, 752 F.3d 1186, 1193-

95 (9th Cir. 2014). Despite finding the evidence supporting the

omitted element to be "somewhat similar" to evidence the court had

found to be "overwhelming" in a prior case, the Ninth Circuit held

that Guerrero-Jasso's contest of the omitted element precluded a

finding of harmlessness beyond a reasonable doubt. Id. at 1194.

Further, although Neder stated that a court could not find harmless

error "'for example, where the defendant contested the omitted

element and raised evidence sufficient to support a contrary

finding,'" the Ninth Circuit held that Guerrero-Jasso was not

required affirmatively to raise evidence sufficient to support a

contrary finding because "[t]he example provided in Neder [was] not

the only way a constitutional error can be ruled not harmless; it

-45-
[was] one way." Guerrero-Jasso, 752 F.3d at 1195 (quoting Neder,

527 U.S. at 19).

By contrast, the Eleventh Circuit on remand in Neder

interpreted the Supreme Court's decision as "not hold[ing] that

omission of an element can never be harmless unless uncontested."

United States v. Neder, 197 F.3d 1122, 1129 (11th Cir. 1999).

Rather, the Eleventh Circuit construed the Supreme Court's

statements regarding "uncontested" as "mean[ing] only that the fact

materiality was not contested support[ed] the conclusion that the

jury's verdict would have been the same absent the error." Id. at

1129 n.6. Hence, the court concluded "whether Neder contested

materiality may be considered but is not the pivotal concern."

Id. at 1129.

The Second Circuit has taken a different position,

holding that under Neder contesting an omitted element does not by

itself render the omission non-harmless but requires a multi-step

analysis. In the Second Circuit, "'if the evidence supporting the

omitted element was controverted, harmless error analysis requires

the appellate court to conduct a two-part inquiry, searching the

record in order to determine (a) whether there was sufficient

evidence to permit a jury to find in favor of the defendant on the

omitted element, and, if there was, (b) whether the jury would

nonetheless have returned the same verdict of guilty.'" United

States v. Needham, 604 F.3d 673, 679 (2d Cir. 2010) (quoting United

-46-
States v. Jackson, 196 F.3d 383, 386 (2d Cir. 1999)).26

The Fourth Circuit has in turn expressly rejected the

Second Circuit's approach in favor of yet another. In the Fourth

Circuit, "if the defendant contested the omitted element,

Neder mandates a second inquiry. In that event, we must determine

whether the 'record contains evidence that could rationally lead to

a contrary finding with respect to that omitted element.'" United

States v. Brown, 202 F.3d 691, 701 (4th Cir. 2000) (quoting Neder,

527 U.S. at 19).

26
The Second Circuit has been internally inconsistent in its
own stance on Neder, expressing, after Jackson, a belief that there
is "some tension between the harmless-error analysis in Neder and
our articulation of it in Jackson":

. . . Neder appears to say that, once the court decides
that the defendant offered evidence sufficient to support
a finding in his or her favor on the omitted element, the
court's error in omitting that element from the jury
instruction cannot be deemed harmless, unless, for
example, other conclusions by the same jury are the
functional equivalent of a finding of the omitted
element. Jackson, on the other hand, seems to allow the
court to decide on its own whether the jury would have
convicted the defendant, even where the evidence can
support a finding in the defendant's favor on an omitted
element and no functional equivalent of the omitted
element has been found by the jury.

Monsanto v. United States, 348 F.3d 345, 350-51 (2d Cir. 2003).
Nevertheless, the Second Circuit has recognized it is "bound by
Jackson, . . . unless and until that case is reconsidered by our
court sitting in banc (or its equivalent) or is rejected by a later
Supreme Court decision." Id. at 351.

-47-
 3. Criticism in the State Courts

Several state supreme courts have held that their state

constitutions provide a broader jury trial guarantee than Neder

recognized in the federal Constitution. See, e.g., Harrell v.

State, 134 So.3d 266, 270-75 (Miss. 2014) (holding under the

Mississippi Constitution "that it is always and in every case

reversible error for the courts of Mississippi to deny an accused

the right to have a jury decide guilt as to each and every

element"); State v. Kousounadis, 986 A.2d 603, 616 (N.H. 2009)

("Neder, however, has been widely criticized, and we decline to

follow it with regard to our interpretation of the New Hampshire

Constitution.").

In addition, at least one state court has suggested that

Neder's application of harmless error analysis to cases where the

jury did not make a finding of guilt beyond a reasonable doubt on

all elements will be "short-lived" given the Supreme Court's Sixth

Amendment jurisprudence, starting with Apprendi v. New Jersey, 530

U.S. 466 (2000), emphasizing the need for jury findings. See

Freeze v. State, 827 N.E.2d 600, 605 (Ind. Ct. App. 2005) ("We

believe the validity of Neder might be short-lived, in light of the

seismic shift in the Supreme Court's Sixth Amendment jurisprudence

since 1999.").

-48-
B. My View of "Uncontested"

1. The Unconstitutional Directed Guilty Verdict

The Supreme Court has long recognized that "trial by jury

in criminal cases is fundamental to the American scheme of

justice." Duncan v. Louisiana, 391 U.S. 145, 149 (1968). The

"intended purpose" of a jury trial in a criminal case is to "mak[e]

judicial or prosecutorial unfairness less likely": "[p]roviding an

accused with the right to be tried by a jury of his peers gave him

an inestimable safeguard against the corrupt or overzealous

prosecutor and against the compliant, biased, or eccentric judge."

Id. at 158, 156. See also United States v. Martin Linen Supply

Co., 430 U.S. 564, 572 (1977) ("[Jurors'] overriding responsibility

is to stand between the accused and a potentially arbitrary or

abusive Government that is in command of the criminal sanction.").

It is a defendant's right to "prefer[] the common-sense judgment of

a jury to the more tutored but perhaps less sympathetic reaction of

the single judge." Duncan, 391 U.S. at 156. The jury system also

serves as "a fundamental reservation of power in our constitutional

structure" for the people to exercise "control in the judiciary."

Blakely v. Washington, 542 U.S. 296, 306 (2004). Hence, "a trial

judge is prohibited from entering a judgment of conviction or

directing the jury to come forward with such a verdict, regardless

of how overwhelmingly the evidence may point in that direction."

Martin Linen Supply Co., 430 U.S. at 572-73 (citations omitted).

-49-
 Against this background, the Supreme Court considered in

Connecticut v. Johnson, 460 U.S. 73 (1983), whether harmless error

review was appropriate for a jury instruction that

unconstitutionally shifted the burden of proof on intent.27 The

Court divided equally on the question.28 The plurality, consisting

of four justices, asserted that the instruction on presumed intent

was "the functional equivalent of a directed verdict" on intent

and, therefore, could not be harmless unless the defendant had

conceded intent. Id. at 84, 87 (plurality opinion).29

The Johnson dissent, also consisting of four justices,

agreed with the plurality that an instruction that "permits a jury

to convict a defendant without ever examining the evidence

concerning an element of the crimes charged" would have "the effect

27
In Sandstrom v. Montana, 442 U.S. 510 (1979), the Supreme
Court had held that such an instruction violated due process. Id.
at 524. Sandstrom, however, expressly left open the question of
whether such an improper presumption instruction could ever be
harmless. Id. at 526-27.
28
Justice Stevens did not join the plurality's opinion but
concurred in the judgment and thereby provided the fifth vote for
a disposition. Justice Stevens did not confront whether harmless
error review was appropriate for the presumption instruction
because in his view "[n]o federal question arises when a state
court has decided for itself that it will decline to apply the
Chapman harmless error test at all." Johnson, 460 U.S. at 89 n.4
(Stevens, J., concurring).
29
The plurality explained that "a defense such as alibi,
insanity, or self-defense" could, depending on the case, amount to
such a concession. Johnson, 460 U.S. at 87 (plurality opinion).
However, the plurality also recognized that "a defendant in a
criminal trial is justified, of course, in defending solely in
reliance on the presumption of his innocence and the State's burden
of proof." Id. at 87 n.16.

-50-
of a directed verdict." Id. at 96 (Powell, J., dissenting)

(internal quotation marks omitted). The dissent likewise agreed

that such an "instructional error[] that prevent[s] a jury from

considering an issue," id. at 95 n.3, would preclude harmless error

review. See id. at 97. Justice Powell's dissent disagreed only

with the plurality's classification of the presumption instruction

as the equivalent of a directed verdict. Id. at 95-97. The

dissent viewed the presumption instruction as "distinguishable from

other instructional errors that prevent a jury from considering an

issue." Id. at 95 n.3. It therefore concluded that "[b]ecause the

presumption does not remove the issue of intent from the jury's

consideration, it does not preclude a reviewing court from

determining whether the error was harmless beyond a reasonable

doubt." Id. at 97 (internal quotation marks omitted).

In Rose v. Clark, 478 U.S. 570 (1986), the Supreme Court

ultimately sided with the position of the Johnson dissent that

harmless error review was appropriate for an improper presumption

instruction on intent. The Court justified its conclusion by

explaining that "[w]hen a jury is instructed to presume malice from

predicate facts, it still must find the existence of those facts

beyond a reasonable doubt." Rose, 478 U.S. at 580. Hence, the

Court reasoned that "'[b]ecause a presumption does not remove the

issue of intent from the jury's consideration, it is

distinguishable from other instructional errors that prevent a jury

-51-
from considering an issue,'" a situation that, according to the

Court, would amount to "a directed verdict for the State." Id. at

580 & n.8 (quoting Johnson, 460 U.S. at 95 n.3 (Powell, J.,

dissenting)). Rose observed, consistent with both the

Johnson plurality and dissent, that harmless error review

"presumably would not apply" in such a case:

[H]armless-error analysis presumably would not apply if
a court directed a verdict for the prosecution in a
criminal trial by jury. We have stated that "a trial
judge is prohibited from entering a judgment of
conviction or directing the jury to come forward with
such a verdict . . . regardless of how overwhelmingly the
evidence may point in that direction." This rule stems
from the Sixth Amendment's clear command to afford jury
trials in serious criminal cases. Where that right is
altogether denied, the State cannot contend that the
deprivation was harmless because the evidence established
the defendant's guilt; the error in such a case is that
the wrong entity judged the defendant guilty.

Id. at 578 (citations omitted) (quoting Martin Linen Supply Co.,

430 U.S. at 572-73).30

30
Having held that the presumption instruction did not direct
a verdict, Rose disagreed with the position that such an improper
presumption instruction "could never be harmless where a defendant
contests intent." Rose, 478 U.S. at 583. The Court thereby
rejected the Johnson plurality's view that a presumption
instruction "'is the functional equivalent of a directed verdict'
on intent, and is therefore harmless only when the defendant
concedes intent." Rose, 478 U.S. at 572 n.1 (quoting Johnson, 460
U.S. at 84 (plurality opinion)). The Court instead adopted the
Johnson dissent's view that "in cases of [an improper presumption
instruction], 'the inquiry is whether the evidence was so
dispositive of intent that a reviewing court can say beyond a
reasonable doubt that the jury would have found it unnecessary to
rely on the presumption.'" Rose, 478 U.S. at 583 (quoting Johnson,
460 U.S. at 97 n.5 (Powell, J., dissenting)).

-52-
 2. The "Narrow Class of Cases" Where an Omitted Element
is "Uncontested"

Having decided Rose by distinguishing the improper

presumption instruction in that case from an "instructional error[]

that prevents a jury from considering an issue," i.e., one that

directs a verdict, for which "harmless-error analysis presumably

would not apply," the Court was presented in Neder with such a

directed verdict. In Neder, the trial court had "explicitly

directed the jury not to consider" the element of materiality.

Neder, 527 U.S. at 16 n.1. Thus, unlike in Rose, it would be

"incorrect to say that the jury made such a finding." Id.

For this reason, Justice Scalia's dissent in Neder,

joined by Justices Souter and Ginsburg, asserted that holding the

omission of the materiality element harmless was tantamount to

allowing a directed verdict of guilty, which, under Rose, "would

be per se reversible no matter how overwhelming the unfavorable

evidence." Neder, 527 U.S. at 34 (Scalia, J., dissenting) (citing

Rose, 478 U.S. at 578). The Neder majority responded by

reaffirming the Rose rule against allowing directed verdicts of

guilty "regardless of how overwhelmingly the evidence may point in

that direction," Rose, 478 U.S. at 578 (internal quotation marks

omitted). See Neder, 527 U.S. at 17 n.2. At the same time, Neder

prescribed harmless-error review for "the narrow class of cases"

where there was "a failure to charge on an uncontested element of

the offense." Neder, 527 U.S. at 17 n.2 (emphases added).

-53-
 Hence, the Court evidently used the requirement that the

omitted element be "uncontested" to justify departing from its

repeated statements that harmless error review would be unavailable

where a court had directed a jury verdict of guilty in a criminal

case. The Court emphasized that it was not taking an "'in for a

penny, in for a pound' approach" -- i.e., by permitting harmless

error review where the omitted element was uncontested, the Court

was carving out an extremely limited exception to its bar against

reviewing directed guilty verdicts for harmlessness. See id.

In addition, having justified harmless error review for

the flawed presumption instruction in Rose by distinguishing that

error from the omission of an element, the Court demonstrated its

intention to treat the two types of error differently. In Neder,

where the Court confronted the outright omission of an element, the

majority adopted the "uncontested and . . . overwhelming evidence"

formulation for analyzing whether "the jury verdict would have been

the same absent the error," i.e., whether the error was harmless.

Neder, 527 U.S. at 17 (emphasis added). Indeed, the rule against

allowing directed verdicts, explicitly reaffirmed in Neder, 527

U.S. at 17 n.2, implicitly prohibits a reviewing court from finding

harmlessness on the basis of overwhelming evidence alone.

In sum, given this precedential landscape, I am convinced

that the Court deliberately chose to make the harmlessness inquiry

more demanding where an element was omitted. Hence, I think the

-54-
Court in Neder intentionally prescribed the two-pronged inquiry

requiring consideration of whether the omitted element was

uncontested and whether the record contained overwhelming evidence

of that element, and only when both prongs are met can a reviewing

court conclude beyond a reasonable doubt that the jury verdict

would have been the same absent the error. Indeed, the Court

emphasized the importance of "uncontested" to that inquiry: it

listed "uncontested" as the first of the two necessary factors, see

id. at 17, and it examined and re-examined whether Neder had

contested the omitted element of materiality, see id. at 15, 16-17,

17 n.2, 19.

Thus, even where a reviewing court concludes beyond a

reasonable doubt that an omitted element is supported by

overwhelming evidence, I believe that the omission of that element

is not harmless unless the court also concludes beyond a reasonable

doubt that the element was "uncontested."

3. The Meaning of "Uncontested"

In addressing the "uncontested" requirement in Neder, the

Supreme Court noted that the defendant had made no attempt at trial

or on appeal to argue the issue of materiality, id. at 19, and that

he did "not suggest that he would introduce any evidence bearing

upon the issue of materiality if so allowed," id. at 15. It

further observed that Neder "apparently could not[] bring forth

facts contesting the omitted element." Id. at 19.

-55-
 The Court thus remarked on the defendant's failure to

argue the materiality issue at any point in the proceedings. Given

those circumstances, Neder did not explicitly elaborate on what

would have been sufficient to "contest" the omitted element.

Indeed, Neder did not definitively answer whether an element would

be deemed "contested" if a defendant waited until appeal to argue

for the first time that a contrary finding on the element was

possible.

Moreover, as discussed above, the plurality in

Johnson had taken the position that a directed verdict on an issue

"may be harmless if the defendant conceded the issue." See

Johnson, 460 U.S. at 87 (plurality opinion). On the one hand, the

Court's articulation of Neder's trial strategy could possibly be

construed as such a concession of the omitted element.31 However,

the Court used the word "uncontested," not "conceded," and the

Court focused on the fact that Neder "did not argue to the jury --

and does not argue here -- that his false statements of income

could be found immaterial." Neder, 527 U.S. at 16 (emphases

added). Hence, in the opinion in this case, we have construed

31
The Court represented that Neder "defended against the tax
charges by arguing that the loan proceeds were not income because
he intended to repay the loans, and that he reasonably believed,
based on the advice of his accountant and lawyer, that he need not
report the proceeds as income." Id. at 16-17. In other words,
Neder's defense conceded that he received the considerable amount
of funds charged, and "no jury could reasonably find that Neder's
failure to report substantial amounts of income on his tax returns
was not 'a material matter.'" Id. at 16.

-56-
"uncontested" to mean that the defendant did not argue that a

contrary finding on the omitted element was possible. We thus

found the omitted drug quantity elements "uncontested" due to

Pizarro's lack of affirmative argument on the issue.

4. "Uncontested" in the Context of Instructional Alleyne
Errors

Given Pizarro's lack of argument on appeal, we were able

to resolve this case without considering whether an argument made

for the first time on appeal "contests" an omitted element.

However, I believe that an instructional Alleyne error that

occurred before Alleyne was decided cannot be deemed "uncontested,"

and thus susceptible to a finding of harmless error, based solely

on a defendant's failure to address the omitted element at trial.

Until the Supreme Court held in Alleyne that facts

triggering a mandatory minimum sentence must be found by a jury

beyond a reasonable doubt, Pizarro had no obligation or incentive

to discuss evidence of drug quantity.32 Therefore, if Pizarro had

contested the drug quantity elements on appeal, I would have found

no need to examine whether he had also challenged the elements at

trial. In my view, he could not have been faulted for failing to

contest an issue at trial that was not, in fact, in play at that

time. Cf. Descamps v. United States, 133 S. Ct. 2276, 2289 (2013)

32
Indeed, because the trial in this case pre-dated Apprendi,
drug quantity was not an issue for the jury at all.

-57-
("A defendant, after all, often has little incentive to contest

facts that are not elements of the charged offense -- and may have

good reason not to. At trial, extraneous facts may confuse the

jury. (Indeed, the court may prohibit them for that reason.)").

At least where, as here, the defendant had no reason to think that

drug quantity mattered with respect to conviction, I conclude that

he could not be faulted for failing to contest the issue at trial.

Where a defendant's trial occurred pre-Alleyne, his obligation to

contest the element of drug quantity can only arise when he first

confronts the government's assertion of harmless error.

I recognize that this conclusion means that, in cases

involving pre-Alleyne trials on direct appeal, a defendant would

almost always be able to contest drug quantity and avoid a finding

of harmless error. On appeal, or in resentencing proceedings

before the district court -- if that is where the government first

asserts harmless error -- the defendant would only have to make an

argument that could, as a theoretical matter under the law, negate

the omitted element. A challenge to the credibility of witnesses

might suffice.

Yet I do not find problematic the ease of such a showing.

First, "the Due Process Clause protects the accused against

conviction except upon proof beyond a reasonable doubt of every

fact necessary to constitute the crime with which he is charged."

In re Winship, 397 U.S. 358, 364 (1970). The burden is on the

-58-
government to show that the constitutional error was harmless

beyond a reasonable doubt. See Premo v. Moore, 131 S. Ct. 733, 744

(2011) (citing Neder, 527 U.S. at 18). This is a significant

burden: "It is critical that the moral force of the criminal law

not be diluted by a standard of proof that leaves people in doubt

whether innocent men are being condemned." In re Winship, 397 U.S.

at 364; see id. ("It is also important in our free society that

every individual going about his ordinary affairs have confidence

that his government cannot adjudge him guilty of a criminal offense

without convincing a proper factfinder of his guilt with utmost

certainty.").

Second, in Neder, the Supreme Court remarked that

upholding verdicts flawed solely by the absence of a jury finding

on an uncontested element that is supported by overwhelming

evidence "'serve[s] a very useful purpose insofar as [it] block[s]

setting aside convictions for small errors or defects that have

little, if any, likelihood of having changed the result of the

trial.'" Neder, 527 U.S. at 19 (quoting Chapman, 386 U.S. at 22

(alterations in original)). That concern, to the extent it

influenced the majority's decision in Neder, is not present in the

Alleyne instructional error context because the non-harmless

omission of a jury finding on the drug quantity elements for the

conspiracy and possession counts would not negate a finding of

-59-
guilt.33 In cases such as Pizarro's, it would merely change the

defendant's sentencing exposure, reducing the maximum sentence to

a still substantial twenty years of imprisonment for conviction on

a lesser-included offense.34

II.

Despite the compelling reasons for concluding that an

omitted element cannot be harmless under Neder unless the reviewing

court concludes beyond a reasonable doubt that the element was both

uncontested and supported by overwhelming evidence, there is

troubling inconsistency in the courts. The importance of the issue

is self-evident. At stake is a criminal defendant's constitutional

right to trial by jury. I therefore urge the Supreme Court (1) to

clarify that Neder requires a reviewing court to conclude beyond a

reasonable doubt that an omitted element is uncontested before the

33
I make no judgment here, either explicitly or implicitly,
on whether a concern for judicial efficiency related to avoiding a
retrial could justify a different standard for contesting an
omitted element where a finding of non-harmlessness would
necessarily result in a retrial.
34
Under 28 U.S.C. § 2106, in the case of a non-harmless
instructional Alleyne or Apprendi error, a circuit generally may
direct the entry of conviction on the lesser-included offense that
does not require the omitted element, so long as no "injustice or
unfair prejudice will inure to the defendant." See United
States v. Sepúlveda-Hernández, 752 F.3d 22, 28-29 (1st Cir. 2014)
(providing multi-step test for determining whether it would be
permissible to direct entry of conviction on lesser-included
offense). Cocaine conspiracy and possession offenses under 21
U.S.C. § 841(b)(1)(C), without specified drug quantities or
mandatory minima, are lesser-included offenses of the aggravated
crimes under § 841(b)(1)(A). See Burrage v. United States, 134 S.
Ct. 881, 887 n.3 (2014).

-60-
omission can be found harmless and (2) to explain what a defendant

must do and when he or she must do it in order to contest the

omitted element to preclude a finding of harmlessness.

-61-
 TORRUELLA, Circuit Judge (Concurring). I write separately

in response to the preceding concurrence and its inventive gloss on

Neder v. United States, 527 U.S. 1 (1999), and its progeny. Neder

simply applied the standard constitutional harmless-error rule

articulated nearly fifty years ago in Chapman v. California, 386

U.S. 18 (1967), to a jury instruction that omitted an element of an

offense. See Neder, 527 U.S. at 4 (holding that "the harmless-error

rule of Chapman v. California" applies to the failure of a trial

judge to submit an element of the offense to the jury). Contrary

to the position taken by Judge Lipez, Neder did not supplant the

Chapman rule by creating a novel, two-pronged test for such errors.

I write separately lest the other concurrence add to the confusion

of which it complains.

The other concurrence posits that there is a "troubling

inconsistency" in the application of the constitutional harmless-

error test in the wake of Neder. Ante, at 60 (Lipez, J.,

concurring). It argues that there are two possible interpretations

of Neder. The first interpretation -- with which I agree, and

which is overwhelmingly supported by Supreme Court and First

Circuit precedent -- is that Neder simply applied the standard

Chapman harmless-error test: "whether it appears 'beyond a

reasonable doubt that the error complained of did not contribute to

the verdict obtained.'" Neder, 527 U.S. at 15 (quoting Chapman,

386 U.S. at 24). The second potential interpretation is that the

-62-
Neder Court created a new, two-pronged harmless-error test for a

subset of instructional constitutional errors: "an omitted element

cannot be harmless under Neder unless the reviewing court concludes

beyond a reasonable doubt that the element was both uncontested and

supported by overwhelming evidence." Ante, at 60. Judge Lipez

advocates for the latter reading, and he urges the Supreme Court to

clarify whether his interpretation is correct.

In my view, no such clarification is needed, as the

governing precedent is abundantly clear that Neder simply applied

the standard Chapman harmless-error test. Neder, according to its

plain text -- and as reinforced by subsequent Supreme Court and

First Circuit decisions -- neither added additional elements (i.e.,

"uncontested" and "overwhelming evidence") to the standard Chapman

test nor supplanted it with a new harmless-error test for some

subset of cases.

While Judge Lipez's view of Neder is not strictly

impossible, such an interpretation is exceedingly strained and

finds scant support in Neder itself, not to mention the numerous

cases citing Neder over the past fifteen years. To the extent that

there is inconsistency in the wake of Neder, his concurrence adds

to the confusion by presenting the issue as a much closer question

than it is. Under a more straightforward, faithful, and

commonsense reading of Neder and our subsequent cases, there is

-63-
very little -- if any -- inconsistency in our prior application of

the constitutional harmless-error test for instructional errors.

I express no view here on whether Neder was rightly

decided, or whether, as Judge Lipez suggests, the Supreme Court

should reconsider its decision. Rather, I write only to attempt to

accurately reflect the current state of the constitutional

harmless-error test in the First Circuit, following the relevant

Supreme Court precedent. For constitutional errors like those in

Neder and the instant case ("the failure to instruct on an element

in violation of the right to a jury trial"), "the harmless-error

inquiry [remains] essentially the same: Is it clear beyond a

reasonable doubt that a rational jury would have found the

defendant guilty absent the error?" Neder, 527 U.S. at 18; see

also id. at 19 ("A reviewing court making this harmless-error

inquiry . . . asks whether the record contains evidence that could

rationally lead to a contrary finding with respect to the omitted

element.").

I. The Supreme Court's Constitutional Harmless-Error Test

According to the harmless-error rule under the Federal

Rules of Criminal Procedure, "[a]ny error, defect, irregularity, or

variance that does not affect substantial rights must be

disregarded." Fed. R. Crim. P. 52(a). In Chapman v. California,

the Supreme Court articulated the standard harmless-error test for

constitutional errors. Chapman, 386 U.S. at 24. To determine

-64-
whether a constitutional error is harmless, a reviewing court asks

whether it appears "beyond a reasonable doubt that the error

complained of did not contribute to the verdict obtained." Id.

Nearly two decades later, in Delaware v. Van Arsdall, 475

U.S. 673 (1986), the Supreme Court reaffirmed the Chapman harmless-

error rule. Id. at 681 ("Since Chapman, we have repeatedly

reaffirmed the principle that an otherwise valid conviction should

not be set aside if the reviewing court may confidently say, on the

whole record, that the constitutional error was harmless beyond a

reasonable doubt."). The Court explained that "[t]he

harmless-error doctrine recognizes the principle that the central

purpose of a criminal trial is to decide the factual question of

the defendant's guilt or innocence, and promotes public respect for

the criminal process by focusing on the underlying fairness of the

trial rather than on the virtually inevitable presence of

immaterial error." Id. (internal citation omitted). "As we have

stressed on more than one occasion, the Constitution entitles a

criminal defendant to a fair trial, not a perfect one." Id.

Shortly after Van Arsdall was decided, in Rose v. Clark,

478 U.S. 570 (1986), the Supreme Court cautioned that a

"harmless-error analysis presumably would not apply if a court

directed a verdict for the prosecution in a criminal trial by

jury," reasoning that "'a trial judge is prohibited from entering

a judgment of conviction or directing the jury to come forward with

-65-
such a verdict . . . regardless of how overwhelmingly the evidence

may point in that direction.'" Id. at 578 (quoting United States

v. Martin Linen Supply Co., 430 U.S. 564, 572–573 (1977)). The

Court explained that when the Sixth Amendment right to a jury trial

in serious criminal cases "is altogether denied, the State cannot

contend that the deprivation was harmless because the evidence

established the defendant's guilt; the error in such a case is that

the wrong entity judged the defendant guilty." Id.

The Rose Court further "emphasized, however, that while

there are some errors to which Chapman does not apply, they are the

exception and not the rule." Id. Therefore, "if the defendant had

counsel and was tried by an impartial adjudicator, there is a

strong presumption that any other errors that may have occurred are

subject to harmless-error analysis." Id. at 579. The Court

explained that the "thrust" of constitutional rules for criminal

trials "is to ensure that those trials lead to fair and correct

judgments." Id. "Where a reviewing court can find that the record

developed at trial establishes guilt beyond a reasonable doubt, the

interest in fairness has been satisfied and the judgment should be

affirmed." Id. The Court reiterated that it has "repeatedly

stated" that a criminal defendant is entitled "'to a fair trial,

not a perfect one.'" Id. (quoting Van Arsdall, 475 U.S. at 681).

To date, the Supreme Court has not overruled Chapman or

changed the harmless-error test for constitutional errors. Rather,

-66-
the Supreme Court has repeatedly reaffirmed the standard

constitutional harmless-error test as articulated in Chapman. See,

e.g., Premo v. Moore, 131 S. Ct. 733, 744 (2011); Rivera v.

Illinois, 556 U.S. 148, 155-56 (2009) (affirming a finding of

harmless error when "it was clear beyond a reasonable doubt that a

rational jury would have found [the defendant] guilty absent the

error") (internal quotation marks and citations omitted)); Mitchell

v. Esparza, 540 U.S. 12, 17-18 (2003).

II. The Supreme Court's Opinion in Neder

Ignoring the more recent Supreme Court cases cited above,

and the plethora of First Circuit cases holding otherwise, the

other concurrence relies almost entirely on a single quote from

Neder to justify its position that Neder created a new test to

supplant the Chapman harmless-error test in certain circumstances.

See Neder, 527 U.S. at 17 (stating that a "jury verdict would have

been the same absent" a failure to instruct on an element, "where

a reviewing court concludes beyond a reasonable doubt that the

omitted element was uncontested and supported by overwhelming

evidence"). Viewed out of context, it is possible that this quote

could support Judge Lipez's preferred interpretation. In its

proper context, however, as further explained below, it is

perfectly clear that this quote "was merely descriptive of the

circumstances in Neder itself" and was not "prescriptive for any

finding of harmlessness where an element was omitted." See ante,

-67-
at 40. Nothing in Neder (or any subsequent Supreme Court case)

suggests that this two-pronged test is necessary for a finding of

harmlessness rather than merely sufficient for such a finding.

Similarly, nowhere does Neder purport to establish a new

constitutional harmless-error test to displace the standard Chapman

test in certain circumstances.

The defendant in Neder had been tried for several

violations of federal criminal fraud statutes. Neder, 527 U.S. at

4. It was established that the district court erred in refusing to

submit the materiality element of the tax fraud charges to the

jury. See id. The Supreme Court granted certiorari to answer two

questions: (1) whether materiality was an element of the relevant

fraud statutes, and (2) "whether, and under what circumstances, the

omission of an element from the judge's charge to the jury can be

harmless error." Id. at 7. The Court answered the first question

in the affirmative, holding that materiality was an element of the

relevant charges. Id. at 4.

With respect to the second question, the Court held "that

the harmless-error rule of Chapman v. California" indeed applied to

the district court's error in omitting an element of the offense

from the jury charges. Id. at 4. The Court proceeded to examine

in detail this type of constitutional instructional error, where

the trial court itself makes a finding on an element of the offense

rather than submitting that element for a jury determination. In

-68-
so doing, the Neder court explicitly considered the argument that

such an error is "'structural,' and thus subject to automatic

reversal." Id. at 8 (quoting Johnson v. United States, 520 U.S.

461, 468 (1997)); see also id. at 7 (stating that structural errors

"defy analysis by 'harmless error' standards" (quoting Arizona v.

Fulminante, 499 U.S. 279, 309, (1991)); id. (observing that

structural errors "are so intrinsically harmful as to require

automatic reversal (i.e., 'affect substantial rights') without

regard to their effect on the outcome" (quoting Fed. R. Crim. P.

52(a))).

However, the Court rejected this structural-error

argument, observing that structural errors constitute only "a

limited class of fundamental constitutional errors." Id. The

Court had previously "found an error to be 'structural' . . . only

in a 'very limited class of cases," including: the complete denial

of counsel, a biased trial judge, racial discrimination in the

selection of the grand jury, the denial of self-representation at

trial, the denial of a public trial, and a defective reasonable-

doubt instruction. Id. at 8 (quoting Johnson, 520 U.S. at 468).

It explained that those structural-error cases contain defects that

"affect[] the framework within which the trial proceeds, rather

than simply an error in the trial process itself." Id. (quoting

Fulminante, 499 U.S. at 310). To be deemed structural errors, such

defects must "infect the entire trial process, and necessarily

-69-
render a trial fundamentally unfair." Id. (internal quotation

marks and citations omitted).

"The error at issue [in Neder] -- a jury instruction that

omits an element of the offense -- differs markedly from the

[structural] constitutional violations . . . found to defy

harmless-error review." Id. The Court clarified 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. Similarly, the Neder Court reasoned that omitting an element

of the offense from the jury instructions will not "always render

a trial unfair." Id. To the contrary, despite the Neder trial

judge's failure to charge the jury on the materiality element,

Neder's trial was not "fundamentally unfair" because he "was tried

before an impartial judge, under the correct standard of proof and

with the assistance of counsel; [and] a fairly selected, impartial

jury was instructed to consider all of the evidence and argument in

respect to Neder's defense against the tax charges." Id.

For those reasons, the Neder Court "concluded that the

omission of an element is an error that is subject to

harmless-error analysis." Id. at 15. Conducting this analysis, in

order to answer whether the omission of the materiality element in

Neder was in fact harmless, the Court explicitly turned to Chapman,

-70-
in which it had previously "set forth the test for determining

whether a constitutional error is harmless." Id. (citing Chapman,

386 U.S. at 18). "That test . . . is whether it appears 'beyond a

reasonable doubt that the error complained of did not contribute to

the verdict obtained.'" Id. (quoting Chapman, 386 U.S. at 24).

Comparing the failure to instruct on an element of the offense with

other constitutional errors, the Neder Court concluded "that the

harmless-error inquiry must be essentially the same: Is it clear

beyond a reasonable doubt that a rational jury would have found the

defendant guilty absent the error?" Id. at 18.

Applying this test, after reviewing the record, the Court

found that "[t]he evidence supporting materiality was so

overwhelming, in fact, that Neder did not argue to the jury -- and

does not argue here -- that his false statements of income could be

found immaterial." Id. at 16. "In this situation, where a

reviewing court concludes beyond a reasonable doubt that the

omitted element was uncontested and supported by overwhelming

evidence, such that the jury verdict would have been the same

absent the error, the erroneous instruction is properly found to be

harmless." Id. at 17. Therefore, the Neder Court concluded that

they "think it beyond cavil here that the error 'did not contribute

to the verdict obtained.'" Id. (quoting Chapman, 386 U.S. at 24).

The Neder Court further instructed that if, after

conducting "a thorough examination of the record," a reviewing

-71-
"court cannot conclude beyond a reasonable doubt that the jury

verdict would have been the same absent the error -- for example,

where the defendant contested the omitted element and raised

evidence sufficient to support a contrary finding -- it should not

find the error harmless." Id. at 19. The Court explained that

such a reviewing court, "in typical appellate-court fashion, asks

whether the record contains evidence that could rationally lead to

a contrary finding with respect to the omitted element." Id.

III. Nothing in Neder Itself Mandates the Other Concurrence's
Approach

As is evident from the discussion above and a careful

reading of Neder itself, the Neder Court did not replace the

standard Chapman harmless-error test with a new, two-pronged test

-- that the omitted element must be both (1) "uncontested" and (2)

supported by "overwhelming evidence" in order for an appellate

court to find the instructional error to be harmless. Instead, the

Neder Court explicitly and repeatedly referenced and applied the

standard Chapman harmless-error test (whether it is clear beyond a

reasonable doubt that a rational jury would have found the

defendant guilty if it had been properly instructed on the omitted

element), finding that test to be satisfied under the particular

circumstances of the case.

No language in Neder suggests that the Supreme Court

intended to create a new harmless-error test. Instead, Neder

merely indicates that, in a particular factual situation where an

-72-
omitted element was both uncontested and supported by overwhelming

evidence, it was overdetermined that the error was harmless.

Indeed, in context, the very language relied upon by the other

concurrence supports this view:

In this situation, where a reviewing court
concludes beyond a reasonable doubt that the
omitted element was uncontested and supported
by overwhelming evidence, such that the jury
verdict would have been the same absent the
error, the erroneous instruction is properly
found to be harmless. We think it beyond cavil
here that the error "did not contribute to the
verdict obtained."

Neder, 527 U.S. at 17 (quoting Chapman, 386 U.S. at 24) (emphases

added). This quoted language strongly suggests that Neder's

discussion of "uncontested" was, in fact, merely descriptive of

what happened in that case and was not a prescriptive mandate for

every subsequent case involving the omission of an element. See

Neder, 527 U.S. at 19 ("In a case such as this one . . . ."). The

second sentence in the block quote above demonstrates that the

Neder Court continued to refer back to the standard Chapman test,

finding that test to be overwhelmingly satisfied in the particular

factual circumstances (i.e., "uncontested and supported by

overwhelming evidence") involved in Neder.

In fact, Neder's own language makes clear that it did not

intend to establish a new harmless-error test for the omission of

an element from the jury instructions. Neder states that for

various constitutional errors -- including "the failure to instruct

-73-
on an element in violation of the right to a jury trial" -- "the

harmless-error inquiry must be essentially the same: Is it clear

beyond a reasonable doubt that a rational jury would have found the

defendant guilty absent the error?" Neder, 527 U.S. at 18.

Finally, the Neder Court concluded its harmless-error discussion by

referring once more to the Chapman test: "A reviewing court making

this harmless-error inquiry . . . asks whether the record contains

evidence that could rationally lead to a contrary finding with

respect to the omitted element." Id. at 19. Therefore, nothing in

Neder supports, much less compels, a conclusion that the Supreme

Court intended to supplant the standard Chapman harmless-error test

with a new, mandatory, exclusive, two-pronged test (in which an

omitted element must be both "uncontested" and "supported by

overwhelming evidence") for cases in which the jury instructions

erroneously omitted an element of the offense.

IV. The Importance of the Word "and": Language in Neder
Contradicts the Other Concurrence's Interpretation

The other concurrence relies heavily on one small word in

Neder: the conjunction "and" that joins "uncontested" and

"supported by overwhelming evidence." See ante, at 39-40 ("Neder

expressly states that a 'jury verdict would have been the same

absent' a failure to instruct on an element, 'where a reviewing

court concludes beyond a reasonable doubt that the omitted element

was uncontested and supported by overwhelming evidence.'" (quoting

Neder, 527 U.S. at 17) (emphasis supplied in Judge Lipez's

-74-
concurrence)); id. at 54 (arguing that the Neder "majority adopted

the 'uncontested and . . . overwhelming evidence' formulation for

analyzing whether . . . the error was harmless" (quoting Neder, 527

U.S. at 17) (emphasis supplied in Judge Lipez's concurrence)).

Relying on this quoted language from Neder, and emphasizing the

word "and" that joins the two factors, Judge Lipez concludes that

"the Court in Neder intentionally prescribed the two-pronged

inquiry requiring consideration of whether the omitted element was

uncontested and whether the record contained overwhelming evidence

of that element, and only when both prongs are met can a reviewing

court" find harmless error. Id. at 55 (emphasis in original).

Judge Lipez thus urges that, in this context, we must assign

significant weight to the word "and." Consistent with this view,

the Neder Court's choice of the conjunctive "and" -- as opposed to

the disjunctive "or" -- means that both conditions must be

satisfied in order to draw the resulting conclusion.

Assigning this same weight to a parallel construction

elsewhere in Neder, however, directly contradicts Judge Lipez's

interpretation. In addition to describing a circumstance when an

omitted-element error is harmless, Neder also specified when such

an error is not harmless:

Of course, safeguarding the jury guarantee
will often require that a reviewing court
conduct a thorough examination of the record.
If, at the end of that examination, the court
cannot conclude beyond a reasonable doubt that
the jury verdict would have been the same

-75-
 absent the error -- for example, where the
defendant contested the omitted element and
raised evidence sufficient to support a
contrary finding -- it should not find the
error harmless.

Neder, 527 U.S. at 19 (emphasis added). Applying the other

concurrence's logic to this quote yields the following conclusion:

in order for a reviewing court to determine that the error was not

harmless, the omitted element must be both contested and not

supported by overwhelming evidence.

If both Neder "prongs" (uncontested and overwhelming

evidence) were necessary for a finding of harmless error -- as

argued by the other concurrence -- then a failure of either prong

would be sufficient to find the error not harmless. If the Supreme

Court intended such a result, we might expect it to have used the

disjunctive "or" instead of the conjunctive "and" emphasized in the

block quote above. However, the Neder Court only specified that

reviewing courts should not find errors harmless when the defendant

(1) contested the omitted element and (2) raised evidence to

support a contrary finding. Id. Therefore, the principal textual

support for the other concurrence's reading of Neder is at the very

least undermined, and perhaps negated, by closely related, parallel

language elsewhere in Neder itself.

V. Whether the Two-Pronged Neder Inquiry Is Necessary, or Merely
Sufficient, for a Finding of Harmlessness

I read Neder as simply describing a particular

circumstance (when an omitted element is both "uncontested" and

-76-
supported by "overwhelming evidence") that happens to be sufficient

to meet the well-established Chapman harmless-error test -- whether

it is "clear beyond a reasonable doubt that a rational jury would

have found the defendant guilty absent the error[.]" Neder, 527

U.S. at 18. In my view, Neder-type errors -- where an omitted

element is both uncontested and supported by overwhelming evidence

-- are merely a subset of the universe of harmless errors. In

other words, all Neder-type errors may be harmless errors, but not

all harmless instructional errors must be Neder-type errors.

In contrast, the other concurrence erroneously takes one

example of a certain circumstance qualifying as a harmless error --

when the omitted element was both uncontested and supported by

overwhelming evidence -- and attempts to substitute that specific

circumstance for the general test itself. Under this view, the new

test supplants the old. In support of this position, the other

concurrence references only one formulation of the harmless-error

test, and posits that this particular formulation is both mandatory

and exclusive. Compare ante, at 54 ("In Neder, where the Court

confronted the outright omission of an element, the majority

adopted the 'uncontested and . . . overwhelming evidence'

formulation for analyzing whether . . . the error was harmless."

(quoting Neder, 527 U.S. at 17) (emphasis supplied in Judge Lipez's

concurrence)), with Neder, 527 U.S. at 17 ("[W]here a reviewing

court concludes beyond a reasonable doubt that the omitted element

-77-
was uncontested and supported by overwhelming evidence, such that

the jury verdict would have been the same absent the error, the

erroneous instruction is properly found to be harmless."). Yet

this is not even the sole formulation of the harmless-error test in

Neder itself. See Neder, 527 U.S. at 18 (stating that for various

constitutional errors -- including "the failure to instruct on an

element in violation of the right to a jury trial" -- "the

harmless-error inquiry must be essentially the same: Is it clear

beyond a reasonable doubt that a rational jury would have found the

defendant guilty absent the error?"); see also id. at 19 ("A

reviewing court making this harmless-error inquiry . . . . asks

whether the record contains evidence that could rationally lead to

a contrary finding with respect to the omitted element.").

Moreover, the other concurrence's transformation of the

quoted language from Neder into a two-pronged test, in which both

prongs must be satisfied, also commits an error of logic even if

based solely upon the Neder quote itself. The conditional

statement from Neder can be summarized: "If A [uncontested] and B

[overwhelming evidence], then C [harmless error]." I agree that in

Neder, both conditions (A and B) were sufficient to establish

harmless error. However, nothing in Neder mandates that both

conditions are necessary to establish harmless error.

The other concurrence, however, misreads this statement

from Neder as "if -- and only if -- both A [uncontested] and B

-78-
[overwhelming evidence], then C [harmless error]." Such an

interpretation is contrary both to the other articulations of the

test in Neder itself and to the presentation of the test in

subsequent cases. Reading Neder in context, I am convinced that

the Court did not create a new harmless-error test, but instead

simply applied the traditional test, reasoning that in the

particular circumstances presented in that case, both A and B

happened to be satisfied. The other concurrence recognizes this

very possibility. See ante, at 40 ("Neder, however, did not

unequivocally answer whether its two-part formulation for finding

an omitted element harmless in Neder's case . . . was merely

descriptive of the circumstances in Neder itself or also

prescriptive for any finding of harmlessness where an element was

omitted."). As indicated herein and in the appendix, the

overwhelming weight of authorities support the view that Neder's

discussion of "uncontested" was, in fact, "merely descriptive" of

what happened in that case and was not a "prescriptive" mandate of

a new test for every subsequent case.

VI. Alleyne Errors Are Not Structural Errors

The other concurrence's approach in effect subjects a

subset of instructional-error cases to structural error, in

contravention of the Supreme Court's mandate that harmless-error

review -- and not structural error -- applies to such cases. The

Supreme Court has stated that most constitutional errors are

-79-
subject to harmless-error review, and that only in rare cases will

they be deemed structural errors requiring automatic reversal.

See, e.g., Washington v. Recuenco, 548 U.S. 212, 222 (2006)

(holding that preserved Apprendi/Blakely error -- like the failure

to submit an element to the jury in Neder -- is not structural

error and is instead subject to harmless-error review); United

States v. Cotton, 535 U.S. 625, 631-32 (2002) (applying plain-error

review to an unpreserved Apprendi error, and refusing to accept the

defendants' invitation to treat the error as structural). We have

previously held that "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. Harakaly, 734 F.3d 88, 95

(1st Cir. 2013).

The other concurrence erroneously suggests that if a

defendant "contests" the omitted element in any way, then such an

error cannot be harmless. Indeed, the other concurrence

"recognize[s] that this conclusion means that, in cases involving

pre-Alleyne trials on direct appeal, a defendant would almost

always be able to contest drug quantity and avoid a finding of

harmless error." See ante, at 58. It argues that "[o]n appeal, or

in resentencing proceedings before the district court -- if that is

where the government first asserts harmless error -- the defendant

would only have to make an argument that could, as a theoretical

matter under the law, negate the omitted element." Id.

-80-
 Such a conclusion would declaw the harmless-error

doctrine in this context and transform an Alleyne error into de

facto structural error, despite the Supreme Court and First Circuit

cases requiring the application of a harmless-error standard to

Apprendi/Alleyne errors. See, e.g., Recuenco, 548 U.S. at 222;

Cotton, 535 U.S. at 631-32; Harakaly, 734 F.3d at 95–97;

Pérez–Ruiz, 353 F.3d at 17–20. Nor is this concern obviated by the

fact that some conviction remains intact (on the lesser-included

offense). In such cases, a conviction is nonetheless vacated on

the greater offense, which would be otherwise valid but for "'small

errors or defects that have little, if any, likelihood of having

changed the result of the trial.'" See Neder, 527 U.S. at 19

(quoting Chapman, 386 U.S. at 22). The other concurrence does not

establish that preserving merely a lesser-included offense

conviction completely satisfies this concern.

Let us consider a hypothetical case in which (a) the

reviewing court concludes beyond a reasonable doubt that the jury

verdict would have been the same absent the error (had the jury

been instructed on the omitted element), but (b) the defendant

nonetheless had contested the omitted element in some way. Under

my view of Neder and subsequent Supreme Court and First Circuit

precedent, the resolution of (a) ends the inquiry: if the reviewing

court is convinced beyond a reasonable doubt that the jury verdict

would have been the same absent the error, then there is no need to

-81-
consider question (b). In contrast, Judge Lipez's suggested

approach would reverse the defendant's conviction in such a case,

reasoning that there is no need to consider question (a). In my

view, such an approach is akin, if not functionally equivalent, to

structural error: the reviewing court would reverse the conviction

even if the error had no effect on the jury's verdict. Controlling

precedent does not permit such a result, as the Supreme Court has

explicitly instructed that Alleyne errors are not structural. See,

e.g., Recuenco, 548 U.S. at 222; Cotton, 535 U.S. at 631-32.

Therefore, the Supreme Court's instruction that harmless error --

and not structural error -- applies to the type of instructional

error at issue here and in Neder also counsels against the other

concurrence's interpretation.

VII. The Eleventh Circuit's Ultimate Resolution of Neder on Remand

Additionally, the decision of the Eleventh Circuit on

remand in Neder provides further support for my view, and it

explicitly rejects the new two-pronged test proposed by Judge

Lipez. After the Supreme Court remanded Neder's case to the

Eleventh Circuit for reconsideration, the Eleventh Circuit affirmed

Neder's convictions, concluding that the district court's failure

to instruct on the materiality element was harmless error. United

States v. Neder, 197 F.3d 1122, 1124 (11th Cir. 1999). On remand,

Neder -- similarly to Judge Lipez's approach here -- argued that

"the Supreme Court held that the failure to instruct on materiality

-82-
can never be harmless error unless the Government shows both that

Neder never contested materiality and that the evidence

overwhelmingly supports the materiality of every charged

falsehood." Id. at 1129 (emphases added). The Eleventh Circuit

resoundingly rejected that argument:

However, the Supreme Court did not hold that
omission of an element can never be harmless
error unless uncontested. Indeed, the Supreme
Court emphasized that the correct focus of
harmless-error analysis is: "Is it clear
beyond a reasonable doubt that a rational jury
would have found the defendant guilty absent
the error?" Stated another way, the focus is
whether "the jury verdict would have been the
same absent the error" or "whether the record
contains evidence that could rationally lead
to a contrary finding with respect to
[materiality]." Thus, whether Neder contested
materiality may be considered but is not the
pivotal concern. Instead, what the evidence
showed regarding materiality is the
touchstone. Indeed, as outlined in the
following, more specific discussion relating
to the counts at issue, the Government's
evidence of materiality for each of these
bank, mail, and wire fraud counts is
overwhelming.

Id. (emphases added) (footnote and internal citations omitted).

The Eleventh Circuit further explained that "[u]nder harmless-error

analysis, . . . . the Government must show that the evidence of

materiality is so overwhelming . . . that no rational jury,

properly instructed on the element of materiality, could have

acquitted Neder on that count." Id.

In a footnote, the Eleventh Circuit further considered

Neder's argument -- predicated upon the same Neder language relied

-83-
upon by Judge Lipez here -- that the omitted element must be

uncontested for a finding of harmlessness. Id. at 1129 n.6. The

court reasoned that "[t]he language from the Supreme Court's

opinion that Neder cites to support his argument on this point is

taken out of context." Id.

"Considered in context, the Supreme Court's statement

clearly does not mean that omission of an element of an offense can

never be harmless error unless uncontested." Id. "The statement"

-- that the error is harmless because "'the omitted element was

uncontested and supported by overwhelming evidence'" -- "means only

that the fact materiality was not contested supports the conclusion

that the jury's verdict would have been the same absent the error."

Id. (quoting Neder, 527 U.S. at 17). Therefore, the Eleventh

Circuit's resolution of the Neder case on remand strongly militates

against the other concurrence's reading of the Supreme Court's

opinion in Neder.

VIII. Post-Neder Application of the Harmless-Error Test

A. Supreme Court

No post-Neder Supreme Court case supports the other

concurrence's gloss on Neder. Rather, every subsequent Supreme

Court case citing Neder reinforces the primacy of the standard

Chapman harmless-error test. See, e.g., Premo, 131 S. Ct. at 744

("[O]n direct review following an acknowledged constitutional error

at trial," the government has "the burden of showing that it was

-84-
'clear beyond a reasonable doubt that a rational jury would have

found the defendant guilty absent the error.'" (quoting Neder, 527

U.S. at 18)); Mitchell, 540 U.S. at 17-18 ("A constitutional error

is harmless when 'it appears beyond a reasonable doubt that the

error complained of did not contribute to the verdict obtained.'"

(quoting Neder, 527 U.S. at 15)).

B. First Circuit

Judge Lipez's preferred interpretation of Neder is not

faithful to a fair reading of the overwhelming weight of our

precedent. Indeed, he fails to identify a single First Circuit

case that explicitly endorses his understanding of Neder. By

contrast, the post-Neder First Circuit cases reaffirming the

standard Chapman harmless-error test are overwhelming in number.

Indeed, they are so numerous that cataloguing them proved

prohibitively time-consuming. In the appendix to this concurrence,

I have provided eighteen examples of such First Circuit cases,

including six cases from 2014 alone. See, e.g., United States v.

Ramírez-Negrón, 751 F.3d 42, 51 n.8 (1st Cir. 2014) (stating than

an Alleyne error would be harmless beyond a reasonable doubt if "no

reasonable jury could have found that the defendants were

responsible for drug quantities below the respective thresholds

triggering the mandatory minimum sentences").

"A panel of this court is normally bound to follow an

earlier panel decision that is closely on point, unless an

-85-
exception exists to the principles of stare decisis." United

States v. Rodríguez–Pacheco, 475 F.3d 434, 441 (1st Cir. 2007).

Judge Lipez's view -- that Neder replaced the Chapman harmless-

error test with a two-pronged test for harmlessness where the jury

was not instructed on an element of the crime -- is not consistent

with binding First Circuit precedent, including cases authored or

joined by all three judges on the instant panel. Some of these

cases are included in the appendix at the end of this concurrence.

This past June, for example, we held that "instructional

error, including omission of an element, is harmless if it is clear

beyond a reasonable doubt that a rational jury would have found

guilt absent the error." United States v. Marshall, 753 F.3d 341,

346 (1st Cir. 2014) (emphasis added). Although the defendant in

Marshall technically contested proof of an element of the offense,

we nonetheless concluded that the error was harmless because

"[t]here is no reasonable doubt that a rational fact-finder would

have found Marshall guilty of" the disputed element. Id.

We applied the same test in United States v. Newell, 658

F.3d 1 (1st Cir. 2011), a unanimous opinion joined by Judge Lipez.

In Newell, we stated that "the failure to instruct the jury on [an

omitted element] is subject to harmless error review," which

"requires ascertaining 'whether it appears beyond a reasonable

doubt that the error complained of did not contribute to the

verdict obtained.'" Id. at 17 n.19 (quoting Neder, 527 U.S. at

-86-
15)). Applying that test, we held that "even if the district court

erred in not giving the requested materiality instruction . . .

that error was harmless as the evidence of materiality was more

than sufficient to support the convictions under this standard."

Id.

Citing Newell and Neder, we applied like reasoning to

arrive at a similar holding in United States v. McDonough, 727 F.3d

143, 161-62 (1st Cir. 2013). The unanimous McDonough panel,

including Judge Lipez, concluded that -- assuming that the district

court refused to instruct the jury on a required element -- "the

evidence was [nonetheless] 'more than sufficient to support the

convictions.'" Id. at 162 (quoting Newell, 658 F.3d at 17 n.19).

On that basis, the panel was "confident that the same result would

have obtained" if the jury had been properly instructed as to the

allegedly omitted element. Id. Therefore, the panel held that any

error was ultimately harmless. Id. at 161.

Other First Circuit cases further solidify the conclusion

that Judge Lipez's gloss on Neder is inconsistent with our

precedent. See, e.g., United States v. Melvin, 730 F.3d 29, 39

(1st Cir. 2013) (constitutional error "requires reversal unless the

government proves 'beyond a reasonable doubt that the error did not

influence the verdict'"); United States v. Godin, 534 F.3d 51, 61

(1st Cir. 2008) ("When examining whether the omission of an element

in a jury instruction is harmless error, we ask whether the record

-87-
contains evidence that could rationally lead to a contrary finding

with respect to the omitted element." (internal quotation marks and

citation omitted)); United States v. Morgan, 384 F.3d 1, 8 (1st

Cir. 2004) (Apprendi errors "should be held harmless so long as the

evidence for the trial judge's factual findings is overwhelming and

no reasonable jury could have disagreed with them"); United States

v. Soto-Beníquez, 356 F.3d 1, 46 (1st Cir. 2003) ("An Apprendi

error is harmless where the evidence overwhelmingly establishes the

minimum drug quantity needed to justify the statutory maximum under

which the defendants were sentenced."). None of the preceding

cases -- nor any other First Circuit cases I have found -- state

that a reviewing court can never find the omission of an element to

be harmless error simply because the defendant contested the

omitted element in some way. Therefore, the other concurrence's

interpretation of Neder's two-pronged inquiry finds little support

in the existing precedent by which we are bound.

C. Lack of Support for the Other Concurrence's Position

Neder was decided in June 1999. In the intervening

fifteen years, Neder has been cited in over 3,600 cases. It is

telling that the other concurrence fails to identify a single case

that explicitly holds that its reading of Neder is correct. Judge

Lipez has pointed to cases with language that might, at best, be

consistent with his suggested approach. None of those cases are

compelling, however, particularly in light of Supreme Court and

-88-
First Circuit precedent and the examples listed in the appendix.

Below, I review the cases relied upon by the other concurrence to

support its view of Neder, concluding that these cases do little to

demonstrate that Judge Lipez's interpretation is correct.

1. First Circuit

The First Circuit cases cited by Judge Lipez as

"inconsistent" in their application of Neder are easily reconciled

with my view. Neder's two factors ("uncontested" and "supported by

overwhelming evidence") are best understood as merely two reasons

why the Neder Court concluded that the jury verdict was unaffected

by the omission of the materiality element. It thus makes perfect

sense that we sometimes emphasize whether a particular omitted

element was contested (and to what degree), sometimes emphasize the

strength of the evidence regarding the omitted element, sometimes

discuss both, and sometimes examine other factors and reasons. In

other words, the contested-or-uncontested nature of the element,

and the strength of the evidence supporting that element, both can

serve evidentiary functions: they both can affect the ultimate

determination whether it was "clear beyond a reasonable doubt that

a rational jury would have found the defendant guilty absent the

error." Neder, 527 U.S. at 18. Applying this view to the First

Circuit cases cited by the other concurrence, any apparent

inconsistency melts away. In any event, as indicated by the non-

exhaustive selection of cases in the appendix, the overwhelming

-89-
weight of First Circuit cases support the conclusion that the

standard Chapman harmless-error test applies to the omission of an

element from jury instructions.

2. Other Circuit Courts of Appeals

The other concurrence cites cases from four circuit

courts of appeals -- the Second, Fourth, Ninth, and Eleventh

Circuits -- as examples of an inter-circuit conflict. See ante, at

45-48. Of those cases, however, only the Ninth Circuit case might

provide any sort of support for the other concurrence's approach.

Even that case, however, applied the standard Chapman test,

reasoning that "[the Apprendi error was, of course, a

constitutional one," and that the court "must therefore reverse

unless we find beyond a reasonable doubt that the result would have

been the same absent the error." United States v. Guerrero-Jasso,

752 F.3d 1186, 1193 (9th Cir. 2014) (internal quotation marks,

alterations, and citations omitted). Furthermore, Guerrero-Jasso

involved a guilty plea (and not a trial), and the evidence

regarding the omitted element was introduced, for the first time,

after the defendant's conviction. Id. ("Where, as here, there was

no trial but a guilty plea, and the evidence is introduced

post-conviction by the government only to demonstrate harmlessness,

it would fundamentally undermine the Apprendi protections to

require the defendant affirmatively to present evidence to counter

facts that were never properly established in accord with Apprendi

-90-
in the first place."). On that basis, the instant case -- which

involved overwhelming evidence presented at trial -- is easily

distinguishable from Guerrero-Jasso.

The Eleventh Circuit case cited by Judge Lipez was the

Neder decision on remand, which, as described above, explicitly

rejected the other concurrence's approach. See Neder, 197 F.3d at

1129 ("[T]he Supreme Court did not hold that omission of an element

can never be harmless error unless uncontested. Indeed, the

Supreme Court emphasized that the correct focus of harmless-error

analysis is: 'Is it clear beyond a reasonable doubt that a rational

jury would have found the defendant guilty absent the error?'"

(citation omitted)). Furthermore, neither the Second Circuit nor

the Fourth Circuit cases support the other concurrence's mandatory,

exclusive, two-pronged test. Recall that the other concurrence

explicitly argues that Neder "requires that an omitted element be

uncontested in order to be found harmless." See ante, at 42. In

contrast, in both the Second and the Fourth Circuits, a finding

that the omitted element is contested does not end the inquiry.

Indeed, when an omitted element is contested, the Second Circuit

goes on to ask: (1) whether the evidence would permit a finding in

favor of the defendant on that element; and (2) "'whether the jury

would nonetheless have returned the same verdict of guilty.'"

United States v. Needham, 604 F.3d 673, 679 (2d Cir. 2010) (quoting

United States v. Jackson, 196 F.3d 383, 386 (2d Cir. 1999)). The

-91-
Fourth Circuit conducts a similar inquiry: when an omitted element

is contested, the reviewing court asks "whether the 'record

contains evidence that could rationally lead to a contrary finding

with respect to that omitted element.'" United States v. Brown,

202 F.3d 691, 701 (4th Cir. 2000) (quoting Neder, 527 U.S. at 19).

The approaches of the Second and Fourth Circuits are thus

consistent with my interpretation, and both refer back to the

standard Chapman harmless-error test -- whether the jury's verdict

would have been the same absent the error.

3. State Courts

In a section titled "Criticism in the State Courts," the

other concurrence cites three state-court decisions (from

Mississippi, New Hampshire, and Indiana) that it implies undermine

Neder in some way. Ante, at 48. Judge Lipez cites decisions by

two state supreme courts (Mississippi and New Hampshire) to argue

that "[s]everal state supreme courts have held that their state

constitutions provide a broader jury trial guarantee than Neder

recognized in the federal Constitution." Id. I do not question

this assertion, but by its own terms, it is entirely irrelevant to

the question under consideration. The issue being debated does not

involve interpretation of the Mississippi and New Hampshire state

constitutions. As for the 2005 Indiana intermediate state court of

appeals decision that suggested that Neder might be "short-lived,"

see Freeze v. State, 827 N.E.2d 600, 605 (Ind. Ct. App. 2005), I

-92-
simply note that nine years have passed since the Indiana court's

statement, and fifteen years have passed since Neder was decided.

The Indiana prediction may yet be revealed as prescient, but for

the moment, its prophesy has little bearing on the current state of

the controlling precedent.

IX. Conclusion

Contrary to the position taken in the other concurrence,

I have not encountered any "significant inconsistency" in First

Circuit cases applying the harmless-error test. Under a proper

application of the governing precedent, the First Circuit cases

identified by the other concurrence as "inconsistent" are rather

almost entirely consistent with the correct interpretation of Neder

and its progeny. To the extent that any of those cases are

inconsistent with the standard Chapman harmless-error test, they

represent a very small minority: the overwhelming weight of the

controlling Supreme Court and First Circuit cases militate against

the other concurrence's creative interpretation of a few isolated

statements in Neder. In the absence of a Supreme Court ruling

overruling Neder, any such "inconsistency" is properly resolved

against the interpretation proposed in the other concurrence.

As stated by the Supreme Court in Neder itself, and as

reinforced by subsequent Supreme Court and First Circuit cases,

"the test for determining whether a constitutional error is

harmless" remains the standard test articulated in Chapman:

-93-
"whether it appears 'beyond a reasonable doubt that the error

complained of did not contribute to the verdict obtained.'" Neder,

527 U.S. at 15 (quoting Chapman, 386 U.S. at 24); see also Premo,

131 S. Ct. at 744 ("[O]n direct review following an acknowledged

constitutional error at trial," the government has "the burden of

showing that it was 'clear beyond a reasonable doubt that a

rational jury would have found the defendant guilty absent the

error.'" (quoting Neder, 527 U.S. at 18)); Mitchell, 540 U.S. at

17-18 (same).

X. Appendix: Examples of Supreme Court, First Circuit, and Other
Circuit Court Cases Discussing the Constitutional Harmless-
Error Test

For the reader's reference and convenience, below is a

non-exhaustive list of thirty relevant cases -- from the Supreme

Court, First Circuit, and other circuit courts of appeal -- that

discuss the constitutional harmless-error test and support the

standard test as articulated in Chapman:

A. Supreme Court Cases

1. Premo v. Moore, 131 S. Ct. 733, 744 (2011)

("[O]n direct review following an acknowledged constitutional error

at trial," the government has "the burden of showing that it was

'clear beyond a reasonable doubt that a rational jury would have

found the defendant guilty absent the error.'" (quoting Neder, 527

U.S. at 18)).

-94-
 2. Rivera v. Illinois, 556 U.S. 148, 155-56

(2009) (affirming the Illinois Supreme Court's finding of harmless

error regarding the improper denial of a peremptory challenge, when

"it was clear beyond a reasonable doubt that a rational jury would

have found [Rivera] guilty absent the error" and the challenged

juror's "presence on the jury did not prejudice Rivera because any

rational trier of fact would have found [Rivera] guilty of murder

on the evidence adduced at trial" (internal quotation marks and

citations omitted)).

3. Washington v. Recuenco, 548 U.S. 212, 222

(2006) ("Failure to submit a sentencing factor to the jury, like

failure to submit an element to the jury, is not structural

error.").

4. Mitchell v. Esparza, 540 U.S. 12, 17-18 (2003)

("A constitutional error is harmless when 'it appears beyond a

reasonable doubt that the error complained of did not contribute to

the verdict obtained.'" (quoting Neder, 527 U.S. at 15)).

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

(stating that for various constitutional errors -- including "the

failure to instruct on an element in violation of the right to a

jury trial" -- "the harmless-error inquiry must be essentially the

same: Is it clear beyond a reasonable doubt that a rational jury

would have found the defendant guilty absent the error?"); id. at

15 (articulating the standard constitutional harmless-error test as

-95-
"whether it appears 'beyond a reasonable doubt that the error

complained of did not contribute to the verdict obtained'" (quoting

Chapman, 386 U.S. at 24)); id. at 19 ("A reviewing court making

this harmless-error inquiry . . . . asks whether the record

contains evidence that could rationally lead to a contrary finding

with respect to the omitted element.").

6. Delaware v. Van Arsdall, 475 U.S. 673, 681

(1986) ("[A]n otherwise valid conviction should not be set aside if

the reviewing court may confidently say, on the whole record, that

the constitutional error was harmless beyond a reasonable doubt.").

7. Chapman v. California, 386 U.S. 18, 24 (1967)

("requiring the beneficiary of a constitutional error to prove

beyond a reasonable doubt that the error complained of did not

contribute to the verdict obtained").

B. First Circuit Cases

1. United States v. Barnes, No. 11-1093, 2014 WL

5072846, at *3 n.5 (1st Cir. Oct. 10, 2014) ("An Alleyne error can

be harmless if 'no reasonable jury' -- hearing the same evidence

that the sentencing judge heard -- could hold the defendant

responsible for a drug amount 'below the . . . threshold [ ]

triggering the mandatory minimum[ ].'" (quoting Ramírez–Negrón, 751

F.3d at 51 n.8)); id. at *4 (stating that our "stiff test" for

harmless error is whether the government has "prove[n] beyond a

-96-
reasonable doubt that the error did not 'contribute' to the

complained-about sentence" (quoting Pérez–Ruiz, 353 F.3d at 17)).

2. United States v. Santiago, No. 13-1146, 2014

WL 4494198, at *8 (1st Cir. Sept. 12, 2014) (stating that to

determine whether a constitutional error is harmless, "the

government has the burden of proving beyond a reasonable doubt that

the error did not affect the defendant's substantial rights"

(quoting United States v. Sepúlveda–Contreras, 466 F.3d 166, 171

(1st Cir. 2006))).

3. United States v. Marshall, 753 F.3d 341, 346

(1st Cir. 2014) ("[A]ny error was harmless when assessed under the

standard that instructional error, including omission of an

element, is harmless if it is clear beyond a reasonable doubt that

a rational jury would have found guilt absent the error.").

4. Connolly v. Roden, 752 F.3d 505, 509 (1st Cir.

2014) ("In 1967, the Supreme Court in Chapman v. California

articulated the constitutional harmless error standard, which

provides that, on direct appellate review, an error at trial

affecting the defendant's constitutional rights will be deemed

harmless only if it can be shown to be harmless beyond a reasonable

doubt." (quoting Chapman, 386 U.S. at 24)).

5. United States v. Ramírez-Negrón, 751 F.3d 42,

51 n.8 (1st Cir. 2014) (stating than an Alleyne error would be

harmless beyond a reasonable doubt if "no reasonable jury could

-97-
have found that the defendants were responsible for drug quantities

below the respective thresholds triggering the mandatory minimum

sentences").

6. United States v. Lyons, 740 F.3d 702, 714 (1st

Cir. 2014) ("Where a jury is properly instructed on two theories of

guilt, one of which is later determined to be invalid, we can

affirm the conviction only if we conclude beyond a reasonable doubt

that the jury verdict would have been the same absent the error."

(citations and internal quotation marks omitted)).

7. United States v. Harakaly, 734 F.3d 88, 95

(1st Cir. 2013) ("In drug-trafficking cases involving Apprendi

errors, we sometimes have treated the presence of overwhelming

evidence of the requisite drug types and quantities as a proxy for

harmlessness." (emphases added) (quoting Pérez–Ruiz, 353 F.3d at

18)); id. (finding harmless error when the defendant did "not

seriously contest the finding that he was responsible for more

than" the threshold quantity) (emphasis added); id. at 96 (finding

the drug-quantity evidence to be overwhelming when "[t]he delivery

that the police intercepted, taken alone, was nearly four times the

triggering amount," and when the defendant himself "acknowledged

responsibility for a quantity of drugs that far exceed[ed] the

triggering amount").

8. United States v. Melvin, 730 F.3d 29, 39 (1st

Cir. 2013) (the harmless-error test for a constitutional error

-98-
"requires reversal unless the government proves 'beyond a

reasonable doubt that the error did not influence the verdict'")

(quoting United States v. Sasso, 695 F.3d 25, 29 (1st Cir. 2012)).

9. United States v. McDonough, 727 F.3d 143, 157

(1st Cir. 2013) (unanimous opinion, which Judge Lipez joined in

full) ("[A]n incorrect instruction does not require reversal if the

error was harmless. In the case of an error of 'constitutional

dimension,' the government is required to establish beyond a

reasonable doubt that the error did not influence the verdict."

(internal citation omitted)); id. at 162 ("[A]ssuming that [the

district court refused to instruct the jury on] a required element,

the evidence was more than sufficient to support the

convictions. . . . [Thus,] we are confident that the same result

would have obtained if [the jury was properly instructed].")

(citations and internal quotation marks omitted).

10. United States v. Zhen Zhou Wu, 711 F.3d 1, 20

(1st Cir. 2013) ("In any event, given the [conflicting evidence] on

this very matter, we cannot 'conclude[ ] beyond a reasonable doubt

. . . that the jury verdict would have been the same absent the

error.'" (quoting Neder, 527 U.S. at 17)).

11. United States v. Green, 698 F.3d 48, 53-54

(1st Cir. 2012) (finding a constitutional error to be harmless

after concluding "beyond a reasonable doubt that any error here did

not contribute to the verdict").

-99-
 12. United States v. Newell, 658 F.3d 1, 17 n.19

(1st Cir. 2011) (unanimous opinion, which Judge Lipez joined in

full) ("[T]he failure to instruct the jury on [an omitted element]

is subject to harmless error review," which "requires ascertaining

'whether it appears beyond a reasonable doubt that the error

complained of did not contribute to the verdict obtained.'"

(quoting Neder, 527 U.S. at 15)); id. ("[E]ven if the district

court erred in not giving the requested materiality instruction

. . . that error was harmless as the evidence of materiality was

more than sufficient to support the convictions under this

standard.").

13. United States v. Dancy, 640 F.3d 455, 463

(1st Cir. 2011) ("Any error is harmless if the government shows it

is 'highly probable that the error did not influence the verdict.'

(quoting United States v. Flores–de–Jesús, 569 F.3d 8, 27 (1st Cir.

2009)).

14. United States v. Godin, 534 F.3d 51, 61 (1st

Cir. 2008) ("When examining whether the omission of an element in

a jury instruction is harmless error, we ask whether the record

contains evidence that could rationally lead to a contrary finding

with respect to the omitted element." (internal quotation marks

omitted)).

15. United States v. Morgan, 384 F.3d 1, 8 (1st

Cir. 2004) (stating that Apprendi errors "should be held harmless

-100-
so long as the evidence for the trial judge's factual findings is

overwhelming and no reasonable jury could have disagreed with

them").

16. United States v. Soto-Beníquez, 356 F.3d 1,

46 (1st Cir. 2003) ("An Apprendi error is harmless where the

evidence overwhelmingly establishes the minimum drug quantity

needed to justify the statutory maximum under which the defendants

were sentenced.").

17. United States v. Pérez-Ruiz, 353 F.3d 1, 17

(1st Cir. 2003) ("[W]hen a non-structural error is of

constitutional dimension[,] . . . . the government must prove that

the error was harmless beyond a reasonable doubt, or, put another

way, that it can fairly be said beyond any reasonable doubt that

the assigned error did not contribute to the result of which the

appellant complains."); id. at 19 (citing cases finding harmless

error due to "overwhelming evidence of drug type and quantity" when

there was "testimony describing quantities of drugs actually seized

from coconspirators" or "the evidence tying the defendant to the

charged conspiracy involved drugs that were indisputably in excess

of the requisite amounts").

18. United States v. Prigmore, 243 F.3d 1, 21

(1st Cir. 2001) (articulating the Neder harmless-error test as

whether it is "'clear beyond a reasonable doubt that a rational

jury would have found' defendants guilty even if properly

-101-
instructed" (quoting Neder, 527 U.S. at 18)); id. at 21 n.7 (noting

that the Chapman test applies to appellate review of constitutional

errors) (citing Chapman, 386 U.S. at 24); id. at 22 ("We do not

believe, however, that the evidence is so one-sided as to render

harmless the underlying instructional error we have identified.

Unlike the government, we do not see this as a case, like Neder,

where it is far-fetched to conclude that a properly instructed jury

might have returned different verdicts than those returned.").

C. Cases from Other Circuits

1. United States v. Ramos-Cruz, 667 F.3d 487, 496

(4th Cir. 2012) ("[I]f the defendant contested the omitted element,

we ask whether the record contains evidence that could rationally

lead to a contrary finding with respect to that omitted element.")

(internal quotation marks omitted).

2. United States v. Needham, 604 F.3d 673, 679

(2d Cir. 2010) ("In United States v. Jackson, 196 F.3d 383, 386-87

(2d Cir. 1999), we interpreted the Supreme Court's decision in

Neder, describing the analysis a reviewing court must undertake to

determine whether the omission of an element was harmless. In so

doing, we held that "if the evidence supporting the omitted element

was controverted, harmless error analysis requires the appellate

court to conduct a two-part inquiry, searching the record in order

to determine (a) whether there was sufficient evidence to permit a

jury to find in favor of the defendant on the omitted element, and,

-102-
if there was, (b) whether the jury would nonetheless have returned

the same verdict of guilty.'" (quoting Jackson, 196 F.3d at 386)).

3. United States v. Korey, 472 F.3d 89, 96-97 (3d

Cir. 2007) ("While holding that this jury instruction as to the

defendant's state of mind was in error, we observed that '[a]

verdict may still stand, despite erroneous jury instructions, where

the predicate facts conclusively establish intent, so that no

rational jury could find that the defendant committed the relevant

criminal act but did not intend to cause the injury.'" (quoting

Whitney v. Horn, 280 F.3d 240, 260 (3d Cir. 2002)) (internal

quotation marks omitted)).

4. United States v. Brown, 202 F.3d 691, 701 (4th

Cir. 2000) ("[I]f the defendant contested the omitted element,

Neder mandates a second inquiry. In that event, we must determine

whether the 'record contains evidence that could rationally lead to

a contrary finding with respect to that omitted element.'" (quoting

Neder, 527 U.S. at 19)).

5. United States v. Neder, 197 F.3d 1122, 1129

(11th Cir. 1999) (considering the Supreme Court's Neder decision on

remand, and stating that "the Supreme Court did not hold that

omission of an element can never be harmless error unless

uncontested. Indeed, the Supreme Court emphasized that the correct

focus of harmless-error analysis is: 'Is it clear beyond a

reasonable doubt that a rational jury would have found the

-103-
defendant guilty absent the error?'" (citation omitted)); id.

("Thus, whether Neder contested materiality may be considered but

is not the pivotal concern. Instead, what the evidence showed

regarding materiality is the touchstone."); id. at 1129 n.6

("Considered in context, the Supreme Court's statement clearly does

not mean that omission of an element of an offense can never be

harmless error unless uncontested."); id. ("The statement" -- that

the error is harmless because "'the omitted element was uncontested

and supported by overwhelming evidence'" -- "means only that the

fact materiality was not contested supports the conclusion that the

jury's verdict would have been the same absent the error."

(citations omitted)).

-104-