dissenting.
Jermel Lewis was sentenced for the crime of brandishing a firearm in relation to a crime of violence, when he had been not been indicted for, and the jury had not convicted him of, that crime. The District Court improperly sentenced Lewis in accordance with a mandatory minimum of seven years. Had this error not occurred, Lewis would have been sentenced with a mandatory minimum of five years. I submit that this constitutes reversible error that is not harmless, because it violated Lewis’s Sixth Amendment rights, as clearly announced in Alleyne, and the resulting sentence was more harsh than it should have been.
*272At the outset, I note that Alleyne’s pronouncement — -which is controlling here— was made without the issue of structural or harmless error having been discussed. Perhaps it was not raised, or perhaps a sentencing error concerning the mandatory maximum or minimum — based on facts not found by the jury — was so clearly a harmful violation of the Sixth Amendment that it made the very idea of harmless error unthinkable. I also note that the jurisprudence in the area of structural versus harmless error, discussed below, is very nuanced and we lack specific guidance in the area before us. Thus, we must reason as best we can in this difficult, but important, area of the law.
We begin with the understanding that what happened here was without a doubt wrong, and a wrong of constitutional significance. The issue then is how wrong and what to do about it. In Alleyne, an identical violation required a remand “for resentencing consistent with the jury’s verdict.” 133 S.Ct. 2151, 2164 (2013). I suggest that here, no matter what lens of review governs our reasoning, whether for harmless or structural error, the result must be the same. The District Court’s sentence must be vacated and Lewis re-sentenced with the correct mandatory minimum; Alleyne requires no less.
I. Sentencing Error
The most straightforward way to reason to this result is to first concede, for the sake of argument, that harmless error review governs (though I challenge this at length below). But it is critical to locate precisely what type of error is at issue. The error here was that Lewis was not sentenced “consistent with the jury’s verdict,” as Alleyne requires. Id. The Al-leyne Court did not order a new trial, so that the missing brandishing element could be proven to the jury, but rather required a resentencing, thus properly regarding the error as having occurred at the sentencing phase, and harmlessness here must be judged from that vantage point. How can Lewis’s sentence, imposing a mandatory minimum of seven years, be harmless, when without the brandishing finding the mandatory minimum would have been five years?
The error caused by the District Court was not, as it was not in Alleyne, a trial error. Had it been, the majority’s look back at what the evidence revealed at trial would be an appropriate exercise in testing for harmlessness. But it is not the proper inquiry here. I suggest, after Alleyne, that given the nature of the error before us, the question is simply whether Lewis was prejudiced by his unconstitutional sentence. He clearly was.
Our precedent concerning non-constitutional sentencing errors confirms this conclusion. In United States v. Langford, 516 F.3d 205, 216 (3d Cir.2008), we held that where a district court uses an erroneous Guidelines range at sentencing, “[t]he record must show that the sentencing judge would have imposed the same sentence under a correct Guidelines range, that is, that the sentencing Guidelines range did not affect the sentence actually imposed.” That inquiry involves only an examination into the district court’s statements at sentencing, to determine whether it would have imposed the same sentence even absent the Guidelines error. Id. at 219. We do not delve into the facts of a defendant’s conviction, to determine whether the improper sentence could somehow be justified. Thus, it appears that if Lewis had framed his challenge as one asserting that the District Court improperly calculated his Guidelines range, the case would be remanded for resentencing. The same should occur pursuant to his challenge of the far more serious constitutional viola*273tion: that the District Court sentenced him for an uncharged, unproven crime.1
In justifying its use of the trial record to uphold Lewis’s sentence, the majority relies heavily on our 2001 opinion in Vazquez, where we determined that an Apprendi error was both a trial and a sentencing error. 271 F.3d 93 (3d Cir.2001) (en Banc). Of note, Vazquez was a close case, with six of our thirteen judges agreeing with Judge Sloviter’s view in dissent that — as I again posit — Apprendi and therefore Alleyne involve errors that require us to decide whether what occurred at sentencing was harmless. As Judge Sloviter noted, courts have routinely remanded for resentencing when an Appren-di error occurs. Id. at 120 (Sloviter, J. dissenting). Distinguishing Johnson and Neder, relied upon by the majority in Vazquez, and again cited by the majority today, Judge Sloviter recognized that:
In neither case was the sentence at issue; rather the issue was whether to uphold or reverse the jury’s verdict of guilty. Here, we must decide whether an increase in prison time as a result of the error affects the defendant’s substantial rights. As a result, those cases are inapposite here.
Id. at 121.
I joined Judge Sloviter’s dissent and also wrote separately to emphasize that at no point did Apprendi indicate that such an unconstitutional sentence might be harmless simply because judges find it justified. Id. at 130 (Rendell, J. dissenting). The same can be said for Alleyne. As Judge Sloviter concluded in Vazquez: “An error that will cause a defendant to spend four plus years more in prison than statutorily authorized by the jury’s verdict necessarily adversely affects the defendant’s substantial rights.” Id. at 120 (Sloviter, J dissenting). This is an even clearer case for remand than Vazquez, which was examined for plain error, as here we review Lewis’s appeal de novo, requiring only “harm” under Fed. R.Crim. Pro. 52(a).
Even leaving aside Judge Sloviter’s persuasive reasoning in Vazquez, that case is materially distinguishable in a way that should alter the result here. In Vazquez the indictment properly alleged that the defendant had conspired to possess and distribute five kilograms or more of cocaine. 271 F.3d at 101. The Vazquez court therefore determined that the case involved a “trial error, which occurred when drug quantity was not submitted for a jury determination.” Id. (emphasis in original). Thus, it was at least arguable in that case that an error had occurred at trial because the jury was not asked to find the crime alleged in the indictment.
But, in Alleyne as here, there was no trial error. There was nothing wrong with the count of the indictment charging Lewis with a using or carrying violation. There was similarly no omission at trial, in the jury charge or on the verdict sheet. And once the jury had been instructed, and had convicted Lewis of using or carrying a gun in relation to a violent crime, the District Court was required to sentence him pursuant to the applicable five year mandatory minimum. This the Court failed to do. Instead, it violated Lewis’s due process and Sixth Amendment rights when it sentenced him for an offense not found by the jury. In sum, Lewis was charged, tried and convicted of one complete crime, but *274the District Court sentenced him for a different offense. This was a pure and simple sentencing error.
Looking just to the length of Lewis’s prison term, if the error had not been committed he would have been sentenced for his crime of conviction, such that his sentence would have been likely shortened by two years. This alone constitutes clear prejudice and, therefore, reversible error. See United States v. Promise, 255 F.3d 150, 160 (4th Cir.2001) (finding prejudice where defendant was sentenced for term in excess of that charged or found by jury).
More fundamentally, it is inherently prejudicial for a defendant to be sentenced for a crime of which he was neither charged nor convicted. The Eighth Circuit recognized this point in deciding one of the few other cases involving an Alleyne violation where a defendant was sentenced for a crime that was neither alleged in the indictment nor submitted to the petit jury. United States v. Lara-Ruiz, 721 F.3d 554 (8th Cir.2013). That court examined the case from the perspective of sentencing error, and held correctly that the defendant there was prejudiced “because he was sentenced for a statutory crime different from that which the jury found him guilty.” Id. at 558.
The Supreme Court has long upheld this elementary principle. In Cole v. State of Arkansas, two defendants were charged and convicted of promoting an unlawful assemblage, but on appeal the state supreme court affirmed the conviction pursuant to a different offense involving the use of violence. 333 U.S. 196, 68 S.Ct. 514, 92 L.Ed. 644 (1948). In a unanimous opinion the Supreme Court reversed. It found that the state supreme court had “affirmed [defendants’] conviction as though they had been tried and convicted of a violation of [section 1] when in truth they had been tried and convicted only of a violation of a single offense charged in [section 2], an offense which is distinctly and substantially different from the offense charged in [section 1].” Id. at 202, 68 S.Ct. 514. The Court added, “[i]t is as much a violation of due process to send an accused to prison following conviction of a charge on which he was never tried as it would be to convict him upon a charge that was never made.” Id. at 201, 68 S.Ct. 514. In this ease, Lewis was sent to prison on a brandishing charge which was never made and on which he was never tried.
That this violates the basic guarantee of due process has been repeatedly reaffirmed both by the Supreme Court and the Third Circuit. Dunn v. U.S., 442 U.S. 100, 106, 99 S.Ct. 2190, 60 L.Ed.2d 743 (1979) (“To uphold a conviction on a charge that was neither alleged in an indictment nor presented to a jury at trial offends the most basic notions of due process.”)2; Jackson v. Virginia, 443 U.S. 307, 314, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979) (“It is axiomatic that a conviction upon a charge not made or upon a charge not tried constitutes a denial of due process.”); Lam*275bert v. Blackwell, 387 F.3d 210, 246 (3d Cir.2004) (“[A] defendant’s due process rights are violated when his conviction is affirmed on an offense that he was not charged with and that was not presented to the jury or court that tried him.”).
Alleyne itself adhered to this understanding. Writing for the Court, Justice Thomas found that:
It is obvious, for example, that a defendant could not be convicted and sentenced for assault, if the jury only finds the facts for larceny, even if the punishments prescribed for each crime are identical. One reason is that each crime has different elements and a defendant can be convicted only if the jury has found each element of the crime of conviction.
133 S.Ct. at 2162 (emphasis added). The Court proceeded to hold that “similarly,” a brandishing offense constitutes a “separate, aggravated offense” from a using or carrying offense. Id. Thus, pursuant to Alleyne, sentencing a defendant for brandishing when he was only convicted of using or carrying, is not materially different from sentencing a defendant for assault if he was only convicted of larceny.
In sum, Supreme Court precedent establishes that sentencing a defendant for an uncharged, untried crime constitutes reversible error. It is equally clear that a defendant is prejudiced where an appellate court affirms a conviction or sentence upon anything other than the crime in the indictment and jury verdict. To condone Lewis’s sentence here as merely “harmless error” would violate both fundamental precepts of our criminal justice system.3
Indeed, the majority’s exercise, in determining whether there was sufficient evidence of brandishing at trial to render the error harmless, guts the essence of Al-leyne. There, the Court concluded that:
The District Court imposed the 7-year mandatory minimum sentence based on its finding by a preponderance of evidence that the firearm was “brandished.” Because the finding of brandishing increased the penalty to which the defendant was subjected, it was an element, which had to be found by the jury beyond a reasonable doubt. The judge, rather than the jury, found brandishing, thus violating petitioner’s Sixth Amendment rights.
Id. at 2163-64. The look back to the trial record that the majority performs perpetuates the very error deemed to be reversible in Alleyne: judges substituting their view for the jury verdict, and thereby imposing a sentence which violates the Sixth Amendment. In so doing, today’s decision impermissibly designates both the indictment and petit jury verdict a “mere preliminary to a judicial inquisition into the facts of the crime the State actually seeks to punish.” Blakely v. Washington, 542 U.S. 296, 307, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004) (emphasis in original).
*276The lesson of Alleyne is that juries, not judges, must find the elements of a crime that support the sentence imposed. The majority’s harmlessness exercise completely upends this principle, finding that judges can determine statutory elements from the facts in a trial, and uphold a sentence in direct conflict with the indictment and verdict. For that reason, even under a harmless error standard, I would vacate the sentence and remand for resen-tencing.
II. Charging Error
As noted above, the majority’s analysis proceeds from an entirely different premise: the sentence is fine as long as the other “errors,” namely charging errors and trial errors, were all harmless. I do not endorse this mode of analysis and Al-leyne certainly did not rule on that basis, having discussed the deficient indictment (which also failed to allege brandishing) only as it related to the conclusion that brandishing constitutes an element of a distinct crime. At no point in that opinion did the Court characterize the issue as a charging or trial error.
It is clear why that was the case. To deem this a case of trial error, one must hold that error infected every aspect of Lewis’s proceedings except for the sentence itself. That is, the majority assumes that the grand jury charge, the petit jury charge, the verdict sheet and the verdict itself were all in error, but then says those errors are subjected to a harmlessness inquiry, rather than a finding of structural error. This analysis turns the case on its head, in defiance of both logic and common sense.
But even if we were to view the case upside down, as the majority insists we must, the errors at issue then become clearly structural. Specifically, how can the failure to charge a crime, for which a defendant is later sentenced, not infect the entire proceedings so as to be structural error? In 2006, the Supreme Court granted certiorari on the exact question the majority addresses today: whether a materially defective indictment can constitute harmless error. Yet in that case, United States v. Resendiz-Ponce, 549 U.S. 102, 127 S.Ct. 782, 166 L.Ed.2d 591 (2007), the Court avoided the question, instead deciding that the indictment at issue was adequate. We are therefore left without any-binding precedent on this issue.4
The majority’s assessment of the relevant case law in this area is selective and incomplete. First, the majority cites to our holding in Vazquez where we held that the Apprendi violation there, the failure to submit a drug quantity to a jury, constituted harmless error. Yet the majority concedes that Lewis’s case is significantly different from Vazquez as here we have the “addition of error at the indictment stage.” (Maj. Op. at 264.) Given that we characterized Vazquez as a case involving both trial error and sentencing error, under the majority’s view this case involves indictment error, trial error and sentencing error all of constitutional magnitude. Thus, even under the majority’s formulation, a constitutional error affected Lewis’s case from beginning to end.
I agree with the majority when it acknowledges that Vazquez does not control the analysis here, as it did not concern a materially defective indictment. (Maj. Op. at 264.) Perhaps recognizing this yawning *277gap in case law, the majority relies most heavily on Washington v. Recuenco, 548 U.S. 212, 126 S.Ct. 2546, 165 L.Ed.2d 466 (2006), urging that it “provides the missing link ... because it recognized that errors in an indictment can be harmless.” (Maj. Op. at 264-65.) This is incorrect. The majority opinion in Recuenco never once mentions errors in an indictment, the Fifth Amendment, or the defendant’s right to a grand jury, and it is obvious why. That case concerned a state prosecution which involved an information, rather than an indictment. Recuenco, 548 U.S. at 224, 126 S.Ct. 2546 (Ginsburg, J. dissenting).
Further, the Court there noted that the defendant had attempted to “characterize[e] this as a case of charging error, rather than of judicial factfinding.” Id. at 220 n. 3, 126 S.Ct. 2546. But, the Supreme Court of Washington had looked only to whether the lack of a petit jury finding on a sentencing factor was structural error. The Supreme Court therefore decided to “treat” the case “similarly.” Id. Accordingly, the sole holding of Recuenco was the uncontroversial proposition that, “[fjailure to submit a sentencing factor to the jury, like failure to submit an element to the jury, is not structural error.” Id. at 222, 126 S.Ct. 2546. In sum, the majority opinion in Recuenco does not deal at all with the issue of indictment error, and accordingly could not have “recognized” that “errors in an indictment can be harmless.” Recuenco is not the “missing link” the majority is searching for.
Yet the majority agrees with the Government and reiterates its claim that the Sixth Amendment is “more worthy of protection under the ambit of structural error than the Fifth Amendment grand jury right.” (Maj. Op. at 265.) This is a dubious proposition at best, and has never been propounded by any opinion of the Supreme Court or our court.5 Vazquez, seemingly cited by the majority as authority for this idea, says nothing of the sort.6
The question is not which Amendment is more worthy of protection. The issue before us is simply whether a specific type of constitutional violation is significant enough to constitute structural error.7 It *278is this question, left unaddressed by the majority, to which I now turn.
The Supreme Court has used varying language in categorizing constitutional errors.8 In one of the more recent and concise summaries, Puckett v. United States, 556 U.S. 129, 140, 129 S.Ct. 1423, 173 L.Ed.2d 266 (2009) outlined three factors which it used to determine whether a plea breach was a structural error: whether it (1) necessarily rendered a trial unfair or unreliable for determining guilt or innocence, (2) defied analysis by harmless-error standards by affecting the entire adjudicatory framework, and/or (3) presented difficulty in assessing the effect of the error, more than for other errors subject to harmless error review.
Factors two and three indicate that if an error can be plausibly reviewed for harmlessness, then it should be. As such, we must first determine how harmless error review of a deficient indictment would proceed, before deciding whether such a review is workable. The original formulation of harmless error in Chapman was “whether it appears beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained.” 386 U.S. at 24, 87 S.Ct. 824 (internal quotation omitted). In other words, the Chapman harmless error standard was developed for use in the trial context, and requires a judgment that the error did not affect the jury’s verdict. The majority appears to agree that this is the proper inquiry, such that any harmless error review must take into account the total effect of a defective indictment. That is, harmless error review in this context would require a court to ask whether the indictment error contributed to the petit jury verdict.
With this in mind, we examine the three factors the Puckett Court cited to determine whether a deficient indictment constitutes structural error. First, there can be no doubt that a deficient indictment affects the entire adjudicatory framework, and consequently defies analysis by harmless error standards. In Arizona v. Fulminante, the Court listed certain structural errors that affect the entirety of trial, such as deprivation of counsel and a biased trial judge. 499 U.S. at 309, 111 S.Ct. 1246. The Court noted that “[t]he entire conduct of the trial from beginning to end is obviously affected by the absence of counsel for a criminal defendant, just as it is by the presence on the bench of a judge who is not impartial.... Each of these consti*279tutional deprivations is a similar structural defect affecting the framework within which the trial proceeds, rather than simply an error in the trial process itself.” Id. at 309-10, 111 S.Ct. 1246.
It is hard to think of a more “structural defect” than one affecting the indictment, which initiates and provides the foundation for a federal criminal trial. See Kaley v. United States, — U.S. —, 134 S.Ct. 1090, 1097, 188 L.Ed.2d 46 (2014) (“This Court has often recognized the grand jury’s singular role in finding the probable cause necessary to initiate a prosecution for a serious crime.”) Prosecutors are barred from informally amending or materially varying from the indictment; it puts the defendant on notice of the charges against him, protects him from double jeopardy, and serves as the direct interposition of the public in the charging process.
Further, it is axiomatic that a trial proceeds according to the crimes as described in the indictment. The defendant will attempt to rebut the crimes alleged and impeach testimony relating to the listed elements of those crimes. He would have no call to even consider whether to attack evidence with regard to any omitted element. This is especially so where, as here, the indictment alleges one complete crime, which lacks an element of an uncharged, distinct offense. From indictment to conviction, neither Lewis nor any similarly situated defendant would foresee the need to defend against such a separate offense, asserted only at the sentencing phase. In short, it is clear that a deficient indictment affects the entire framework of the trial and defies analysis by harmless error standards.
Next, we consider the related question of whether this error presents special difficulty in assessing prejudice. It clearly does. In United States v. Gonzalez-Lopez, the Court found that denial of counsel of one’s choice constituted structural error. 548 U.S. 140, 126 S.Ct. 2557, 165 L.Ed.2d 409 (2006). In so concluding the Court held that:
It is impossible to know what different choices the rejected counsel would have made, and then to quantify the impact of those different choices on the outcome of the proceedings.... Harmless-error analysis in such a context would be a speculative inquiry into what might have occurred in an alternate universe.
Id. at 150, 126 S.Ct. 2557. Similarly, here, assessing prejudice flowing from a faulty indictment would require sheer speculation into the possible decisions of the defendant and trial counsel if a different crime had been charged. Just as in Gonzalez-Lopez, to determine what would have happened if a proper indictment had been entered, we would need to enter “an alternate universe.” 9
The last factor, whether a defective indictment renders a trial unfair or unreliable, requires the least analysis. In failing to put a defendant on notice of the elements of those charges against him, through a deficient indictment, the defendant is disadvantaged and has no reason to contest such omitted elements at trial. Further, enabling the prosecution or Court to change the crime charged without formal process, either at trial or sentencing, undermines any notion of fairness in an *280adversarial context. There can be no doubt that a material defect in the foundation of the trial necessarily renders it an unfair and unreliable vehicle for determining guilt or innocence.
In short, a defective indictment satisfies all of the criteria used to determine structural error, such that it is not reviewable for mere harmlessness. See United States v. Inzunza, 638 F.3d 1006, 1016-17 (9th Cir.2011) (“A defective indictment is a structural flaw not subject to harmless error review.”). This conclusion stands firmly upon Alleyne, which held that where a brandishing charge is neither alleged in the indictment nor charged to the jury, such an error requires a remand “for resentencing consistent with the jury’s verdict.” 133 S.Ct. at 2164. In that case, the Court did not pause to consider the issue of harmless error. Its precedent, however, clearly dictates that where an indictment lacks the offense for which the defendant is later sentenced, structural error has occurred. I dissent from the majority’s conclusion to the contrary.
III. Conclusion
Over a decade ago in Vazquez, I noted that the logic in that decision would mean that the “government can charge and convict a defendant of manslaughter, but sentence him for murder, and, as long as the government produced evidence at trial that would support that sentence, we would not notice or correct the error under [plain error review] and require resentenc-ing in accordance with the jury’s verdict.” 271 F.3d at 130 (Rendell, J. dissenting). Today the majority goes beyond even that dire prediction as it upholds a sentence for a crime different from that of conviction, under de novo review. Under the majority’s reasoning, and contrary to Alleyne, a district court may now sentence a defendant pursuant to an improper mandatory minimum, in violation of the Sixth Amendment, and we would be obligated to uphold the sentence if we, an appellate court, find the evidence at trial to have been sufficient. In short, today’s decision strikes at the very heart of the jury trial and grand jury protections afforded by the Constitution.
But perhaps I am wrong. Perhaps we live in a brave new world where judges may determine what crimes a defendant has committed without regard to his indictment or jury verdict, and sentence him accordingly. Or maybe Alleyne does not really mean what it says, when it proclaims brandishing and carrying offenses to be separate and distinct crimes, and that a defendant is entitled to be sentenced consistent with the jury’s findings. But I take the Supreme Court at its word. Until clearly instructed otherwise, I maintain that different crimes are just that, and district court judges cannot sentence a defendant to an uncharged crime simply because the evidence fits, nor can an appellate panel affirm such a sentence because they find that the evidence fits. I adhere to the principle that both appellate and trial judges are required by the Constitution to respect, and sentence according to, a valid jury verdict, and on this basis I respectfully dissent.
. Indeed, we are bound by statute to remand under such circumstances. See 18 U.S.C. § 3742(f)(1) (“If the court of appeals determines that ... the sentence was imposed in violation of law or imposed as a result of an incorrect application of the sentencing guidelines, the court shall remand the case for further sentencing proceedings with such instructions as the court considers appropriate. ... ”).
. The majority misconstrues Dunn. The Court there noted that the defendant had been charged and convicted on the basis of false statements made in an interview in September, but the Tenth Circuit affirmed the conviction on the basis of testimony made in October. 442 U.S. at 106, 99 S.Ct. 2190. The Court held that "appellate courts are not free to revise the basis on which a defendant is convicted simply because the same result would likely obtain on retrial.” Id. at 107, 99 S.Ct. 2190. Thus, the conviction had to stand or fall on the sufficiency of the charge presented to the jury, namely the September statements alone. The relevance of that case is obvious: "[f]ew constitutional principles are more firmly established than a defendant's right to be heard on the specific charges of which he is accused.” Id. at 106, 99 S.Ct. 2190.
. Comparing this violation to a constructive amendment further establishes the necessity of resentencing. "An indictment is constructively amended when, in the absence of a formal amendment, the evidence and jury instructions at trial modify essential terms of the charged offense in such a way that there is a substantial likelihood that the jury may have convicted the defendant for an offense differing from the offense the indictment returned by the grand jury actually charged.” United States v. Vosburgh, 602 F.3d 512, 532 (3d Cir.2010). "Constructive amendments are per se reversible under harmless error review....” United States v. Daraio, 445 F.3d 253, 260 (3d Cir.2006). I cannot reconcile our established precedent concerning constructive amendment with the majority's decision. Going forward, constructively amending the indictment during trial is per se reversible, but the same act during sentencing may be harmless.
. The circuit split that compelled the Court to take the case still remains. Compare United States v. Higgs, 353 F.3d 281, 305-06 (4th Cir.2003) (reviewing defective indictment for harmless error) with United States v. Inzunza, 638 F.3d 1006, 1016-17 (9th Cir.2011) ("A defective indictment is a structural flaw not subject to harmless error review.”).
. The majority overlooks the fact that indictments safeguard not only the Fifth Amendment guarantee of charging by a grand jury, but also the Sixth Amendment right to "to be informed of the nature and cause of the accusation.” U.S. Const, amend. VI; see, e.g., United States v. Radowitz, 507 F.2d 109, 111-12 (3d Cir.1974) (finding that an “indictment: (1) fulfills the Sixth Amendment 'apprisal' requirement by providing a defendant with notice of the charges against him in order that he may prepare a defense.... ”).
. I disagree with the majority’s claim that, in Cotton, the Court "implied that it would not treat Fifth Amendment indictment error differently than Sixth Amendment trial error. ...” (Maj. Op. at 265.) In fact, the issue before the Court was waiver of rights, and the Court briefly compared the two Amendments only to note the “longstanding rule 'that a constitutional right may be forfeited in criminal as well as civil cases by the failure to make timely assertion of the right....’" 535 U.S. at 634, 122 S.Ct. 1781 (quoting Yakus v. United States, 321 U.S. 414, 444, 64 S.Ct. 660, 88 L.Ed. 834 (1944)). In other words, the Court clarified that both Fifth and Sixth Amendment violations may be waived, and thus reviewable only for plain error, due to a failure to timely object. That is not at issue here, as both parties agree that Lewis timely asserted his Fifth Amendment rights. Cotton does not speak to the question before us, nor does it "imply” any answer, as the Court explicitly did "not resolve" the question of whether defective indictments could constitute structural error. Id. at 632, 122 S.Ct. 1781.
.I note separately that the majority’s claim of uniform agreement with other circuits is misplaced. The Ninth Circuit has maintained that a deficient indictment is structural error. United States v. Inzunza, 638 F.3d 1006, 1016-17 (9th Cir.2011). In addition, three of *278the cases cited by the majority either involved a proper indictment or simply did not address the issue of whether a defective indictment would constitute structural error, and thus provide no support for the majority's position. See United States v. Mack, 729 F.3d 594, 607 (6th Cir.2013); United States v. Kirklin, 727 F.3d 711, 716 (7th Cir.2013); United States v. McKinley, 732 F.3d 1291, 1295 (11th Cir.2013). The fourth case, United States v. Harakaly, 734 F.3d 88, 94 (1st Cir.2013), concerned a guilty plea and the issue of structural error was raised only on reply, such that the court devoted only a few sentences to the analysis. It is also worth noting that the majority here cited some of these cases to note that they had reviewed an Alleyne claim for plain error, perhaps under the assumption that structural errors are automatically reversible even when not timely raised, and thus not amenable to plain error review. This is incorrect. Cotton itself noted that the question of structural or harmless error is resolved at step three of the plain error review process, but decided not to answer that question because step four resolved the case. Thus, even structural errors are reviewed for plain error if not timely raised.
. I note that Stirone v. U.S., 361 U.S. 212, 219, 80 S.Ct. 270, 4 L.Ed.2d 252 (1960) found a deficient indictment to be "far too serious to be treated as nothing more than a variance and then dismissed as harmless error.” However, as this case preceded Chapman and the development of the harmless error doctrine, I cannot assume that it controls the question faced today.
. The majority overlooks this issue in conducting its own harmless error analysis. It examines the testimony presented at trial and concludes that a brandishing charge was sufficiently proven. In fact, a harmless error inquiry would require a showing, beyond a reasonable doubt, that brandishing would still have been proven if the indictment had properly alleged that crime. The inherently speculative nature of such an inquiry presents special difficulty in assessing prejudice, thus satisfying this structural error criterion.