PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 20-4390

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

CHIKOSI LEGINS,

Defendant - Appellant.

Appeal from the United States District Court for the Eastern District of Virginia at 

Richmond. David J. Novak, District Judge. (3:19-cr-00104-DJN-1)

Argued: September 24, 2021 Decided: May 11, 2022

Before DIAZ and RICHARDSON, Circuit Judges, and FLOYD, Senior Circuit Judge.

Affirmed by published opinion. Judge Richardson wrote the opinion, in which Judge Diaz 

and Senior Judge Floyd joined.

ARGUED: Charles A. Gavin, CAWTHORN, DESKEVICH & GAVIN, P.C., Richmond, 

Virginia, for Appellant. Christopher Chen-Hsin Wang, UNITED STATES 

DEPARTMENT OF JUSTICE, Washington, D.C., for Appellee. ON BRIEF: Gregory 

B. Friel, Deputy Assistant Attorney General, Tovah R. Calderon, Appellate Section, Civil 

Rights Division, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for 

Appellee.
2

RICHARDSON, Circuit Judge:

Former federal prison guard Chikosi Legins was indicted for sexually assaulting a 

prisoner twice and then lying to law enforcement about it. A jury convicted Legins only 

of making a false statement to law enforcement while acquitting him of the more 

substantial sex-crime charges. Following that verdict, the district court made two decisions 

that boosted Legins’s sentence. First, it imposed an enhanced statutory maximum that was 

neither charged nor submitted to the jury. Second, it varied upward to impose the sentence 

Legins would have faced if he had been convicted of sexually abusing the prisoner.

On appeal, Legins challenges his false-statements conviction. We reject that 

challenge. Sufficient evidence supported that conviction, and any arguable inconsistency 

with the jury’s acquittal on other counts does not invalidate the false-statement conviction. 

Legins next argues that the judge improperly imposed an enhanced statutory maximum 

penalty based on a judicial finding not in the indictment or found by the jury. See Apprendi 

v. New Jersey, 530 U.S. 466, 490 (2000). We agree but are constrained to find the error 

harmless. See Washington v. Recuenco, 548 U.S. 212, 219–20 (2006); Neder v. United 

States, 527 U.S. 1, 4 (1999). Finally, we conclude that the court did not impose an 

unreasonable sentence. 

I. Background

A. Alleged Sexual Assaults

In May 2018, B.L., then a prisoner at Petersburg Federal Correctional Institution,

was hanging flyers around the prison to inform inmates of upcoming events. Legins, then 

a prison guard, escorted B.L. as he travelled from unit to unit to distribute the flyers. At 
3

6:10 PM, a surveillance video shows the two men entering a camera-free staff corridor, 

along which was a similarly camera-free administrative office. At 6:15 PM, the video 

shows them emerging from the other side of the corridor. They offer wildly different 

accounts of the intervening 5 minutes. 

That evening, B.L. reported to prison lieutenant Steven Arrant that he had been 

raped. After medical evaluation, B.L. prepared an affidavit describing his assault during 

those 5 minutes. According to B.L., Legins forced him to perform oral sex on him, and 

then anally raped him. Legins then ejaculated in his own hand and instructed B.L. to clean 

up.

And according to B.L., this was not the first time Legins sexually assaulted him. 

Two months earlier, Legins was similarly escorting B.L. as B.L. hung flyers. While in an 

elevator alone, Legins allegedly pushed B.L. to his knees and instructed B.L. to perform 

oral sex on him, and B.L. did so. B.L. did not report this incident until after the May

assault. He had, however, placed the sweatshirt he wore at the time, on which Legins had 

allegedly ejaculated, into a plastic bag.1

After completing his affidavit describing the assault, B.L. was taken to a local 

hospital, where a rape kit test was performed. The results were mixed. No physical indicia 

of forcible rape were found. But experts for both the prosecution and defense agreed that 

physical injuries are often not found. The exam did reveal toilet paper on B.L.’s anus, 

which the defense expert claimed would be unusual if the assault occurred as B.L. 

1 According to B.L., there were also prior incidents of sexual harassment in which 

Legins masturbated in his presence.
4

described. But Legins’s DNA was found on a swab of B.L.’s anus, on B.L.’s jock strap, 

and on the sweatshirt B.L. kept from the March assault.

As all of this was going on, Legins began acting suspiciously. Before B.L. was 

taken to the hospital, Legins called the medical bay seeking medicine (which he had never 

done and was not authorized to do) and made repeated calls to both the medical bay and 

the lieutenant’s office seeking B.L.’s whereabouts (despite having no official reason to do 

so). When B.L. was leaving the medical bay, the escorting officer heard someone he 

believed to be Legins shout “You’ve got to be kidding me!” A few days later, Legins asked 

a fellow guard to write a statement saying that Legins was only alone with B.L. for a 

minute, but the guard refused because he had no personal knowledge of the events of that 

day.

Legins tells a very different story of what happened during those 5 minutes in May. 

In June 2018, he was interviewed by the FBI and the Office of Inspector General, placed 

under oath, and informed that false statements could be prosecuted under 18 U.S.C. § 1001. 

In the interview, Legins acknowledged taking B.L. into the secretary’s office—which was 

unusual and against protocol—but denied any sexual activity. He claimed that he engaged 

in “just conversation” with B.L. while he unsuccessfully tried to log onto the computer to 

print documents.2 Legins also claimed that he has never had any sexual contact with an 

inmate at Petersburg. When asked how he would explain the presence of his DNA were it 

2 Petersburg’s IT officer testified at trial that based on the prison’s data logs, no one 

tried to access that computer during the time of the May incident.
5

to be found, Legins recalled that he had masturbated in the restroom located next to the 

secretary’s office the day before the alleged sexual assault. Following the interview, 

Legins began repeating the masturbation story to his colleagues, adding a new detail: He 

had seen B.L. and another inmate unattended in that bathroom afterward, but did not report 

it even though they were in a restricted, guards-only area.

B. District Court Proceedings

Legins was charged with sexual abuse of a ward3 for the March incident. For the 

May incident, he was also charged with sexual abuse of a ward, aggravated sexual abuse,4

and deprivation of civil rights.

5

 In a final count, Legins was charged with making false 

statements6 during his interview. The language of this false-statement count—the focus of 

this appeal—is as follows:

3 18 U.S.C. § 2243(b) (“Whoever . . . knowingly engages in a sexual act with another 

person who is— (1) in official detention; and (2) under the custodial, supervisory, or 

disciplinary authority of the person so engaging; or attempts to do so, shall be fined under 

this title, imprisoned not more than 15 years, or both.”). 

4 18 U.S.C. § 2241(a) (“Whoever . . . knowingly causes another person to engage in 

a sexual act—(1) by using force against that other person; or (2) by threatening or placing 

that other person in fear that any person will be subjected to death, serious bodily injury, 

or kidnapping; or attempts to do so, shall be fined under this title, imprisoned for any term 

of years or life, or both.”). 

5 18 U.S.C. § 242 (“Whoever . . . willfully subjects any person . . . to the deprivation 

of any rights, privileges, or immunities secured or protected by the Constitution or laws of 

the United States . . . shall be fined under this title or imprisoned not more than one year, 

or both.”). The indictment alleged that Legins’s conduct constituted “cruel and unusual 

punishment.” J.A. 26.

6 18 U.S.C. § 1001(a) (“[W]hoever, in any matter within the jurisdiction of the 

executive, legislative, or judicial branch of the Government of the United States, knowingly 

and willfully . . . (2) makes any materially false, fictitious, or fraudulent statement or 

representation . . . shall be fined under this title[and] imprisoned not more than 5 years . . . . 

(Continued)
6

On or about June 5, 2018, in the Eastern District of Virginia, the defendant, 

CHIKOSI LEGINS, knowingly and willfully made false, fictitious, and 

fraudulent statements and representations to Special Agents of the Federal 

Bureau of Investigation (FBI) and the Department of Justice (DOJ) Office of 

the Inspector General as to material facts in relation [to] a matter within the 

jurisdiction of the FBI and DOJ, agencies of the United States. Specifically, 

the defendant, CHIKOSI LEGINS: (1) falsely denied that he engaged in a 

sexual act with any inmate at any time at Federal Correctional Institution, 

Petersburg; and (2) falsely stated that on May 10, 2018, he attempted to use 

a computer and printer while he was engaged in “just conversation” with 

inmate B.L. when they were alone in an unattended office with no 

surveillance cameras. Those statements and representations by CHIKOSI 

LEGINS were false, because as CHIKOSI LEGINS then well knew, he had 

engaged in a sexual act with an inmate at Federal Correctional Institution, 

Petersburg; and on May 10, 2018, the defendant used an unattended office 

with no surveillance cameras to engage in a sexual act with B.L.

During his arraignment, the government stated that the maximum sentence on the 

false-statement charge was 5 years. Legins pleaded not guilty and went to trial by jury. At 

trial, the jury was presented with a verdict form that asked whether Legins was guilty “as 

charged in [the false-statement count] of the Indictment,” and asked it to note “which—or 

both—of [the two alleged false statements] supports [its] guilty verdict.” J.A. 820.

The jury convicted Legins on the false-statement count. In finding him guilty of 

that count, the jury found that both statements presented in the Indictment supported the 

verdict—that is, both lying about “engag[ing] in a sexual act with any inmate” and lying 

about using a computer and printer while “engaged in ‘just conversation’” with B.L. in the 

office. J.A. 820. But the jury acquitted Legins on all other counts, even though they 

involved the commission of the sexual acts that the jury found Legins lied about. 

If the matter relates to an offense under chapter 109A, 109B, 110, or 117, or section 1591, 

then the term of imprisonment imposed under this section shall be not more than 8 years.”).
7

After denying Legins’s motion for acquittal notwithstanding the verdict, the district 

court observed that the false-statement count justified an enhanced 8-year maximum 

sentence—not the standard 5-year maximum—because Legins’s statement involved a 

sexual crime that is an “offense under Chapter 109A” of the criminal code. Legins objected

to the increased statutory maximum sentence under Apprendi7 and argued that the 

“misstatement” of the 5-year maximum sentence during arraignment also prejudiced him. 

The court disagreed and applied the 8-year statutory maximum. The increased statutory 

maximum also increased Legins’s guideline offense level by 4 levels to 18. See U.S.S.G. 

§2J1.2(b)(1)(A) (“If the (i) defendant was convicted under 18 U.S.C. § 1001; and (ii) 

statutory maximum term of eight years’ imprisonment applies because the matter relates 

to . . . chapter[] 109A . . . increase by 4 levels.”). Having no criminal history, Legins then 

faced a guidelines range of 27–33 months. See U.S.S.G. Ch. 5 Pt. A.8

At sentencing, the court adopted the 27–33-month range and granted the 

prosecution’s requested upward variance. The court found that, while the guidelines 

accounted for the underlying May sexual abuse,

9 they did not reflect that Legins had abused 

7 In Apprendi v. New Jersey, 530 U.S. 466 (2000), the Supreme Court held that “any 

fact (other than prior conviction) that increases the maximum penalty for a crime must be 

charged in an indictment, submitted to a jury, and proven beyond a reasonable doubt.” Id.

at 476 (quoting Jones v. United States, 526 U.S. 227, 243 n.6 (1999)).

8 If the 5-year statutory maximum had applied, the guidelines range would have 

been 15–21 months. U.S.S.G. Ch. 5 Pt. A. 

9 Section 2J1.2(c) provides that a defendant whose lies obstruct a criminal 

investigation is to be sentenced under § 2X3.1 as an accessory after the fact if doing so 

results in a higher sentence. The proper range under § 2X3.1 varies based on the severity 

of the underlying crime. The court found that, based on Legins’s conduct in May, the range 

under § 2X3.1 would be lower than that provided in § 2J1.2, and so it did not apply.
8

B.L. more than once. The guidelines range did not reflect the “related conduct from the 

March offense—namely abusive sexual contact in violation of 18 U.S.C. § 2244(a)(4).” 

J.A. 1057.10 Thus, as a “starting point” for determining the appropriate size of the variance,

the court calculated the guideline range for this sexual offense: 15–21 months. Id. The 

Court then added this range to that for the false-statement count, leading to a total of 42–

54 months. The court ultimately varied upwards to 54 months “[t]o account for” the March 

offense; the extent of Legins’s “obstruction”—i.e., his calls to the medical bay and 

lieutenant’s office during the initial investigation; his “premeditation”—i.e., concocting 

alternative explanations for the presence of his DNA; and a history of similar conduct—

i.e., prior reprimands for making lewd comments to female wards and inappropriately 

entering female-only areas. J.A. 1058.

The court found that a 54-month sentence was appropriate given the “seriousness of 

the Defendant’s conduct” and the need to afford “adequate deterrence to Defendant and 

other correctional officers,” while still accounting for Legins’s positive role in his family, 

country, and religious community. J.A. 1058; see 18 U.S.C. § 3553(a). This appeal 

followed. We have jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a).

10 While the jury acquitted Legins of sexual misconduct, the court could still find at 

sentencing that misconduct occurred. This stems from the different standards of proof 

required at those two stages. The jury must acquit the defendant unless his guilt is 

established beyond a reasonable doubt. See, e.g., In re Winship, 397 U.S. 358, 361–62 

(1970). But at sentencing, the court considers all aggravating and mitigating information 

based on the preponderance of the evidence—i.e., that it probably happened. See United 

States v. Grubbs, 585 F.3d 793, 798–99 (4th Cir. 2009).
9

II. Discussion

We consider in turn Legins’s arguments that: (1) his conviction is not supported by 

sufficient evidence; (2) his sentence was for a crime of which he was neither indicted nor 

convicted; and (3) his sentence is otherwise unreasonable.

A. The Evidence Supports the Conviction

Legins first argues that his false-statement conviction was not supported by 

sufficient evidence. A § 1001 false-statement conviction requires (1) a false statement in 

a matter involving a government agency, (2) made knowingly or willfully, that is 

(3) material to the matter within the agency’s jurisdiction. United States v. Hamilton, 699 

F.3d 356, 362 (4th Cir. 2012). Legins’s sufficiency challenge focuses on the first element, 

a false statement. 

The government chose to go beyond reciting the three elements in the indictment. 

See Hamling v. United States, 418 U.S. 87, 117 (1974) (stating that an indictment is 

sufficient if it (1) “contains the elements of the offense charged and fairly informs a 

defendant of the charge against which he must defend,” and (2) “enables him to plead an 

acquittal or conviction in bar of future prosecutions for the same offense”). The indictment 

includes two allegedly false statements and gives the reasons why each statement was false. 

As a result, Legins argues that the government could only convict him if they proved the 

statements were false for the reasons given in the indictment.11 So under his theory, the 

11 Legins argues that proving that his statements were false for a reason other than 

that alleged in the indictment would constitute an impermissible constructive amendment 

of the indictment. Cf. Stirone v. United States, 361 U.S. 212, 218–19 (1960). A 

(Continued)
10

government had to prove that (1) Legins’s denial of having “engaged in a sexual act with 

any inmate at any time at Federal Correctional Institution, Petersburg” was false because 

“he had engaged in a sexual act with an inmate at Federal Correctional Institution, 

Petersburg”; or (2) Legins’s statement that “on May 10, 2018, he attempted to use a 

computer and printer while he was engaged in ‘just conversation’ with inmate B.L. when 

they were alone in an unattended office with no surveillance cameras” was false because 

“on May 10, 2018, the defendant used an unattended office with no surveillance cameras 

to engage in a sexual act with B.L.”12 Legins argues there was insufficient evidence that 

he had performed a sexual act on an inmate, so a reasonable jury could not have found that 

his statements were false for the reasons alleged in the indictment.

“A defendant challenging the sufficiency of the evidence to support his conviction 

bears a heavy burden.” United States v. Beidler, 110 F.3d 1064, 1067 (4th Cir. 1997)

(cleaned up). That is because it is the jury’s role to weigh conflicting evidence and find 

the truth; once that finding is made, we will not lightly disturb it. So “the relevant question 

is whether, after viewing the evidence in the light most favorable to the prosecution, any

rational trier of fact could have found the essential elements of the crime beyond a 

constructive amendment occurs when the government or court broadens the possible bases 

for conviction beyond those presented to the grand jury. United States v. Cannady, 924 

F.3d 94, 99 (4th Cir. 2019). As explained below, sufficient evidence supports finding that 

Legins committed a sexual act on an inmate and thus that his statements were indeed false 

for the reasons alleged in the indictment. We thus need not decide whether his theory—

that the government was limited by those reasons for falsity alleged in the indictment—is 

correct as a legal matter. 

12 Although not express, the structure of the indictment suggests that the two reasons 

for falsity are each paired with one of Legins’s two allegedly false statements.
11

reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319 (1979). Viewing the evidence 

in the light most favorable to the prosecution requires drawing all reasonable inferences in 

favor of the government and assuming the jury resolved any conflicting evidence in the 

prosecution’s favor. United States v. Jeffers, 570 F.3d 557, 565 (4th Cir. 2009). Even an 

uncorroborated account of a single witness may constitute sufficient evidence. United 

States v. Clark, 541 F.2d 1016, 1017–18 (4th Cir. 1976) (per curiam); United States v. 

Shipp, 409 F.2d 33, 35–36 (4th Cir. 1969).

13

Sufficient evidence supported finding that both of Legins’s statements were false 

for the reason charged—that is, Legins had performed a sexual act on an inmate.

14 B.L. 

testified under oath that Legins had performed a sexual act on him. Just this account, if 

found credible by the jury (and we must assume it was), may suffice. See Shipp, 409 F.2d 

at 35–36. But the account is also significantly corroborated. An anal swab performed after 

13 While a single witness’s uncorroborated account usually suffices, there are 

exceptions. Most notably, there is a “deeply rooted” common-law rule that a person cannot 

be convicted of perjury “solely upon the evidence of a single witness.” Weiler v. United 

States, 323 U.S. 606, 608–09 (1945). Although § 1001 bears some similarity to perjury

(18 U.S.C. § 1621) as they both penalize material false statements, the Supreme Court has 

made clear that the two-witness rule derives from the “special considerations” granted to 

“witnesses compelled to testify in trials at law.” Weiler, 323 U.S. at 609. Section 1001 

does not apply to witness testimony. Hubbard v. United States, 514 U.S. 695, 714–15

(1995). Accordingly, as our sister circuits have largely held, perjury’s special two-witness 

rule does not apply to § 1001. See Fisher v. United States, 231 F.2d 99, 105–06 (9th Cir. 

1956); United States v. Killian, 246 F.2d 77, 82 (7th Cir. 1957).

14 The jury could convict Legins of making a false statement if either of Legins’s

statements were false, though they ultimately concluded that both were. See United States 

v. Dennis, 19 F.4th 656, 671 (4th Cir. 2021) (“[I]ndictments charge in the conjunctive, but 

proof in the disjunctive is enough to convict”). Similarly, we may affirm if either of the 

jury’s decisions are supported by sufficient evidence. See Griffin v. United States, 502 

U.S. 46, 57 (1991). We conclude that both are.
12

the May incident revealed Legins’s DNA, which was also found on B.L.’s clothing 

(including his jock strap). And Legins’s testimony to explain the events was contradicted 

by the prison’s IT manager, who confirmed that Legins did not try to use the computer 

during that time. Furthermore, the defendant’s request for a colleague to falsely attest to 

personal knowledge that Legins was only with B.L. for a minute also shows he was 

conscious of his wrongdoing. See Wilson v. United States, 162 U.S. 613, 621 (1896) (“The 

destruction, suppression, or fabrication of evidence undoubtedly gives rise to a 

presumption of guilt, to be dealt with by the jury.”); United States v. McDougald, 650 F.2d 

532, 533 (4th Cir. 1981). So a rational juror could have concluded beyond a reasonable 

doubt that Legins performed a sexual act on B.L., making both statements false for the 

reasons alleged. 

Legins responds by pointing to a laundry list of potential alternative sources of the

DNA found on B.L.’s anus and clothing and to alleged inconsistencies between B.L.’s 

testimony and other evidence. Neither helps his cause. While the DNA found on B.L.’s 

anus and clothing might not have come through sexual contact, it is a reasonable inference 

that it did, given the location at which some of the DNA was found (i.e., B.L.’s anus) and 

B.L.’s testimony about its source. Legins’s alleged inconsistencies fare no better. B.L. 

testified the rape “lasted like five minutes” after which B.L. cleaned himself up. This could 

not be, Legins argues, because a 5-minute rape would not have left enough time to clean 

up during the 5 minutes and 15 seconds the two were alone. But even if B.L.’s testimony 

could be read to overstate the length of the rape, it does little to undermine his testimony. 

For someone being coerced into unwanted sexual acts, 1 minute may feel like 5. The same 
13

goes for the Legins’s arguments about the lack of physical injury and the presence of toilet 

paper. The defense’s expert only contended that she would not “anticipate” finding a lack 

of injuries and the presence of toilet paper if the event had occurred as B.L. described, not 

that B.L.’s description was impossible, and even then the jury was not required to believe

her. We do not ask whether Legins’s position is supported by some evidence, or even most 

evidence. We may only consider whether, viewing all the evidence in the light least 

favorable to Legins, any rational juror could have found it substantial enough to convict 

him. And here, even with some contradictory evidence, there was sufficient evidence that 

Legins committed a sex act against B.L.

Legins counters that the evidence of any sexual act during the March and May 

incidents must have been unreliable because the jury acquitted Legins on the sexual-assault 

counts. Though framed as part of his sufficiency challenge, this is essentially an 

inconsistent-verdict argument—that the jury inconsistently concluded that Legins did not 

commit the charged sexual acts but did commit a sexual act for the false-statement count. 

We reject this contention for two reasons. 

First, even if the verdict were internally inconsistent, it would not entitle Legins to 

relief. A defendant “cannot challenge his conviction merely because it is inconsistent with 

a jury’s verdict of acquittal on another count.” United States v. Thomas, 900 F.2d 37, 40 

(4th Cir. 1990) (citing United States v. Powell, 469 U.S. 57, 83 (1984)); accord United 

States v. Godel, 361 F.2d 21, 24 (4th Cir. 1966) (upholding a § 1001 conviction despite an 

inconsistent acquittal on the underlying crime). As we have recognized, “an inconsistent 

verdict can result from mistake, compromise, or lenity, and a jury could just as likely err 
14

in acquitting as convicting.” United States v. Louthian, 756 F.3d 295, 305 (4th Cir. 2014). 

So a reviewing court’s “assessment of the reason for the inconsistency would be based 

either on pure speculation, or would require inquiries into the jury’s deliberations that 

courts generally will not undertake.” Powell, 469 U.S. at 66. The latter is proscribed by 

the long-standing and near-absolute no-impeachment rule, which upholds the justice 

system’s “strong interest in protecting the finality of jury verdicts, encouraging open 

deliberations in the jury room, and preventing the harassment of jurors by litigants seeking 

to overturn the verdict.” Richardson v. Kornegay, 3 F.4th 687, 702 (4th Cir. 2021). That 

leaves us with nothing but “pure speculation” into the jury’s deliberations. We decline, as 

we have many times before, to engage in such speculation. See Thomas, 900 F.2d at 40; 

Louthian, 756 F.3d at 305–06.

Second, even if inconsistency would entitle Legins to relief, the jury’s verdict is not

necessarily inconsistent. The sexual-abuse counts each required the jury, as an element of 

the offense, to determine whether Legins committed a “sexual act,” and the court instructed 

them on the precise legal definition of “sexual act” for each charge: either penetration or 

contact between a mouth and a penis or anus.

15 But during its discussion of the falsestatement count, the court did not instruct the jury on the definition of “sexual act.” Nor 

did it need to: “Sexual act” was used in that count descriptively, as part of the indictment’s 

15 For the counts of deprivation of rights under color of law, 18 U.S.C. § 242, and 

aggravated sexual abuse, 18 U.S.C. § 2241(a), “sexual act” meant only penetrative sex or 

contact between the mouth and penis. For the two counts of sexual abuse of a ward, 18 

U.S.C. § 2243(b), “sexual act” meant penetrative sex, digital penetration, contact between 

the mouth and penis, or contact between the mouth and anus. So the sexual-abuse counts 

could not be predicated solely on masturbation.
15

factual narrative. It was not an element of the offense, so it did not carry any particular 

legal definition. 

In diligently following the jury instructions, the jury could have correctly concluded 

that “sexual act” as used in false-statement count carried its ordinary, colloquial meaning. 

That may include acts, such as masturbation, that are excluded under the legal definitions 

of “sexual act” applicable in the sexual-abuse counts. During his closing argument, defense 

counsel proposed that the jury conclude that B.L. had voluntarily masturbated Legins—

which would somewhat explain the presence of Legins’s DNA on B.L.’s body and 

clothing. 4 Trial Transcript at 153:7–158:10, United States v. Legins, No. 3:19-cr-00104-

DJN-1 (E.D. Va. Feb. 11, 2020), ECF No. 138. So if the jury found—as defense counsel 

asked them to—that B.L. had masturbated Legins, they could have properly convicted 

Legins on the false-statement count, despite acquitting him on sexual-abuse counts.

Because we find sufficient evidence to support Legins’s conviction, and because the 

jury’s verdict was not necessarily inconsistent—and would not entitle Legins to relief even 

if it were—we affirm Legins’s conviction.

B. The District Court Committed a Harmless Apprendi Error

Legins next challenges the district court’s conclusion that he was subject to a 

statutorily enhanced maximum sentence for his false-statement conviction. Section 1001

sets the statutory maximum sentence at “5 years.” But if “the matter relates to an offense 

under chapter 109A . . . then the term of imprisonment imposed under this section shall be 

not more than 8 years.” 18 U.S.C. § 1001(a). Chapter 109A includes aggravated sexual 

abuse and sexual abuse of a ward, which Legins was being investigated for when he made 
16

the false statements. So the government could have charged and convicted Legins of the 

aggravated § 1001 offense carrying the 8-year maximum—a point that Legins himself does 

not appear to contest. See Def.’s Position on Statutory Maximum, United States v. Legins, 

No. 3:19-cr-00104-DJN-1 (E.D. Va. Mar. 12, 2020), ECF No. 144 (“Hypothetically, it 

would be disingenuous of defense counsel to argue that the false statements which are 

before the court do not relate to offenses under Chapter 109(A).”). But though he could 

have been charged, he was not. And absent a charge and conviction, Legins was not subject 

to the 8-year statutory maximum sentence. Even so, we are constrained to find the district 

court’s erroneous use of this enhanced statutory maximum harmless. 

1. Existence of Apprendi Error

The Fifth and Sixth Amendments guarantee that, in federal courts, “[n]o person shall 

be held to answer for a capital, or otherwise infamous crime, unless on a presentment or 

indictment of a Grand Jury,” and that guilt must be determined by “an impartial jury.” U.S. 

Const. amends. V, VI. This significant safeguard of individual liberty ensures that the 

government cannot take away that liberty without the consent of two juries. It is thus 

necessary that all elements of an offense be included in the grand jury’s indictment and 

submitted to the petit jury for its guilt determination. “[A] fact is by definition an element 

of the offense . . . if it increases the punishment above what is otherwise legally prescribed.” 

United States v. Alleyne, 570 U.S. 99, 107–08 (2013). Thus, the Constitution requires that 

any fact that increases the statutory maximum, such as the increase in § 1001 from a 5- to 
17

an 8-year maximum, be alleged in the indictment and found by a jury, just like all other 

offense elements. Apprendi, 530 U.S. at 473–74.16 

The indictment does not allege that the matter within the FBI and DOJ’s jurisdiction 

“relate[d] to” a Chapter 109A sexual-abuse offense. And the jury’s verdict mirrors the 

indictment. Even so, the district court found the relation to a Chapter 109A sexual abuse

offense matter was implied by other facts alleged. The indictment charged that Legins 

“[f]alsely den[ied] that he engaged in a sexual act with any inmate at any time at Federal 

Correctional Institute, Petersburg.” J.A. 28. That statement was false, according to the 

indictment and the jury’s guilty verdict, because Legins had engaged in a sexual act with 

an inmate. And since sexual acts with an inmate are prohibited by Chapter 109A, the 

district court applied the enhanced statutory maximum.

But there is a subtle yet significant mismatch between the facts alleged and found 

by the jury and the aggravating factor in § 1001. The jury found that Legins made 

statements that were false because he committed a sexual act with an inmate. Section 

1001’s aggravating factor depends on whether the “matter” within the FBI’s jurisdiction 

when the statements were made “relate[d] to” a Chapter 109A offense. Indeed, the 

statements need not be false denials of a Chapter 109A charge nor do the statements need 

to primarily concern a Chapter 109A offense. Put another way, the aggravating factor in 

16 It is inconsequential that whether a matter “relates to an offense under Chapter 

109A” contains an inherent legal conclusion. Because it increases the statutory maximum 

sentence, it is an element of the offense. See Alleyne, 570 U.S. at 107–08. And all 

elements, even those involving a mixed question of law and fact, must be determined by 

the jury. See United States v. Gaudin, 515 U.S. 506, 512 (1995) (holding that a jury must 

decide whether a false statement under § 1001 is “material”).
18

§ 1001 depends not on a statement’s contents, but rather the context in which it was made. 

The jury’s finding turned on the conduct that rendered the statements false, while the

aggravating factor depends on the nature of the investigation. 

For example, imagine a situation in which a prison guard is being investigated for 

taking bribes from a particular prisoner in violation of 18 U.S.C. § 201. In actuality, the 

guard has also performed sexual acts with that prisoner. During the interview, the guard 

insists that he has never had a relationship with the prisoner, sexual or otherwise. The 

statement is a materially17 false representation under § 1001(a)(2), which concerns an 

undiscovered Chapter 109A offense and is false because the guard has committed a Chapter 

109A offense. But the “matter” within law enforcement’s jurisdiction at the time, the 

bribery investigation, did not relate to a Chapter 109A offense, so an 8-year sentence would 

be inappropriate. 

To be sure, these are not the facts of our case; the FBI informed Legins early in the 

interview that he was being investigated for sexual abuse. But that fact was never alleged 

in the indictment, never stipulated to by the defendant, and never found by the jury. So

neither the indictment nor the jury verdict contained sufficient facts on which to try or 

convict Legins on an 8-year aggravated § 1001 offense. 

17 Materiality under § 1001 is a low bar. It merely requires that the statement have 

“a natural tendency to influence, or is capable influencing, the decision-making body to 

which it was addressed.” United States v. Hamilton, 699 F.3d 356, 362 (4th Cir. 2012)

(quoting United States v. Littleton, 76 F.3d 614, 618 (4th Cir. 1996)). So a false statement 

about sexual misconduct could be material to (i.e., capable of influencing) an investigation 

unrelated to sexual misconduct. 
19

2. Harmless Error

Finding this constitutional error does not end our inquiry, however, because not all 

constitutional errors require automatic reversal; instead, “[m]ost constitutional errors can 

be harmless.” Neder v. United States, 527 U.S. 1, 8 (1999) (quoting Arizona v. Fulminante, 

499 U.S. 279, 306 (1999)).18 An error is harmless if it does not affect the defendant’s 

“substantial rights.” Fed. R. Crim. P. 52(a). For constitutional errors, the government 

18 The government did not expressly argue in its response brief that the Apprendi 

error was harmless, first raising it in response to questioning at oral argument. As a general 

matter, we do not consider issues raised for the first time at oral argument. See United 

States v. Cornell, 780 F.3d 616, 625 n.2 (4th Cir. 2015). We have not yet addressed “head 

on” whether the government’s failure to argue harmless error in its briefing waives the 

application of the doctrine. See United States v. Bizuela, 962 F.3d 784, 798 n.10 (4th Cir. 

2020). On one hand, “[o]ur case law is clear that ‘parties cannot waive the proper standard 

of review by failing to argue it.’” United States v. Venable, 943 F.3d 187, 192 (4th Cir. 

2019) (quoting Sierra Club v. U.S. Dep’t of the Interior, 899 F.3d 260, 286 (4th Cir. 2018)). 

On the other, we have stated in dicta that harmless error review can be waived. See United 

States v. Hall, 858 F.3d 254, 280 n.8 (4th Cir. 2017). We need not resolve this tension 

here. Waiver is a discretionary doctrine, and we retain “inherent authority to consider and 

decide pertinent matters that otherwise may be ignored as abandoned or waived.” United 

States v. Holness, 706 F.3d 579, 592 (4th Cir. 2013). 

We elect to exercise that authority here, for three reasons. First, Legins’s 

presentment of the Apprendi issue in his opening brief was far from clear. Rather than 

raise it as a distinct issue under its own heading, he included it briefly alongside the Due 

Process challenge based on comments made during arraignment. The Government then 

raised harmless error in response to the arraignment issue, but not the Apprendi issue. 

Resp. Br. of Appellee 31. Given the messiness of the briefing, we are inclined to give both 

parties some leeway; we have been generous in our construction of Legins’s arguments, 

and it seems only fair to afford the government similar grace. Second, the harmless-error 

issue does not turn on complicated or unclear facts. See Holness, 706 F.3d at 592 (noting 

that looking past waiver is more appropriate where “the facts have been sufficiently 

developed to readily permit evaluation of an alternative legal theory”). Third, Legins 

argued in his opening brief that the Apprendi issue was not harmless. Op. Br. of Appellant 

22–23. So this is not a case in which a party is blindsided by an eleventh-hour argument.

Cf. United States v. Ashford, 718 F.3d 377, 380–81 (4th Cir. 2013). Legins recognized that 

harmless error was the applicable standard and took the opportunity to argue under it. 
20

bears the heavy duty of proving “beyond a reasonable doubt that the error complained of 

did not contribute to the [result] obtained.” Neder, 527 U.S. at 15 (quoting Chapman v. 

California, 386 U.S. 18, 24 (1967)). 

But before we can determine whether the error was harmless, we need to determine 

what exactly that error was. There are two plausible options. First, we may think of it as 

a trial error: The government failed to include the aggravating factor in its indictment and 

jury instructions—omitting an essential element of its case. Or we may think of it as a 

sentencing error: Legins was properly charged and convicted of a baseline § 1001 offense, 

but the court erroneously sentenced him as if he had been convicted of the aggravated 

§ 1001 offense. 

The choice between these two options dictates how we conduct harmless-error 

analysis. For trial errors—such as the omission of an element from the indictment and jury 

instructions—we ask whether the jury would have reached the same verdict had the 

element been included. See Greer v. United States, 141 S. Ct. 2090, 2100 (2021); id. at 

2102 (Sotomayor, J., concurring in part) (“[A] constitutional [trial] error is harmless only 

if there is no reasonable doubt about whether it affected the jury’s actual verdict in the 

actual trial.”); Neder, 527 U.S. at 18. In Neder, for instance, the defendant was charged 

with tax fraud—making materially false statements on his tax return. 527 U.S. at 6–7. But 

the trial court’s instructions to the jury omitted the necessary requirement that the 

misrepresentation be material. Id. at 6, 8. Without that element, Neder had not been 

convicted of any crime. Yet the Supreme Court affirmed Neder’s conviction, holding that 

the constitutional error was harmless. Id. at 19–20. This was so, the Court held, because 
21

no rational jury could have found that Neder’s statements were immaterial given the 

“overwhelming” and “uncontroverted” evidence of materiality. Id. at 16–18. The Court 

focused on the trial error because without the omitted element there was no crime on which 

Neder could be sentenced. Thus, Neder made clear that omitting an element is a trial error 

when the conduct is not a crime without the missing element.

But courts struggled with whether the same held true when the missing element was 

perceived as a sentencing factor, which affects the statutory sentencing range. In such a 

case, the defendant would still be guilty of an offense without the omitted element, just one 

carrying a lower possible sentence. So we might characterize that sort of missing-element 

error as a “sentencing” error; the court erroneously sentenced the defendant based on the 

greater crime instead of the lesser crime of which he was convicted. In that case, the error 

would be harmless if “the result at sentencing would have been the same” without the error. 

United States v. Montes-Flores, 736 F.3d 357, 370 (4th Cir. 2013). In other words, had the 

defendant been sentenced based on the crime for which he was charged and convicted, 

would he have received the same sentence?

Our circuit adopted this sentencing-error approach in United States v. Promise, 255 

F.3d 150, 160 (4th Cir. 2001) (en banc). In Promise, as here, the district court imposed a 

statutory sentence enhancement (for certain drug amounts) that was not in the indictment 

or jury verdict. Id. at 153. Because the defendant did not object below under Apprendi

(which had not yet been decided), we reviewed for plain error. Like harmless error, plainerror review requires the court to assess whether the error affected the defendant’s 

“substantial rights.” Compare Fed. R. Crim. P. 52(a), with Fed. R. Crim. P. 52(b). To 
22

decide whether the error affected Promise’s substantial rights, we began, as we do here, by 

trying to define the nature of the error. 

Chief Judge Wilkinson advocated for the trial-error approach: Although the 

government and court had failed to include the drug quantities in Promise’s indictment and 

verdict form, the evidence of those drug amounts was overwhelming and uncontroverted. 

Promise, 255 F.3d at 166 (Wilkinson, C.J., concurring in part). So, Chief Judge Wilkinson 

concluded, the jury would have reached the same verdict even if the missing sentencing 

factor had been included in the indictment and jury instructions, and there was accordingly 

no error affecting Promise’s substantial rights. Id.

But his view did not convince the court, which concluded that “the failure to charge 

a specific threshold drug quantity in the indictment or to instruct the jury regarding 

threshold drug quantity was not the error committed by the district court . . . . What was 

not valid was the sentence imposed, which exceeded the applicable maximum for the facts 

charged and proven.” Id. at 160 n.8 (majority opinion). So the court implicitly rejected 

Neder’s trial-focused harmless-error standard, instead looking to whether the error affected 

Promise’s sentence. And because Promise received a higher sentence than he would have 

had the Apprendi error not occurred, the court found that his substantial rights were 

affected. Id. at 160.

In the years that followed, our circuit applied Promise’s sentencing conception of 

Apprendi errors in harmless-error analyses. See United States v. Stokes, 261 F.3d 496, 501 

(4th Cir. 2001); United States v. Chase, 296 F.3d 247, 250 (4th Cir. 2002). We did so most 

expressly in United States v. Mackins, 315 F.3d 399 (4th Cir. 2003). As in Promise, the 
23

three defendants in Mackins were convicted of drug crimes, but neither the indictment nor 

jury form indicated the quantities of drugs involved. Id. at 404–05. When the judge 

determined those quantities at sentencing to increase the defendants’ sentences, one of the 

defendants objected. Id. at 407. While conceding that an Apprendi error had occurred, the 

Government argued that it was harmless because the evidence of the drug amounts was 

“‘overwhelming’ and ‘uncontroverted.’” Id. at 409. The court rejected that argument. 

Relying on Promise and cases applying it, the court held that the proper harmless-error 

inquiry for an “Apprendi sentencing error” is whether “it . . . result[ed] in a sentence greater 

than that which would otherwise have been imposed.” Id. at 409 (quoting Chase, 296 F.3d 

at 250).

But three years later in Washington v. Recuenco, 548 U.S. 212 (2006), the Supreme 

Court directed that we are to apply the same harmless-error standard from Neder to cases 

involving omitted sentencing factors. Arturo Recuenco threatened his wife with a 

handgun, for which he was charged in state court with assault with a deadly weapon. Id.

at 214. The jury found Recuenco guilty of assault and specified that the assault had been 

committed with a “deadly weapon.” But at sentencing, rather than impose a 1-year 

mandatory sentencing enhancement for assaults involving a “deadly weapon,” the judge 

imposed a 3-year mandatory enhancement for assaults involving a “firearm.” Id. at 215. 

The Washington Supreme Court held that this was an Apprendi error because the defendant 

was sentenced on an offense of assault with a firearm even though the firearm element was 

neither charged nor found by the jury. Id. at 216. The state supreme court then held that 
24

this error was “structural”—i.e., can never be “harmless”—and accordingly vacated 

Recuenco’s sentence. Id.

The United States Supreme Court reversed, holding that Apprendi errors, like most 

constitutional errors, can be harmless. Id. at 220. That top-line holding does not, of course, 

resolve how to perform the harmless-error analysis. But the Court’s rationale makes that

answer clear. The Court began by describing Neder, in which, to reiterate, the Court held 

that the omission of an element of the offense may be harmless if it is “uncontested and 

supported by overwhelming evidence.” Neder, 527 U.S. at 17. Recuenco then explained: 

The State and the United States urge that this case is indistinguishable from 

Neder. We agree. Our decision in Apprendi makes clear that “[a]ny possible 

distinction between an ‘element’ of a felony offense and a ‘sentencing factor’ 

was unknown to the practice of criminal indictment, trial by jury, and 

judgment by court as it existed during the years surrounding our Nation's 

founding.”

548 U.S. at 220 (quoting Apprendi, 530 U.S. at 478).

Recuenco argued that Neder’s trial-error approach did not apply because he was 

charged and convicted of one distinct crime (assault with a deadly weapon) but sentenced 

for another (assault with a firearm); this amounted, he argued, to “a directed verdict of guilt 

on an offense . . . greater than the one for which the jury convicted him.” Id. at 221. Justice 

Ginsburg, writing in dissent, made a similar argument. Unlike in Neder, “[n]o error marred 

the case presented at trial. The prosecutor charged, and the jury found Recuenco guilty of, 

a complete and clearly delineated offense: ‘assault in the second degree, being armed with 

a deadly weapon.’” Id. at 225 (Ginsburg, J., dissenting). In Justice Ginsburg’s view, the 

error occurred post-trial at sentencing. The judge’s decision to tack on the uncharged, 
25

unsubmitted firearms enhancement, she insisted, displaced “the jury’s entirely complete 

verdict with, in essence, a conviction on an uncharged greater offense.” Id. at 228.

But the Court was unpersuaded. Under Apprendi, the Court noted, “elements and 

sentencing factors must be treated the same for Sixth Amendment purposes.” Id. at 220 

(majority opinion). Both Recuenco and Neder were sentenced for a crime which they were 

almost, but not exactly, charged and found guilty. For Neder, the missing element was 

materiality. Id. at 221. For Recuenco, it was use of a firearm. That Recuenco’s crime, 

without the missing element, was itself a different crime did not, in the Court’s view, make 

any difference. Id. Holding otherwise, the Court noted, would produce bizarre results. If 

Washington, for instance, only criminalized “assault in the second degree while armed with 

a firearm,” then the omission of the “with a firearm” element could be harmless error under 

the standard in Neder. Id. at 221–22. To hold that Neder applied in that case, but not in 

Recuenco’s would, in the Court’s view, defy logic. Id. at 222. 

The takeaway from Recuenco is clear: The Government’s failure to include a 

sentence-enhancing factor in the indictment and jury charge should be treated exactly like 

its failure to include any other element of an offense. And the proper way to perform 

harmless-error analysis in both cases is to ask whether proof of the missing element is 

“overwhelming” and “uncontroverted.” Neder, 527 U.S. at 17–18. In the years following 

Recuenco, that is how we, along with most of our sister circuits, have analyzed preserved 

Apprendi errors. United States v. Catone, 769 F.3d 866, 874 (4th Cir. 2014); accord United 

States v. Harakaly, 734 F.3d 88, 95–97 (1st Cir. 2013); United States v. Confredo, 528 F.3d 

143, 156 (2d Cir. 2008); Tarver v. Banks, 541 F. App’x 434, 438–39 (5th Cir. 2013); United 
26

States v. Kuehne, 547 F.3d 667, 681 n.4 (6th Cir. 2008); United States v. Hollingsworth, 

495 F.3d 795, 806 (7th Cir. 2007); United States v. Guerrero-Jasso, 752 F.3d 1186, 1193 

(9th Cir. 2014); United States v. King, 751 F.3d 1268, 1279–80 (11th Cir. 2014); United 

States v. Lopesierra-Gutierrez, 708 F.3d 193, 208 (D.C. Cir. 2013); contra United States 

v. Lewis, 802 F.3d 449, 456 (3d Cir. 2015) (en banc) (treating Apprendi error as a 

sentencing error and declining to apply Neder harmless-error test).

In Catone, the defendant was charged and convicted of making false statements 

relating to federal benefits, violating 18 U.S.C. § 1920. 769 F.3d at 869. Under that statute, 

if the “benefits falsely obtained” exceed $1,000, the defendant is guilty of a felony 

punishable by up to a 5-year prison term; otherwise, they are guilty only of a misdemeanor 

punishable by no more than 1 year of imprisonment. 18 U.S.C. § 1920. Catone argued 

that, because the jury never found the amount of money he fraudulently obtained, his 

sixteen-month felony sentence violated Apprendi; the government countered that any such 

error was harmless. Catone, 769 F.3d at 872–73. We found Neder’s trial-error test applied: 

An “Apprendi error is harmless ‘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.’” Id. at 874 (quoting 

Neder, 527 U.S. at 17).19 

19 In Catone, we ultimately concluded that the Apprendi error was not harmless

because there was not “overwhelming evidence” that Catone fraudulently acquired more 

than $1,000 in benefits. Id. at 875.
27

We therefore apply the harmless-error analysis supplied by Neder to the Apprendi 

error before us. To do so, we ask whether there is overwhelming and uncontroverted 

evidence that the “matter” within law enforcement’s jurisdiction when they questioned 

Legins “related” to a Chapter 109A offense. Chapter 109A is entitled “Sexual Abuse,” and 

includes 18 U.S.C. § 2243, Sexual Abuse of a Minor or Ward, one of the crimes for which 

Legins was later charged. That section prohibits any sexual act with a person who is in 

official detention under the defendant’s custodial authority. 18 U.S.C. § 2243(b). Early in 

the June 5 interview, the investigators told Legins the following: “Mr. Legins, we are here 

today to interview you as a subject to answer questions in an official joint OIG-FBI 

investigation regarding sexual abuse of an inmate at FCI Petersburg.” Digitally Recorded 

Sworn Statement of Chikosi Legins 3–4, United States v. Legins, No. 3:19-cr-00104-DJN1 (E.D. Va. July 6, 2020), ECF No. 174, Attach. 1. They then reiterated that the 

investigation “pertains to sexual abuse.” Id. There is no dispute that the investigators made 

these statements or that they are true.20 So the statutory sentencing enhancement is 

supported by overwhelming evidence. 

It is also uncontroverted: During his argument in the district court as to why the 

sentence enhancement should not apply, Legins conceded that “it would be disingenuous 

of defense counsel to argue that the false statements which are before the court do not relate 

to offenses under Chapter 109(A)” because the alleged false statements “were in 

20 The transcript of the interview was not admitted into evidence, though it was used 

as an aid for the jury as they listened to the audio recording of the interview, which was 

admitted by stipulation of the parties.
28

connection with Counts One through Four, three of which are in Chapter 109(A).” Def.’s 

Position on Statutory Maximum at 2, United States v. Legins, No. 3:19-cr-00104-DJN-1 

(E.D. Va. Mar. 12, 2020), ECF No. 144. Because the elements of an 8-year aggravated 

§ 1001 offense are supported by overwhelming and uncontroverted evidence, we conclude 

that the district court’s Apprendi error is harmless beyond a reasonable doubt.

We acknowledge that there is something deeply unsatisfying about this result. As 

Justice Scalia observed in his partial dissent in Neder, it is bizarre that a deprivation of the 

jury right, which reflects a distrust of judges to adjudicate criminal guilt, can be set aside 

as harmless when we judges find the result sufficiently clear. 527 U.S. at 32 (Scalia, J., 

dissenting in part). It creates an inescapable irony, “in which the remedy for a 

constitutional violation by a trial judge (making the determination of criminal guilt 

reserved to the jury) is a repetition of the same constitutional violation by the appellate 

court (making the determination of guilt reserved to the jury).” Id. And, as Justice 

Ginsburg noted in her Recuenco dissent, it is particularly unsettling in this context, when

the defendant, “charged with one crime . . . was convicted of another . . . sans charge, jury 

instruction, or jury verdict.” 548 U.S. at 229 (Ginsburg, J., dissenting). 

Such a practice “diminishes the jury’s historic capacity ‘to prevent the punishment 

from getting too far out of line with the crime.’” Id. (quoting United States v. Mayberry, 

274 F.2d 899, 902 (2d Cir. 1960) (Friendly, J.)). But these arguments did not prevail and 

are not the law. Instead, we are bound by the majority opinions that rejected them, opinions 

holding that (1) omission of an element is harmless if evidence of the element is 
29

overwhelming and uncontroverted and (2) that the rule applies to all elements, including 

sentencing factors. And that resolves this case.

We also take some solace in the fact that this rule, properly applied, is a narrow one. 

It demands the government prove, beyond a reasonable doubt, that the jury would have 

convicted—also beyond a reasonable doubt—had the aggravating factor been submitted to 

them. This requires considering both record evidence and possible exculpatory evidence 

the defendant might have submitted if the crime had been properly charged. And if there 

is any reasonable possibility that a juror might have chosen not to convict, then the error 

was not harmless. Here, the aggravating factor is conclusively shown by evidence of 

unquestioned authenticity, and Legins has conceded—even after learning of the Apprendi 

issue—that it was, as a factual matter, satisfied. So the evidence is truly “overwhelming” 

and “uncontroverted,” and Legins’s Apprendi challenge is purely formalistic and 

procedural. We reaffirm that an Apprendi error is harmless under these narrow 

circumstances.21

21 Though not entirely clear, Legins also seems to suggest that the government’s 

statement during arraignment that he was only subject to a 5-year maximum on the falsestatement count constitutes a separate reversible error. See Op. Br. of Appellant 20. And

Rule 11(b)(1)(H) requires that a defendant be informed of the maximum possible sentence 

before entering a guilty or nolo contedere plea, but Legins did not enter such a plea. And 

even if that rule applied here, the error would be harmless because Legins’s sentence is less 

than the 5-year maximum he was notified of during arraignment. See Bell v. United States, 

521 F.2d 713, 715 (4th Cir. 1975).
30

C. The Sentence Imposed was Reasonable

Legins also challenges his sentence as unreasonable. We review the reasonableness 

of the district court’s sentence under “a deferential abuse-of-discretion standard,” even if

the sentence is within the guidelines range. Gall v. United States, 552 U.S. 38, 41 (2007). 

First, Legins argues that the district court erred in “departing” upwards from the 

guidelines sentence. But the district court did not grant an upward departure, it granted an 

upward variance. “Departures are enhancements of, or subtractions from, a guidelines 

calculation ‘based on a specific Guidelines departure provision.’ . . . Variances, in contrast, 

are discretionary changes to a guidelines sentencing range based on a judge's review of all 

the § 3553(a) factors . . . .” United States v. Brown, 578 F.3d 221, 225–26 (3d Cir. 2009). 

Because the district court granted a variance and not a departure, Legins’s arguments that 

U.S.S.G. §§ 2J1.2 and 5K2.7 did not justify a departure are irrelevant. 

Next, Legins argues that the district court erred in finding that he had committed 

certain sexual acts with B.L. in March and May 2018. The district court found that during 

the March incident, “Defendant at least engaged in consensual sexual contact with B.L., 

including masturbation, that constitutes a violation of 18 U.S.C. § 2244(a)(4).” 

Memorandum Order at 13, United States v. Legins, No. 3:19-cr-00104-DJN-1 (E.D. Va. 

June 30, 2020), ECF No. 171. During the May incident, the court found that “Defendant 

consensually penetrated B.L.’s anus with his penis.” Id. at 17. 

In selecting a sentence, a court may rely on aggravating—or mitigating—facts 

found by only a preponderance of the evidence. United States v. Grubbs, 585 F.3d 793, 

798–99 (4th Cir. 2009). We review those factual findings for clear error. United States v. 
31

Savage, 885 F.3d 212, 225 (4th Cir. 2018). Clear error exists when “after reviewing all the 

evidence, we are ‘left with the definite and firm conviction that a mistake has been 

committed.’” United States v. Steffen, 741 F.3d 411, 415 (4th Cir. 2013) (quoting United 

States v. May, 359 F.3d 683, 688 (4th Cir. 2004)). “When reviewing factual findings for 

clear error, ‘[w]e particularly defer to a district court’s credibility determinations, for it is 

the role of the district court to observe witnesses and weigh their credibility . . . .’” United 

States v. Palmer, 820 F.3d 640, 653 (4th Cir. 2016) (quoting United States v. Abu Ali, 528 

F.3d 210, 232 (4th Cir. 2008)). 

First, there was substantial evidence that some form of sexual contact occurred 

between Legins and B.L. during the March incident. To begin with, B.L.’s testimony that 

he was forced to perform oral sex on Legins may be adequate under a preponderance 

standard even if not corroborated by physical evidence. The district court believed that 

B.L. was a credible witness, a credibility determination to which we owe great deference. 

Furthermore, surveillance footage from that day shows B.L. and Legins entering the 

unmonitored area in which the elevator was located, where they remained for 5 minutes. 

Finally, the sweatshirt that B.L. was shown to be wearing in that footage tested positive for 

Legins’s DNA. The district concluded, based on this evidence, that it was more likely than 

not that some form of sexual contact occurred between B.L. and Legins on March 16, 2018. 

We are not “left with the definite and firm conviction” that this was error.

And, as we have already discussed, there was also substantial evidence that some 

form of sexual encounter—consensual or otherwise—occurred between Legins and B.L.

on May 10, 2018. For the same reasons that the jury possessed sufficient evidence to 
32

conclude beyond a reasonable doubt that such an act occurred, the court did not clearly err 

in finding so by a preponderance of the evidence.

Finally, Legins argues that “[t]he use of acquitted crimes [i.e., the March and May 

sexual incidents] to calculate an initial guideline range deprives a defendant of his Sixth 

Amendment right to a sentence wholly authorized by the jury’s verdict.” Op. Br. of 

Appellant 35. Legins’s argument is incorrect on both the facts and the law. Factually, 

Legins is incorrect that the district court used acquitted conduct to calculate his initial 

guideline range. The district court calculated Legins’s initial guidelines range as 27–33

months, based solely on the § 1001 false-statement conviction. He then varied upward 

based on Legins’s sexual misconduct, using the Sentencing Guidelines as a guide to 

determine how large an upward variance he should grant.22 

Legally, Legins is incorrect that the district court’s consideration of acquitted 

conduct in calculating his sentence abridges his Sixth Amendment rights. The Supreme 

Court has expressly held the opposite, as have we. See United States v. Watts, 519 U.S. 

148, 157 (1997) (“We therefore hold that a jury’s verdict of acquittal does not prevent the 

sentencing court from considering conduct underlying the acquitted charge, so long as that

conduct has been proven by a preponderance of the evidence.”); Grubbs, 585 F.3d at 799

(“[A] sentencing court may consider uncharged and acquitted conduct in determining a 

22 This is an acceptable practice. The Guidelines “reflect the collected wisdom of 

various institutions,” United States v. Goff, 501 F.3d 250, 257 (3d Cir. 2007), and “it is fair 

to assume that the Guidelines, insofar as practicable, reflect a rough approximation of 

sentences that might achieve § 3553(a)’s objectives,” Rita v. United States, 551 U.S. 338, 

350 (2007). Judges, when varying upward based on uncharged or acquitted conduct, may 

look to that gathered wisdom to guide their discretion.
33

sentence . . . .”). As the Supreme Court has discussed, district courts have broad discretion 

to impose sentences fully reflecting the defendant’s “background, character, and conduct.” 

Watts, 519 U.S. at 151 (quoting 18 U.S.C. § 3661). This discretion includes the ability to 

examine the defendant’s pertinent good conduct, as well as his pertinent bad conduct—

which of course includes related criminal activity. Just as a judge may reduce a defendant’s 

sentence upon finding that he has a “history of service to our country” and makes 

“contributions to his religious community,” J.A. 1058, so too may the judge increase the 

defendant’s sentence upon finding that he sexually abused a ward.23

We thus conclude that Legins’s sentence was reasonable.

* * *

The district court erred in applying the statutory enhancement without an 

authorizing jury verdict. Doing so violated Legins’s constitutional rights under Apprendi. 

But that error does not warrant reversal under Recuenco and Neder. As Legins’s remaining 

claims for relief lack merit, the district court’s judgment is

AFFIRMED.

23 Legins also appears to generally challenge the district court’s weighing of the 

§ 3553(a) sentencing factors given the mitigating arguments Legins made. We find no 

error.