PRECEDENTIAL

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

_____________

No. 10

- 2931

_____________

UNITED STATES OF AMERICA

v.

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

- STAR,

a/k/a P

Jermel Lewi s,

Appellant

On appeal from the United States District Court For the Eastern District of Pennsylvania (District Court No. 2

- 08

- cr

- 00161

- 003) District Judge: Honorable J. Curtis Joyner

Argued on May 27, 2014 before Merits Panel
Court Or dered Rehearing En Banc on November 2 5 , 2014 Argued En Banc on February 19, 20152 Before: McKEE, Chief Judge , RENDELL, AMBRO, FUENTES, SMITH, FISHER, CHAGARES, JORDAN, HARDIMAN, GREENAWAY, JR., VANASKIE, SHWARTZ and KRAUSE, Circuit Judges

(Opinion fi led: September 16, 2015 )

Paul J. Hetznecker, Esquire (Argued) 1420 Walnut Street, Suite 911 Philadelphia, PA 19102

Counsel for Appellant Jermel Lewis

Robert A. Zauzmer, Esquire (Argued)
Arlene D. Fisk , Esquire Office of United States Attorney
615 Chestnut Street
S u ite 1250 Philadelphia, PA 19106

Counsel for Appellee United States of
America

Michael P. Addis, Esquire (Argued) J. Wesley Earnhardt, Esquire Cravath, Swaine & Moore 825 Eighth Avenue
Worldwide Plaza New York, NY 10019

Counsel for Amicus Amachi, Inc.3 O P I N I O N

RENDELL, Circuit Judge :

Jermel Lewis was sentenced for a crime with a seven

year mandatory minimum

— brandishing a firearm during and
in relation to a crime of violence

— notwithstanding the fact
that a jury had not convicted him of that crime. Instead, he had been convicted of the crime of using or carrying a firearm during and in relation to a crime of violence, which has a
five

- year mandatory minimum. Lewis was never even
indicted for the crime of br andishing. In Alleyne v. United
States , the Supreme Court held that this scenario, i.e., sentencing a defendant for an aggravated crime when he was indicted and tried only for a lesser crime, violates a defendant’s Sixth Amendment right to a jury trial. 133 S. Ct. 2151, 2163

- 64 (2013). Even though that constitutional issue is settled, we still must address the issue of whether the error that transpired in this case was harmless. We conclude that
the error was not harmless because it contributed to the

s entence Lewis received. Accordingly, we will vacate Lewis’s sentence and remand for resentencing.

I. Background

Lewis and his codefendants Glorious Shavers and Andrew White (collectively, “Defendants”) committed an armed robbery of an unlicensed after

- h ours “speakeasy” in North Philadelphia on November 8, 2005. Shavers and White were charged on March 20, 2008, with robbery in violation4 of the Hobbs Act, 18 U.S.C. § 1951(a), and with using or carrying a firearm during and in relation to a crime of
violen ce, in violation of 18 U.S.C. § 924(c). On July 10, 2008, a superseding indictment charged Lewis with the same offenses and added attempted witness tampering charges under 18 U.S.C. § 1512(b)(1) against all Defendants. On August 20, 2009, a second supers eding indictment added further witness tampering charges and a count of conspiracy to commit robbery against all Defendants. Count three of the second superseding indictment

— the only count at issue
here

— charged that Defendants “knowingly used and carried, and aided and abetted the use and carrying of, a firearm .

. . during and in relation to a crime of violence.” (App. 71.) The indictment did not include a count for brandishing a firearm.

Defendants were tried in the District Court for the
Eastern Dist rict of Pennsylvania beginning on September 9, 2009. The District Court instructed the jury that Lewis was charged with “using and carrying a firearm during the crime of violence”; it did not instruct the jury on a brandishing
offense. 1 (App. 2019.) The jury found all Defendants guilty of using or carrying a firearm and the Hobbs Act violations, but Lewis was acquitted of the witness tampering charges. Lewis was ultimately sentenced to a term of 132 months’ incarceration to be followed by five years of supervised release. The 132 months consisted of 48 months’ incarceration on each of the two Hobbs Act counts, to run concurrently, and 84 months’ incarceration, the mandatory

1 At trial, two victims of the robbery testified that the robbers threatened them with firearms; their testimony was consistent with the statutory definition of “brandishing.”5 minimum term of imprisonment for brandishing a firearm, to run consecutively. L ewis timely objected to being sentenced for brandishing a firearm because the jury found only that he
had used or carried.

Section 924(c)(1)(A) imposes differing mandatory minimum sentences depending upon whether the defendant “uses or carries,” “brandish e[s],” or “discharge[s]” a firearm during and in relation to a crime of violence or drug trafficking crime. These are three “separate, aggravated offense[s].” Alleyne , 133 S. Ct. at 2162. Indeed, they are in separate subparts of § 924(c)(1)(A). Compare 18 U.S.C. § 924(c)(1)(A)(i) (uses or carries), with id. § 924(c)(1)(A)(ii) (brandishes), with id. § 924(c)(1)(A)(iii) (discharges). Because Lewis was charged with and convicted of the “uses or carries” offense, but sentenced for the “brandishes” offense, he was sentenced for a crime for which he was neither charged nor convicted.

Following sentencing, Defendants raised various issues on appeal. Relevant here, we affirmed Lewis’s

sentence. United States v. Shavers

, 693 F.3d 363, 397 (3d Cir. 2012). The Supreme Court granted Defendants’ petition for a writ of certiorari, vacated our judgment, and remanded for further consideration in light of its decision in Alleyne

, which had been decided after our ruling. See Shavers v.
United States

, 133 S. Ct. 2877 (2013).

On remand, the Government continued to oppose Lewis’s Alleyne argument, urging that the error was harmless. On September 9, 2014, a divided panel of this Court affirmed, holding, “in light of the overwhelming and uncontroverted evidence in supp ort of the brandishing element that, had the6 jury been properly instructed on that element, it would have found that element beyond a reasonable doubt,” and “[a]ny resulting error was therefore harmless.” United States v.
Lewis , 766 F.3d 255, 271 (3d Cir. 2014) (internal quotation marks omitted). On November 25, 2014, we vacated the panel opinion and subsequently reconsidered this appeal en
banc.

II. Jurisdiction and Standard of Review

We have jurisdiction pursuant to 28 U.S.C. § 1291. Allegations of constitutional error at sentencing are subject to plenary review. United States v. Barbosa

, 271 F.3d 438, 452 (3d Cir. 2001).

III. Discussion

The parties do not agree on the framework that we should apply to this appeal. Lewis urges that his Alleyne error constitutes one of the following: a structural error, a constructive amendment to the indictment, a presumptively prejudicial error, or a pure sentencing error under harmless

error review. The Government, conceding that there was an Alleyne error, u rges us to apply harmless

- error review, but
would have us examine the trial record in addition to the sentence. Because we will vacate based upon harmless

- error review, which is the standard less favorable to Lewis, we need not address Lewis’s other argum ents. We need address only whether the error was a sentencing error or a trial error and then apply the appropriate standard, which in our case is the standard for sentencing errors. We note, accordingly, that we do not opine as to the applicability of t he alternative7 standards more favorable to Lewis, the choice of which would present particularly thorny issues of law. 2

We begin by considering the Supreme Court’s opinion
in Alleyne , which held that brandishing a firearm was a separate, aggravated offens e from using or carrying a firearm, and that the aggravated offense must be found by a jury beyond a reasonable doubt. We will then discuss the appropriate remedy here, in light of the Government’s argument that the error was harmless.

A. Alleyne

The similarities between Alleyne and Lewis’s case are noteworthy. Both Alleyne and Lewis were charged with using or carrying a firearm. Alleyne

, 133 S. Ct. at 2155. Each jury considered only whether Alleyne or Lewis had used or carried a firearm, not whethe r they had brandished one. Id. at 2156. Both Alleyne and Lewis were convicted of using or

2 Our conc urring colleagues assert that the failure to inform Lewis of the charge of brandishing in the indictment renders
the error structural. We are not so sure. The indictment is not the focus of Lewis’s argument; he seeks resentencing, not a
new indictment an d retrial based on his having brandished the weapon. The indictment and trial for gun possession did not violate his rights; his sentencing for a crime with a greater mandatory minimum did. Given that no court has held that

an Apprendi or Alleyne error i s structural, we would be taking a bold step if we were to rule that the error here infected the entire trial process. However, we need not decide this issue as the error here was certainly not harmless, and resentencing is, as the concurrence concedes, t he appropriate remedy.8 carrying. Id. Both Alleyne’s and Lewis’s presentence report
recommended a seven

- year sentence on the firearm count, in accordance with the mandatory minimum for b randishing. Id. Both Alleyne and Lewis timely objected and contended that their Sixth Amendment right to a jury trial had been violated because they were convicted of an offense with a five

- year mandatory minimum, but sentenced as if they had been
convic ted of one with a seven

- year mandatory minimum. Id. Both district courts overruled the objection because Harris v.
United States , 536 U.S. 545 (2002), foreclosed the argument. 3 Alleyne , 133 S. Ct. at 2156.

In Alleyne

, the Supreme Court held that if a defendant is convicted of using or carrying a firearm during and in relation to a crime of violence, but is instead sentenced for brandishing a firearm, the defendant’s Sixth Amendment right to be tried by a jury for the crime of brandishing a
firearm has been violated. Id. at 2163

- 64. The Supreme
Court overruled Harris and held that brandishing a firearm is a “separate, aggravated offense that must be found by the jury.” Id. at 2162. The Alleyne Court thus “vacate[d] the Fourth Circuit’s judgment with respect to Alleyne’s sentence on the § 924(c)(1)(A) conviction and remand[ed] the case for resentencing consistent with the jury’s verdict.” Id. at 2164.

The Supreme Court’s reasoning in Alleyne is based on earlier Supreme Court precedent, Apprendi v. New Jersey

,

3 Harris had held that it did not violate the Fifth or Sixth Amendment for a judge to make a judicial finding by a preponderance of the evidence that a defendant had brandished a firearm, thereby increasing the defendant’s
mandator y minimum. 536 U.S. at 567

- 68.9 530 U.S. 466, 490 (2000), in which it determined that a jury must generally find facts that increase the penalty for a crime beyond the mandatory maximum. In Alleyne , the Supreme
Court concluded that the Apprendi rule for mandatory
maximums a lso applies when the mandatory minimum is increased, as is the case for a brandishing charge; indeed, Alleyne is the logical extension of Apprendi

. See Alleyne , 133 S. Ct. at 2163 (“[T]here is no basis in principle or logic to distinguish facts that raise the maximum from those that
increase the minimum

. . . .”). While an Apprendi error occurs when a judge, rather than a jury, finds a fact that increases the mandatory maximum, an Alleyne error occurs when a judge, rather than a jury, finds a fact that in creases the mandatory minimum for a defendant. In both Apprendi and Alleyne , the Supreme Court thus confirmed the fundamental right of a criminal defendant to have the jury, not the judge,
find such facts.

B. Harmless Error

Alleyne thus establishes that when a defendant is sentenced for brandishing but indicted, tried, and convicted of using or carrying, the defendant’s constitutional rights have been violated. The Government urges, however, that this error can be harmless and correctly points out that the issue of
harmless error was neither raised nor discussed in Alleyne

. The Government also notes that the Supreme Court has “adopted the general rule that a constitutional error does not automatically require reversal of a conviction,” as “the Court
has applied harmless

- error analysis to a wide range of errors and has recognized that most constitutional errors can be harmless.” Arizona v. Fulminante , 499 U.S. 279, 306 (1991). Accordingly, we turn now to the issue of harmlessness.10 The rule governing h armless error provides: “Any error, defect, irregularity, or variance that does not affect substantial rights must be disregarded.” Fed. R. Crim. P. 52(a). For harmless

- error review, “the over

- arching consideration of Rule 52 is whether an error ‘affects substantial rights.’” United States v. Adams , 252 F.3d 276, 281 (3d Cir. 2001). Harmless

- error review “applies when the defendant has made a timely objection to an error,” as Lewis
has in this case. 4 Id. “Though the harmless error analysis
leaves room for certain convictions to stand, regardless of the presence of constitutional error at trial, it places a decidedly heavy burden on the Government to demonstrate that reversal is not warranted.” United States v. Waller , 654 F.3d 430, 438 (3d Cir. 2011).

To begin, we note two different types of errors that we routinely review on appeal in a criminal case: trial errors and sentencing errors. See, e.g.

, United States v. Brennan , 326 F.3d 176, 180 (3d Cir. 2003). We must determine into which category Lewi s’s Alleyne error falls.

The error here was a sentencing error, as nothing was wrong with Lewis’s indictment or trial. The indictment charged Lewis with an offense

—using or carrying

— and did not omit any elements of that charge. At trial, the jury

rece ived the proper instructions for the using or carrying offense. The jury properly entered a verdict finding Lewis guilty of that offense, so Lewis was properly convicted of that offense. But, then, the District Court sentenced Lewis for the
offense of br andishing. As in Alleyne , this was the error. See

4 Otherwise, plain

- error review applies. See Fed. R. Crim. P. 52(b).11 United States v. Pizarro , 772 F.3d 284, 294 (1st Cir. 2014) (“In Alleyne itself, the error was of the sentencing variety.”). We are not alone in reaching this conclusion, as the Courts of Appeals for bot h the Fourth and Ninth Circuits have treated particular Apprendi errors as sentencing errors. See, e.g.

, United States v. Mackins , 315 F.3d 399, 409

- 10 (4th Cir. 2003); United States v. Jordan , 291 F.3d 1091, 1095

- 97 (9th Cir. 2002). 5

This is not to say that all Alleyne or Apprendi errors are pure sentencing errors. In United States v. Vazquez , 271 F.3d 93 (3d Cir. 2001) (en banc), we were confronted with both a trial error and a resulting sentencing error. We noted
in Vazquez that, for the particular Apprendi error in that case, “the sentencing error (imposing a sentence beyond the prescribed statutory maximum) is inextricably intertwined with a trial error (failing to submit an element of the offense to the jury).” Id. at 101. The jury in Vazquez wa s never instructed on one of the elements of the offense, i.e., drug quantity, for which the defendant was indicted, tried, and

5 We recognize that the Court of Appeals for the Ninth Circuit has not applied Jordan consistently. Compare Jordan , 291 F.3d at 1097 (“We hold that the g overnment cannot meet its burden under the harmless error standard when drug quantity is neither charged in the indictment nor proved to a jury beyond reasonable doubt, if the sentence received is greater
than the combined maximum sentences for the indeter minate quantity offenses charged.”), with United States v. Salazar

Lopez , 506 F.3d 748, 754

- 55 (9th Cir. 2007) (purporting to apply Jordan but considering whether the evidence was “overwhelming and uncontroverted”).12 convicted

— namely, conspiracy to possess and distribute more than five kilograms of cocaine. See id. at 98 (“Vazquez
was indicte d and tried for conspiracy to possess and distribute more than 5 kilograms of cocaine .

. . . [D]rug quantity was neither submitted to the jury nor reflected in its verdict.”). Thus, Vazquez involved a clear trial error: “failing to submit to the jury an element of an offense” for which the defendant
was indicted and convicted. Id. at 102. Here, in contrast, the jury instructions discussed all the elements of the crime for
which Lewis was indicted and convicted

— i.e., using or carrying. The District Cour t could have sentenced Lewis for using or carrying, as the jury found every element of that crime. But it sentenced him for a different crime. Thus, this case, like Alleyne , involves a pure sentencing error, whereas Vazquez involved a trial error. 6

6 This case is materially distinguishab le from Neder

, Johnson

, and Vazquez . In those three cases, the defendants were charged with the sentenced crime, but the jury was not
instructed to find one of the elements of that crime. See, e.g.

, Neder v. United States , 527 U.S. 1, 14 (1999) (“The tri al court, following existing law, ruled that the question of materiality was for the court, not the jury.”); Johnson v.
United States , 520 U.S. 461, 464 (1997) (“[T]he District Judge instructed the jury that the element of materiality was a question for th e judge to decide, and that he had determined that her statements were material.”); Vazquez , 271 F.3d at 98 (“Vazquez was indicted and tried for conspiracy to possess and distribute more than 5 kilograms of cocaine in violation of 21 U.S.C. §§ 846 and 841. . . . In Vazquez’s case, drug quantity was neither submitted to the jury nor reflected in its verdict.”). To the extent that the concurrence and the dissent rely on those cases in concluding that the error here was a13 Harml ess

- error review for a sentencing error turns on whether the error did or did not “contribute to the [sentence]
obtained.” Sochor v. Florida , 504 U.S. 527, 539 (1992) (alteration in original) (quoting Chapman v. California , 389 U.S. 18, 24 (1967)). In o ther words, harmless

- error review for a sentencing error requires a determination of whether the error “would have made no difference to the sentence.” Parker v. Dugger , 498 U.S. 308, 319 (1991). This analysis contrasts with the analysis appropriate for trial errors, which turns on whether it is “clear beyond a reasonable doubt that a rational jury would have found the defendant guilty absent the
error.” Neder v. United States , 527 U.S. 1, 18 (1999). Because we are confronted here with a sentencing erro r, we do not conduct the analysis reserved for trial errors.

There is a further reason that compels our rejection of the Government’s assertion that we should look back to the trial record in assessing harmless error when the mandatory
maximum or minimum is at play. Looking back to the trial record would run directly contrary to the essence of Apprendi
and Alleyne

. The motivating principle behind Apprendi and Alleyne is that judges must not decide facts that change the mandatory maximum or minimum; jurie s must do so. If we affirm because the evidence is overwhelming, then we are performing the very task that Apprendi and Alleyne instruct judges not to perform. See, e.g.

, Alleyne , 133 S. Ct. at 2155 (“Any fact that, by law, increases the penalty for a cr ime . . . must be submitted to the jury and found beyond a reasonable

trial error, those cases do not suppo rt that position. They do not address the situation where, as here, the defendant was
sentenced for a crime for which he was neither indicted nor
tried

.14 doubt.”); id. at 2162 (“When a finding of fact alters the legally prescribed punishment so as to aggravate it, the fact .

. . must be submitted to the jury.”); id. (“Indeed, if a judge

w ere to find a fact that increased the statutory maximum sentence, such a finding would violate the Sixth Amendment

. . . .”); Apprendi , 530 U.S. at 490 (“Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.”). 7

The Government relies heavily on United States v.
Cotton , 535 U.S. 625 (2002), and Washington v. Recuenco

, 548 U.S. 212 (2006), in urging us to conduct t he harmlessness inquiry reserved for trial errors and to examine the nature and quantum of the evidence introduced at trial in order to uphold the sentence. However, these cases are distinguishable and do not advance the Government’s position. In Cotton

, the Supreme Court decided that an Apprendi error does not require reversal under plain

- error review when the evidence
that the defendant committed the offense at issue was overwhelming and uncontroverted. Cotton

, 535 U.S. at 633.

7 We also note the Kafkaesque consequence of the Government’s position, which was made starkly apparen t at oral argument: the Government conceded that “the logical outcome of [its] position” that judges should consider the evidence in the trial record is that, if a defendant were charged and convicted of manslaughter, but the judge were to
find evidence of premeditation to be overwhelming and uncontroverted, a sentence for the aggravated offense of murder would be permissible. (Oral Arg. 51:20, Feb. 19, 2015.)15 Cotton and Lewis’s case bear certain similarities

— in each case, the indictment, the jury instructions, and the conviction all supported a lesser offense, yet the judge at sentencing subjected the defendant to the sentencing range applicable for an aggravated offense. See id. at 627

- 29. It follows that
Cotton , like Lewis’s case, involves a pure sentencing error.
But Cotton involved plain error because the defendant failed to timely object to the error, id. at 634, not harmless error as
is the case here. The crucial considerati on in Cotton was that, because the evidence at trial was overwhelming and uncontroverted, “the error did not seriously affect the fairness, integrity, or public reputation of judicial proceedings.” 8 Id. at 632

- 33. Here, because Lewis’s case
does not invo lve review for plain error, the issue of whether the error seriously affects the fairness, integrity, or public reputation of judicial proceedings is not before us. See
Johnson v. United States , 520 U.S. 461, 466

- 67 (1997) (noting that this is a question for plain

- error review); see also
Jordan , 291 F.3d at 1096 n.7 (holding that Cotton “does not control nor aid our analysis” because “that case was analyzed under plain error, not harmless error”); Mackins , 315 F.3d at 409 (distinguishing Cotton because the integrity of judicial proceedings step of plain

- error review “has no application when a defendant has objected in the trial court and so preserved his contention for appellate review”). 9

8 Crucially, the Cotton Court did not address whether the presence of overwhelming and uncontro verted evidence at trial was a consideration for the “substantial rights” stage of the plain

- error inquiry. 535 U.S. at 632.

9 We do not find the Court for Appeals for the Second Circuit’s opinion in United States v. Confredo persuasive16 Accordingly, Cotton does not dictate the analysis or result
here.

R ecuenco is also off

- point. In Recuenco , a jury found that the defendant had committed an assault with a “deadly weapon.” Recuenco , 548 U.S. at 215. The judge sentenced the defendant pursuant to an enhancement for using a “firearm,” which is a type of “d eadly weapon.” Id. However, the problem was that the jury did not specifically find that the defendant committed an assault with a “firearm,” just that he had committed an assault with a “deadly weapon.” Id. The Supreme Court held that the “[f]ailure t o submit a sentencing factor to the jury, like failure to submit an element to the jury, is not structural error.” Id. at 222. Importantly, at no point did the Supreme Court explain what harmless

- error review should consist of. Instead, it merely “reman d[ed] the case for further proceedings not inconsistent with [its] opinion.” Id. Thus, Recuenco provides no support for the Government’s
assertion that we should consider the evidence in the trial
record here. 10

because it fails to recognize this distinction. See 528 F.3d 143, 156 (2d Cir. 2008) (“The Supreme Court has ruled [in
Cotton ] that an Apprendi violation concerning an omission from an indictment is not noticeable as plain error where the evidence is overwhelming that the grand jury would have found the fact at issue. We think the same analysis should apply to harmless error.” (citation omitted)).

10 Both the concurrence and the dissent struggle unnecessarily and incorrectly with the test for harmlessness. The dissent’s
i nquiry into the evidence is wrongheaded, as the error occurred at sentencing, and thus, the Government must prove
that the sentence would have been no different had the error
not occurred. Cotton ’s concern with the integrity of judicial17 Here, we are presented with a pure sentenc ing error
and thus must ask whether the Alleyne error in this case contributed to Lewis’s sentence. As we explained supra , this inquiry takes the form of asking whether Lewis’s sentence would have been different had he been sentenced for using or carrying , rather than brandishing. See Parker , 498 U.S. at 319 (explaining the inquiry as whether the error “would have made no difference to the sentence”). Obviously, Lewis’s
sentence would have been different: Lewis received 84 months for brandishing

— the seve n

- year mandatory
minimum

— whereas the mandatory minimum for using or carrying is two years less. Therefore, Lewis has been sentenced to an extra two years as a result of this Alleyne error. The Government bears the “decidedly heavy burden”
as to harmlessn ess, see Waller , 654 F.3d at 438, and it does not and cannot contend that it “would have made no
difference to the sentence” if Lewis had been sentenced for using or carrying, instead of for brandishing. 11

proceedings and it s resulting consideration of the evidence has no place here: the integrity of judicial proceedings is the last prong of the plain

- error test, and it is absent from the
harmless

- error test. The concurrence proceeds from the vantage point of the purportedly defective indictment. This, too, is flawed. Nothing was wrong with Lewis’s indictment: the error was in sentencing Lewis using the mandatory minimum applicable to a crime more serious than the crime
of conviction.

11 There may be a case where the sente ncing court makes it clear that it is not sentencing the defendant based on the mandatory minimum. In such a case, we could conclude that
the Alleyne error did not impact the sentence. See United States v. Langford , 516 F.3d 205, 215 (3d Cir. 2008) (“For18 IV. Conclusion

For the foregoing reasons, we wil l vacate the District Court’s sentence and remand for resentencing.

the error to be harmless, it must be clear that the error did not affect the district court’s selection of the sentence imposed.”). If the Government meets its heavy burden to show that the
error would have made no difference to the sentence

— i.e.,
had th e defendant been sentenced for the crime for which he was convicted, his sentence would have been the same

— then we may affirm under harmless

- error review. However, we would remand for resentencing unless we are certain that the
error made no difference to the sentence.1 United States v. Lewis

, No. 10-2931

SMITH, Circuit Judge , concurring, joined by McKEE, Chief Judge , AMBRO and JORDAN, Circuit Judges

.
Jermel Lewis was charged with and convicted of using or carrying a firearm, but was eventually sent enced on the basis of a different, aggravated crime. Conviction of the aggravated crime would have required proof of an element unnecessary to a using or carry ing offense: that Lewis had
brandished a firearm. Lewis’s indictment did not charge him with brandishing, nor did the jury find that he had committed that crime beyond a reasonabl e doubt. Yet Lewis was subjected to the enhanced mandatory minimum sentence required for brandishing. I agre e with the majority that this error demands resentencing; the new sentence should be based solely on the crime w ith which Lewis was actually charged and for which he was co nvicted. But I would hold
that this error was structural and therefore reversible if properly preserved. Structural errors do not require a court to inquire into whether th e error was harmless.

I.

Analysis of the nature of the error here begins with determining whether sentencing a defendant for an uncharged crime is a “pure sentencing error” as the majority describes it,
or instead is an error that is inextricable from the contours of the indictment. Our previ ous en banc decision in United States v. Vazquez , 271 F.3d 93 (3d Cir. 2001), provides the lens through which the error in this case must be viewed.
There we considered a violation of Apprendi v. New Jersey

,2 530 U.S. 466 (2000), in which the defendant was charged and tried for conspiracy to possess and distribute more than five kilograms of cocaine, a quan tity sufficient to warrant an
enhanced sentence. Vazquez , 271 F.3d at 98. But the jury was not asked to find drug quantity. Id. Nevertheless, the
district court sentenced the defendant to 292 months’ incarceration—over four years more than the applicable statutory maximum for a convi ction without quantity—after finding by a preponderance that the defendant had been
“involved with” 1 nearly two kilograms of cocaine. Id. at 98–
99. While the case was on dire ct appeal, the Supreme Court
decided Apprendi

. Id. at 99. Applying Apprendi retroactively, we said the failure to submit drug quantity to the jury yet imposing an enhanc ed sentence for quantity was “not just a sentencing error but also a trial error” because

the sentencing error (imposing a sentence beyond the prescribed statutory maximum) is inextricably intertwine d with a trial error (failing to submit an elem ent of the offense to the jury). On the one hand , the trial error exists only because of the sentencing error. On the other hand, the sentencing error cannot occur
without the trial error.

Id. at 101. Thus, we chose not to view the error in Vazquez as a pure sentencing error because “the realities concerning the
nature of Apprendi violations” required a different result. Id

.

1 The evidence at trial showed that the defendant had given 991 grams of powder cocaine an d 859 grams of crack cocaine to a co-conspirator for storage. Vazquez , 271 F.3d at 97.3 This was also “more consonant” with the approaches
taken in Neder v. United States , 527 U.S. 1 (1999), and
Johnson v. United States , 520 U.S. 461 (1997). Vazquez , 271
F.3d at 102. Both Neder and Johnson involved the trial court’s failure to submit a required element of a defendant’s conviction to the jury. 2 Neder , 527 U.S. at 18–19; Johnson

, 520 U.S. at 470. We reasoned that because the errors in
Neder and Johnson were “trial error[s] result[ing] in a constitutional defect,” the failure to submit an element to the jury resulting in a sentence violating Apprendi must also constitute both trial and sentencing error. Vazquez , 271 F.3d
at 102.

A similar series of events tainted the proceedings here. The indictment charged Lewi s with using and carrying a firearm, and the District Court properly instructed the jury as to that charge. Yet the Distri ct Court applied the enhanced mandatory minimum for brandi shing. The omission of brandishing from the jury instru ctions and the resulting error in sentencing for brandishing stemmed from the
Government’s decision not to charge brandishing in the indictment. Similarly, the indictment was lacking only
because the District Court sent enced Lewis for brandishing. Although prosecutorial discre tion permitted the Government to charge Lewis for a less signi ficant crime than the evidence might support, see United States v. Esposito , 968 F.2d 300, 306 (3d Cir. 1992) (“In our criminal justice system, if the prosecutor has probable cause to believe a crime has been
committed and that the accused committed it, the decision

2 Notably, neither Neder nor Johnson involved indictment
omissions.4 whether or not to prosecute and what charges to file generally rests within the prosecutor’s broad discretion.”), the
Government’s decision not to charge brandishing gained constitutional significance when the District Court sentenced Lewis for the uncharged brandishing offense.

The majority concludes that “[t]he error here was a sentencing error, as nothin g was wrong with Lewis’s
indictment or trial.” But the same could have been said in Vazquez : The instructions to th e jury were sufficient to support a conviction and sent ence for a lesser-included offense that did not require pr oof of drug quantity, and the sentencing court erred by imposing a sentence greater than
that reflected in the instructions . Indeed, we characterized the sequence of events in Vazquez as a combined “trial and sentencing error” despite ther e being nothing incorrect about instructing the jury and securing a co nviction on a lesserincluded offense, as opposed to the aggravated crime charged
in the indictment. See Schmuck v. United States , 489 U.S. 705, 717 (1989) (Rule 31(c) of the Federal Rules of Criminal Procedure “suggests that a lesse r included offense instruction is available in equal measur e to the defense and to the prosecution”); Keeble v. United States , 412 U.S. 205, 208 (1973) (“[T]he defendant is en titled to an instruction on a
lesser included offense if the evidence would permit a jury rationally to find him guilty of the lesser offense and acquit him of the greater.”); see also United States v. Petersen , 622 F.3d 196, 207 (3d Cir. 2010) (affirming conviction for lesserincluded offense under plain-e rror review where jury was instructed only as to aggravated offense). Accordingly, that the indictment here was initially error-free does not control whether we must nevertheless consider the charges Lewis5 faced to assess the implications of his erroneous sentence for brandishing.

Indeed, as in Vazquez

, the realities of the Alleyne error here support the view that the District Court’s error was not limited merely to sentencing . The Government from the outset alleged facts consistent wi th brandishing. The second superseding indictment desc ribed Lewis’s and his codefendants’ overt acts in re lation to the Government’s conspiracy count as follows:

Defendants Glorious Shavers, Andrew White, and Jermel Lewis burst through the front door of the Speakeasy armed with handguns and a shotgun, announced a robbery, forced customers and employees to the floor,
threatened to shoot th em, herded the victims into the basement and again forced them onto the floor, and stole m oney, wallets and cell phones.

This allegation was incorporated by reference into the count charging Lewis under 18 U.S.C. § 924(c) and 18 U.S.C. § 2. But that count charged Lewis only with “knowingly us[ing] and carr[ying], and ai d[ing] and abett[ing] the use and carrying of, a firearm.” The Go vernment’s decision not to charge Lewis with bra ndishing under 18 U.S.C. § 924(c)(1)(A)(ii), despite allegi ng conduct clearly consistent with brandishing in the opera tive count, transformed what would have been a proper se ntence for brandishing into
constitutional error.6 The Government’s prosecu tion of this case may be understandable given that this case was charged, tried, and
sentenced while Harris v. United States , 536 U.S. 545 (2002), was still good law. Until overruled by Alleyne v. United
States , 133 S. Ct. 2151 (2013), Harris approved seeking an
enhanced sentence for brandi shing without submitting that element to the jury given th at only a mandatory minimum
was affected. See Harris , 536 U.S. at 556. Nevertheless, submitting an essential elemen t affecting the applicable mandatory minimum only to the court at sentencing is impermissible after Alleyne

. 3 And because the sentencing error of which Lewis complain s exists only because of the
Government’s decision not to charge brandishing in the indictment, we should consider the proceeding as a whole, from the indictment through sent encing, to determine whether
the error was structural.

II.

The Supreme Court has take n a categorical approach in distinguishing structural erro rs from those errors subject to
review for harmlessness. Most constitutional errors can be harmless, Arizona v. Fulminante , 499 U.S. 279, 306 (1991), but if an error is structural, it is “ per se prejudicial” and “lead[s] to [an] automatic reversal” if properly preserved. 4

3 Similarly, only after Apprendi did it become clear that the
sentence in Vazquez was erroneous.

4 If the error was not properly preserved, under plain-error review we may affirm a judgment even if there is a structural error that affects substantial rights. See United States v.
Cotton , 535 U.S. 625, 632 (2002) (declining to resolve7 Vazquez , 271 F.3d at 103. Several factors inform whether an error is structural. Structural errors “necessarily render a criminal trial fundamentally unf air or an unreliable vehicle for determining guilt or innocence.” Puckett , 556 U.S. at 141 (quoting Neder , 527 U.S. at 9). They also “‘defy analysis by
harmless-error standards’ be cause they ‘affec[t] the framework within which the trial proceeds,’ and are not ‘simply an error in the trial process itself.’” United States v. Gonzalez-Lopez , 548 U.S. 140, 148–49 (2006) (alteration in original) (internal quotation marks omitted) (quoting
Fulminante , 499 U.S. at 309–10). Thus, an error “with consequences that are necessarily unquantifiable and indeterminate, unques tionably qualifies as ‘structural error.’”
Id. at 150 (quoting Sullivan v. Louisiana , 508 U.S. 275, 282 (1993)). Errors can also be st ructural if harmlessness is irrelevant to the right violated, as in the case of denials of the right to self-representation. Id. at 149 n.4 (citing McKaskle v. Wiggins , 465 U.S. 168, 177 n.8 (1984)).

Few errors are more significa nt to the proceedings that
follow than an indictment that fails to inform a defendant of

whether omission of drug qu antity from indictment was structural but affirming convict ion on plain-error review);
Johnson v. United States , 520 U.S. 461, 468–69 (1997) (declining to resolve whether omission of element from jury
instructions was structural bu t affirming conviction on plainerror review). However, the Supreme Court has not yet
resolved whether a structural error automatically affects the defendant’s substantial rights for the purposes of that review.
Puckett v. United States , 556 U.S. 129, 140 (2009); see also
United States v. Olano , 507 U.S. 725, 735 (1993).8 the charges against him and the po ssible punishment he faces. The Fifth Amendment provides that “[n]o person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictme nt of a Grand Jury.” U.S.
Const. amend. V. Accord ingly, a defendant has the “substantial right to be tried only on charges presented in an indictment returned by a grand jury.” Stirone v. United
States , 361 U.S. 212 (1960). This gu arantee is “a basic right
of criminal defendants.” United States v. Syme , 276 F.3d 131, 154 (3d Cir. 2002). Thus, “a c ourt cannot permit a defendant to be tried on charges that are not made in the indictment against him.” United States v. Vosburgh , 602 F.3d 512, 531 (3d Cir. 2010); see also Dunn v. United States , 442 U.S. 100, 106 (1979) (“To uphold a conviction on a charge that was neither alleged in an indictment nor presented to a jury at trial offends most basic notions of due process.”).

The Sixth Amendment also provides that “[i]n all criminal prosecutions, the accuse d shall enjoy the right . . . to
be informed of the nature and cause of the accusation.” U.S. Const. amend. VI. This right is violated when an indictment
“does not state the essential elements of the crime.” United
States v. Pirro , 212 F.3d 86, 92 (2d Cir. 2000) (citing Russell
v. United States , 369 U.S. 749, 761 (1962)). “A person’s right to reasonable notice of a charge against him, and an opportunity to be heard in his defense—a right to his day in court—are basic in our system of jurisprudence.” In re
Oliver , 333 U.S. 257, 273 (1948). Prosecuting a defendant for an aggravated crime when the indictment charges only a
lesser crime thus violates both the Fifth and Sixth
Amendments. See Apprendi , 530 U.S. at 476 (“[U]nder the
Due Process Clause of the Fi fth Amendment and the notice9 and jury trial guarantees of the Sixth Amendment, 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.” (quoting Jones v. United States , 526 U.S. 227, 243 n.6 (1999))); see also Alleyne , 133 S. Ct. at 2157 (facts that aggravate “the prescribed range of sentences to which a defendant is exposed” are “eleme nts and must be submitted to the jury and found bey ond a reasonable doubt”).

Sentencing a defendant for a crime that was not charged in the indictment renders the criminal proceedings fundamentally unfair. An indict ment that charges a different
crime than the one for which a defendant is sentenced does not merely affect the criminal proceeding, it fundamentally alters that proceeding. Put another way, the charging
instrument is “the framework within which the trial proceeds,” Gonzalez-Lopez , 548 U.S. at 148 (quoting
Fulminante , 499 U.S. at 148), and forms the basis for the Government’s proof, the accused’s defense, and the trial court’s rulings. Indeed, whether a defendant decides to plead guilty or instead exercises his right to trial by jury may depend on the charges he faces and his potential punishment. Thus, failing to notify a defendant of the crime of which he is accused “infect[s] the entire trial process,” Neder , 527 U.S. at 8 (quoting Brecht v. Abrahamson , 507 U.S. 619, 630 (1993)), and undermines any confidence that the sentence imposed reflects a just outcome.

Further, inquiry into whethe r an error of this nature was harmless is inherently unreliable. See Gonzalez-Lopez

, 548 U.S. at 149 n.4 (holding e rror was structural because of10 “the difficulty of assessing the effect of the error”). Would Lewis have pled guilty if he had known of th e applicable mandatory minimum for brandishing, in hopes that his acceptance of responsibility w ould result in leniency at sentencing on the Hobbs Act coun ts? Or perhaps he would have chosen to cooperate with law enforcement against his co-conspirators to gain the Government’s support for a sentence below the mandatory minimum, pursuant to U.S.S.G. § 5K1.1 and 18 U.S.C. § 3553(e). Would he have
been successful in these efforts to reduce his sentence if he had undertaken them? Assuming Lewis still chose to go to trial, how would his defense ha ve changed? Would he have sought to develop evidence rebu tting a charge of brandishing?
What would that evidence ha ve been? What if Lewis’s
counsel chose not to attack the Government’s proof that Lewis used or carried a firearm, but would have put on a case against weak proof of brandishing? How might the
Government’s or Lewis’s counsel ’s presentations of the case changed? Would witnesses have changed their testimony in response to questions probing brandishing? Would these differences have impacted the ju ry? All parties to a criminal proceeding, including the judge , the jury, the defendant, defense counsel, witnesses, and prosecutors, are guided by the charges in the indictment. And if that indictment charges a
crime different than the one for which a defendant is sentenced, determining “what might have been” is an exercise in rank speculation.

In my view, the Supreme Court’s rationale in United States v. Gonzalez-Lopez dictates the outcome here. There, the Supreme Court held that th e violation of a defendant’s Sixth Amendment right to counsel of choice was structural11 error. Gonzalez-Lopez

, 548 U.S. at 150. In doing so, the Supreme Court observed that a different attorney might have pursued “different strategies with regard to investigation and discovery, development of the theo ry of defense, selection of the jury, presentation of the w itnesses, and style of witness examination and jury argument.” Id. at 150. Further, the choice of attorney “affects[s] whether and on what terms the defendant cooperates with the prosecution, plea bargains, or decides instead to go to trial.” Id. Thus, “[i]t is impossible to
know what different choices th e rejected counsel would have made, and then to quantify the impact of those different
choices on the outcome of the proceedings.” Id. So too when an indictment charges a lesser crime than the one for which a
defendant is eventua lly sentenced. Assessing the effects of
the flawed indictment here is “a speculative inqu iry into what might have occurred in an altern ate universe” and is a far cry from the “quantitative[] assess[men t] in the context of other evidence presented” that defi nes harmless-error analysis. Id. at 148, 150 (quoting Fulminante , 499 U.S. at 307–08).

In an effort to demonstrat e that the error here was not harmless, the majority also distinguishes the Supreme Court precedent on which the Govern ment relies, including United
States v. Cotton , 535 U.S. 625 (2002), and Washington v.
Recuenco , 548 U.S. 212 (2 006). As the majority correctly
notes, Cotton involved plain error and did not address whether the type of error here was structural. See 535 U.S. at 632–33 (declining to resolve “whether respondents satisfy [the substantial rights] elemen t of the plain-error inquiry”). 5

5 The majority also suggests that “ Cotton , like Lewis’s case, involves a pure sentencing error.” But Cotton did not opine12 Further, apart from the majority’s analysis, Recuenco is not applicable because the Supreme Court expressly declined to
consider whether an error under Blakely v. Washington , 542 U.S. 212 (2004), 6 in the charging inst rument was structural

error. See Recuenco , 548 U.S. at 220 n.3 (noting that defendant sought to “characteriz[e] this as a case of charging error, rather than of judicial factfinding” but rejecting that distinction “[b]ecause the Su preme Court of Washington
treated the error as one of the latter type”); id. at 223 (Stevens, J., dissenting) (“[B]ecause the Court does not address the strongest argument in respondent’s favor— namely, that Blakely errors are structural because they deprive criminal defendants of sufficient notice regarding the charges they must defend against, th is decision will have a limited impact on other cases.” (cita tion omitted)). Indeed, after
Recuenco , the Supreme Court grante d certiorari on the very question presented in this case , but resolved that case on alternative grounds. United States v. Resendiz-Ponce , 549 U.S. 102, 103–04 (2007) (grant ing certiorari “to answer the question whether the omission of an element of a criminal

on whether it is a pure sentenci ng error or instead something
more when a defendant is sent enced for an aggravated crime but the indictment, jury instructions, and conviction support only a lesser offense.

6 Blakely , applying Apprendi , “clarif[ied] ‘tha t the “statutory
maximum” for Apprendi purposes is the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant.’” Lloyd v.
United States , 407 F.3d 608, 612 (3d Cir. 2005) (emphasis omitted) (quoting Blakely , 542 U.S. at 303).13 offense from a federal indictment can constitute harmless error” but reversing “withou t reaching the harmless-error issue”). Accordingly, Cotton and Recuenco hold little persuasive value as to whether the Alleyne error here was
structural. 7

The majority suggests that its opinion does not foreclose a holding that the om ission of an element from an
indictment in violation of Alleyne is structural. Instead, the majority emphasizes that left ope n is whether “the alternative standards more favorable to Lewis,” including whether the error is structural, might apply in a case like this. But by limiting its harmless-error analysis to the record at Lewis’s sentencing, I believe the ma jority implicitly rejects a
conclusion that the error here could be structural. It is difficult to conceive of a pure sentencing error as “affect[ing]
the framework within which the trial proceeds,” rendering a trial “fundamentally unfair,” or meeting any of the other recognized criteria for structural error. Gonzalez-Lopez , 548 U.S. at 148–49 & n.4 (quoting Fulminante , 499 U.S. at 309– 10). Indeed, the majority undercuts its expressed restraint by

7 Some of our sister circ uits, relying on cases like Recuenco
and Cotton , have decided this issue differently. See, e.g.

, United States v. Harakaly , 734 F.3d 88, 94–95 (1st Cir. 2013); United States v. Confredo , 528 F.3d 143, 156 (2d Cir. 2008); United States v. Salazar-Lopez , 506 F.3d 748, 753–54 (9th Cir. 2007); United States v. Baptiste , 309 F.3d 274, 277– 78 (5th Cir. 2002). For the reasons stat ed above and by the majority, neither Recuenco nor Cotton support a holding that
the error here was not structural . Further, none of these cases
cited Gonzalez-Lopez or considered its rationale.14 acknowledging that even if the same Alleyne error is made in a future case—i.e., where ne ither the indictment, jury instructions, nor conviction reflect the crime for which a
defendant is sentenced—we may nevertheless affirm the sentence imposed “where the sentencing court makes it clear that it is not sentencing the de fendant based on the mandatory minimum.” In my view, doing so would ratify a fundamentally unsound principle: that a defendant may be
sentenced based on a crime for which he was never indicted nor convicted, and the evidence of which he was never afforded the opportunity to rebut.

Finally, the harmless-error an alysis that the majority suggests is applicable here is inherently flawed. As envisioned by the majority, in or der to be harmless, the record must demonstrate clearly that the sentencing court would have imposed the same sentence absent the error. United States v. Langford , 516 F.3d 205, 215 (3d Cir. 2008). Put another way, errors of the ki nd made here would require a showing that the District Cour t would have imposed the same sentence even if the defendant were charged and convicted of
a lesser crime than the one for which punishment was imposed. Query whether a sentencing court’s reasoning that it would impose the same sentence regardless of the crime charged violates 18 U.S.C. § 3553(a)(1)’s mandate that the sentencing court consider “the nature and circumstances of the offense” when choosing an appropriate sentence. See
United States v. Merced , 603 F.3d 203, 21 5 (3d Cir. 2010) (for a sentence to be procedura lly reasonable, the district court’s analysis must demonstr ate “meaningful consideration of the relevant sentencing factor s”). So although the majority
indicates that harmless-error revi ew is applicable, in practice15 the kind of error here would rarely, if ever, warrant our approval even under a harmless-error analysis.

III.

For these reasons, I would hold that a sentencing court’s imposition of a sentence fo r an aggravated crime that was not charged in a defendant’s indictment constitutes structural error. On that basis, I would vacate the District Court’s judgment and remand fo r resentencing based on the crime of which Lewis was actually convicted.1 UNITED STATES OF AMERICA v. JERMEL LEWIS, a/k/a STAR, a/k/a PR-STAR, a/k/a P, Jermel Lewis, Appellant.
No. 10-2931

FISHER, Circuit Judge , dissenting, with whom CHAGARES and HARDIMAN, Circuit Judges, join.

The plurality finds that Jermel Lewis’s substantial rights were affected when he was sentenced to a seven-year mandatory minimum sentence for brandishing a weapon during a crime of violence, despite undisputed and overwhelming testimony that he pointed a gun at many people during a robbery. Though what occurred below was error, in my view, for the reas ons explained in Judge Smith’s concurring opinion, the error oc curred both at trial and at2 sentencing. 1 So, upon a review of the uncontroverted evidence presented to the grand and petit juries, I would hold
that the error was harmless.

1 The plurality bases its ultimate decision on the rationale introduced by an amic us curiae. This result causes
me concern because it allows defendants to take the tack most expedient at any point in their appeal, regardless of what was argued earlier. Our jurisprudence di ctates that we should be
hesitant to consider amici’s ar guments that were not squarely raised by a party below, abse nt extraordinary circumstances involving a pure question of law, which are not present here. N.J. Retail Merchs. Ass’n v. Sidamon-Eristoff , 669 F.3d 374, 382-83 n.2 (3d Cir. 2012) (“‘Although an amicus brief can be helpful in elaborating issues pr operly presented by the parties, it is normally not a method for injecting new issues into an appeal, at least in cases wher e the parties are competently represented by the parties.’”); Webb v. City of Phila. , 562 F.3d 256, 263-64 (3d Cir. 2009) (“We are not presented with a pure question of law here, nor are we faced with exceptional
circumstances. We do not reach the merits of Webb’s constitutional claims.”). Moreove r, an argument can be made that Lewis explicitly waived his ability to counter the Government’s argument that any error was harmless. Far from neglecting to raise the issue, Lewis forcefully disavowed this argument, for instance, by beginning his argument to a three-judge panel of this Cour t by emphasizing “I’m arguing that harmless error doesn’t apply.” See also Lewis Br. at 15 (noting on the first page of th e argument section, that “the
doctrine of ‘harmless error’ ha s no application”). However,
since the Government rais ed harmless error post- Alleyne

, arguably the question of harm less error at sentencing was before us, so I will not couc h my opposition on waiver.3 I agree with the plurality that this error is not structural
and therefore is reviewed for harmless error or plain error
under Rule 52 of the Federal Rules of Criminal Procedure.
Because the Government has conc eded that Lewi s objected at sentencing to his seven-year mandatory minimum sentence,
we review for harmlessness. 2 Because in my view Lewis
would have received the same sentence had there been no error—that is, had the grand jury been asked to charge brandishing and had that charge been presented to the jury—
the error under Alleyne v. United States , 133 S. Ct. 2151

2 I note that our review for harmless error is precipitated by a major conc ession by the Government—a concession that appears to ha ve little basis in what actually occurred in the District Court. Lewis, in his first brief, adopted his co-defendant’s stat ement that “[d]efense counsel did not object to a consecutiv e sentence of seven years’ imprisonment for brandishing a firearm.” Brief for Appellant Glorious Shavers at *5, United States v. Shavers , 693 F.3d 363 (3d Cir. 2012) (No. 10 -2790), 2011 WL 2179274; see Brief for Appellant Jermel Lewis at *xi, Lewis , 693 F.3d 363 (No. 10-2931), 2011 WL 23222 06 (“Appellant rests upon the arguments presented by co-defen dant, Glorious Shavers’ brief on this issue . . . .”). Years later, in a supplemental letter brief, the Government conceded that Lewis objected to the brandishing element at sentencing . It noted then that it gave
Lewis the considerable benefit of the doubt in doing so. More than giving Lewis the benefit of the doubt, the Government rewrote history. Read in context, Lewis’s comment at sentencing had nothing to do with objecting to the seven-year mandatory minimum. Absent that concession, we would apply plain error review to this case, and the outcome there
would be obvious—Lew is would lose.4 (2013), is harmless and we should affirm the District Court’s

sentence. Alleyne held that “any fact that increases the mandatory minimum is an ‘element’ that must be submitted to the jury.” Id . at 2155. It followed in the footsteps of Apprendi v. New Jersey , which held that, “[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” 530 U.S. 466, 490 (2000). Because Alleyne is an extension of Apprendi , we have held that they are to be implemented similarly. See, e.g.

, United States v. Reyes , 755 F.3d 210, 212- 13 (3d Cir. 2014). If an objection to an Alleyne or Apprendi error is made, we review for harmless error.
An error is harmless wh en it does not affect a defendant’s substantial rights. In the context of combined trial and sentencing error, that is th e case when “it appears beyond a reasonable doubt that the error complained of did not
contribute to the verdict obtained.” Neder v. United States

, 527 U.S. 1, 15 (1999) (interna l quotation marks omitted). To determine if it appears beyond a reasonable doubt that the
error in Lewis’s case did no t contribute to the verdict obtained, we first identify the e rror and then evaluate what the impact would be on Lewis had the error not occurred. In identifying the error, th e key point is that when Lewis’s indictment, trial, and sentencing took place, the law binding the District Court was Harris v. United States , 536 U.S. 545 (2002). Harris dictated that “[ b]asing a 2-year
increase in the defendant’s mini mum sentence on a judicial finding of brandishing does not evade the requirements of the
Fifth and Sixth Amendments. . . . That factor need not be alleged in the indictment, su bmitted to the ju ry, or proved beyond a reasonable doubt.” Id . at 568. Thus, in this case, the5 grand jury properly did not allege brandishing in the indictment. The jury was properly not asked to find brandishing. The judge properly found the brandishing enhancement at sentencing by a preponderance of the
evidence. The District Court di d not err at the time. Rather, those errors only sprung into being because Lewis’s case was still on direct appeal when Alleyne was decided, overturning the procedures dictated by Harris

. This understanding of the interplay between Lewis’s case and the changing Suprem e Court precedent helps to pinpoint the errors with regards to Lewis’s indictment and
trial. Alleyne made it improper to have a grand jury indictment omit the brandishing element and made it improper to withhold that el ement from the petit jury. If both of these events had taken place, then the District Court would
have been correct in senten cing Lewis to the enhanced mandatory minimum. Because the error in part occurred at the indictment stage, we first review the evidence and testimony presented to the grand jury to determine whether it would have included the brandishing element in its indictment. If we determine that it would have, we then ask whether, given the evidence and testimony introduced at trial, the petit jury would have conv icted Lewis of the enhanced offense. If so, we ask whether the mandatory minimum sentence imposed on Lewis would have been the same. If the answer to all three questions is “yes,” the errors of which Lewis complains are harmless, for correcting them would not change Lewis’s sentence—that is, would not affect his substantial rights.
This is the essence of the harmless error review and of the substantial rights inquiry in this context: Given the quality and quantum of the ev idence presented at the relevant stage,
would the outcome for the defend ant have been different? At6 base, this is the same inquiry faced by the Supreme Court in
United States v. Cotton , 535 U.S. 625 (2002), albeit there in the plain error context. Plain error review and harmless error review are nearly identical, w ith the exceptions that plain error review (1) requires cons ideration of whether the error seriously affects the fairness, in tegrity, or public reputation of judicial proceedings and (2) shif ts the burden of proof to the
defendant. See United States v. Vazquez , 271 F.3d 93, 99-100 (3d Cir. 2001) (en banc).
In Cotton , a district court at sentencing made a finding of drug quantity neither allege d in the indictment nor found by the jury, consistent with practice at the time. 535 U.S. at 628. This finding was not challe nged in the district court. Id

. While the case was pending appeal, the Supreme Court
decided Apprendi , which made the dist rict court’s quantity finding erroneous. On appeal, the Fourth Circuit reviewed for plain error and found that there was an error that seriously affected the fairness, integrity, or public reputation of judicial proceedings. Id . at 629. The Supreme C ourt reversed, holding that because “[t]he evidence th at the conspiracy involved at least 50 grams of cocaine base was overwhelming and essentially uncontroverted,” id . at 633 (internal quotation marks omitted), the error did not seriously affect the fairness, integrity, or public reputation of judicial proceedings. “Surely the grand jury, having found th at the conspiracy existed,
would have also found that the conspiracy involved at least 50 grams of cocaine base,” id. , as the drug quantity was referred to in other parts of the indictment.
This formulation—that the fairness and integrity of the proceeding were not affected because the outcome would not have been different—is precis ely how we are to examine substantial rights: Whether the outcome would have been different for the defendant. Thus, the Supreme Court has7 drawn a direct line between the “substantial rights” inquiry and the “fairness/integrity/publ ic reputation” inquiry in criminal cases with these types of Apprendi / Alleyne errors. The relevant inquiry in Lewis’s case is therefore indistinguishable from the un derlying questio n the Supreme
Court had to answer in Cotton : Was there sufficient evidence of the missing element such th at the substantive outcome
would have been the same? That equivalence dictates the result here because the evidence that Lewis brandished a firearm was overwhelming and, more than being essentially uncontroverted, was in fact completely uncontroverted. Brian Anderson, a witness at trial who was a patron at the spea keasy on the night of the robbery, identified Lewis as “a heavier light-skinned guy, [who] had another type of handgun—I think it was black—in his hand.” App. at 876. He st ated that this person “stood in the doorway with the gun on everybody,” id. , and positively
identified Lewis at trial. Albe rto Vazquez, another patron at the time of the robbery, identif ied Lewis at trial as “the general, the leader,” who “had a black 9-millimeter or .45
caliber. . . . It was a black au tomatic weapon. He pulled it out of his right side pocket, of th e hood pocket.” App. at 968-69. Vazquez further testified that Lewis’s gun was “pointed at [Vazquez] and pointed at severa l other people.” App. at 970. At one point Lewis “pulled [Vazq uez’s] shirt up, [and] put the gun to [his] stomach.” App. at 971. Vazquez identified Lewis as the defendant who robbed him that night. Lewis presented no evidence to rebut the Government’s showing at trial. The testimony from Anderson and Vazquez clearly demonstrat ed that Lewis went beyond
mere “use” of a firearm and in stead brandished it as per the requirements of 18 U.S.C. § 924(c)(4) (defining “brandishing” as “display[ing] all or part of the firearm, or8 otherwise mak[ing] the presence of the firearm known to another person, in order to intimidate that person, regardless of whether the firearm is directly visible to that person”). This evidence was undisputed. The grand jury certainly would have found the missing element; indeed, the second count of the indictment (one of the Hobbs Act counts) explicitly charged that Lewis and his co-d efendants “point[ed] firearms at the customers and employees, order[ed] them to the floor, and threaten[ed] to shoot them .” App. at 70. And the petit jury heard evidence, described above, that Lewis pointed the gun at people and held it at th eir bodies. Lewis introduced no contrary evidence. Therefore, these errors would not have changed the outcome at trial a nd, according to the logic of
Cotton , they do not affect Lewis’s substantial rights.
Let there be no mistake: This is not a case where Lewis merely declined to introduce contrary testimony. Although at the time the brandish ing element did not need to be found by the jury, Lewis and his counsel certainly knew
that it would be considered as a sentencing enhancement by the judge after a verdict was re turned. Lewis thus had every
incentive to call witnesses who could provide evidence that he had not brandished a gun . He chose not to do so— presumably because there were no such witnesses who could testify on his behalf as to this fact. The fact that he at no point—at trial or at sentencing —introduced cont rary evidence is fatal to his contention that the judge’s brandishing finding affected his substantial rights. Therefore, the District Court’s Alleyne error is harmless and I would affirm Lewis’s

sentence. I dissent.