PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

_____________

No. 10-2931

_____________

UNITED STATES OF AMERICA

v.

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

a/k/a P

 Jermel Lewis, 

Appellant

On appeal from the United States District Court

For the Eastern District of Pennsylvania

(District Court No. 2-08-cr-00161-003)

District Judge: Honorable J. Curtis Joyner

Argued on May 27, 2014 before Merits Panel

Court Ordered Rehearing En Banc on November 25, 2014 

Argued En Banc on February 19, 2015
2

Before: McKEE, Chief Judge, RENDELL, AMBRO, 

FUENTES, SMITH, FISHER, CHAGARES, JORDAN, 

HARDIMAN, GREENAWAY, JR., VANASKIE, 

SHWARTZ and KRAUSE, Circuit Judges

(Opinion filed: 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

Suite 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 sevenyear 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 brandishing. 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 

sentence 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-hours “speakeasy” in 

North Philadelphia on November 8, 2005. Shavers and White 

were charged on March 20, 2008, with robbery in violation 
4

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 

violence, in violation of 18 U.S.C. § 924(c). On July 10, 

2008, a superseding indictment charged Lewis with the same 

offenses and added attempted witness tampering charges 

under 18 U.S.C. § 1512(b)(1) against all Defendants. On 

August 20, 2009, a second superseding 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 District 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. Lewis 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,” “brandishe[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 support of the brandishing element that, had the 
6

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 harmlesserror review. The Government, conceding that there was an 

Alleyne error, urges 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 arguments. 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 the alternative 
7

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 offense 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 whether they had brandished one. Id. 

at 2156. Both Alleyne and Lewis were convicted of using or 

 

2 Our concurring 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 and 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 is 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, the 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 brandishing. 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 

convicted 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 

mandatory 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 also 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 increases 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 harmless 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 Lewis’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 

received 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 brandishing. 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 both 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 was 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 government 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 indeterminate 

quantity offenses charged.”), with United States v. SalazarLopez, 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 indicted 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 Court 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 distinguishable 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 trial 

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 the 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 a 
13

Harmless-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 other 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 error, 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; juries 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 crime . . . 

must be submitted to the jury and found beyond a reasonable 

 

trial error, those cases do not support 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 

were 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 the 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 apparent 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 consideration 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 involve 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 uncontroverted 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 persuasive 
16

Accordingly, Cotton does not dictate the analysis or result 

here.

Recuenco 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 “deadly 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 to 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 “remand[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 

inquiry 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 judicial 
17

Here, we are presented with a pure sentencing 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 seven-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 harmlessness, 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 its 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 sentencing 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) (“For
18

IV. Conclusion

For the foregoing reasons, we will 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 the 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 sentenced 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 carrying 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 reasonable doubt. Yet Lewis was 

subjected to the enhanced mandatory minimum sentence 

required for brandishing. I agree with the majority that this 

error demands resentencing; the new sentence should be 

based solely on the crime with which Lewis was actually 

charged and for which he was convicted. 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 the 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 previous 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 quantity 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 conviction 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 direct 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 enhanced 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 intertwined with a trial error 

(failing to submit an element 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 and 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 Lewis with using and carrying a 

firearm, and the District Court properly instructed the jury as 

to that charge. Yet the District Court applied the enhanced 

mandatory minimum for brandishing. The omission of 

brandishing from the jury instructions 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 sentenced Lewis for brandishing. 

Although prosecutorial discretion permitted the Government 

to charge Lewis for a less significant 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 nothing was wrong with Lewis’s 

indictment or trial.” But the same could have been said in 

Vazquez: The instructions to the jury were sufficient to 

support a conviction and sentence for a lesser-included 

offense that did not require proof 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 there being nothing incorrect about 

instructing the jury and securing a conviction 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 lesser included offense instruction 

is available in equal measure to the defense and to the 

prosecution”); Keeble v. United States, 412 U.S. 205, 208 

(1973) (“[T]he defendant is entitled 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-error 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 Lewis 
5 

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 with brandishing. The second 

superseding indictment described Lewis’s and his codefendants’ overt acts in relation 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 them, herded the victims 

into the basement and again forced them onto 

the floor, and stole money, 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 aid[ing] and abett[ing] the use and 

carrying of, a firearm.” The Government’s decision not to 

charge Lewis with brandishing under 18 U.S.C. 

§ 924(c)(1)(A)(ii), despite alleging conduct clearly consistent 

with brandishing in the operative count, transformed what 

would have been a proper sentence for brandishing into 

constitutional error. 
6 

 The Government’s prosecution 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 brandishing without submitting that 

element to the jury given that only a mandatory minimum 

was affected. See Harris, 536 U.S. at 556. Nevertheless, 

submitting an essential element affecting the applicable 

mandatory minimum only to the court at sentencing is 

impermissible after Alleyne.

3

 And because the sentencing 

error of which Lewis complains 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 sentencing, to determine whether 

the error was structural. 

II. 

 The Supreme Court has taken a categorical approach 

in distinguishing structural errors 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 resolve 
7 

Vazquez, 271 F.3d at 103. Several factors inform whether an 

error is structural. Structural errors “necessarily render a 

criminal trial fundamentally unfair 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’ because 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, unquestionably qualifies as ‘structural error.’” 

Id. at 150 (quoting Sullivan v. Louisiana, 508 U.S. 275, 282 

(1993)). Errors can also be structural 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 significant to the proceedings that 

follow than an indictment that fails to inform a defendant of 

 

whether omission of drug quantity from indictment was 

structural but affirming conviction 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 but 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 possible 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 indictment of a Grand Jury.” U.S. 

Const. amend. V. Accordingly, 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 guarantee is “a basic right 

of criminal defendants.” United States v. Syme, 276 F.3d 131, 

154 (3d Cir. 2002). Thus, “a court 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 accused 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 Fifth Amendment and the notice 
9 

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 “elements and must be submitted to 

the jury and found beyond a reasonable doubt”). 

 Sentencing a defendant for a crime that was not 

charged in the indictment renders the criminal proceedings 

fundamentally unfair. An indictment 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 whether an error of this nature 

was harmless is inherently unreliable. See Gonzalez-Lopez, 

548 U.S. at 149 n.4 (holding error was structural because of 
10 

“the difficulty of assessing the effect of the error”). Would 

Lewis have pled guilty if he had known of the applicable 

mandatory minimum for brandishing, in hopes that his 

acceptance of responsibility would result in leniency at 

sentencing on the Hobbs Act counts? 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 have changed? Would he have 

sought to develop evidence rebutting a charge of brandishing? 

What would that evidence have 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 jury? 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 the violation of a defendant’s 

Sixth Amendment right to counsel of choice was structural 
11 

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 theory of defense, selection of 

the jury, presentation of the witnesses, 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 the 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 eventually sentenced. Assessing the effects of 

the flawed indictment here is “a speculative inquiry into what 

might have occurred in an alternate universe” and is a far cry 

from the “quantitative[] assess[ment] in the context of other 

evidence presented” that defines harmless-error analysis. Id.

at 148, 150 (quoting Fulminante, 499 U.S. at 307–08). 

 In an effort to demonstrate that the error here was not 

harmless, the majority also distinguishes the Supreme Court 

precedent on which the Government relies, including United 

States v. Cotton, 535 U.S. 625 (2002), and Washington v. 

Recuenco, 548 U.S. 212 (2006). 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] element 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 opine 
12 

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 instrument 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 Supreme 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, this decision will have a limited 

impact on other cases.” (citation omitted)). Indeed, after 

Recuenco, the Supreme Court granted 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) (granting certiorari “to answer the 

question whether the omission of an element of a criminal 

 

on whether it is a pure sentencing error or instead something 

more when a defendant is sentenced for an aggravated crime 

but the indictment, jury instructions, and conviction support 

only a lesser offense. 

6 Blakely, applying Apprendi, “clarif[ied] ‘that the “statutory 

maximum” for Apprendi purposes is the maximum sentence a 

judge may impose solely on the basis of the facts reflected in 

the jury verdict or admitted by the defendant.’” 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 “without 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 omission of an element from an 

indictment in violation of Alleyne is structural. Instead, the 

majority emphasizes that left open 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 majority 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 circuits, 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 stated 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 neither 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 defendant 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 analysis that the majority 

suggests is applicable here is inherently flawed. As 

envisioned by the majority, in order 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 kind made here would require a 

showing that the District Court 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, 215 (3d Cir. 2010) 

(for a sentence to be procedurally reasonable, the district 

court’s analysis must demonstrate “meaningful consideration 

of the relevant sentencing factors”). So although the majority 

indicates that harmless-error review is applicable, in practice 
15 

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 for 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 for 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 reasons explained in Judge Smith’s 

concurring opinion, the error occurred both at trial and at 
2 

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 amicus 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 dictates that we should be 

hesitant to consider amici’s arguments that were not squarely 

raised by a party below, absent 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 properly presented by the parties, 

it is normally not a method for injecting new issues into an 

appeal, at least in cases where 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.”). Moreover, 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 Court by emphasizing “I’m arguing 

that harmless error doesn’t apply.” See also Lewis Br. at 15 

(noting on the first page of the argument section, that “the 

doctrine of ‘harmless error’ has no application”). However, 

since the Government raised harmless error post-Alleyne, 

arguably the question of harmless error at sentencing was 

before us, so I will not couch 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 conceded that Lewis 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 concession by the Government—a 

concession that appears to have little basis in what actually 

occurred in the District Court. Lewis, in his first brief, 

adopted his co-defendant’s statement that “[d]efense counsel 

did not object to a consecutive 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 2322206 (“Appellant rests upon the 

arguments presented by co-defendant, 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—Lewis 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 when it does not affect a 

defendant’s substantial rights. In the context of combined trial 

and sentencing error, that is the 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) (internal quotation marks omitted). To 

determine if it appears beyond a reasonable doubt that the 

error in Lewis’s case did not contribute to the verdict 

obtained, we first identify the error and then evaluate what the 

impact would be on Lewis had the error not occurred. 

 In identifying the error, the 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 minimum 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, submitted to the jury, or proved 

beyond a reasonable doubt.” Id. at 568. Thus, in this case, the 
5 

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 did 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 Supreme 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 element from the petit jury. If both 

of these events had taken place, then the District Court would 

have been correct in sentencing 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 convicted 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 evidence presented at the relevant stage, 

would the outcome for the defendant have been different? At 
6 

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, with the exceptions that plain 

error review (1) requires consideration of whether the error 

seriously affects the fairness, integrity, or public reputation of 

judicial proceedings and (2) shifts 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 alleged in the indictment nor found 

by the jury, consistent with practice at the time. 535 U.S. at 

628. This finding was not challenged in the district court. Id. 

While the case was pending appeal, the Supreme Court 

decided Apprendi, which made the district 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 Court reversed, holding 

that because “[t]he evidence that 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 that 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 precisely how we are to examine 

substantial rights: Whether the outcome would have been 

different for the defendant. Thus, the Supreme Court has 
7 

drawn a direct line between the “substantial rights” inquiry 

and the “fairness/integrity/public reputation” inquiry in 

criminal cases with these types of Apprendi/Alleyne errors. 

The relevant inquiry in Lewis’s case is therefore 

indistinguishable from the underlying question the Supreme 

Court had to answer in Cotton: Was there sufficient evidence 

of the missing element such that 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 speakeasy 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 stated that this person “stood in 

the doorway with the gun on everybody,” id., and positively 

identified Lewis at trial. Alberto Vazquez, another patron at 

the time of the robbery, identified Lewis at trial as “the 

general, the leader,” who “had a black 9-millimeter or .45 

caliber. . . . It was a black automatic weapon. He pulled it out 

of his right side pocket, of the hood pocket.” App. at 968-69. 

Vazquez further testified that Lewis’s gun was “pointed at 

[Vazquez] and pointed at several other people.” App. at 970. 

At one point Lewis “pulled [Vazquez’s] shirt up, [and] put the 

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 demonstrated that Lewis went beyond 

mere “use” of a firearm and instead 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, or 
8 

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-defendants “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 their bodies. Lewis introduced no 

contrary evidence. Therefore, these errors would not have 

changed the outcome at trial and, 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 brandishing 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 returned. 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 contrary 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.