United States v. Jermel Lewis
2015 U.S. App. LEXIS 16450
| 3rd Cir. | 2015Background
- Jermel Lewis was indicted, tried, and convicted for using or carrying a firearm in relation to a Hobbs Act robbery (§ 924(c)(1)(A)(i)), which carries a five-year mandatory minimum; the indictment did not charge brandishing (§ 924(c)(1)(A)(ii)).
- At trial the jury received instructions only on the "use or carry" offense and returned a verdict of guilty on that count; victims testified that robbers threatened and pointed firearms at patrons.
- At sentencing the district court applied the seven-year mandatory minimum for brandishing and imposed an 84-month consecutive term on the § 924(c) count; Lewis objected that he had not been charged or convicted of brandishing.
- After affirmance, the Supreme Court decided Alleyne v. United States (2013), holding that facts that increase a mandatory minimum (e.g., brandishing) are elements that must be found by a jury beyond a reasonable doubt; this required reconsideration of Lewis’s sentence.
- The en banc Third Circuit treated the Alleyne error as a sentencing error and applied harmless-error review; the majority concluded the error was not harmless because the brandishing finding increased Lewis’s sentence by two years and the Government failed to prove the error "made no difference" to the sentence.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether sentencing Lewis for brandishing when indicted/convicted only of using or carrying violated the Sixth Amendment | Lewis: Alleyne requires any fact increasing a mandatory minimum (brandishing) be found by a jury; sentencing on brandishing violated his jury-trial right | Government: Alleyne error occurred but was harmless; courts may look to trial evidence to uphold sentence | Court: Alleyne error occurred; it violated the Sixth Amendment because brandishing is an element that must be jury-found |
| Proper characterization of the error: sentencing error vs. trial error/structural error | Lewis: argued multiple theories (structural, constructive amendment, presumptively prejudicial); treatment as structural would avoid harmless-error analysis | Government: treat as sentencing error and apply harmless-error review considering trial record | Court: characterized the error as a pure sentencing error (not reaching structural-rule claims) |
| Standard of review for the Alleyne error (harmless error scope) | Lewis: urged more defendant-favorable standards (structural or trial-error approaches) | Government: apply harmless-error review and examine trial evidence to show error harmless | Court: applied harmless-error review for sentencing errors and held Government must show error "would have made no difference to the sentence" |
| Whether the Alleyne error was harmless on the record | Lewis: sentence was affected because judge imposed 84 months based on brandishing rather than the lesser mandatory minimum | Government: evidence of brandishing at trial was overwhelming/uncontroverted, so outcome would not differ | Court: Not harmless — Lewis received two extra years; Government failed to meet heavy burden to show the error made no difference; vacated and remanded for resentencing |
Key Cases Cited
- Alleyne v. United States, 570 U.S. 99 (2013) (facts that increase a mandatory minimum are elements that must be found by a jury)
- Apprendi v. New Jersey, 530 U.S. 466 (2000) (any fact increasing the penalty beyond prescribed statutory maximum must be submitted to a jury)
- United States v. Cotton, 535 U.S. 625 (2002) (Apprendi-type error may be subject to plain-error relief when omitted element is supported by overwhelming evidence)
- Washington v. Recuenco, 548 U.S. 212 (2006) (failure to submit a sentencing factor to a jury is not structural error; remanded for further proceedings)
- United States v. Vazquez, 271 F.3d 93 (3d Cir. 2001) (en banc) (Apprendi error may be inextricably linked to trial error where an element was omitted from jury consideration)