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September 9, 2014

Split Third Circuit panel concludes Allenye error can be harmless

Sixth Amendment fans will want to find the time to check out the Third Circuit's notable opinion today in US v. Lewis, No. 10-2931 (3d Cir. Sept. 9, 2014) (available here).   The start of the majority opinion (per Judge Fisher) in Lewis suggest there is not too much of note in the case: 

This case requires us to determine the applicable standard of review for situations where a district court has imposed a mandatory minimum sentence based upon facts that were never charged in the indictment or found by a jury beyond a reasonable doubt. Such errors occur when a sentence is imposed in violation of the rule recently set forth in Alleyne v. United States, 133 S. Ct. 2151 (2013). Appellant Jermel Lewis challenges his sentence and contends that the failure of the indictment to charge an Alleyne element, combined with Alleyne error in jury instructions and at sentencing, is structural error.  We hold that Alleyne error of the sort alleged here is not structural and is instead subject to harmless or plain error analysis under Federal Rule of Criminal Procedure 52.  We conclude that the District Court’s error in Lewis’s case was harmless and will therefore affirm.

But the end of of the dissenting opinion (per Judge Rendell) in Lewis suggests there is a lot more to the matter:

Over a decade ago in Vazquez, I noted that the logic in that decision would mean that the “government can charge and convict a defendant of manslaughter, but sentence him for murder, and, as long as the government produced evidence at trial that would support that sentence, we would not notice or correct the error under [plain error review] and require resentencing in accordance with the jury’s verdict.”  271 F.3d at 130 (Rendell, J. dissenting).  Today the majority goes beyond even that dire prediction as it upholds a sentence for a crime different from that of conviction, under de novo review.  Under the majority’s reasoning, and contrary to Alleyne, a district court may now sentence a defendant pursuant to an improper mandatory minimum, in violation of the Sixth Amendment, and we would be obligated to uphold the sentence if we, an appellate court, find the evidence at trial to have been sufficient.  In short, today’s decision strikes at the very heart of the jury trial and grand jury protections afforded by the Constitution.

But perhaps I am wrong.  Perhaps we live in a brave new world where judges may determine what crimes a defendant has committed without regard to his indictment or jury verdict, and sentence him accordingly.  Or maybe Alleyne does not really mean what it says, when it proclaims brandishing and carrying offenses to be separate and distinct crimes, and that a defendant is entitled to be sentenced consistent with the jury’s findings.  But I take the Supreme Court at its word.  Until clearly instructed otherwise, I maintain that different crimes are just that, and district court judges cannot sentence a defendant to an uncharged crime simply because the evidence fits, nor can an appellate panel affirm such a sentence because they find that the evidence fits.  I adhere to the principle that both appellate and trial judges are required by the Constitution to respect, and sentence according to, a valid jury verdict, and on this basis I respectfully dissent.

September 9, 2014 at 02:40 PM | Permalink


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How can any sane person respect any person(s) or institution which come to strange and perverse conclusions that have no basis in any possible reality? Oh yeah, we are talking about legal reality! Someone once said, "By their fruits you shall know them. A good tree cannot bear bad fruit and a bad tree cannot bear good fruit."

Federal judges should NOT be for life! Some may be able to handle the position but most will be corrupted. It is inevitable.

Posted by: albeed | Sep 9, 2014 4:25:40 PM

I think it's a straight-forward extension of Neder (as cited). I do think it makes no sense in light of Sullivan v. Louisiana, 508 U.S. 275 (jury instruction misstating beyond a reasonable doubt standard is structural error). The idea is that, in order for there to be harmless error, the jury must actually find guilt beyond a reasonable doubt. Only then can you determine if any evidence they may have accidentally relied on was harmless. I wish this opinion had at least cited that case even if it's distinguishable.

Of course, even if it had been error, it would just be remanded for discretionary sentencing and the Judge could have reimposed the time.

Posted by: Erik M | Sep 10, 2014 11:29:56 AM

when you are talking about someone's life there is no such thing as "harmless error" sorry considering the burden of proof to convict beyond a reasonable doubt is on the state. NO state error is every harmless and should legally result in a immediate dismissal of all charges with prej.

Posted by: rodsmith | Sep 12, 2014 11:53:53 AM

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