Split en banc Third Circuit struggles through how to review and assess Alleyne error

A decade ago, way back in the early Blakely and Booker days, this blog covered lots of cases dealing with lots of Sixth Amendment sentencing problems and circuit court efforts to sort through all the problems. Anyone with a continued fondness for the legal challenges and debates of that era will want to be sure to find the time to read today's work by the full Third Circuit in US v. Lewis, No. 10-2931 (3d Cir. Sept. 16, 2015) (available here). I will provide the highlights via the first paragraph from each of the three opinions.

Here is the start of the plurality opinion in Lewis:

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 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.

Here is the start of the concurring opinion in Lewis:

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.

Here is the start of the dissenting opinion in Lewis:

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 sentencing.  So, upon a review of the uncontroverted evidence presented to the grand and petit juries, I would hold that the error was harmless.