United States v. Lewis

Citation766 F.3d 255
Decision Date09 September 2014
Docket NumberNo. 10–2931.,10–2931.
CourtUnited States Courts of Appeals. United States Court of Appeals (3rd Circuit)
PartiesUNITED STATES of America v. Jermel LEWIS, a/k/a Star, a/k/a Pr–Star, a/k/a P Jermel Lewis, Appellant.


Paul J. Hetznecker, Esq., Argued, Philadelphia, PA.

Arlene D. Fisk, Esq., Robert A. Zauzmer, Esq., Argued, Office of United States Attorney Philadelphia, PA.

Before: RENDELL, FISHER and CHAGARES, Circuit Judges.


FISHER, Circuit Judge.

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, –––U.S. ––––, 133 S.Ct. 2151, 186 L.Ed.2d 314 (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.


Although this case has a lengthy history, the facts are largely undisputed. Lewis and his co-defendants Glorious Shavers and Andrew White (collectively, defendants) committed an armed robbery of an unlicensed after-hours “speakeasy” in North Philadelphia on November 8, 2005. The defendants committed the robbery by pointing firearms at the customers and employees, ordering them to the floor, and threatening to shoot them. Shavers and White were arrested shortly after the robbery, and Lewis was apprehended at a later time.

Shavers and White were charged on March 20, 2008 with Hobbs Act robbery in violation of 18 U.S.C. § 1951(a), and with using and 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 against all three defendants. On August 20, 2009, a second superseding indictment added additional witness tampering charges and a count of conspiracy to commit Hobbs Act robbery against all three defendants. Count three of the Second Superseding Indictment—the only count at issue here—provided that the defendants “knowingly used and carried, and aided and abetted the use and carrying of, a firearm, that is: (1) a shotgun; (2) a Smith & Wesson, .38 caliber, Special, six-shot revolver, serial number D479345, and four live rounds of ammunition; and (3) a handgun, during and in relation to a crime of violence.” App. at 71.

The defendants were tried in the Eastern District of Pennsylvania beginning on September 9, 2009. The government presented testimony from Brian Anderson, who was a patron at the speakeasy the night of the robbery. He 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. That person “stood in the doorway with the gun on everybody.” Id. Anderson positively identified Lewis at trial.

The government also presented testimony from Alberto Vazquez, another patron at the speakeasy at the time of the robbery. Vazquez 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.

The District Court instructed the jury that Lewis was charged with “using and carrying a firearm during the crime of violence.” App. at 2019–21. The jury found all three defendants guilty of the Hobbs Act violations and the § 924(c) violation, but Lewis was acquitted of all witness tampering charges. Lewis was ultimately sentenced to a term of incarceration of 141 months to be followed by five years of supervised release. The term consisted of 57 months' incarceration on each of two Hobbs Act counts, to run concurrently with one another, and 84 months' incarceration, the mandatory minimum term of imprisonment, on the § 924 count for brandishing a firearm as set forth in 18 U.S.C. § 924(c)(1)(A)(ii),1 to run consecutively.

Following sentencing, defendants appealed to this Court. We vacated Shavers's and White's witness tampering convictions and Shavers's eight-year term of supervised release, but affirmed the remaining convictions and Lewis's sentence. United States v. Shavers, 693 F.3d 363 (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. Shavers v. United States, ––– U.S. ––––, 133 S.Ct. 2877, 186 L.Ed.2d 902 (2013).

The government now concedes that the District Court erred in imposing an enhancement on Shavers and White for obstruction of justice pursuant to U.S.S.G. § 3C1.1, and those cases have been remanded to the District Court for resentencing. The government continues to oppose Lewis's Alleyne argument, however, which is the only issue remaining in this appeal.


The District Court had jurisdiction pursuant to 18 U.S.C. § 3231, and 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). “When the defendant has made a timely objection to an error and [Federal Rule of Criminal Procedure] 52(a) applies, a court of appeals normally engages in a specific analysis of the district court record ... to determine whether the error was prejudicial.” United States v. Olano, 507 U.S. 725, 734, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993).


Our discussion proceeds in three parts. First, we examine the law of structural error as it has been developed and applied to errors under Alleyne and its predecessor, Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). Second, we address Lewis's particular arguments for finding structural error in this case. Third, because we conclude that no structural error occurred, we discuss why the Alleyne error in this case was harmless.

A. Structural error jurisprudence and Apprendi/Alleyne

Two bodies of law govern our structural error analysis. The first includes Apprendi and Alleyne and sets forth the rule that applies to Lewis's situation—that facts increasing a mandatory minimum sentence must be charged in an indictment, presented to a jury, and found beyond a reasonable doubt. The second arises from the Supreme Court's decision in Neder v. United States, 527 U.S. 1, 119 S.Ct. 1827, 144 L.Ed.2d 35 (1999), and considers the extent to which some constitutional errors are “structural” such that they affect the fundamental fairness of criminal proceedings and require automatic reversal.

1. Apprendi and Alleyne

Apprendi arose in the context of New Jersey's hate crime law, N.J. Stat. Ann. § 2C:44–3(e). That law permitted judges to increase a defendant's maximum sentence based upon a factual finding by a preponderance of the evidence that a crime was committed for the purpose of intimidating the victim based upon race. Apprendi, 530 U.S. at 468–69, 120 S.Ct. 2348. Apprendi was sentenced to twelve years' imprisonment after the trial judge increased his statutory maximum term from ten to twenty years pursuant to the hate crime statute. Id. at 470–71, 120 S.Ct. 2348. The Supreme Court determined that such an increase was unconstitutional and 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.” Id. at 490, 120 S.Ct. 2348. In arriving at its conclusion, the Court rejected the distinction between an element of a crime and a sentencing factor that increased the potential maximum sentence. Id. at 478–81, 120 S.Ct. 2348. According to the Court, both types of facts are subject to the same constitutional protections. Id. at 490, 120 S.Ct. 2348.

Thirteen years later, the Supreme Court addressed the corollary issue to that presented in Apprendi; that is, the appropriate standard of proof for facts that increase the statutory mandatory minimumpenalty. The defendant in Alleyne was charged with, among other crimes, using or carrying a firearm in relation to a crime of violence, in violation of § 924(c)(1)(A). 133 S.Ct. at 2155. At trial, the jury convicted Alleyne of using or carrying a firearm, but made no finding regarding whether the firearm was brandished. Id. at 2156. The District Court nevertheless found that Alleyne brandished the firearm by a preponderance of the evidence—as was the practice at that time—thus triggering the seven-year mandatory minimum sentence in § 924(c)(1)(A)(ii). Id.

The Alleyne Court extended the logic from Apprendi to include those facts that increase the statutory minimum. Alleyne, 133 S.Ct. at 2160 (“While Harris [ v. United States, 536 U.S. 545, 122 S.Ct. 2406, 153 L.Ed.2d 524 (2002) ] limited Apprendi to facts increasing the statutory maximum, the principle applied in Apprendi applies with equal force to facts increasing the mandatory minimum.”). Just as the facts at issue in Apprendi created a new penalty by increasing the statutory ceiling, so too did the facts in Alleyne that increased the floor. Id. The Court thus held “that facts that increase mandatory minimum sentences must...

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