New opinion — divided panel finds Alleyne error harmless

Alleyne, a successor to Apprendi, held that facts increasing a mandatory-minimum sentence must be charged in the indictment and found by the jury beyond a reasonable doubt. That didn’t happen in Jermel Lewis’s case, but today CA3 affirmed his sentence. The panel majority rejected Lewis’s argument that the Alleyne error was structural and held that in this case it was harmless because the jury would have made the same findings the judge did.

The case is US v. Lewis. Opinion by Fisher, joined by Chagares. Dissent by Rendell. Arguing counsel were Paul Hetznecker for the Lewis and Robert Zauzmer for the government.

Rendell’s dissent includes this:

The look back to the trial record that the
majority performs perpetuates the very error deemed to be
reversible in Alleyne: judges substituting their view for the
jury verdict, and thereby imposing a sentence which violates
the Sixth Amendment. In so doing, today’s decision
impermissibly designates both the indictment and petit jury
verdict a “mere preliminary to a judicial inquisition into the
facts of the crime the State actually seeks to punish.” Blakely
v. Washington, 542 U.S. 296, 307 (2004) (emphasis in
The lesson of Alleyne is that juries, not judges, must
find the elements of  a crime that support the sentence
imposed. The majority’s harmlessness exercise completely
upends this principle, finding that judges can determine
statutory elements from the facts in a trial, and uphold a
sentence in direct conflict with the indictment and verdict.
For that reason, even under a harmless error standard, I would
vacate the sentence and remand for resentencing.

My Magic 8 Ball foretells a petition for en banc rehearing.

Update: Douglas Berman posts at Sentencing Law and Policy blog, here, that Judge Rendell’s dissent “suggests there is a lot more to the matter.”