US v. Lewis (en banc) – criminal – reversal – Rendell
Today, an en banc majority – or is it a plurality? – held that an Alleyne error at Jermel Lewis’s sentencing was not harmless. Previously, a divided panel had come out the other way (Fisher and Chagares majority, Rendell dissent) — link to my post on the panel opinion is here, link to my recent analysis of the court’s en banc cases here. A concurring opinion would have held that the error was structural so that proof of harm should not be required, while a dissent argued that the error was harmless because the defense at trial and sentencing did not contest the underlying factual issue.
A strange feature of the case is that the judges disagree about whether the lead opinion speaks for a majority or a plurality, but no one clears it up. There are three opinions:
- the lead opinion by Rendell,
- an opinion by Smith “concurring,” which is joined by McKee, Ambro, and (perhaps surprisingly) Jordan, and
- a dissent by Fisher, joined by Chagares and Hardiman.
Fisher’s dissent refers to the lead opinion, prominently and repeatedly, as “the plurality.” But Smith refers to the lead opinion throughout as “the majority.” If the 4 judges who joined Smith opinion also joined the lead opinion, then the lead opinion was a majority (10 of 13). The fact that Smith’s opinion was identified as “concurring,” not “concurring in the judgment,” suggests that’s the case, as does the fact that the Smith opinion calls the lead opinion a majority opinion.
But the dissenters have a point: in substance, it looks to me like the Smith 4 agree with Rendell on the outcome but reject her rationale, and also Smith never expressly says that he is joining the lead opinion. Without the Smith 4, the lead opinion would indeed be only a plurality (6 of 13).
Majority or plurality? I’m not sure. Does it matter? Do en banc pluralities bind future panels? Or does the Third Circuit follow Supreme Court practice, where the outcome-joining opinion resting on the narrowest ground is the one that is precedential? If so, is that Rendell’s or Smith’s? I’m not sure of the answers to these questions offhand, either. It’s unfortunate the court left this sort of confusion by failing to set straight who joined what.
Another interesting feature of the case is that, according to the dissent’s footnote 1, the rationale adopted by the lead opinion was one advanced not by the defendant, but by an en banc amicus. (The amicus is Amachi, Inc., a religious child-mentoring program started by former Philadelphia Mayor Goode, represented by a big-firm associate.) Fisher expresses concern that this “allows defendants to take the tack most expedient at any point in their appeal.” I doubt it: what sane appellate counsel would make strategy choices based on such far-fetched contingencies? CA3 grants rehearing in about 1 out of 1000 decided cases, and the odds of amicus jumping in for you in an en banc are lower still. However, I do suspect that Amachi’s visible victory here may well embolden future interested parties to get involved as en banc amici, which strikes me as a good thing.
Board of Trustees v. C&S Wholesale -– ERISA — affirmance — McKee
The court decided an ERISA case today.
McKee was joined by Hardiman and Scirica. Arguing counsel were Thomas Hart for the appellant and Susan Hoffman for the appellee.