A blog of the Philadelphia Bar Association’s Criminal Justice Section

third  circuitBy Burt Rose

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UNITED STATES of America v. Jermel LEWIS, Appellant, No. 10–2931, 2014 WL 4413535 (Sept. 9, 2014) was a decision of the United States Court of Appeals for the Third Circuit in an appeal from the United States District Court for the Eastern District of Pennsylvania (E.D.Pa.2–08–cr–00161–003), before District Judge J. Curtis Joyner. The lawyers were Paul J. Hetznecker, Esq. and AUSA Robert A. Zauzmer, Esq. The judges on the panel were RENDELL, FISHER andCHAGARES. Judge Fisher wrote the Opinion. Judge Rendell wrote a dissenting opinion.

Lewis was sentenced for the crime of brandishing a firearm in relation to a crime of violence, when he had been not been indicted for, and the jury had not convicted him of, that conduct. The District Court sentenced Lewis in accordance with a mandatory minimum of seven years. The issue on appeal was 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 in violation of Alleyne v. United States, 133 S.Ct. 2151 (2013).

Lewis challenged his sentence and contended that the failure of the indictment to charge an Alleyne element, combined withAlleyne error in jury instructions and at sentencing, was structural error. However, the Panel held that the Alleyne error was not structural but rather was subject to harmless or plain error analysis. The evidence supported the District Court’s finding that he certainly did brandish a firearm during a robbery: “It is safe to conclude, therefore, that in light of the overwhelming and uncontroverted evidence in support of the brandishing element that, had the jury been properly instructed on that element, it would have found that element beyond a reasonable doubt.” Because the District Court’s error in Lewis’s case was therefore harmless, the Court affirmed.

According to Judge Rendell, had this error not occurred, Lewis would have been sentenced to a mandatory minimum of only five years. Therefore, this constituted reversible error that was not harmless because it violated Lewis’s Sixth Amendment rights, as announced in Alleyne, and the resulting sentence was more harsh than it ought to have been. Here is her concluding statement:

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 toAlleyne, 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 Alleynedoes 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.

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