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United States v. Jermel Lewis, 3rd Cir. (2015)
United States v. Jermel Lewis, 3rd Cir. (2015)
United States v. Jermel Lewis, 3rd Cir. (2015)
OPINION
Harris had held that it did not violate the Fifth or Sixth
Amendment for a judge to make a judicial finding by a
preponderance of the evidence that a defendant had
brandished a firearm, thereby increasing the defendants
mandatory minimum. 536 U.S. at 567-68.
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United States v. Pizarro, 772 F.3d 284, 294 (1st Cir. 2014)
(In Alleyne itself, the error was of the sentencing variety.).
We are not alone in reaching this conclusion, as the Courts of
Appeals for both the Fourth and Ninth Circuits have treated
particular Apprendi errors as sentencing errors. See, e.g.,
United States v. Mackins, 315 F.3d 399, 409-10 (4th Cir.
2003); United States v. Jordan, 291 F.3d 1091, 1095-97 (9th
Cir. 2002).5
This is not to say that all Alleyne or Apprendi errors
are pure sentencing errors. In United States v. Vazquez, 271
F.3d 93 (3d Cir. 2001) (en banc), we were confronted with
both a trial error and a resulting sentencing error. We noted
in Vazquez that, for the particular Apprendi error in that case,
the sentencing error (imposing a sentence beyond the
prescribed statutory maximum) is inextricably intertwined
with a trial error (failing to submit an element of the offense
to the jury). Id. at 101. The jury in Vazquez was never
instructed on one of the elements of the offense, i.e., drug
quantity, for which the defendant was indicted, tried, and
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IV. Conclusion
For the foregoing reasons, we will vacate the District
Courts sentence and remand for resentencing.
the error to be harmless, it must be clear that the error did not
affect the district courts selection of the sentence imposed.).
If the Government meets its heavy burden to show that the
error would have made no difference to the sentencei.e.,
had the defendant been sentenced for the crime for which he
was convicted, his sentence would have been the samethen
we may affirm under harmless-error review. However, we
would remand for resentencing unless we are certain that the
error made no difference to the sentence.
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530 U.S. 466 (2000), in which the defendant was charged and
tried for conspiracy to possess and distribute more than five
kilograms of cocaine, a quantity sufficient to warrant an
enhanced sentence. Vazquez, 271 F.3d at 98. But the jury
was not asked to find drug quantity. Id. Nevertheless, the
district court sentenced the defendant to 292 months
incarcerationover four years more than the applicable
statutory maximum for a conviction without quantityafter
finding by a preponderance that the defendant had been
involved with1 nearly two kilograms of cocaine. Id. at 98
99. While the case was on direct appeal, the Supreme Court
decided Apprendi.
Id. at 99.
Applying Apprendi
retroactively, we said the failure to submit drug quantity to
the jury yet imposing an enhanced sentence for quantity was
not just a sentencing error but also a trial error because
the sentencing error (imposing a sentence
beyond the prescribed statutory maximum) is
inextricably intertwined with a trial error
(failing to submit an element of the offense to
the jury). On the one hand, the trial error exists
only because of the sentencing error. On the
other hand, the sentencing error cannot occur
without the trial error.
Id. at 101. Thus, we chose not to view the error in Vazquez as
a pure sentencing error because the realities concerning the
nature of Apprendi violations required a different result. Id.
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III.
For these reasons, I would hold that a sentencing
courts imposition of a sentence for an aggravated crime that
was not charged in a defendants indictment constitutes
structural error. On that basis, I would vacate the District
Courts judgment and remand for resentencing based on the
crime of which Lewis was actually convicted.
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