United States v. Lewis

766 F.3d 255, 2014 WL 4413535

• Court: Court of Appeals for the Third Circuit
• Decided: November 25, 2014
• Docket: No. 10-2931
• Status: Published

Opinions

OPINION OF THE COURT

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 Al-leyne 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.

I.

Although this ease 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)(l)(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 resen-tencing. The government continues to oppose Lewis’s Alleyne argument, however, which is the only issue remaining in this appeal.

II.

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).

III.

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 ApprendilAlleyne

Two bodies of law govern our structural error analysis. The first includes Appren-di 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 “[ojther 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 minimum penalty. 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)(l)(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 Ap-prendi to facts increasing the statutory maximum, the principle applied in Appren-di 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 be submitted to the jury” and found beyond a reasonable doubt. Id. at 2163. Both Apprendi and Alleyne are watershed decisions that continue to have a substantial impact on sentencing law, as will be discussed below.

2. Structural error jurisprudence

The Supreme Court has recognized that “ ‘most constitutional errors can be harmless.’ ” Neder, 527 U.S. at 8, 119 S.Ct. 1827 (quoting Arizona v. Fulminante, 499 U.S. 279, 306, 111 S.Ct. 1246, 113 L.Ed.2d 302 (1991)). In general, if a defendant “ ‘had counsel and was tried by an impartial adjudicator, there is a strong presumption that any other [constitutional] errors that may have occurred are subject to harmless-error analysis.’ ” Id. (quoting Rose v. Clark, 478 U.S. 570, 579, 106 S.Ct. 3101, 92 L.Ed.2d 460 (1986)) (alteration in original). The types of errors identified by the Supreme Court as “ ‘structural’ and thus subject to automatic reversal [are] ‘very limited.’” Id. (quoting Johnson v. United States, 520 U.S. 461, 468, 117 S.Ct. 1544, 137 L.Ed.2d 718 (1997) (listing structural errors as: the complete denial of counsel; a biased trial judge; racial discrimination in the selection of a grand jury; denial of self-representation at trial; denial of a public trial; and a defective reasonable doubt instruction)).

In Neder, the Supreme Court held that a jury instruction that omits an element of an offense is subject to only harmless error review.² 527 U.S. at 15, 119 S.Ct. 1827. In that case, the defendant was charged with several counts of fraud, but the district court failed to instruct the jury on the element of “materiality.” Id. at 4, 119 S.Ct. 1827. In reviewing the error, the Supreme Court acknowledged that “[u]n-like such defects as the complete deprivation of counsel or trial before a biased judge, an instruction that omits an element of the offense does not necessarily render a criminal trial fundamentally unfair or an unreliable vehicle for determining guilt or innocence.” Id. at 9, 119 S.Ct. 1827. As such, the Court looked to other cases involving omission or “misdescription” of an element, and to situations where Sixth Amendment violations occurred because the jury, for various reasons, failed to return a “complete verdict” on each element of an offense. Id. at 10-13, 119 S.Ct. 1827 (citing California v. Roy, 519 U.S. 2, 117 S.Ct. 337, 136 L.Ed.2d 266 (1996) (per curiam) (omission from jury instruction); Carella v. California, 491 U.S. 263, 109 S.Ct. 2419, 105 L.Ed.2d 218 (1989) (per curiam) (jury applied an unconstitutional mandatory conclusive presumption); Pope v. Illinois, 481 U.S. 497, 107 S.Ct. 1918, 95 L.Ed.2d 439 (1987) (jury rendered a finding on the wrong element)). Despite these errors, the Court in each prior instance reviewed for harmlessness, thus supporting the conclusion in Neder that Sixth Amendment errors arising from a jury verdict are not structural defects.

This Court first addressed the implications of structural error in the context of Apprendi in United States v. Vazquez, 271 F.3d 93 (3d Cir.2001) (en Banc). The defendant in Vazquez was charged with conspiring to possess and distribute “more than 5 kilos of cocaine” in violation of 21 U.S.C. §§ 846 and 841. Id. at 96. Neither the government nor the defendant requested an instruction requiring the jury to find a particular quantity of cocaine, but the judge at sentencing found by a preponderance of the evidence that nearly two kilograms of cocaine were attributable to the defendant, and he was sentenced to twenty-four years’ imprisonment. Id. at 96-99.

On appeal we concluded that the defendant’s sentence violated Apprendi because it was imposed based upon a drug quantity finding that increased his guidelines sentence above the twenty-year statutory maximum. Id. at 99. Applying plain error review,³ we accepted that the district court erred and that the error was plain, but engaged in a lengthy discussion about whether the error affected the defendant’s substantial rights.⁴ Id. at 99-100. We addressed that issue in three parts.

We first characterized Apprendi error as a combination of both trial and sentencing error rooted in the Due Process Clause and Sixth Amendment’s notice and jury trial guarantees. Id. at 101. In so concluding, we noted that Apprendi error involves the interplay between errors both at sentencing — “imposing a sentence beyond the prescribed statutory maximum” — and at trial — “failing to submit an element of the offense to the jury.” Id. “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. Thus, an appropriate remedy must recognize that each Apprendi violation is both a trial and a sentencing error.” Id. This conclusion allowed us to review the entire trial record when considering whether “we [could] say beyond a reasonable doubt that the sentence would have been the same absent the trial error.” Id. We also noted that the combined trial and sentencing error paradigm comported with Supreme Court precedent in Neder and Johnson (which both addressed trial errors) insofar as “in those cases the trial error resulted in a constitutional defect, necessitating an inquiry as to whether the defendant’s substantial rights were affected.” Id. at 102.

We next addressed structural error. Relying heavily upon the structural error jurisprudence enunciated in Neder, we concluded that Apprendi error, as a sentencing and trial error, is not structural. Id. at 103. In support, we identified decisions recognizing that both trial error and sentencing error can be harmless. Id. (citing Neder, 527 U.S. at 9, 119 S.Ct. 1827 (trial error harmless); Jones v. United States, 527 U.S. 373, 402-05, 119 S.Ct. 2090, 144 L.Ed.2d 370 (1999) (sentencing error harmless)). Because the errors had been found harmless individually, we determined that they remained harmless even in conjunction with each other. Vazquez, 271 F.3d at 103.

Finally, based upon our review of the trial record, we concluded beyond a reasonable doubt that the defendant’s sentence would have been the same had the jury been properly instructed with respect to drug quantity. Id. at 104. The Ap-prendi error did not affect the defendant’s substantial rights and was, therefore, harmless. Id.

Several Supreme Court decisions since Vazquez have continued to explore the interplay between Apprendi and structural error. The Supreme Court addressed Ap-prendi in the context of indictment and trial error in United States v. Cotton, 535 U.S. 625, 122 S.Ct. 1781, 152 L.Ed.2d 860 (2002). The indictment in that case failed to allege a specific drug quantity that could have led to enhanced penalties under 21 U.S.C. § 841(b), and the jury was likewise not instructed to make a specific finding with respect to drug quantity. Id. at 628, 122 S.Ct. 1781. Cotton was nevertheless sentenced in violation of Apprendi above the statutory maximum based upon the trial judge’s factual findings. Id. No party objected to these errors. Id. at 627, 122 S.Ct. 1781.

In assessing Cotton’s case, the Supreme Court rejected the notion that the failure to allege drug quantity in the indictment was a “jurisdictional defect” that required automatic reversal. Id. at 629-31, 122 S.Ct. 1781. Reviewing for plain error, the Court avoided the question of whether Ap-prendi error is structural and held instead that Cotton’s claim failed under the fourth prong of plain error review. Id. at 632-33, 122 S.Ct. 1781. The Court noted that the drug quantity evidence was “ 'overwhelming’ and ‘essentially uncontroverted,’ ” and thus did not affect the fairness, integrity or public reputation of judicial proceedings. Id. at 633, 122 S.Ct. 1781 (quoting Johnson, 520 U.S. at 470, 117 S.Ct. 1544). In concluding, the Court recognized that:

Respondents emphasize that the Fifth Amendment grand jury right serves a vital function in providing for a body of citizens that acts as a check on prosecu-torial power. No doubt that is true.... But that is surely no less true of the Sixth Amendment right to a petit jury, which, unlike the grand jury, must find guilt beyond a reasonable doubt. The important role of the petit jury did not, however, prevent us in Johnson from applying the longstanding rule “that a constitutional right may be forfeited in criminal as well as civil cases by the failure to make timely assertion of the right.”

Id. at 634, 122 S.Ct. 1781 (quoting Yakus v. United States, 321 U.S. 414, 444, 64 S.Ct. 660, 88 L.Ed. 834 (1944)).⁵

The most recent Supreme Court decision in this area is Washington v. Recuenco, 548 U.S. 212, 126 S.Ct. 2546, 165 L.Ed.2d 466 (2006), which held that error premised on Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004)⁶ is not structural and is subject only to harmless error review. Recuenco, 548 U.S. at 222, 126 S.Ct. 2546. Recuenco is as close as the Supreme Court has come to deciding the issue in this case. The indictment in Recuenco charged the defendant with assault with a deadly weapon and the jury found him guilty of the same. Id. at 215, 126 S.Ct. 2546. Despite the jury’s finding that the defendant committed the assault with a “deadly weapon” (which was subject to a one-year sentencing enhancement) the trial court applied a three-year sentencing enhancement for assault with a “firearm.”⁷ Id. The Supreme Court found the error to be harmless and reaffirmed its holding in Apprendi that sentencing factors and elements are both afforded similar constitutional protections. Id. at 220, 126 S.Ct. 2546.

The Supreme Court also rejected the argument that the sentencing court’s finding amounted to “a directed verdict of guilt on an offense (assault in the second degree while armed with a firearm) greater than the one for which the jury convicted him (assault in the second degree while armed with any deadly weapon).” Id. at 221, 126 5.Ct. 2546. In doing so, the Court analogized to Neder and noted that “[bjecause Neder’s jury did not find him guilty of each of the elements of the offenses with which he was charged, its verdict is no more fairly described as a complete finding of guilt of the crimes for which the defendant was sentenced than is the verdict here.” Id. (noting that the differences between Recuenco’s case and Neder should not be given “constitutional significance”). The Court concluded by holding that “[fjailure to submit a sentencing factor to the jury, like failure to submit an element to the jury, is not structural error.” Id. at 222, 126 S.Ct. 2546.

With these legal principles in mind, we now consider whether Alleyne error of the sort alleged by Lewis is structural or if it is subject only to review for harmlessness.

B. Alleyne error is not structural error

In concluding that the Alleyne error in this case is not structural, we must address Lewis’s argument that his case is unique because the indictment failed to allege the brandishing element. As a result, he maintains that he was charged and convicted of a different crime (use and carrying a firearm) than that for which he was sentenced (brandishing a firearm). This issue represents a subtle difference from the facts in Vazquez, which involved an indictment that charged the proper drug quantity.⁸ Despite this difference, we find that the rationale in Vazquez, along with subsequent Supreme Court precedent, clearly establishes that the Al-leyne error in this case is not structural.

1. Alleyne error and structural error

We note at the outset that Lewis faces an uphill battle with respect to structural error. The Supreme Court has acknowledged a strong presumption that constitutional errors are harmless, and that structural error exists only in a “limited class of eases.” Neder, 527 U.S. at 8, 119 S.Ct. 1827 (internal quotation marks omitted). Bearing these general principles in mind, we now turn to our decision in Vazquez, which held that the analogous Apprendi error is not structural.

The primary difference between the facts of this case and those in Vazquez is the addition of error at the indictment stage.⁹ In Vazquez, the indictment charged a drug quantity that implicated a heightened statutory maximum penalty, whereas the indictment in Lewis’s case failed to charge the “brandishing” element in § 924(c)(l)(A)(ii). The addition of the indictment error in this case implicates the Fifth Amendment right to indictment by a grand jury. We relied in Vazquez on the fact that Apprendi error was “grounded in the Due Process Clause and the Sixth Amendment’s notice and jury trial guarantees.” Vazquez, 271 F.3d at 101. Alleyne recognized the same. 133 S.Ct. at 2156 (“The Sixth Amendment provides that those ‘accused’ of a ‘crime’ have the right to a trial ‘by an impartial jury.’ This right, in conjunction with the Due Process Clause.... ”). Although neither specifically acknowledged it, we see no principled reason why the Fifth and Sixth Amendment rights recognized as potentially harmless in both Vazquez and Alleyne cannot also be read to include the Fifth Amendment right to a grand jury indictment.

Supreme Court precedent in this area strongly supports our conclusion. Neder, like Vazquez, found that a defective jury instruction on an essential element of the offense was subject only to harmless error review. 527 U.S. at 15, 119 S.Ct. 1827. The underlying constitutional error identified in Neder was, of course, the deprivation of the Sixth Amendment right to a jury trial on that element. Id. at 12, 119 S.Ct. 1827. Although Neder was limited to the Sixth Amendment right and did not consider the grand jury right under the Fifth Amendment, the Supreme Court nevertheless acknowledged that “most constitutional errors can be harmless.” Id. at 8, 119 S.Ct. 1827 (internal quotation marks omitted). The Neder Court, in listing the errors it has deemed to be structural, likewise made no mention of the Fifth Amendment right to a grand jury indictment. Id.

Recuenco, on the other hand, extended the reasoning in Neder and found no structural error in a situation where the indictment did not charge a required element. 548 U.S. at 222, 126 S.Ct. 2546. In fact, Recuenco provides the missing link between this case and our analysis in Vazquez because it recognized that errors in an indictment can be harmless.¹⁰ Because Vazquez based its holding upon Supreme Court precedent finding that sentencing and trial error are subject to review for harmlessness, Recuenco now allows us to extend that rationale and conclude that omission of a sentencing factor from an indictment is likewise subject only to harmless error review. Because errors occurring at the indictment, trial, and sentencing phases of proceedings are subject to harmless error review individually, we conclude that the three in conjunction likewise can be harmless. See Vazquez, 271 F.3d at 103. In short, we see no reason why the differences between this case and Vazquez should be given “constitutional significance.” Recuenco, 548 U.S. at 220, 126 S.Ct. 2546.

Our conclusion is also supported by Cotton, which ultimately held that the Sixth Amendment petit jury right, like the Fifth Amendment grand jury right, “serves a vital function ... as a check on prosecuto-rial power.” 535 U.S. at 634, 122 S.Ct. 1781. It went on to state that the Sixth Amendment petit jury right was “at least as important” as the Fifth Amendment grand jury right. Id. The Court, therefore, implied that it would not treat Fifth Amendment indictment error differently than Sixth Amendment trial error because the Fifth Amendment grand jury right is no more sacrosanct — and thus no more worthy of heightened protection — than the Sixth Amendment right that is subject only to harmless error review.

Similarly, we are persuaded by the government’s compelling argument highlighting the nature of the Fifth Amendment grand jury right as it compares to the Sixth Amendment right to a petit jury. Specifically, the government notes that, unlike the right to a petit jury: (1) the Fifth Amendment grand jury right has not been deemed so fundamental as to be applicable to the states by way of the Fourteenth Amendment; (2) the grand jury is not the final arbiter of the facts, and must only find facts by a preponderance of the evidence; and (3) the petit jury provides far greater protection for the accused by operating in public, relying upon admissible evidence from both the prosecution and the accused, and voting unanimously to convict.

The government contends that, based upon the factors listed above, the Sixth Amendment right to a petit jury provides more robust protections that go to the “ ‘framework within which the trial proceeds,’ ” and is thus more worthy of protection under the ambit of structural error than the Fifth Amendment grand jury right. Vazquez, 271 F.3d at 103 (quoting Fulminante, 499 U.S. at 310, 111 S.Ct. 1246). Yet, despite these important considerations, the Supreme Court has never extended the structural error doctrine to include an abridgment of the Sixth Amendment right of the type at issue in this case. See Recuenco, 548 U.S. at 222, 126 S.Ct. 2546 (“Failure to submit a sentencing factor to a jury ... is not structural error.”); Neder, 527 U.S. at 15, 119 S.Ct. 1827 (“The omission of an element [from a jury instruction] is an error that is subject to harmless-error analysis.”). Given the comparative weaknesses in the Fifth Amendment right, the Supreme Court is therefore less likely to find structural error in a situation like Lewis’s. We agree with the government that this consideration weighs in favor of applying harmless error review in this case.

Finally, we note that our decision comports with that of every court of appeals to have addressed this issue in the context of Alleyne error. See United States v. Harakaly, 734 F.3d 88, 94-95 (1st Cir.2013) (noting that “[i]n light of the long line of cases subjecting preserved Apprendi errors to harmless-error review, there would appear to be no basis for finding Alleyne error to be one of those rare cases to which harmless-error review does not apply”); United States v. McKinley, 732 F.3d 1291, 1295-96 (11th Cir.2013) (applying plain error review of Alleyne error in which indictment and jury charge both involved use or carrying of a firearm, but sentence was for brandishing);¹¹ United States v. Mack, 729 F.3d 594, 606-09 (6th Cir.2013) (rejecting structural error argument and analyzing Alleyne error for plain error); United States v. Kirklin, 727 F.3d 711, 718-19 (7th Cir.2013) (applying plain error review to alleged Alleyne error); Lara-Ruiz, 721 F.3d at 557-58 (recognizing that Apprendi errors (and by extension, Alleyne errors) are not structural, but reversing on ground that defendant failed to meet plain error standard).¹² Absent any authority to the contrary, harmless error review is appropriate in this case.

In light of the foregoing, we hold that when an indictment fails to charge a sentencing factor or element of an offense and the jury fails to find the same beyond a reasonable doubt, the resulting Alleyne error is not structural. When properly preserved, such error is reviewed for harmlessness under Rule 52(a).

2. Lewis’s due process, automatic reversal, and constructive amendment arguments

Before we apply the harmless error test, we must address Lewis’s remaining arguments that, even if Alleyne error is not structural, reversal and remand is necessary in his case. He asserts three arguments: First, that due process considerations require reversal where a defendant was charged and convicted of a crime different than that for which he was sentenced; second, that the “automatic reversal” rule requires remand in this case; and third, that his sentence reflects an impermissible constructive amendment of the indictment. We address each argument below.

Due process

Lewis first relies upon the Supreme Court’s decision in Dunn v. United States for the proposition that “appellate courts are not free to revise the basis on which a defendant is convicted simply because the same result would likely obtain on retrial.” 442 U.S. 100, 107, 99 S.Ct. 2190, 60 L.Ed.2d 743 (1979). Dunn, he contends, identifies due process concerns in this case that require reversal. We disagree. Dunn is distinguishable because it involved a challenge to the defendant’s conviction on grounds that the indictment was insufficient to support the conviction.

Dunn turned on whether an interview in an attorney’s office constituted an “ancillary” proceeding as used in 18 U.S.C. § 1623.¹³ 442 U.S. at 102, 99 S.Ct. 2190. The indictment charged that the statements made in the attorney’s office were false because they were inconsistent with the defendant’s prior testimony before a grand jury. Id. at 103-04, 99 S.Ct. 2190. The district court and the court of appeals upheld the conviction based instead on inconsistencies between the defendant’s grand jury testimony and his testimony at an evidentiary hearing (not his statements in the attorney’s office). Id. at 104-05, 99 S.Ct. 2190.

The Supreme Court reversed, concluding that the statements made in the attorney’s office were not “ancillary” to a court proceeding. Id. at 113, 99 S.Ct. 2190. Because the indictment relied solely on the statements in the attorney’s office, it failed to state an offense within the scope of the statute. Id. at 107, 99 S.Ct. 2190. The facts alleged in the indictment against Dunn therefore did not support a finding of any criminal conduct, even though other facts developed at trial did. Lewis, on the other hand, does not challenge his conviction in this appeal. Indeed, there is no dispute over whether the indictment stated an offense. This fact alone is sufficient to distinguish Dunn and render it inapplicable to this case.

Moreover, although Dunn did recognize the potential due process pitfalls associated with an insufficient indictment, its holding is consistent with ours today for two reasons. First, Dunn was decided before the acknowledgement in Neder that most constitutional errors can be harmless. Courts now apply harmless error review even where the indictment fails to include a sentencing factor. See Recuenco, 548 U.S. at 221-22, 126 S.Ct. 2546. To the extent that Dunn did not recognize that constitutional errors can be harmless, it should be limited to its facts and not be broadly applied to situations like Lewis’s. Second, neither Neder nor Apprendi cited Dunn, nor has the Supreme Court found reversal to be necessary when an indictment fails to charge an element of the offense. See, e.g., Cotton, 535 U.S. at 629-33, 122 S.Ct. 1781 (holding that failure to allege an element in the indictment is not a “jurisdictional defect” that requires automatic reversal where evidence of the missing element was “overwhelming” and “essentially uncontroverted”). In light of the subsequent Supreme Court precedent, we conclude that the due process concerns addressed in Dunn only arise in situations where an indictment fails to charge any offense. It is thus not controlling in this case.

Automatic reversal

Lewis’s second argument is that we should apply the so-called “automatic reversal rule” to the Alleyne error in this case. He again relies upon decisions that predate Neder and Apprendi in support, and we reject it on the basis that none of the decisions he cites are analogous to this case.

Much like Dunn, the decisions Lewis cites in support of automatic reversal involved defective indictments that failed to allege any criminal conduct. See United States v. Wander, 601 F.2d 1251, 1258-59 (3d Cir.1979) (failure to allege a subsequent overt act in a prosecution for violation of the Travel Act, 18 U.S.C. § 1952(a)); United States v. Beard, 414 F.2d 1014, 1015 (3d Cir.1969) (failure to allege “unlawful or fraudulent intent” in prosecution for interstate transport of stolen property, 18 U.S.C. § 2314); United States v. Manuszak, 234 F.2d 421, 422-23 (3d Cir.1956) (failure to allege “the specific place or facility from which the goods were taken” in prosecution for theft of goods from an interstate shipment of freight pursuant to 18 U.S.C. § 659); see also United States v. Pickett, 353 F.3d 62, 67-68 (D.C.Cir.2004) (failure to allege that false statements were made “within an ‘investigation or review’ ” in a prosecution for making false statements, 18 U.S.C. § 1001); United States v. Du Bo, 186 F.3d 1177, 1179 (9th Cir.1999) (failure to allege that defendant acted knowingly or willingly in a prosecution under the Hobbs Act, 18 U.S.C. § 1951). Lewis’s reliance on these cases misses the mark because they all address situations where there was no criminal conduct alleged, and thus the indictment was susceptible to dismissal pursuant to Federal Rule of Criminal Procedure 12(b)(3), or arrest of judgment pursuant to Rule 34(a).¹⁴ That is not the situation here, where Lewis does not challenge his indictment or conviction, and where both assert a valid § 924 offense. Because courts of appeals almost universally apply harmless error in Apprendi and Alleyne situations, we reject Lewis’s contention that automatic reversal is appropriate in this case.

Constructive amendment

Lewis’s final argument is based upon the Eighth Circuit’s decision in Larar-Ruiz, which addressed Alleyne error under the plain error standard and found that substantial rights were affected where the defendant “was sentenced for a statutory crime different from that which the jury found him guilty.” 721 F.3d at 558 (addressing situation where the defendant was convicted of using a firearm under § 924 but was sentenced for brandishing). We reject Lewis’s argument because we find Lara-Ruiz’s reasoning to be inconsistent with our interpretation of the substantial rights inquiry under harmless error.

Without explicitly characterizing it as such, the court in Lara-Ruiz appears to have arrived at the outcome in that case by finding a constructive amendment of the indictment. Constructive amendment “occurs where a defendant is deprived of his ‘substantial right to be tried only on charges presented in an indictment returned by a grand jury.’ ” United States v. Syme, 276 F.3d 131, 148 (3d Cir.2002) (quoting United States v. Miller, 471 U.S. 130, 140, 105 S.Ct. 1811, 85 L.Ed.2d 99 (1985)). We have found constructive amendments to be “ ‘per se reversible under harmless error review.’ ” United States v. Daraio, 445 F.3d 253, 259-60 (3d Cir.2006) (quoting Syme, 276 F.3d at 136); see also Stirone v. United States, 361 U.S. 212, 217-19, 80 S.Ct. 270, 4 L.Ed.2d 252 (1960) (seminal decision recognizing constructive amendment).¹⁵ In essence, the Eighth Circuit emphasized the dissonance between the indictment and conviction, on the one hand, and the sentence imposed, on the other.

We are not persuaded by Lewis’s argument based upon Stirone and its progeny because we have suggested in dictum that constructive amendments are not structural errors. Syme, 276 F.3d at 155 n. 10 (‘We note, however, that it is doubtful that constructive amendments are structural errors as the Supreme Court has defined that category.... Notably, neither Johnson nor Neder cited Stirone or listed constructive amendments as one of the narrow class of recognized structural errors.”). “Courts viewing the Apprendi-element pleading error as essentially presenting a constructive amendment issue ... distinguish the Stirone precedent ... in the course of supporting application of a harmless error standard.” LaFave et al., Criminal Procedure § 19.3(a) (citing, inter alia, McCoy v. United States, 266 F.3d 1245, 1253-54 (11th Cir.2001) (finding that Apprendi errors are not constructive amendments subject to automatic reversal under Stirone, but instead represent, at most, a variance subject to harmless error review)). We agree with this approach and likewise reject Lara-Ruiz’s constructive amendment argument.

Multiple courts of appeals have similarly-rejected the notion that the Stirone constructive amendment rule requires per se reversal in Apprendi cases. See McCoy, 266 F.3d at 1253-54; Mojica-Baez, 229 F.3d at 310-11 (rejecting an argument seeking automatic reversal under Stirone and noting that “there is no reason to think the grand jury would have had any trouble in rendering an indictment specifying the weapons used, and there was no variance”). McCoy provides two reasons why automatic reversal is not necessary in Apprendi!Alleyne error situations. First, Apprendi errors do not present “typical” indictment problems, i.e., where the indictment fails to state any offense; instead, the indictment in an Apprendi case “still charges a complete federal offense” McCoy, 266 F.3d at 1253. Second, the court rejected the notion that any variance in an Apprendi case is so substantial as to require automatic reversal. Id. at 1253-54. Specifically, the court noted that “Sti-rone involved a material difference between the facts alleged in the indictment in support of that element — extortion in the transportation of sand from other states into Pennsylvania — and the facts shown at trial — extortion in the transportation of steel from Pennsylvania into Michigan and Kentucky.” Id. at 1253 (citing Stirone, 361 U.S. at 213-14, 80 S.Ct. 270). This difference in proof “materially broadened and altered [the indictment] to such a significant extent as to constitute an entirely new or different theory of the case.” Id. No such difference in proof exists in Alleyne or Apprendi cases, where the only difference is with respect to a particular statutory subsection that aggravates the punishment imposed, not the entire “theory of the case.” Id. We agree with the reasoning in McCoy that constructive amendment does not apply to the facts of this case and ultimately conclude that Lewis’s substantial rights were not affected.

C. Harmless error standard

We now determine whether the facts of this ease demonstrate that the sentence imposed for brandishing was harmless error.¹⁶ Lewis makes no argument with respect to the factual basis for finding harmless error, but the government identifies several facts in the record indicating that both the grand and petit juries in this case would, absent the Alleyne error, have found beyond a reasonable doubt that Lewis brandished a firearm.

In the context of Apprendi error, particularly where the defendant challenges the sentence imposed (as is the case here), we have defined the substantial rights inquiry as “determining whether [the sentence] would have been the same absent the failure to submit [the brandishing element] for a jury determination.” Vazquez, 271 F.3d at 104. That determination must be made beyond a reasonable doubt, and the government bears the burden of proof. Id.; Olano, 507 U.S. at 734, 113 S.Ct. 1770. Because Lewis also alleges error at the indictment stage, we first consider whether the grand jury, if asked, would have charged him with brandishing a firearm.

With respect to the indictment, there is no question that the grand jury did in fact find that the brandishing element was satisfied. The Second Superseding Indictment, in the context of the Hobbs Act count, alleges that the defendants “point[ed] firearms at the customers and employees, order[ed] them to the floor, and threatened] to shoot them.” App. at 70. Section 924 defines “brandishing” as “to display all or part of the firearm, or otherwise make the presence of the firearm known to another person, in order to intimidate that person, regardless of whether the firearm is directly visible to that person.” 18 U.S.C. § 924(c)(4). The allegations already in the indictment, therefore, are more than sufficient to satisfy the brandishing element. The government is correct that had prosecutors asked the grand jury to include this language in the § 924(c) count it would have been included and would have eliminated any defect with respect to the indictment. Any error with respect to the indictment was, therefore, harmless.

The evidence adduced at trial was likewise sufficient to demonstrate beyond a reasonable doubt that Lewis’s sentence would have been the same absent the failure to submit the brandishing element to the jury. See Vazquez, 271 F.3d at 104. The government met its burden by presenting testimony from Anderson and Vazquez, both of whom confirmed that Lewis was one of the three men who entered the speakeasy and “stood in the doorway with the gun on everybody.” App. at 876. Vazquez testified that the gun was “pointed at [him] and pointed at several other people,” App. at 970, and at one point Lewis “pulled [Vazquez’s] shirt up, [and] put the gun to [his] stomach.” App. at 971. He reported “fearing for his life.” App. at 1044-45.

Lewis essentially concedes that this record evidence supports the District Court’s finding that he brandished a firearm during the robbery, and we agree that the testimony supports that conclusion. See Neder, 527 U.S. at 17, 119 S.Ct. 1827 (finding error to be harmless “where a reviewing court concludes beyond a reasonable doubt that the omitted element was uncontested and supported by overwhelming evidence”). Indeed, Lewis presents no evidence to rebut the government’s showing at trial. The testimony from Anderson and Vazquez clearly demonstrates that Lewis went beyond mere “use” of a firearm, and instead brandished it as per the requirements of § 924(c)(4). 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. Any resulting error was therefore harmless.

IV.

For the foregoing reasons we will AFFIRM the sentence imposed by the District Court.

1 . Section 924(c)(1)(A) imposes differing mandatory minimum sentences depending upon whether the defendant “uses or carries,’’ “brandish[es],” or ”discharge[s]” a firearm during a crime of violence or drug trafficking crime.

2 . Federal Rule of Criminal Procedure 52(a) defines harmless error review and provides that “[a]ny error, defect, irregularity, or vari-anee that does not affect substantial rights must be disregarded.”

3 . When a party fails to preserve an issue for appeal we review for plain error, which requires a showing of " ‘(1) error, (2) that is plain, and (3) that affect[s] substantial rights. If all three conditions are met, an appellate court may then exercise its discretion to notice a forfeited error, but only if (4) the error seriously affect[s] the fairness, integrity, or public reputation of judicial proceedings.’ ” Vazquez, 271 F.3d at 99 (quoting Johnson, 520 U.S. at 466-67, 117 S.Ct. 1544).

4 . Importantly, we acknowledged that the substantial rights prong of the plain error analysis is “essentially identical” to harmless error analysis, "with the exception of the burden of proof.” Vazquez, 271 F.3d at 100. The Government has the burden of proof under harmless error, while the defendant has the burden under plain error. Id.

5 . The Supreme Court also explicitly passed on deciding the question at issue in this case, i.e., "whether the omission of an element of a criminal offense from a federal indictment can constitute harmless error,” in United States v. Resendiz-Ponce, 549 U.S. 102, 104, 127 S.Ct. 782, 166 L.Ed.2d 591 (2007) (resolving the issue on other grounds).

6 . Blakely involved the application of Apprendi to a state criminal conviction. 542 U.S. at 301, 124 S.Ct. 2531.

7 . The indictment did acknowledge that the defendant possessed a handgun by charging "intentiona[l] assault ... with a deadly weapon, to-wit: a handgun.” Recuenco, 548 U.S. at 215, 126 S.Ct. 2546. The charge, however, was assault with a deadly weapon, not assault with a firearm. Id.

8 . We recognize that Vazquez addressed Ap-prendi error, but find its reasoning equally applicable to cases implicating Alleyne. See United States v. Lara-Ruiz, 721 F.3d 554, 557 (8th Cir.2013) (applying same standards under both Apprendi and Alleyne error).

9 . Lewis characterizes the error in this case as having occurred at the indictment, trial, and sentencing phases of proceedings. In one sense this is incorrect because the indictment, jury charge, and verdict were all consistent with respect to the "use and carrying” element of § 924. Viewed that way, the error that occurred in this case was limited to sentencing, where the District Court imposed the sentence for brandishing. Error that occurs only at sentencing is not structural. See, e.g., Jones, 527 U.S. at 402-05, 119 S.Ct. 2090. As discussed above, however, this "sentencing-error-only” interpretation is inconsistent with our holding in Vazquez that Apprendi error (along with the corollary Alleyne error) is both trial and sentencing error. 271 F.3d at 101-02. Because Lewis does not seriously challenge the application of the harmless error test (and thus concedes that he loses under harmless error review regardless of when that error occurred), we need not resolve the issue today.

10 . We acknowledge that the indictment in Recuenco did mention that a firearm was present, even though the actual charge was only for assault with a deadly weapon. We find this point to be irrelevant, however, because the indictment in this case also contained allegations of brandishing, albeit not in so many words. See discussion at Section III.C., infra. To the extent that the indictments in this case and in Recuenco contained sufficient allegations in substance if not in form, the two cases are indistinguishable.

11 . We note that almost none of the decisions Lewis cites in his brief involve Apprendi error — which is the most closely analogous situation to his case. This omission is unsurprising because courts of appeals have "almost uniformly held that the failure of the indictment to include the Apprendi — element, like the failure to submit that element to the jury, [is] subject to harmless error review." 5 Wayne R. LaFave et al., Criminal Procedure § 19.3(a) (3d ed.2007). Indeed, courts of appeals routinely subject Apprendi errors at both the indictment and conviction stage to harmless or plain error review. See United States v. Confredo, 528 F.3d 143, 156 (2d Cir.2008) (finding that Apprendi errors stemming from indictment omissions are reviewed for harmless error); United States v. Perez-Ruiz, 353 F.3d 1, 14, 17 (1st Cir.2003) (finding that preserved Apprendi errors are reviewed for harmless error); United States v. Mackins, 315 F.3d 399, 405-06, 409-10 (4th Cir.2003) (recognizing applicability of harmless error review to Apprendi error); United States v. Baptiste, 309 F.3d 274, 277 (5th Cir.2002) (recognizing a change in circuit precedent and applying harmless error review to Ap-prendi error in indictment); United States v. Stewart, 306 F.3d 295, 318-21 (6th Cir.2002) (rejecting structural error argument and applying harmless error review to alleged Ap-prendi error); United States v. Jordan, 291 F.3d 1091, 1095-96 (9th Cir.2002) (applying harmless error where drug quantity was neither alleged in the indictment nor proved to a jury beyond a reasonable doubt, but concluding that record was not sufficient to demonstrate that error was harmless); United States v. Adkins, 274 F.3d 444, 454 (7th Cir.2001) (recognizing that Apprendi errors of failing to allege a drug quantity in an indictment are subject to harmless error review); Vazquez, 271 F.3d at 103 (finding that Apprendi error is not a structural defect); United States v. Smith, 240 F.3d 927, 930 (11th Cir.2001) (recognizing that harmless error review applies to Apprendi errors); United States v. Anderson, 236 F.3d 427, 429 (8th Cir.2001) (applying harmless error review to alleged Apprendi error). Because courts have consistently analyzed Apprendi errors under the paradigm set forth in Rule 52 (either under plain error or harmless error), that practice is persuasive for finding that structural error is not applicable in the present case. See Harakaly, 734 F.3d at 94 (“Since Alleyne is an extension of the Apprendi doctrine, the same standards should apply to Alleyne errors.”).

12 . Lewis cites extensively to the Eighth Circuit’s decision in Lara-Ruiz, but we find that his reliance is misplaced in the context of his structural error argument. That case explicitly rejected the application of structural error with respect to both Apprendi and Alleyne. Lara-Ruiz, 721 F.3d at 557 ("This circuit has held that Apprendi errors do not create structural error that would require per se reversal.... Given this background, and considering that Alleyne was decided to reconcile statutory minimums with the Court’s reasoning in Apprendi ... it follows that review pursuant to Rule 52’s standards should be applied to this case.” (citations omitted)). Structural error was therefore not at issue in Lara-Ruiz.

13 . Section 1623 states, in pertinent part, that "[w]hoever under oath ... in any proceeding before or ancillary to any court or grand jury of the United States knowingly makes any false material declaration ... shall be fined under this title or imprisoned not more than five years, or both.” 18 U.S.C. § 1623(a).

14 . Courts have even applied harmless error where a defect in the indictment could be grounds for dismissal. See, e.g., United States v. Cor-Bon Custom Bullet Co., 287 F.3d 576, 580-81 (6th Cir.2002) (failure to allege an affirmative act in a tax evasion case is harmless error); United States v. Corporan-Cuevas, 244 F.3d 199, 201-02 (1st Cir.2001) (finding that failure to allege an element when there is question as to whether the element is '‘essential” is subject to harmless error); United States v. Mojica-Baez, 229 F.3d 292, 311 (1st Cir.2000) (Ending that the failure to allege an essential element of the offense in the indictment is subject to harmless error review where the indictment otherwise gives the defendant notice of the charges against him).

15 . Stirone relied heavily upon the earlier decision in Ex Parte Bain, 121 U.S. 1, 7 S.Ct. 781, 30 L.Ed. 849 (1887). Bain, however, was later overruled by Cotton “insofar as [Bain] held that a defective indictment deprives a court of jurisdiction.” Cotton, 535 U.S. at 631, 122 S.Ct. 1781. Lewis relies on United States v. Spinner, which, like Bain, found automatic reversal to apply on grounds that "the indictment in [Spinner's] case was jurisdictionally defective.” 180 F.3d 514, 516 (3d Cir.1999). Reversal for jurisdictional reasons is now prohibited by the holding in Cotton, and Spinner is thus of limited utility in this case.

16 . We questioned whether Lewis objected to the "brandishing” element at sentencing for purposes of preserving his Alleyne argument on appeal. The government concedes this point and we are thus satisfied that review for harmless error is appropriate. See Fed. R.Crim.P. 52(a).